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) February 28, 2005
WINTHROP GROWTH INVESTORS I LIMITED PARTNERSHIP
(Exact name of Registrant as specified in its charter)
Massachusetts 2-84760 04-2839837
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation or File Number) Identification Number)
organization)
55 Beattie Place
Post Office Box 1089
Greenville, South Carolina 29602
(Address of principal executive offices)
(864) 239-1000
(Issuer's telephone number)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligations of the registrant under any of the
following provisions:
[ ] Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17
CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement.
Winthrop Growth Investors I Limited Partnership (the "Registrant") owns the 100%
interest in Stratford Place Investors Limited Partnership (the "Partnership").
On February 28, 2005, the Partnership entered into a Purchase and Sale contract
(the "Purchase Agreement") with FF Realty LLC (the "Purchaser"), a third-party,
relating to the purchase and sale of the Partnership's only investment property,
Stratford Place Apartments, a 350-unit apartment complex located in
Gaithersburg, Maryland (the "Property").
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, a copy of which is filed as Exhibit 10.5 to this report and
incorporated herein by reference.
PURCHASE PRICE. The purchase price is $29,000,000. The purchase price is subject
to prorations and adjustments at the Closing (as defined below) as provided for
in the Purchase Agreement. The Purchaser delivered a deposit of $1,000,000, of
which $150,000 is non-refundable.
CLOSING. The closing of the sale is to occur forty-five days 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 one time for up to 30 days by delivering written notice to the
Seller no later than 15 days prior to the Closing Date. The anticipated closing
date for the transaction is May 16, 2005.
COSTS AND FEES. The Purchaser will pay all of the mortgage taxes and recording
costs, any premiums or fees required to be paid by the Purchaser with respect to
the title policy and one half of the customary closing costs of the escrow
agent. The Purchaser and the Partnership will split the cost of the transfer
taxes and recording taxes.
REPRESENTATIONS AND WARRANTIES. The Partnership and the Purchaser each made
limited representations and warranties to the other party.
CONDITIONS TO CLOSING AND CLOSING DELIVERIES. The closing is subject to
customary closing conditions and deliveries.
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.
ASSIGNMENT. The Purchase Agreement is not assignable by the Purchaser to any
party other than an affiliate of the Purchaser without first obtaining the prior
written approval of the Partnership.
DEFAULTS AND REMEDIES. If the Purchaser defaults in its obligations to deliver
when required any required deposits, the purchase price or any other specified
deliveries, then the Purchaser shall forfeit such deposits to the Partnership,
and neither party shall be obligated to proceed with the purchase and sale of
the Property.
If the Partnership, prior to the Closing, defaults in its representations,
warranties, covenants, or obligations then the Purchaser has the option of (i)
terminating the Purchase Agreement, having returned any deposits made by the
Purchaser, and recovering, as its sole recoverable damages its documented direct
and actual out-of-pocket expenses and costs up to $250,000 or (ii) seeking
specific performance of the Partnership's obligation to deliver the deed
pursuant.
Item 9.01 Financial Statements and Exhibits.
(c) Exhibits (1).
10.5 Purchase and Sale Contract between Stratford Place Investors Limited
Partnership, a Delaware limited partnership, as Seller, and FF
Realty LLC, a Delaware limited liability company, as Purchaser,
effective February 28, 2005.
(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.
WINTHROP GROWTH INVESTORS I LIMITED
PARTNERSHIP
By: AIMCO/Winthrop Growth Investors I, LLC
Managing General Partner
By: /s/Martha L. Long
Martha L. Long
Senior Vice President
Date: March 4, 2005
Exhibit 10.5
PURCHASE AND SALE CONTRACT
BETWEEN
STRATFORD PLACE INVESTORS LIMITED PARTNERSHIP,
a Delaware limited partnership
AS SELLER
AND
FF REALTY LLC,
a Delaware limited liability company
AS PURCHASER
(Stratford Place)
Table of Contents
Page
ARTICLE 1 DEFINED TERMS......................................................1
ARTICLE 2 PURCHASE AND SALE OF PROPERTY......................................3
ARTICLE 3 PURCHASE PRICE & DEPOSIT...........................................4
ARTICLE 4 FINANCING/LOAN ASSUMPTION..........................................5
ARTICLE 5 FEASIBILITY PERIOD.................................................5
ARTICLE 6 TITLE..............................................................7
ARTICLE 7 CLOSING............................................................9
ARTICLE 8 REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND
PURCHASER.............................................................14
ARTICLE 9 CONDITIONS PRECEDENT TO CLOSING...................................18
ARTICLE 10 BROKERAGE........................................................19
ARTICLE 11 POSSESSION.......................................................20
ARTICLE 12 DEFAULTS AND REMEDIES............................................20
ARTICLE 13 RISK OF LOSS OR CASUALTY.........................................21
ARTICLE 14 RATIFICATION.....................................................21
ARTICLE 15 EMINENT DOMAIN...................................................21
ARTICLE 16 MISCELLANEOUS....................................................22
ARTICLE 17 LEAD-BASED PAINT DISCLOSURE......................................27
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT ("Purchase Contract" or the "Agreement")
is entered into as of the 28th day of February, 2005 (the "Effective Date") by
and between STRATFORD PLACE INVESTORS LIMITED PARTNERSHIP, a Delaware limited
partnership, having a principal address at 4582 South Ulster Street Parkway,
Suite 1100, Denver, Colorado 80237 ("Seller") and FF REALTY LLC, a Delaware
limited liability company, having a principal address at 5510 Morehouse Drive,
Suite 200, San Diego, California 92121 ("Purchaser").
NOW, THEREFORE WITNESSETH: That for and in consideration of mutual
covenants and agreements hereinafter set forth, Seller and Purchaser hereby
agree as follows:
RECITALS
R-1...Seller holds legal title to the real estate located in Montgomery
County, Maryland, as more particularly described in Exhibit A attached hereto
and made a part hereof. Improvements have been constructed on the property
described in this Recital.
R-2...Purchaser desires to purchase and Seller has agreed to sell such
land, improvements and certain associated property, defined below as the
"Property" on the terms and conditions set forth below, (which terms and
conditions shall control in the event of any conflict with these Recitals), such
that on the Closing Date (as hereinafter defined) the Property will be conveyed
by special warranty deed to Purchaser.
R-3...Purchaser has agreed to pay to Seller the Purchase Price for the
Property, and Seller has agreed to sell the Property to Purchaser, on the terms
and conditions set forth below.
R-4...Purchaser intends to make investigations regarding the Property, and
Purchaser's intended uses of each of the Property as Purchaser deems necessary
and desirable.
ARTICLE 1...
DEFINED TERMS
1.1 Unless otherwise defined herein, terms with initial capital letters in this
Purchase Contract shall have the meanings set forth in this ARTICLE 1 below.
1.1.1 "Business Day" means any day other than a Saturday or Sunday or Federal
holiday or legal holiday in the State of Maryland.
1.1.2 "Closing" means the consummation of the purchase and sale and related
transactions contemplated by this Purchase Contract in accordance with the terms
and conditions of this Purchase Contract.
1.1.3 "Closing Date" means the date on which date the Closing of the conveyance
of the Property is required to be held under the terms and conditions of this
Purchase Contract and on which date full payment of the Purchase Price for the
Property shall have been paid to and received by Seller in immediately available
U.S. funds.
1.1.4 "Excluded Permits" means those Permits which, under applicable law, are
nontransferable and such other Permits as may be designated as Excluded Permits
on Exhibit 1.1.4, if any, attached hereto.
1.1.5 Intentionally Omitted.
1.1.6 "Fixtures and Tangible Personal Property" means all fixtures, furniture,
furnishings, fittings, equipment, machinery, apparatus, appliances and all other
articles of tangible personal property. The term "Fixtures and Tangible Personal
Property" does not include (i) equipment leased by Seller and the interest of
Seller in any equipment provided to the Property for use, but not owned or
leased, by Seller, or (ii) property owned or leased by Tenants and guests,
employees or other persons furnishing goods or services to the Property, or
(iii) property and equipment owned by Seller, which in the ordinary course of
business of the Property is not used exclusively for the business, operation or
management of the Property or (iv) the property and equipment, if any, expressly
identified in Exhibit 1.1.6.
1.1.7 "Improvements" means all buildings and improvements, located on the Land
taken "as is".
1.1.8 "Land" means all of those certain tracts of land located in the State of
Maryland described on Exhibit "A" attached hereto, and all rights, privileges
and appurtenances pertaining thereto.
1.1.9 "Lease(s)" means the interest of Seller in and to all leases, subleases
and other occupancy agreements, whether or not of record, which provide for the
use or occupancy of space or facilities on or relating to the Property and which
are in force as of the Effective Date for the Property.
1.1.10......"Lender Fees" shall have the meaning set forth in Section 7.1.6.
1.1.11......"Miscellaneous Property Assets" means all contract rights, leases,
concessions, warranties, plans, drawings and other items of intangible personal
property relating to the ownership or operation of the Property and owned by
Seller, excluding, however, (i) receivables, (ii) Property Contracts, (iii)
Leases, (iv) Permits, (v) cash or other funds, whether in petty cash or house
"banks," or on deposit in bank accounts or in transit for deposit, (vi) refunds,
rebates or other claims, or any interest thereon, for periods or events
occurring prior to the Closing Date, (vii) utility and similar deposits, or
(viii) insurance or other prepaid items or (ix) Seller's proprietary books and
records, except to the extent that Seller receives a credit on the closing
statement for any such item. The term "Miscellaneous Property Assets shall also
include the following, but only to the extent owned by Seller and in Seller's
possession: site plans, surveys, soil and substrata studies, architectural
renderings, plans and specifications, engineering plans and studies, floor
plans, tenant data sheets, landscape plans and other plans or studies of any
kind, if any, which relate to the Land and or the Improvements or the Fixtures
and Tangible Personal Property. The term "Miscellaneous Property Assets" shall
also include all of Seller's rights, if any, in and to the name "Stratford
Place".
