UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) August 1, 2005
SHELTER PROPERTIES V
(Exact name of Registrant as specified in its charter)
South Carolina 0-11574 57-0721855
(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 2.01 Completion of Acquisition or Disposition of Assets.
Shelter Properties V (the "Registrant") owns a 99.99% interest in Foxfire
Apartments V Limited Partnership (the "Partnership"), a South Carolina limited
partnership. On August 1, 2005, the Partnership sold its investment property,
Foxfire Apartments, a 266-unit apartment complex located in Atlanta, Georgia
(the "Property"), to a third party, The Bethany Group, LLC (the "Purchaser"), a
California limited liability company. The Purchaser purchased the property
collectively with six other apartment complexes affiliated with AIMCO
Properties, L.P., an affiliate of the general partner of the Partnership, for a
total sales price of approximately $85,236,000, of which approximately
$9,725,000 represents the sales price for Foxfire Apartments. The Registrant
continues to own and operate five additional properties.
In accordance with the Amended and Restated Certificate and Agreement of Limited
Partnership of the Registrant, the Registrant's Corporate General Partner is
evaluating the cash requirements of the Registrant to determine whether any
portion of the net proceeds will be distributed to the Registrant's partners.
Item 9.01 Financial Statements and Exhibits.
(b) Pro forma financial information.
The following unaudited pro forma consolidated balance sheet and consolidated
statements of operations reflect the operations of the Registrant as if Foxfire
Apartments and The Lexington Apartments (sale previously disclosed on Form 8-K
filed on July 1, 2005) had been sold on January 1, 2004.
The pro forma consolidated financial statements do not project the Registrant's
results of operations at any future date or for any future period. This pro
forma information should be read in conjunction with the Registrant's 2004
Annual Report on Form 10-KSB.
PRO FORMA CONSOLIDATED BALANCE SHEET
(in thousands)
March 31,
2005
All other assets $ 1,825
Investment properties, net 24,111
Total Assets $ 25,936
All other liabilities $ 4,481
Mortgage notes payable 31,228
Partners' deficit (9,773)
Total Liabilities and Partners' Deficit $ 25,936
PRO FORMA CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except per unit data)
Year Ended Three Months Ended
December 31, 2004 March 31, 2005
Total revenues $ 9,615 $ 2,451
Total expenses 10,307 2,628
Net loss $ (692) $ (177)
Net loss per limited partnership unit $(13.04) $ (3.33)
(c) Exhibits
The following exhibits are filed with this report (1):
10(ii)b Purchase and Sale Contract between Foxfire Apartments V Limited
Partnership, a South Carolina limited partnership, as Seller, and
The Bethany Group, LLC, a California limited liability company, as
Purchaser, effective May 12, 2005.
10(ii)c First Amendment to Purchase and Sale Contract between Foxfire
Apartments V Limited Partnership, a South Carolina Limited
Partnership, as Seller, and The Bethany Group, LLC, a California
limited liability company, as Purchaser, effective July 1, 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.
SHELTER PROPERTIES V
By: Shelter Realty V Corporation
Corporate General Partner
By: /s/Martha L. Long
Martha L. Long
Senior Vice President
Date: August 5, 2005
Exhibit 10(ii)b
PURCHASE AND SALE CONTRACT
AMONG
AIMCO SUNSET VILLAGE, L.L.C., a Delaware limited liability company
FOXFIRE APARTMENTS V LIMITED PARTNERSHIP, a South Carolina limited
partnership,
AIMCO WALDEN, L.L.C., a Delaware limited liability company
AIMCO PARK COLONY, L.L.C., a Delaware limited liability company
AIMCO/SHADOW LAKE, L.P. a Delaware limited partnership
GREENSBORO-OXFORD ASSOCIATES LIMITED PARTNERSHIP, a Maryland limited
partnership
SALEM-OXFORD ASSOCIATES LIMITED PARTNERSHIP, a Maryland limited partnership
WOODHAVEN ASSOCIATES, a Virginia limited partnership
AS SELLERS
AND
THE BETHANY GROUP, LLC,
a California limited liability company
AS PURCHASER
ARTICLE I DEFINED TERMS.................................................1
ARTICLE II PURCHASE AND SALE, PURCHASE PRICE & DEPOSIT...................8
2.1 Purchase and Sale................................................8
2.2 Purchase Price and Deposit.......................................8
2.3 Escrow Provisions Regarding Deposit..............................9
ARTICLE III FEASIBILITY PERIOD...........................................10
3.1 Feasibility Period..............................................10
3.2 Expiration of Feasibility Period................................11
3.3 Conduct of Investigation........................................11
3.4 Purchaser Indemnification.......................................11
3.5 Property Materials..............................................13
3.6 Property Contracts..............................................14
ARTICLE IV TITLE........................................................14
4.1 Title Documents.................................................14
4.2 Survey..........................................................15
4.3 Objection and Response Process..................................15
4.4 Permitted Exceptions............................................16
4.5 Existing Deed of Trust..........................................16
4.7 Purchaser Financing.............................................17
ARTICLE V CLOSING......................................................17
5.1 Closing Date....................................................17
5.2 Seller Closing Deliveries.......................................17
5.3 Purchaser Closing Deliveries....................................19