1.1.12......"Permits" means all licenses and permits granted by governmental
authorities having jurisdiction over the Property in respect of the matter to
which the applicable license or permit applies and owned by Seller and used in
or relating to the ownership, occupancy or operation of the Property or any part
thereof not subject to a Lease.
1.1.13......"Permitted Exceptions" means those exceptions or conditions
permitted to encumber the title to the Property in accordance with the
provisions of Section 6.2.
1.1.14......"Property" means the Land and Improvements and all rights of Seller
relating to the Land and the Improvements, including without limitation, any
rights, title and interest of Seller, if any, in and to (i) any strips and gores
adjacent to the Land and any land lying in the bed of any street, road, or
avenue opened or proposed, in front of or adjoining the Land, to the center line
thereof; (ii) any unpaid award for any taking by condemnation or any damage to
the Property by reason of a change of grade of any street or highway; (iii) all
of the easements, rights, privileges, and appurtenances belonging or in any way
appertaining to the Property; together with all Fixtures and Tangible Personal
Property, the right, if any and only to the extent transferable, of Seller in
and to Property Contracts and Leases, Permits other than Excluded Permits and
the Miscellaneous Property Assets owned by Seller which are located on the
Property and used in its operation.
1.1.15......"Property Contracts" means all purchase orders, maintenance,
service, or utility contracts and similar contracts, which relate to the
ownership, maintenance, construction or repair and/or operation of the Property
and which are not cancelable on 30 days' or shorter Notice, except Leases.
1.1.16......"Purchase Contract" means this Purchase and Sale Contract by and
between Seller and Purchaser.
1.1.17......"Purchase Price" means the total consideration to be paid by
Purchaser to Seller for the purchase of the Property.
1.1.18......"Survey" shall have the meaning ascribed thereto in Section 6.7.
1.1.19......"Tenant" means any person or entity entitled to occupy any portion
of the Property under a Lease.
1.1.20......"Title Commitment" or "Title Commitments" shall have the meaning
ascribed thereto in Section 6.1.
1.1.21......"Title Insurer" shall have the meaning set forth in Section 6.1.
ARTICLE 2...
PURCHASE AND SALE OF PROPERTY
2.1 Seller agrees to sell and convey the Property to Purchaser and Purchaser
agrees to purchase the Property from Seller, in accordance with the terms and
conditions set forth in this Purchase Contract.
ARTICLE 3...
PURCHASE PRICE & DEPOSIT
3.1 The total purchase price ("Purchase Price") for the Property shall be Twenty
Nine Million and No/100 Dollars ($29,000,000.00), plus the amount of the Lender
Fees, which shall be paid by Purchaser, as follows:
3.1.1 On the date hereof, Purchaser shall deliver to STEWART TITLE GUARANTY
COMPANY ("Escrow Agent" or the "Title Insurer") a deposit in the sum of One
Million and No/100 Dollars ($1,000,000.00), in cash, (such sum being hereinafter
referred to and held as the "Deposit"). On the date hereof, the first One
Hundred and Fifty Thousand and No/100 Dollars ($150,000.00) of the Deposit shall
be released to Seller (the "Initial Released Funds") and shall be non-refundable
to Purchaser, unless (a) Montgomery County, the Montgomery County Housing
Commission or tenant organization exercises the right of first refusal to
purchase and close on the Property, pursuant to Montgomery County Code, Chapter
11A or Chapter 53A, (b) the Contract terminates pursuant to Section 12.2 as a
result of Seller's default or (c) the Contract terminates pursuant to Section
13.1 because of casualty or condemnation. Purchaser and Seller each approve the
form of Escrow Agreement attached as Exhibit B.
3.1.2 At or before 5:00 p.m. Eastern time on the date of expiration of the
Feasibility Period, provided Purchaser has not terminated this Purchase Contract
pursuant to Section 5.2 below, Purchaser shall release to Seller another One
Hundred and Fifty Thousand and No/100 Dollars ($150,000.00) of the Deposit (the
"Additional Released Funds," together with the Initial Released Funds, the
"Released Funds"), which shall be non-refundable, except as provided for in
Section 3.1.1. The remaining Seven Hundred Thousand and No/100 Dollars
($700,000.00) of the Deposit shall also be non-refundable to the Purchaser,
except as provided for in Section 3.1.1.
3.1.3 The Escrow Agent shall hold the Deposit and make delivery of the Deposit
to the party entitled thereto under the terms hereof. Escrow Agent shall invest
the Deposit in such short-term, high-grade securities, interest-bearing bank
accounts, money market funds or accounts, bank certificates of deposit or bank
repurchase agreements as Escrow Agent, in its discretion, deems suitable,
(provided that Escrow Agent shall invest the Deposit as directed by Purchaser
and consented to by Seller (which consent shall not be unreasonably withheld,
conditioned or delayed) should Purchaser determine to issue such investment
instructions to the Escrow Agent) and all interest and income thereon shall
become part of the Deposit and shall be remitted to the party entitled to the
Deposit, as set forth below.
3.1.4 If the sale of the Property is closed by the date fixed therefor (or any
extension date provided for herein), monies held as the Deposit, including the
Released Funds, shall be applied to the Purchase Price on the Closing Date.
3.1.5 If the sale of the Property is not closed by the date fixed therefor (or
any such extension date) owing to a default by Seller, Purchaser shall be
entitled to the remedies set forth in ARTICLE 12 hereof. If the sale of the
Property is not closed by the date fixed therefor (or any such extension date)
owing to a default by Purchaser, the Deposit shall be forfeited by Purchaser and
the sum thereof shall go to Seller forthwith as liquidated damages for the lost
opportunity costs and transaction expenses incurred by Seller, as more fully set
forth in ARTICLE 12 below.
ARTICLE 4...
FINANCING/LOAN ASSUMPTION
4.1 Intentionally Deleted.
4.2 Intentionally Deleted.
4.3 Intentionally Deleted.
4.4 Intentionally Deleted.
4.5 Intentionally Deleted.
4.5.1 Intentionally Deleted.
4.5.2 Intentionally Deleted.
4.6 Intentionally Deleted.
ARTICLE 5...
FEASIBILITY PERIOD
5.1 Subject to the terms of Section 5.3 below, for the period commencing on the
date hereof and ending thirty (30) calendar days thereafter (the "Feasibility
Period"), Purchaser, and its agents, contractors, engineers, surveyors,
attorneys, and employees ("Consultants") shall have the right from time to time
to enter onto the Property:
5.1.1 To conduct and make any and all customary studies, tests, examinations and
inspections, or investigations of or concerning the Property (including without
limitation, engineering and feasibility studies, evaluation of drainage and
flood plain, soil tests for bearing capacity and percolation and surveys,
including topographical surveys).
5.1.2 To confirm any and all matters which Purchaser may reasonably desire to
confirm with respect to the Property.
5.1.3 To ascertain and confirm the suitability of the property for Purchaser's
intended use of the Property.
5.1.4 To review all Materials (as hereinafter defined) other than Seller's
proprietary information, including, Materials held by the Property Manager and
the Regional Property Manager (as defined in Section 8.1.4 of this Purchase
Contract).
5.2 Purchaser shall have the right to terminate this Purchase Contract for any
reason, or no reason, on or before 5:00 p.m. Eastern time on the date of
expiration of the Feasibility Period. Unless Purchaser delivers written Notice
to Seller and Escrow Agent waiving its contingencies under Articles 5 and 6 on
or before 5:00 p.m. Eastern time on the date of expiration of the Feasibility
Period, this Purchase Contract shall terminate and be of no further force and
effect, subject to and except for Purchaser's liability under Section 5.3, and
Escrow Agent shall promptly return the Deposit, less the Initial Released Funds,
to Purchaser. If Purchaser delivers such written Notice of waiver prior to the
end of the Feasibility Period in strict accordance with the Notice provisions of
this Purchase Contract, this Purchase Contract shall remain in full force and
effect and Purchaser's obligation to purchase the Property shall be
non-contingent and unconditional except only for satisfaction of the conditions
expressly stated in ARTICLE 5 and ARTICLE 9.
5.3 Purchaser shall indemnify and hold Seller harmless for any actions taken by
Purchaser and its Consultants on the Property. Purchaser shall indemnify, defend
(with attorneys selected by Seller) and hold Seller harmless from any and all
actual claims, damages, costs and liability which may arise due to such entries,
surveys, tests, investigations and the like; provided, however, that the
foregoing indemnification obligation shall not include any claims for (a)
diminution in value arising out of Purchaser's discovery of any pre-existing
hazardous condition on the Property but only to the extent such condition is not
exacerbated by Purchaser, or (b) any losses arising out of the gross negligence
or willful misconduct of Seller. Seller shall have the right, without
limitation, to disapprove any and all entries, surveys, tests, investigations
and the like that in their reasonable judgment could result in any injury to the
Property which could not reasonably be repaired within a reasonable time, or
breach of any agreement, or expose Seller to any liability, costs, liens or
violations of applicable law, or otherwise adversely affect the Property or
Seller's interest therein (as reasonably determined by Seller). No consent by
the Seller to any such activity shall be deemed to constitute a waiver by Seller
or assumption of liability or risk by Seller. Purchaser hereby agrees to restore
the Property to the same condition existing immediately prior to Purchaser's
exercise of its rights pursuant to this ARTICLE 5 at Purchaser's sole cost and
expense. Purchaser shall maintain casualty insurance and comprehensive public
liability insurance with coverages of not less than $1,000,000.00 for injury or
death to any one person and $3,000,000.00 for injury or death to more than one
person and $500,000.00 with respect to property damage, by water or otherwise.
The provisions of this Section shall survive the Closing or termination of this
Purchase Contract.
5.4 Purchaser shall not permit any mechanic's or materialmen's liens or any
other liens to attach to the Property by reason of the performance of any work
or the purchase of any materials by Purchaser or any other party in connection
with any studies or tests conducted by or for Purchaser. Purchaser shall give
notice to Seller a reasonable time prior to entry onto the Property, shall
deliver proof of insurance coverage required above to Seller and shall permit
Seller to have a representative present during all investigations and
inspections conducted with respect to the Property. Purchaser shall take all
reasonable actions and implement all protections necessary to ensure that all
actions taken in connection with the investigations and inspections of the
Property, and all equipment, materials and substances generated, used or brought
onto the Property pose no material threat to the safety of persons or the
environment and cause no damage to the Property or other property of Seller or
other persons. All information made available by Seller to Purchaser in
accordance with this Purchase Contract or obtained by Purchaser in the course of
its investigations shall be treated as confidential information by Purchaser,
and, prior to the purchase of the Property by Purchaser, Purchaser shall use its
best efforts to prevent its Consultants, agents and employees from divulging
such information to any unrelated third parties except as reasonably necessary
to third parties engaged by Purchaser for the limited purpose of analyzing and
investigating such information for the purpose of consummating the transaction
contemplated by this Purchase Contract, including Purchaser's attorneys and
representatives, prospective lenders and investors and their attorneys, and
engineers.
5.5 Seller shall deliver to Purchaser within ten (10) calendar days from the
Effective Date copies of all leases, contracts, engineering studies, surveys and
other materials (the "Materials") in Seller's possession or control relating to
the Property (other than proprietary information of Seller). If the sale of the
Property is not closed by the date fixed therefor, Purchaser shall, within five
(5) calendar days, return all such Materials and tax returns referenced in
Section 5.6. to Seller. During the Feasibility Period, Seller and Purchaser
shall jointly prepare a list of the personal property intended to be conveyed to
Purchaser at the Closing.
5.6 Seller shall deliver to Purchaser within ten (10) calendar days from the
Effective Date copies of Seller's tax returns, other than any consolidated tax
returns, for the period in which Seller has been owned by AIMCO affiliates. In
providing such tax returns 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.
Purchaser shall not in any way be entitled to rely upon the accuracy of such
information. Purchaser recognizes and agrees that the tax returns 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 tax returns required to be
delivered or made available by Seller pursuant to this Contract, Purchaser will
not rely on such tax returns as being a complete and accurate source of
information with respect to the Property, and will instead in all instances rely
exclusively on its own due diligence with respect to all matters which it deems
relevant to its decision to acquire, own and operate the Property.
5.7 Upon the expiration of the Feasibility Period, Purchaser may obtain income
certifications from Tenants. Seller is under no obligation to assist Purchaser
in obtaining such income certifications.
ARTICLE 6...
TITLE
6.1 Seller shall promptly obtain from Stewart Title Guaranty Company, 1980 Post
Oak Boulevard, Suite 610, Houston, Texas 77056, Attention: Ms. Wendy Howell,
Facsimile (713) 552-1703 (the "Title Insurer") a preliminary title report or
commitment (the "Title Commitment") to issue an Owner's Policy of Title
Insurance (the "Title Policy") insuring Purchaser's title to the Property to be
good and indefeasible in the amount of the Purchase Price, subject only to the
Permitted Exceptions (described below) and other liens and encumbrances not
constituting objections to title in accordance herewith. A copy of the Title
Commitment and the documents of record reflected therein and Seller's existing
survey shall be furnished to the Purchaser and attorney for Seller. On or before
the expiration of the Feasibility Period, Purchaser shall give written notice
(the "Objection Notice") to the attorneys for Seller of any conditions of title
which Purchaser is not obligated to take the Property subject to pursuant to the
provisions of this Agreement (the "Objections") separately specifying and
setting forth each of such Objections. Seller shall be entitled to reasonable
adjournments of the Closing Date to cure the Objections. If Purchaser gives
Seller an Objection Notice within the period set forth above, then all matters
disclosed on the Title Commitment which are not objected to in such Objection
Notice shall be deemed to be Permitted Exceptions. If Purchaser fails to give
Seller an Objection Notice within the period set forth above, then all matters
disclosed on the Title Commitment shall be deemed to be Permitted Exceptions.
6.2 If Seller gives Purchaser notice (the "Response Notice") that Seller is
unable or unwilling to convey title to the Property as required by this Purchase
Agreement, Purchaser may, as its exclusive remedy, elect by written notice given
to Seller within five (5) days after the Response Notice is given, either (a) to
accept such title as Seller is able to convey without any reduction or abatement
of the Purchase Price, or (b) to terminate this Purchase Contract in which event
the Deposit, including the Released Funds, shall be returned to Purchaser. If
Purchaser fails to give notice of its election to terminate this Agreement
within such five (5) day period, Purchaser shall be deemed to have waived said
objections and to have elected to proceed to close the transactions contemplated
by this Purchase Contract.
6.3 The existence of liens or encumbrances other than the Permitted Exceptions
or those which are permitted by this Purchase Contract shall be deemed to be
Permitted Exceptions if the Title Insurer will insure Purchaser's title clear of
the matter or will insure against the enforcement of such matter out of the
Property, and such lien or encumbrance would not adversely affect Purchaser's
rights in the Property (as reasonably determined by Purchaser). Unpaid liens for
real estate and personal property taxes for years prior to the fiscal year in
which the Closing Date occurs and any other matter which Seller is obligated to
pay and discharge at the Closing shall not be deemed objections to title, but
the amount thereof chargeable to Seller, plus interest and penalties thereon, if
any, shall be deducted from the Purchase Price on the Closing Date and paid to
the Title Insurer for the payment of such matters; provided, however, Purchaser
shall be responsible for paying the Lender Fees.
6.4 Intentionally Deleted.
6.5 Intentionally Deleted.
6.6 Seller covenants that it will not voluntarily create or cause any lien or
encumbrance to attach to the Property between the date of this Purchase Contract
and the Closing Date (other than Leases in the ordinary course of business for a
term not exceeding twelve (12) months, and Property Contracts in the ordinary
course of business which can be terminated on thirty (30) days or less notice
without penalty); any such monetary lien or encumbrance so attaching by
voluntary act of Seller (hereinafter, a "Voluntary Intervening Lien") shall be
discharged by the Seller at or prior to Closing on the Closing Date or any
postponed Closing Date. Except as expressly provided above, Seller shall not be
required to undertake efforts to remove any other lien, encumbrance, security
interest, exception, objection or other matter, to make any expenditure of money
or institute litigation or any other judicial or administrative proceeding and
Seller may elect not to discharge the same; provided, however, if any lien or
encumbrance (other than a Voluntary Intervening Lien) attaches to the Property
between the date of this Purchase Contract and the Closing Date, Seller shall be
required to satisfy or discharge said lien or encumbrance at or prior to the
Closing, provided that Seller shall not be required to expend more than $250,000
in connection with such satisfaction or discharge. If any new exception to title
arises after the expiration of the Feasibility Period which Purchaser
disapproves within five (5) days after notice thereof, and Seller does not elect
to cure, or if the amount required to satisfy or discharge any lien or
encumbrance (other than an Voluntary Intervening Lien) exceeds $250,000,
Purchaser shall have the option of either (a) with respect to any such lien or
encumbrance (other than an Voluntary Intervening Lien) paying the excess amount
over $250,000 required to satisfy or discharge such lien, and proceeding to the
Closing, and with respect to any other encumbrance, accept such title as Seller
is willing to convey without any reduction or abatement of the Purchase Price or
(b) terminating this Purchase Contract, in which case, the Deposit shall be
returned and refunded to Purchaser and neither party shall have any further
liability hereunder, subject to and except for Purchaser's liability under
Section 5.3 of this Purchase Contract. Seller shall have no option to terminate
this Purchase Contract if Purchaser has elected to pay the amount in excess of
$250,000 to satisfy or discharge such lien or encumbrance.
6.7 Within 3 Business Days after the Effective Date, Seller shall deliver to
Purchaser any existing survey of the Property (the "Existing Survey") which to
Seller's knowledge is in Seller's possession or reasonable control; provided,
however, in the event that such Existing Survey was prepared in connection with
the sale of the Property, then Seller shall deliver the same to Purchaser and
Purchaser shall pay the costs thereof if the cost to have the Existing Survey
conform to the requirements of Purchaser and Purchaser's lender do not exceed
$5,000.00 (if such conformance costs are greater than $5,000.00, Seller shall
not be reimbursed for its costs on the Existing Survey, but Purchaser shall be
responsible for its own costs incurred in connection with such conformance).
Additionally, Purchaser at Purchaser's sole cost and expense, may cause to be
prepared a survey for the Property (or an update to the Existing Survey)
(together with the Existing Survey, referred to herein as the "Survey") to be
delivered to Purchaser and Seller within the Feasibility Period. The Survey (i)
shall be in a form, and shall be certified as of a date satisfactory to Title
Insurer to enable Title Insurer to delete standard survey exceptions from the
title insurance policy to be issued pursuant to the Title Commitments, except
for any Permitted Exceptions; (ii) shall contain a perimeter legal description
of the Property which may be used in the special warranty deed or equivalent
deed; and (iii) shall be certified to Purchaser, Seller and Title Insurer as
being true and correct. In the event the perimeter legal description of the
Property contained in the Survey differs from that contained in the deed or
deeds by which Seller took title to the Property, the latter description shall
be used in the special warranty deed delivered to Purchaser at Closing.