5.4 Closing Prorations and Adjustments..............................20
5.5 Post Closing Adjustments........................................26
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER.......26
6.1 Seller's Representations........................................26
6.2 AS-IS...........................................................28
6.3 Survival of Seller's Representations............................29
6.4 Definition of Seller's Knowledge................................29
6.5 Representations And Warranties Of Purchaser.....................30
ARTICLE VII OPERATION OF THE PROPERTIES..................................31
7.1 Leases and Property Contracts...................................31
7.2 General Operation of Property...................................31
7.3 Liens...........................................................31
ARTICLE VIII CONDITIONS PRECEDENT TO CLOSING..............................31
8.1 Purchaser's Conditions to Closing...............................31
8.2 Sellers' Conditions to Closing..................................32
ARTICLE IX .............................................................33
ARTICLE X DEFAULTS AND REMEDIES........................................33
10.1 Purchaser Default...............................................33
10.2 Seller Default..................................................34
ARTICLE XI RISK OF LOSS OR CASUALTY.....................................35
11.1 Major Damage....................................................35
11.2 Minor Damage....................................................35
11.3 Repairs.........................................................36
ARTICLE XII EMINENT DOMAIN...............................................36
12.1 Eminent Domain..................................................36
ARTICLE XIII MISCELLANEOUS................................................37
13.1 Binding Effect of Contract......................................37
13.2 Exhibits And Schedules..........................................37
13.3 Assignability...................................................37
13.4 Binding Effect..................................................37
13.5 Captions........................................................37
13.6 Number And Gender Of Words......................................37
13.7 Notices.........................................................37
13.8 Governing Law And Venue.........................................39
13.9 Entire Agreement................................................40
13.10 Amendments......................................................40
13.11 Severability....................................................40
13.12 Multiple Counterparts/Facsimile Signatures......................40
13.13 Construction....................................................40
13.14 Confidentiality.................................................40
13.15 Time Of The Essence.............................................40
13.16 Waiver..........................................................40
13.17 Attorneys Fees..................................................41
13.18 Time Periods....................................................41
13.19 1031 Exchange...................................................41
13.20 No Personal Liability of Officers, Trustees or Directors of
Seller's Partners...............................................42
13.21 No Exclusive Negotiations.......................................42
13.22 ADA Disclosure..................................................42
13.23 No Recording....................................................42
13.24 Relationship of Parties.........................................42
13.25 Dispute Resolution..............................................42
13.26 AIMCO Marks.....................................................43
13.27 Non-Solicitation of Employees...................................43
13.28 Survival........................................................43
13.29 Multiple Purchasers.............................................43
13.30 Sellers' Several Obligations....................................44
13.31 Obligation to Close on all Properties...........................44
ARTICLE XIV LEAD-BASED PAINT DISCLOSURE..................................45
14.1 Disclosure......................................................45
14.2 Consent Agreement - Pre-1978 - Not Certified....................45
14.3 Consent Agreement - Pre-1978 Certified..........................46
14.4 Consent Agreement - Pre-1978-LBP, But No LBP Hazards............46
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT (this "Contract") is entered into as of
the 12th day of May, 2005 (the "Effective Date"), by the selling parties
identified on Schedule A (the "Seller Information Schedule") having an address
at 4582 South Ulster Street Parkway, Suite 1100, Denver, Colorado 80237
(individually a "Seller" and collectively "Sellers"), and THE BETHANY GROUP,
LLC, a California limited liability company, having a principal address at 2569
McCabe Way, Irvine, California 92614 ("Purchaser").
NOW, THEREFORE, in consideration of mutual covenants set forth herein,
Sellers and Purchaser hereby agree as follows:
RECITALS
A.....Each Seller owns the real estate commonly known as and identified by
the "Community Name" listed on the Seller Information Schedule and as more
particularly described in Exhibits A-1 to A-8 attached hereto and made a part
hereof, and the improvements thereon.
B.....Purchaser desires to purchase, and each Seller desires to sell, the
land, improvements and certain associated property described in this Contract on
the terms and conditions set forth below.