6.7.1 Should such Survey disclose conditions that give rise to a title exception
other than a Permitted Exception, Purchaser shall have the right to object
thereto within the Feasibility Period in accordance with the procedures set
forth in ARTICLE 5 above.
ARTICLE 7...
CLOSING
7.1 Dates, Places Of Closing, Prorations, Delinquent Rent and Closing Costs.
7.1.1 The Closing shall occur forty-five (45) calendar days after the expiration
of the Feasibility Period. The Closing shall occur through an escrow with Escrow
Agent, whereby the Seller, Purchaser and their attorneys need not be physically
present at the Closing and may deliver documents by overnight air courier or
other means.
7.1.2 The Closing Date may be extended without penalty at the option of Seller
to a date not later than thirty (30) days following the Closing Date specified
above to satisfy a condition to be satisfied by Seller, or such later date as is
mutually acceptable to Seller and Purchaser; provided that Seller gives
Purchaser at least fifteen (15) days prior notice of the exercise of such
option.
7.1.3 All normal and customarily proratable items, including, without
limitation, Rents (as defined below), operating expenses, personal property
taxes, other operating expenses and fees, shall be prorated as of the Closing
Date, Seller being charged or credited, as appropriate, for all of same
attributable to the period up to the Closing Date (and credited for any amounts
paid by Seller attributable to the period on or after the Closing Date, if
assumed by Purchaser) and Purchaser being responsible for, and credited or
charged, as the case may be, for all of same attributable to the period on and
after the Closing Date. All unapplied deposits under Tenant leases, if any,
shall be transferred by Seller to Purchaser at the Closing. Purchaser shall
assume at Closing the obligations under the Property Contracts which Purchaser
has agreed to assume, provided that any payments under the Property Contracts
being assumed by Purchaser have been prorated. Seller shall terminate any
Property Contract which is not being assumed by Purchaser provided Purchaser
gives Seller at least 30 days written notice prior to the Closing Date that
Purchaser does not intend to assume such Property Contract and such Property
Contract can be terminated by Seller within 30 days without penalty or cost to
Seller. Seller shall have no obligation to terminate any contract which cannot
be terminated without penalty or cost to Seller on 30 days or shorter notice
(and if this Purchase Contract is not terminated by Purchaser prior to the
expiration of the Feasibility Period, Purchaser shall be deemed to have agreed
to assume any such property contract as of the Closing). Any real estate ad
valorem or similar taxes for the Property, or any installment of assessments
payable in installments which installment is payable in the fiscal year of
Closing, shall be prorated to the date of Closing, based upon actual days
involved. The proration of real property taxes or installments of assessments
shall be based upon the assessed valuation and tax rate figures for the year in
which the Closing occurs to the extent the same are available; 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. The other provisions of this Section
7.1.3 shall apply during the Proration Period (as defined below). Rents and all
related charges shall be prorated based on actual collections as of the Closing
Date.
7.1.4 If any of the items subject to proration hereunder cannot be prorated at
the Closing because the information necessary to compute such proration is
unavailable, or if any errors or omissions in computing prorations at the
Closing are discovered subsequent to the Closing, then such item shall be
reapportioned and such errors and omissions corrected as soon as practicable
after the Closing Date and the proper party reimbursed, which obligation shall
survive the Closing for a period (the "Proration Period") from the Closing Date
until one (1) year after the Closing Date. Neither party hereto shall have the
right to require a recomputation of a Closing proration or a correction of an
error or omission in a Closing proration unless within the Proration Period one
of the parties hereto (i) has obtained the previously unavailable information or
has discovered the error or omission, and (ii) has given Notice thereof to the
other party together with a copy of its good faith recomputation of the
proration and copies of all substantiating information used in such
recomputation. The failure of a party to obtain any previously unavailable
information or discover an error or omission with respect to an item subject to
proration hereunder and to give Notice thereof as provided above within the
Proration Period shall be deemed a waiver of its right to cause a recomputation
or a correction of an error or omission with respect to such item after the
Closing Date.
7.1.5 If on the Closing Date any Tenant is in arrears in any Rent payment under
any Tenant lease (the "Delinquent Rent"), any Delinquent Rent received by
Purchaser and Seller from such Tenant after the Closing shall be applied to
amounts due and payable by such Tenant during the following periods in the
following order of priority: (i) first, to the period of time after the Closing
Date, and (ii) second, to the period of time before the Closing Date. If
Delinquent Rent or any portion thereof received by Seller or Purchaser after the
Closing are due and payable to the other party by reason of this allocation, the
appropriate sum, less a proportionate share of any reasonable attorneys' fees
and costs and expenses expended in connection with the collection thereof, shall
be promptly paid to the other party. Any monies received by Seller after closing
shall be forwarded to Purchaser for disbursement in accordance with the order of
payment provided herein above. After the Closing, Seller shall continue to have
the right, but not the obligation, in its own name, to demand payment of and to
collect Delinquent Rent owed to Seller by any Tenant, which right shall include,
without limitation, the right to continue or commence legal actions or
proceedings against any Tenant (provided, that Seller shall not commence any
legal actions or proceedings against any Tenant which continues as a Tenant at
the Property after Closing without the prior consent of Purchaser, which will
not be unreasonably withheld or delayed), and the delivery of the Assignment as
defined in Section 7.2.1.3 shall not constitute a waiver by Seller of such
right. Purchaser agrees to cooperate with Seller at no cost, expense or
liability to Purchaser in connection with all efforts by Seller to collect such
Delinquent Rent and to take all steps, whether before or after the Closing Date,
as may be reasonably necessary to carry out the intention of the foregoing,
including, without limitation, the delivery to Seller, within seven (7) days
after a written request, of any relevant books and records (including, without
limitation, rent statements, receipted bills and copies of tenant checks used in
payment of such rent), the execution of any and all consents or other documents,
and the undertaking of any act reasonably necessary for the collection of such
Delinquent Rent by Seller; provided, however, that Purchaser's obligation to
cooperate with Seller pursuant to this sentence shall not obligate Purchaser to
terminate any Tenant lease with an existing Tenant or evict any existing Tenant
from the Property. The provisions of this Section 7.1.5 shall apply during the
Proration Period.
7.1.6 Seller and Purchaser shall split evenly the cost of all transfer taxes and
recordation taxes (e.g., excise stamp taxes) and Purchaser shall pay the cost of
all recording costs and mortgage taxes with respect to the Closing. Seller and
Purchaser shall share equally in the costs of the Escrow Agent for escrow fees.
Seller shall be responsible only for payment of the basic premium for the Title
Policy. Purchaser shall be solely responsible for payment of all other costs
relating to procurement of the Title Policy, any requested endorsements, and the
cost of any lender's or other title policy required by Purchaser or its lender
("Lender Fees").
7.2 Items To Be Delivered Prior To Or At Closing.
7.2.1 Seller. At Closing, Seller shall deliver to Purchaser, each of the
following items, as applicable:
7.2.1.1 ....Special Warranty Deed in the form attached as Exhibit 7.2.1.1 to
Purchaser. The acceptance of such deed at Closing and the delivery of other
documents to be delivered under this Section 7.2.1, shall be deemed to be full
performance of, and discharge of, every agreement and obligation on Seller's
part to be performed under this Purchase Contract, except for those that this
Purchase Contract specifically provides shall survive Closing.
7.2.1.2 ....A Bill of Sale in the form attached as Exhibit 7.2.1.2 covering all
Property Contracts, Leases, Permits (other than Excluded Permits) and Fixtures
and Tangible Personal Property required to be transferred to Purchaser with
respect to such Property. Purchaser shall countersign the same so as to effect
an assumption by Purchaser of, among other things, Seller's obligations
thereunder.
7.2.1.3 ....An Assignment (to the extent assignable and in force and effect) in
the form attached as Exhibit 7.2.1.3 of all of Seller's right, title and
interest in and to the Miscellaneous Property Assets, subject to any required
consents. Purchaser shall countersign the same so as to effect an assumption by
Purchaser, including, without limitation, of Seller's obligations thereunder.
7.2.1.4 ....A closing statement executed by Seller.
7.2.1.5 ....An affidavit or at Seller's option an indemnity, as applicable, in
the customary form reasonably acceptable to Seller to enable Title Insurer to
delete the standard exceptions to the title insurance policy set forth in this
Purchase Contract (other than matters constituting any Permitted Exceptions and
matters which are to be completed or performed post-Closing) to be issued
pursuant to the Title Commitment; provided that such affidavit does not subject
Seller to any greater liability, or impose any additional obligations, other
than as set forth in this Purchase Contract; and
7.2.1.6 ....A certification of Seller's non-foreign status pursuant to Section
1445 of the Internal Revenue Code of 1986, as amended.
7.2.1.7 ....Except for the items expressly listed above to be delivered at
Closing, delivery of any other required items shall be deemed made by Seller to
Purchaser, if Seller leaves such documents at the Property in their customary
place of storage or in the custody of Purchaser's representatives.
7.2.1.8 ....Intentionally Deleted.
7.2.1.9 ....A list certified to the best of Seller's knowledge, disclosing any
known current pending and/or threatened litigation affecting the Property.
7.2.1.10 ...Evidence that the management agreement for Seller's manager has been
terminated.
7.2.1.11 ...A rent roll for the Property certified by Seller (the "Rent Roll"),
but limited to Seller's knowledge, listing the monthly base rent payable, lease
expiration date, unapplied security deposit as of the Closing Date, any rent
concessions and any options in favor of the tenants.
7.2.1.12 ...Resolutions, certificates of good standing, and such other
organizational documents as Title Insurer shall reasonably require evidencing
Seller's authority to consummate this transaction.
7.2.1.13 ...To the extent 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) (collectively, "Seller's Property-Related Files
and Records") regarding the Property shall be made available to Purchaser at the
Property after the Closing. Purchaser agrees, for a period of not less than 3
years after the Closing (the "Records Hold Period"), to (a) provide and allow
Seller reasonable access to the lease files, employment files and any other
documents specifically requested by Seller at Closing ("Seller's Hold Records")
for purposes of inspection and copying thereof, and (b) reasonably maintain and
preserve Seller's Hold Records. If at any time after the Records Hold Period,
Purchaser desires to dispose of Seller's Hold Records, Purchaser must first
provide Seller prior written notice (the "Records Disposal Notice"). Seller
shall have a period of 30 days after receipt of the Records Disposal Notice to
enter the Property (or such other location that such records are then stored at
such time as may be reasonably designated by Purchaser) and remove or copy those
of Seller's Hold Records that Seller desires to retain. Purchaser agrees (i) to
include the covenants of this Section 7.2.1.14 pertaining to Seller's Hold
Records in any management contract for the Property (and to bind the manager
thereunder to such covenants), and (ii) to bind any future purchaser of the
Property to the covenants of this Section 7.2.1.14 pertaining to Seller's Hold
Records. 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 comply with the provisions of this Section 7.2.1.14.
7.2.2 Purchaser. At Closing, Purchaser shall deliver to the Title Company (for
disbursement to Seller upon the Closing) the following items with respect to the
Property being conveyed at such Closing:
7.2.2.1 ....The full Purchase Price as required by ARTICLE 3 hereof plus or
minus the adjustments or prorations required by this Purchase Contract. If at
Closing there are any liens or encumbrances on the Property that Seller is
obligated or elects to pay and discharge, Seller may use any portion of the
Purchase Price for the Property(s) to satisfy the same, provided that Seller
shall have delivered to Title Company, on such Closing instruments in recordable
form sufficient to satisfy such liens and encumbrances of record (or, as to any
mortgages or deeds of trust not being assumed hereunder, appropriate payoff
letters, acceptable to the Title Insurer), together with the cost of recording
or filing such instruments. The existence of any such liens or encumbrances
shall not be deemed objections to title if Seller shall comply with the
foregoing requirements.
7.2.2.2 ....A closing statement executed by Purchaser.
7.2.2.3 ....A countersigned counterpart of the Bill of Sale in the form attached
as Exhibit 7.2.1.2.
7.2.2.4 ....A countersigned counterpart of the Assignment in the form
attached as Exhibit 7.2.1.3.
7.2.2.5 ....Such other instruments, documents or certificates as are required to
be delivered by Purchaser to Seller in accordance with any of the other
provisions of this Purchase Contract.
ARTICLE 8...
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF SELLER AND PURCHASER
8.1 Representations, Warranties and Covenants Of Seller.
8.1.1 For the purpose of inducing Purchaser to enter into this Purchase Contract
and to consummate the sale and purchase of the Property in accordance herewith,
Seller represents and warrants to Purchaser the following as of the Effective
Date and as of the Closing Date:
8.1.1.1 ....Seller is lawfully and duly organized, and in good standing under
the laws of the state of its formation set forth in the initial paragraph of
this Purchase Contract; and has or at the Closing shall have the power and
authority to sell and convey the Property and to execute the documents to be
executed by Seller and prior to the Closing will have taken as applicable, all
corporate, partnership, limited liability company or equivalent entity actions
required for the execution and delivery of this Purchase Contract, and the
consummation of the transactions contemplated by this Purchase Contract. The
compliance with or fulfillment of the terms and conditions hereof will not
conflict with, or result in a breach of, the terms, conditions or provisions of,
or constitute a default under, any purchase contract to which Seller is a party
or by which Seller is otherwise bound. Seller has not made any other purchase
contract for the sale of, or given any other person the right to purchase, all
or any part of any of the Property;
8.1.1.2 ....Seller owns insurable, fee title to the Property, including all real
property contained therein required to be sold to Purchaser, subject only to the
Permitted Exceptions (provided, however, that if this representation is or
becomes untrue, Purchaser's remedies shall be limited to the remedies set forth
in Section 6.2 hereof and Seller shall have no other liability as a result
thereof, either before or after Closing);
8.1.1.3 ....There are no adverse or other parties in possession of the Property,
except for occupants, guests and tenants under the Leases (provided, however,
that if this representation is or becomes untrue, Purchaser's remedies shall be
limited to the remedies set forth in Section 6.2 hereof).
8.1.1.4 ....The joinder of no person or entity other than Seller is necessary to
convey the Property, fully and completely, to Purchaser at Closing, or to
fulfill Seller's obligations and Seller has all necessary right and authority to
convey and assign to Purchaser all contract rights and warranties required to be
conveyed and assigned to Purchaser hereunder;
8.1.1.5 ....Intentionally Deleted.
8.1.1.6 ....To Seller's knowledge, there are no actions, proceedings, litigation
or governmental investigations or condemnation actions either pending or
threatened against the Property, as applicable;
8.1.1.7 ....Seller has no knowledge of any claims for labor performed, materials
furnished or services rendered in connection with constructing, improving or
repairing any of the Property, as applicable, caused by Seller and which remain
unpaid beyond the date for which payment was due and in respect of which liens
may or could be filed against any of the Property, as applicable; 8.1.1.8 ....To
Seller's knowledge, Seller has not received any written notice of any proposed
taking, condemnation or special assessment with respect to the Property;
8.1.1.9 ....To Seller's knowledge, Seller has not received any written notice of
any uncured violations of any federal, state, county or municipal law,
ordinance, order, regulation or requirement affecting the Property, including
without limitation, any environmental violations;
8.1.1.10 ...To Seller's knowledge, Seller has not received any written notice of
any default by Seller under any of the Property Contracts that will not be
terminated on the Closing Date;
8.1.1.11 ...Seller agrees to maintain its existing insurance policies covering
the Property in full force and effect through the Closing Date, to continue to
maintain the Property as Seller has been operating the Property immediately
prior to the Effective Date (and if any of the units on the Property that are
vacant five (5) days prior to the Closing are not in "rent-ready" condition on
the Closing Date, then Purchaser shall be given a credit at Closing in the
amount of $300.00 for each such unit not in "rent-ready" condition on the
Closing Date); provided, however Seller shall not be deemed to be in default for
a breach of this representation in Section 8.1.1.11 if Seller cures such breach
within five (5) days after notification thereof by Purchaser; and
8.1.1.12 ...To Seller's knowledge, all documents relating to the Property that
were delivered by Seller to Purchaser in connection with this Purchase Contract,
including, without limitation, the Rent Roll, are true, correct and complete in
all material respects, and none contain any untrue statement of a material fact
or omit to state a material fact.
8.1.2 Except for the representations and warranties expressly set forth above in
Subsection 8.1.1, the Property is expressly purchased and sold "AS IS," "WHERE
IS," and "WITH ALL FAULTS." The Purchase Price and the terms and conditions set
forth herein are the result of arm's-length bargaining between entities familiar
with transactions of this kind, and said price, terms and conditions reflect the
fact that Purchaser shall have the benefit of, and is not relying upon any
information provided by Seller or Broker or statements, representations or
warranties, express or implied, made by or enforceable directly against Seller
or Broker, including, without limitation, any relating to the value of the
Property, the physical or environmental condition of the Property, any state,
federal, county or local law, ordinance, order or permit; or the suitability,
compliance or lack of compliance of the Property with any regulation, or any
other attribute or matter of or relating to the Property (other than any
covenants of title contained in the deeds conveying the Property and the
representations set forth above). Purchaser represents and warrants that as of
the date hereof and as of the Closing Date, it has and shall have reviewed and
conducted such independent analyses, studies, reports, investigations and
inspections as it deems appropriate in connection with the Property. If Seller
provides or has provided any documents, summaries, opinions or work product of
consultants, surveyors, architects, engineers, title companies, governmental
authorities or any other person or entity with respect to the Property,
including, without limitation, the offering prepared by Broker, Purchaser and
Seller agree that Seller has done so or shall do so only for the convenience of
both parties, Purchaser shall not rely thereon and the reliance by Purchaser
upon any such documents, summaries, opinions or work product shall not create or
give rise to any liability of or against Seller, Seller's partners or affiliates
or any of their respective partners, officers, directors, participants,
employees, contractors, attorneys, consultants, representatives, agents,
successors, assigns or predecessors-in-interest. Purchaser shall rely only upon
any title insurance obtained by Purchaser with respect to title to the Property.
Except as provided herein, Purchaser acknowledges and agrees that no
representation has been made and no responsibility is assumed by Seller with
respect to current and future applicable zoning or building code requirements or
the compliance of the Property with any other laws, rules, ordinances or
regulations, the financial earning capacity or expense history of the Property,
the continuation of contracts, continued occupancy levels of the Property, or
any part thereof, or the continued occupancy by tenants of any Leases or,
without limiting any of the foregoing, occupancy at Closing. Prior to Closing,
Seller shall have the right, but not the obligation, to enforce its rights
against any and all Property occupants, guests or tenants. Except as otherwise
set forth herein, Purchaser agrees that the departure or removal, prior to
Closing, of any of such guests, occupants or tenants shall not be the basis for,
nor shall it give rise to, any claim on the part of Purchaser, nor shall it
affect the obligations of Purchaser under this Purchase Contract in any manner
whatsoever; and Purchaser shall close title and accept delivery of the deed with
or without such tenants in possession and without any allowance or reduction in
the Purchase Price under this Purchase Contract. Purchaser hereby releases
Seller from any and all claims and liabilities relating to the foregoing
matters, except as provided in Section 8.1.3 below.
8.1.3 Seller agrees that Purchaser shall be entitled to rely on the foregoing
representations and warranties made by Seller herein and that Purchaser has so
relied. Seller and Purchaser agree that those representations and warranties
contained in Section 8.1 shall survive Closing for a period of one (1) year (the
"Survival Period"). Seller shall have no liability after the Survival Period
with respect to the representations and warranties contained herein except to
the extent that Purchaser has filed a lawsuit against Seller during the Survival
Period for breach of any representation or warranty, and Seller's liability with
respect thereto shall be limited to the actual losses of Purchaser, but in no
event greater than $500,000.00 in the aggregate. Nothing contained herein shall
be intended to limit Seller's liability in the event of a fraudulent breach of
representation by Seller. In the event that Seller breaches any representation
contained in Section 8.1 and Purchaser had knowledge of such breach prior to the
Closing Date and nonetheless elects to Close, Purchaser shall be deemed to have
waived any right of recovery, and Seller shall not have any liability in
connection therewith.
8.1.4 Representations and warranties above made to the knowledge of Seller shall
not be deemed to imply any duty of inquiry. For purposes of this Purchase
Contract, the term Seller's "knowledge" shall mean and refer to only actual
knowledge of the Designated Representative (as hereinafter defined) of the
Seller and shall not be construed to refer to the knowledge of any other
partner, officer, director, agent, employee or representative of the Seller, or
any affiliate of the Seller, or to impose upon such Designated Representative
any duty to investigate the matter to which such actual knowledge or the absence
thereof pertains, or to impose upon such Designated Representative any
individual personal liability. As used herein, the term Designated
Representative shall refer to Belinda Gibson of Apartment Investment &
Management Company ("AIMCO"), as the on-site property manager (the "Property
Manager"), and Christine Pinkerton, the Regional Property Manager handling this
Property at AIMCO (the "Regional Property Manager").
8.2 Representations And Warranties Of Purchaser
8.2.1 For the purpose of inducing Seller to enter into this Purchase Contract
and to consummate the sale and purchase of the Property in accordance herewith,
Purchaser represents and warrants to Seller the following as of the Effective
Date and as of the Closing Date:
8.2.2 With respect to Purchaser and its business, Purchaser represents and
warrants, in particular, that:
8.2.2.1 ....Purchaser is a limited liability company duly organized, validly
existing and in good standing under the laws of Delaware.
8.2.2.2 ....Purchaser, acting through any of its or their duly empowered and
authorized officers or members, has all necessary power and authority to own and
use its properties and to transact the business in which it is engaged, and has
full power and authority to enter into this Purchase Contract, to execute and
deliver the documents and instruments required of Purchaser herein, and to
perform its obligations hereunder; and no consent of any of Purchaser's officers
or members are required to so empower or authorize Purchaser.
8.2.2.3 ....No pending or, to the knowledge of Purchaser, threatened litigation
exists which if determined adversely would restrain the consummation of the
transactions contemplated by this Purchase Contract or would declare illegal,
invalid or non-binding any of Purchaser's obligations or covenants to Seller.
8.2.2.4 ....Purchaser is duly authorized to execute and deliver, acting through
its duly empowered and authorized officers and members, respectively, and
perform this Purchase Contract and all documents and instruments and
transactions contemplated hereby or incidental hereto, and such execution,
delivery and performance by Purchaser does not (i) violate any of the provisions
of their respective certificates of formation or bylaws, (ii) violate any
provision of any law, governmental rule or regulation currently in effect, (iii)
violate any judgment, decree, writ, injunction, award, determination or order
currently in effect that names or is specifically directed at Purchaser or its
property, and (iv) require the consent, approval, order or authorization of, or
any filing with or notice to, any court or other governmental authority.
8.2.2.5 ....The joinder of no person or entity other than Purchaser is necessary
to consummate the transactions to be performed by Purchaser and Purchaser has
all necessary right and authority to perform such acts as are required and
contemplated by this Purchase Contract.
8.2.3 Other than the Broker, Purchaser has not dealt with any broker, finder or
any other person, in connection with the purchase of or the negotiation of the
purchase of the Property that might give rise to any claim for commission
against Seller or lien or claim against the Property.
ARTICLE 9...
CONDITIONS PRECEDENT TO CLOSING
9.1 Purchaser's obligation to close under this Purchase Contract, shall be
subject to and conditioned upon the fulfillment of each and all of the following
conditions precedent:
9.1.1 All of the documents required to be delivered by Seller to Purchaser at
the Closing pursuant to the terms and conditions hereof shall have been
delivered and shall be in form and substance reasonably satisfactory to
Purchaser;
9.1.2 Each of the representations, warranties and covenants of Seller contained
herein shall be true in all material respects as of the Closing Date (and
Purchaser shall be permitted to perform an inspection of the Property
immediately prior to the Closing Date to verify same);
9.1.3 Seller shall have complied with, fulfilled and performed in all material
respects each of the covenants, terms and conditions to be complied with,
fulfilled or performed by Seller hereunder;
9.1.4 Neither Seller nor Seller's general partner shall be a debtor in any
bankruptcy proceeding or shall have been in the last 6 months a debtor in any
bankruptcy proceeding;
9.1.5 A taking of all or any part of the Property must not have been commenced
or threatened in writing;
9.1.6 The actual occupancy level of the Property shall not have decreased by
more than fifteen percent (15%) from the actual occupancy level on the Effective
Date;
9.1.7 Seller shall have terminated any Property Contracts which are not being
assumed by Purchaser as of the Closing Date (and which are capable of being
terminated by Seller without penalty or cost to Seller).
9.1.8 Intentionally Deleted.
9.1.9 Notwithstanding anything to the contrary, there are no other conditions on
Purchaser's obligation to Close except as expressly set forth above. If any of
the above conditions is not satisfied, then notwithstanding anything to the
contrary contained in this Purchase Contract, Purchaser may, at its option (a)
waive such condition and proceed to Closing and accept title to the Property
with an agreed upon offset or deduction from the Purchase Price (assuming Seller
and Purchaser can agree upon such offset or deduction amount, and neither party
has any obligation to come to an agreement), (b) waive such condition and
proceed to Closing and accept title to the Property without any offset or
deduction from the Purchase Price, or (iii) notify Seller of Purchaser's
election to terminate this Purchase Contract and receive a return of the Deposit
from the Escrow Agent and the Released Funds from Seller.
9.2 Without limiting any of the rights of Seller elsewhere provided for in this
Purchase Contract, Seller's obligation to close with respect to conveyance of
the Property under this Purchase Contract shall be subject to and conditioned
upon the fulfillment of each and all of the following conditions precedent:
9.2.1 Purchaser's representations and warranties set forth in this Purchase
Contract shall have been true and correct in all material respects when made,
and shall be true and correct in all material respects on the Closing Date and
as of the Effective Date as though such representations and warranties were made
at and as of such date and time.
9.2.2 Purchaser shall have 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 Purchaser shall have paid in
full the Purchase Price.
9.2.3 There shall not be pending or, to the knowledge of either Purchaser or
Seller, any litigation or threatened litigation which, if determined adversely,
would restrain the consummation of any of the transactions contemplated by this
Purchase Contract or declare illegal, invalid or nonbinding any of the covenants
or obligations of the Purchaser.
9.2.4 If applicable, Purchaser shall have produced evidence reasonably
satisfactory to Seller of Purchaser's compliance with Hart-Scott-Rodino Act
requirements or of the non-applicability thereof to the transactions
contemplated by this Purchase Contract.
9.2.5 Intentionally Deleted.
9.2.6 The Montgomery County Code right of first refusal has either been waived
or expired pursuant to its own terms.
ARTICLE 10..
BROKERAGE
10.1 Purchaser represents and warrants to Seller that it has dealt only with
David L. Williams Management Consultants, LLC ("Broker") in connection with this
Purchase Contract. Seller and Purchaser each represents and warrants to the
other that other than Broker, it has not dealt with or utilized the services of
any other real estate broker, sales person or finder in connection with this
Purchase Contract, and each party agrees to indemnify the other party from and
against all claims for brokerage commissions and finder's fees arising from or
attributable to the acts or omissions of the indemnifying party.
10.2 Seller agrees to pay Broker a brokerage commission in the amount of
$300,000.00 according to the terms of a separate agreement due Broker in
connection with this transaction. Broker shall not be deemed a party or third
party beneficiary of this Purchase Contract.
10.3 Broker assumes no responsibility for the condition of the Property or
representation for the performance of this Purchase Contract by the Seller or
Purchaser.
ARTICLE 11..
POSSESSION
11.1 Possession of the Property subject to the Permitted Exceptions shall be
delivered to Purchaser at the Closing, subject to Purchaser's right of entry for
inspection as set forth in ARTICLE 5.
ARTICLE 12..
DEFAULTS AND REMEDIES
12.1 In the event Purchaser defaults under the terms of this Purchase Contract
and consummation of the Closing does not occur by reason of such default by
Purchaser, Seller and Purchaser agree that it would be impractical and extremely
difficult to estimate the damages which Seller may suffer. Therefore, Seller and
Purchaser hereby agree that, except for the Purchaser's obligations to Seller
under Section 5.3, the reasonable estimate of the total net detriment that
Seller would suffer in the event that Purchaser terminates this Purchase
Contract or defaults hereunder on or prior to the Closing Date is and shall be,
as Seller's sole remedy (whether at law or in equity), the right to receive from
the Escrow Agent and retain the full amount of the Deposit. The payment and
performance of the above as liquidated damages is not intended as a forfeiture
or penalty within the meaning of applicable law and is intended to settle all
issues and questions about the amount of damages suffered by Seller in the
applicable event, except only for damages under Section 5.3 above, irrespective
of the time when the inquiry about such damages may take place. Upon any such
failure by Purchaser hereunder, this Purchase Contract shall be terminated, and
neither party shall have any further rights or obligations hereunder, each to
the other, except for the Purchaser's obligations to Seller under Section 5.3
above, and the right of Seller to collect such liquidated damages to the extent
not theretofore paid by Purchaser.
12.2 Provided that Purchaser has not terminated this Purchase Contract and is
not otherwise in default hereunder, if the Closing does not occur as a result of
Seller's default hereunder, Purchaser's sole remedy shall be to elect to either
(a) terminate this Purchase Contract and receive reimbursement of the Deposit,
including the Released Funds, or (b) enforce specific performance of this
Purchase Contract. In the event Purchaser is unable to enforce the remedy of
specific performance after using commercially reasonable efforts to seek to
enforce such remedy, then in lieu of obtaining specific performance, Purchaser
shall have the right to bring suit for damages against Seller in an amount not
to exceed $250,000.00 in addition to receiving reimbursement of the Deposit.
ARTICLE 13..
RISK OF LOSS OR CASUALTY
13.1 In the event that the Property is damaged or destroyed by fire or other
casualty prior to Closing, and the cost of repair is more than $500,000.00, then
Seller will have no obligation to repair such damage or destruction and, at
Purchaser's option, Purchaser shall have the right to terminate this Purchase
Contract by giving written Notice to Seller and Escrow Agent within fifteen (15)
days after Purchaser's receipt of notice from Seller that such casualty has
occurred and the Deposit, including the Released Funds, shall be refunded to
Purchaser. In the event Purchaser elects not to terminate this Agreement, this
transaction shall be closed in accordance with the terms of this Agreement,
notwithstanding any such damage or destruction and Purchaser shall receive at
Closing all insurance proceeds (or an assignment of such claim, as applicable)
pertaining thereto (plus a credit against the Purchase Price in the amount of
(i) any deductible payable by Seller in connection therewith and (ii) any costs
of repair or replacement which are not covered by insurance). Seller agrees not
to settle any such insurance claims referenced in either Section 13.1 or 13.2
without Purchaser's prior written consent, which consent shall not be
unreasonably withheld, conditioned or delayed.
13.2 In the event that the Property is damaged or destroyed by fire or other
casualty prior to the Closing, and the cost of repair is less than $500,000.00,
this transaction shall be closed in accordance with the terms of this Agreement,
notwithstanding the damage or destruction; provided, however, Seller shall if
requested by Purchaser make such repairs if they can be reasonably effected
before the Closing. If Seller is unable to effect such repairs or if Purchaser
does not elect to have Seller make such repairs, then Purchaser shall receive at
Closing all insurance proceeds (or an assignment of such claim, as applicable)
pertaining thereto (plus a credit against the Purchase Price in the amount of
(i) any deductible payable by Seller in connection therewith and (ii) any costs
of repair or replacement which are not covered by insurance).
ARTICLE 14..
RATIFICATION
14.1 This Purchase Contract shall be null and void unless fully executed by
Purchaser and Seller on or before February 25, 2005.
ARTICLE 15..
EMINENT DOMAIN
15.1 In the event that at the time of Closing all or any part of the Property is
(or has previously been) acquired, or is about to be acquired, by authority of
any governmental agency in purchase in lieu thereof (or in the event that at
such time there is any notice of any such acquisition or intent to acquire by
any such governmental agency), Purchaser shall have the right, at Purchaser's
option, to terminate this Purchase Contract by giving written Notice within
Fifteen (15) days of Purchaser's receipt from Seller of notice of the occurrence
of such event and recover the Deposit, including the Released Funds, hereunder,
or to settle in accordance with the terms of this Purchase Contract for the full
Purchase Price and receive the full benefit or any condemnation award. Seller
agrees not to settle any such condemnation claim without Purchaser's prior
written consent, which consent shall not be unreasonably withheld, conditioned
or delayed. Seller agrees to notify Purchaser if Seller receives written
notification of any pending or threatened condemnation. It is expressly agreed
between the parties hereto that this paragraph shall in no way apply to
customary dedications for public purposes which may be necessary for the
development of the Property.
ARTICLE 16..
MISCELLANEOUS
16.1 Exhibits And Schedules
All Exhibits and Schedules, whether or not annexed hereto, are a
part of this Purchase Contract for all purposes.
16.2 Assignability
Subject to Section 16.18, this Purchase Contract is not assignable
without first obtaining the prior written approval of the non-assigning party,
except that Purchaser may assign all or an undivided interest in this Purchase
Contract to one or more entities so long as (i) Purchaser or its affiliate
remains a part of the purchasing entity(ies), or Purchaser or its affiliate has
entered into a management agreement with assignee, (ii) Purchaser is not
released from its liability hereunder, and (iii) Seller receives timely written
notification of such assignment.
16.3 Binding Effect
This Purchase Contract shall be binding upon and inure to the
benefit of Seller and Purchaser, and their respective successors, heirs and
permitted assigns.
16.4 Captions
The captions, headings, and arrangements used in this Purchase
Contract are for convenience only and do not in any way affect, limit, amplify,
or modify the terms and provisions hereof.
16.5 Number And Gender Of Words
Whenever herein the singular number is used, the same shall include
the plural where appropriate, and words of any gender shall include each other
gender where appropriate.
16.6 Notices
All Notices, demands, requests and other communications required
pursuant to the provisions of this Purchase Contract ("Notice") shall be in
writing and shall be deemed to have been properly given or served for all
purposes (i) if sent by Federal Express or a nationally recognized overnight
carrier for next business day delivery, on the first business day following
deposit of such Notice with such carrier, or (ii) if personally delivered, on
the actual date of delivery or (iii) if sent by certified mail, return receipt
requested postage prepaid, on the Fifth (5th) business day following the date of
mailing, or (iv) if sent by telecopier, then on the actual date of delivery (as
evidenced by a telecopier confirmation) provided that a copy of the telecopy and
confirmation is also sent by U.S. mail, addressed as follows:
If to Seller: If to Purchaser:
c/o AIMCO FF REALTY LLC
4582 South Ulster Street 5510 Morehouse Drive, Suite 200
Parkway, Suite 1100 San Diego, California 92121
Denver, Colorado 80237 Attn: Mr. Stanley P.
Attn: Mr. Patrick Slavin Herskovitz and Christopher
Telephone No. (303) 691-4340 Hashioka
Facsimile No. (303) 300-3282 Telephone No. (858) 457-2123
Facsimile No. (858) 457-0254
And With a copy to
c/o AIMCO Swidler Berlin LLP
4582 South Ulster Street 3000 "K" Street, N.W., Suite 300
Parkway, Suite 1100 Washington, D.C. 20007
Denver, Colorado 80237 Attn: Jeffrey Scharff, Esq.
Attn: Mr. Harry Alcock Telephone No. (202) 424-7622
Telephone No. (303) 691-4344 Facsimile No. (202) 295-8478
Facsimile No. (303) 300-3282
And with a copy to
Chad Asarch, Esq.
Vice President and Assistant
General Counsel
AIMCO
4582 South Ulster Street
Parkway, Suite 1100
Denver, Colorado 80237
Telephone No. (303) 691-4303
Facsimile No. (303) 300-3260
And with a copy to
Ballard Spahr Andrews &
Ingersoll, LLP
1225 Seventeenth Street,
Suite 2300
Denver, Colorado 80202
Attn: Beverly J. Quail, Esq.
Telephone: (303) 299-7305
Facsimile No. (303) 296-3956
Any of the parties may designate a change of address by Notice in writing
to the other parties. Any of the parties may have notices delivered by their
counsel on their behalf provided such notices are given in accordance with the
provisions of this Section 16.6. Whenever in this Purchase Contract the giving
of Notice by mail or otherwise is required, the giving of such Notice may be
waived in writing by the person or persons entitled to receive such Notice.
16.7 Governing Law And Venue
The laws of the State of Maryland shall govern the validity,
construction, enforcement, and interpretation of this Purchase Contract, unless
otherwise specified herein except for the conflict of laws provisions thereof.
All claims, disputes and other matters in question arising out of or relating to
this Purchase Contract, or the breach thereof, shall be decided by proceedings
instituted and litigated in the United States District Court for the district in
which the Property is situated, and the parties hereto expressly consent to the
venue and jurisdiction of such court.
16.8 Entirety And Amendments
This Purchase Contract embodies the entire Purchase Contract between
the parties and supersedes all prior Purchase Contracts and understandings, if
any, relating to the Property, and may be amended or supplemented only by an
instrument in writing executed by the party against whom enforcement is sought.
16.9 Severability
If any provision of this Purchase Contract is held to be illegal,
invalid, or unenforceable under present or future laws, such provision shall be
fully severable. The Purchase Contract shall be construed and enforced as if
such illegal, invalid, or unenforceable provision had never comprised a part of
this Purchase Contract; and the remaining provisions of this Purchase Contract
shall remain in full force and effect and shall not be affected by the illegal,
invalid, or unenforceable provision or by its severance from this Purchase
Contract. In lieu of such illegal, invalid, or unenforceable provision, there
shall be added automatically as a part of this Purchase Contract a provision as
similar in terms to such illegal, invalid, or unenforceable provision as may be
possible to make such provision legal, valid, and enforceable.
16.10
Multiple Counterparts
This Purchase Contract may be executed in a number of identical
counterparts. If so executed, each of such counterparts is to be deemed an
original for all purposes and all such counterparts shall, collectively,
constitute one Purchase Contract. In making proof of this Purchase Contract, it
shall not be necessary to produce or account for more than one such
counterparts.
16.11 Further Acts
In addition to the acts and deeds recited herein and contemplated
and performed, executed and/or delivered by Seller and Purchaser, Seller and
Purchaser agree to perform, execute and/or deliver or cause to be performed,
executed and/or delivered any and all such further acts, deeds, and assurances
as may be necessary to consummate the transactions contemplated hereby.
16.12 Construction
No provision of this Purchase Contract shall be construed in favor
of, or against, any particular party by reason of any presumption with respect
to the drafting of this Purchase Contract; both parties, being represented by
counsel, having fully participated in the negotiation of this instrument.
16.13 Confidentiality
Purchaser shall not disclose the terms and conditions contained in
this Purchase Contract, shall keep the same confidential, provided that
Purchaser may disclose the terms and conditions of this Purchase Contract (i) as
required by law, (ii) to consummate the terms of this Purchase Contract, or any
financing relating thereto, or (iii) to Purchaser's or Seller's lenders,
attorneys, partners and potential partners and accountants. Any information
provided by Seller to Purchaser is also confidential and Purchaser shall be
prohibited from making such information public to any other person or entity
other than its agents and legal representatives, other than as set forth in this
Section 16.13 above, without Seller's prior written authorization, which may be
granted or denied in Seller's sole discretion. Notwithstanding the foregoing,
Purchaser (and each employee, representative, or other agent of Purchaser) may
disclose to any and all persons, without limitation of any kind, the tax
treatment and any facts that may be relevant to the tax structure of the
transaction, provided, however, that neither Purchaser nor any employee,
representative, or other agent of Purchaser shall disclose except as permitted
above any other information that is not relevant to understanding the tax
treatment and tax structure of the transaction (including the identity of any
party and any information that could lead another to determine the identity of
any party), or any other information to the extent that such disclosure could
result in a violation of any federal or state securities law.
16.14 Time Of The Essence
It is expressly agreed by the parties hereto that time is of the
essence with respect to this Purchase Contract.
16.15 Cumulative Remedies And Waiver
No remedy herein conferred or reserved is intended to be exclusive
of any other available remedy or remedies herein conferred or referred, but each
and every such remedy shall be cumulative and shall be in addition to every
other remedy given under this Purchase Contract. No delay or omission to
exercise any right or power accruing upon any default, omission, or failure of
performance hereunder shall impair any right or power or shall be construed to
be a waiver thereof, but any such right and power may be exercised from time to
time and as often as may be deemed expedient. No waiver, amendment, release, or
modification of this Purchase Contract shall be established by conduct, custom,
or course of dealing.
16.16 Litigation Expenses
In the event either party hereto commences litigation against the
other to enforce its rights hereunder, the prevailing party in such litigation
shall be entitled to recover from the other party its reasonable attorneys' fees
and expenses incidental to such litigation.
16.17 Time Periods
Should the last day of a time period fall on a weekend or legal
holiday, the next Business Day thereafter shall be considered the end of the
time period.
16.18 Exchange
Seller and Purchaser acknowledge and agree that the purchase and
sale of the Property may be part of a tax-free exchange under Section 1031 of
the Code for either Purchaser or Seller. Each party hereby agrees to take all
reasonable steps on or before the Closing Date to facilitate such exchange if
requested by the other party, provided that (a) no party making such
accommodation shall be required to acquire any substitute property, (b) such
exchange shall not affect the representations, warranties, liabilities and
obligations of the parties to each other under this Contract, (c) no party
making such accommodation shall incur any additional cost, expense or liability
in connection with such exchange (other than expenses of reviewing and executing
documents required in connection with such exchange), and (d) no dates in this
Contract will be extended as a result thereof. Notwithstanding anything to the
contrary contained in the foregoing, if Seller so elects to close the transfer
of the Property as an exchange, then (i) Seller, at its sole option, may
delegate its obligations to transfer the Property under this Contract, and may
assign its rights to receive the Purchase Price from Purchaser, to a deferred
exchange intermediary (an "Intermediary") or to an exchange accommodation
titleholder, as the case may be; (ii) such delegation and assignment shall in no
way reduce, modify or otherwise affect the obligations of Seller pursuant to
this Contract; (iii) Seller shall remain fully liable for its obligations under
this Contract as if such delegation and assignment shall not have taken place;
(iv) Intermediary or exchange accommodation titleholder, as the case may be,
shall have no liability to Purchaser; and (v) the closing of the transfer of the
Property to Purchaser shall be undertaken by direct deed from Seller (or, if
applicable, from other affiliates of Seller whom Seller will cause to execute
such deeds) to Purchaser or to exchange accommodation titleholder, as the case
may be. Notwithstanding anything to the contrary contained in the foregoing, if
Purchaser so elects to close the acquisition of the Property as an exchange,
then (i) Purchaser, at its sole option, may delegate its obligations to acquire
the Property under this Contract, and may assign its rights to receive the
Property from Seller, to an Intermediary or to an exchange accommodation
titleholder, as the case may be; (ii) such delegation and assignment shall in no
way reduce, modify or otherwise affect the obligations of Purchaser pursuant to
this Contract; (iii) Purchaser shall remain fully liable for its obligations
under this Contract as if such delegation and assignment shall not have taken
place; (iv) Intermediary or exchange accommodation titleholder, as the case may
be, shall have no liability to Seller; and (v) the closing of the acquisition of
the Property by Purchaser or the exchange accommodation titleholder, as the case
may be, shall be undertaken by direct deed from Seller (or, if applicable, from
other affiliates of Seller whom Seller will cause to execute such deeds) to
Purchaser (or to exchange accommodation titleholder, as the case may be).
16.19 No Personal Liability of Officers, Trustees or directors of Seller's
Partners
Purchaser acknowledges that this Agreement is entered into by Seller
which is a Delaware limited partnership, and Purchaser agrees that no individual
officer, trustee, director or representative of the partners of Seller shall
have any personal liability under this Agreement or any document executed in
connection with the transactions contemplated by this Agreement.
16.20 No Exclusive Negotiations
Seller shall have the right, at all times prior to the expiration of
the Feasibility Period, to solicit backup offers and enter into discussions,
negotiations, or any other communications concerning or related to the sale of
the Property with any third-party; provided, however, that such communications
are subject to the terms of this Agreement, and that Seller shall not enter into
any contract or binding agreement with a third-party for the sale of the
Property unless such agreement is contingent on the termination of this
Agreement without the Property having been conveyed to Purchaser.
16.21 Intentionally Deleted.
16.22 Intentionally Deleted.
ARTICLE 17..
LEAD-BASED PAINT DISCLOSURE
17.1 Disclosure
Seller and Purchaser hereby acknowledge delivery of the Lead Based
Paint Disclosure attached as Exhibit C hereto. The provisions of this Section
17.1 shall survive the Closing and delivery of the Deed to Purchaser.
17.2 Consent Agreement.
Testing (the "Testing") has been performed at the Property with
respect to lead-based paint. Law Engineering and Environmental Services, Inc.
performed the Testing and reported its findings in the Lead Based Paint
Inspection Survey dated May 14, 2001, a copy of which is attached hereto as
Exhibit D (the "Report"). The Report certifies the Property as lead based paint
free. By execution hereof, Purchaser acknowledges receipt of a copy of the
Report, the Lead-Based Paint Disclosure Statement attached hereto as Exhibit C,
and acknowledges receipt of that certain Consent Agreement (the "Consent
Agreement") by and among the United States Environmental Protection Agency
(executed December 19, 2001), the United States Department of Housing and Urban
Development (executed January 2, 2002), and Apartment Investment and Management
Company ("AIMCO") (executed December 18, 2001). Because the Property has been
certified as lead based paint free, Seller is not required under the Consent
Agreement to remediate or abate any lead-based paint condition at the Property
prior to the Closing. Purchaser acknowledges and agrees that (1) after Closing,
the Purchaser (solely as it relates to the Property) and the Property shall be
subject to the Consent Agreement and the provisions contained herein related
thereto and (2) that Purchaser shall not be deemed to be a third party
beneficiary to the Consent Agreement. The provisions of this Section 17.2 shall
survive the termination of this Contract, and if not so terminated, the Closing
and delivery of the Deed to Purchaser.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
NOW WHEREFORE, the parties hereto have executed this Purchase Contract as
of the date first set forth above.
Seller:
STRATFORD PLACE INVESTORS LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Winthrop Growth Investors I Limited
Partnership, a Massachusetts limited
partnership, its Managing General Partner
By: AIMCO/Winthrop Growth Investors 1
GP, LLC, a Delaware limited
liability company, its Managing
General Partner
By: AIMCO Properties, L.P.,
a Delaware limited
partnership, its sole general
partner
By: AIMCO-GP, Inc., a
Delaware corporation,
its general partner
By:/s/Patrick F. Slavin
Name: Patrick F. Slavin
Title: Senior Vice
President
Purchaser:
FF REALTY LLC
a Delaware limited liability company
By: FF Properties, Inc., a Delaware
corporation,
Its Manager
By: /s/Stanley P. Herskovitz
Its:Senior Vice President