ARTICLE I
DEFINED TERMS
1.1 Unless otherwise defined herein, any term with its initial letter
capitalized in this Contract shall have the meaning set forth in this ARTICLE 1.
Any reference to a specific "Property" shall be to the "Common Name of Property"
as set forth in the Seller Information Schedule attached hereto.
1.1.1 "ADA" shall have the meaning set forth in Section 13.22.
1.1.2 "Additional Deposit" shall have the meaning set forth in Section 2.2.2.
1.1.3 "AIMCO" means Apartment Investment and Management Company.
1.1.4 "AIMCO Marks" means all words, phrases, slogans, materials, software,
proprietary systems, trade secrets, proprietary information and lists, and other
intellectual property owned or used by a Seller, its Property Manager, or AIMCO
in the marketing, operation or use of a Property (or in the marketing, operation
or use of any other properties managed by the Property Manager or owned by AIMCO
or an affiliate of either Property Manager or AIMCO).
............. 1.1.4.5 "Appeal" shall have the meaning set forth in
Section 5.4.4(b).
1.1.5 "Applicable Share" means, a fraction, the numerator of which is the
Property's Base Purchase Price set forth on the Seller Information Schedule, and
the denominator of which is $102,547,082.00.
1.1.6 [intentionally deleted]
1.1.7 [intentionally deleted]
1.1.8 [intentionally deleted]
1.1.9 [intentionally deleted]
1.1.10......[intentionally deleted]
1.1.11...... "Base Purchase Price" means the "Base Purchase Price" for a
Property set forth on the Seller Information Schedule.
1.1.12......[intentionally deleted]
1.1.13......"Business Day" means any day other than a Saturday or Sunday or
Federal holiday or legal holiday in the States (or Commonwealth) of California,
Colorado, Georgia, North Carolina, Texas or Virginia.
1.1.14......"Closing" means the consummation of the purchase and sale and
related transactions contemplated by this Contract in accordance with the terms
and conditions of this Contract.
1.1.15......"Closing Date" means the date on which date the Closing of the
conveyance of the Properties is required to be held pursuant to Section 5.1.
1.1.16......"Code" shall have the meaning set forth in Section 2.3.6.
1.1.17......"Consent Agreement" shall have the meaning set forth in
Section 14.2.
1.1.18......"Consultants" shall have the meaning set forth in Section 3.1.
1.1.19......"Damage Notice" shall have the meaning set forth in Section 11.1.
1.1.20......"Deeds" shall have the meaning set forth in Section 5.2.1.
1.1.21......"Deed of Trust" means any deeds to secure debts, deeds of trust
and/or mortgages which secure a Note against a Property.
1.1.22......"Deposit" means, to the extent actually deposited by Purchaser with
Escrow Agent, the Initial Deposit and the Additional Deposit.
1.1.23......"Escrow Agent" shall have the meaning set forth in Section 2.2.1.
1.1.24......"Excluded Permits" means, with respect to each Property, those
Permits which, under applicable law, are nontransferable and such other Permits,
if any, as may be designated as Excluded Permits on the Seller Information
Schedule or during the Feasibility Period.
1.1.25......"Existing Survey" shall have the meaning set forth in Section 4.2.
1.1.26......"Feasibility Period" shall have the meaning set forth in
Section 3.1.
1.1.27......"FHA" shall have the meaning set forth in Section 13.22.
1.1.28......"Final Response Deadline" shall have the meaning set forth in
Section 4.3.
1.1.28.5 "First Extension Right" shall have the meaning set forth in
Section 5.1.
1.1.29......"Fixtures and Tangible Personal Property" means, with respect to
each Property, all fixtures, furniture, furnishings, fittings, equipment,
machinery, apparatus, appliances and other articles of tangible personal
property located on such Property as of the Effective Date and used or usable in
connection with the occupation or operation of all or any part of such Property,
but only to the extent transferable. The term "Fixtures and Tangible Personal
Property" does not include (a) equipment leased by the applicable Seller and the
interest of the applicable Seller in any equipment provided to its Property for
use, but not owned or leased by such Seller, or (b) property owned or leased by
any Tenant or guest, employee or other person furnishing goods or services to
such Property, or (c) property and equipment owned by the applicable Seller,
which in the ordinary course of business of such Property is not used
exclusively for the business, operation or management of such Property, or (d)
the property and equipment, if any, expressly identified in Schedule 1.1.29,
listed on the Seller Information Schedule as "Excluded FF&E", or designated by
the applicable Seller during the Feasibility Period.
1.1.30......"General Assignment" shall have the meaning set forth in
Section 5.2.3.
1.1.31......"Good Funds" shall have the meaning set forth in Section 2.2.1.
1.1.32......"Improvements" means all buildings and improvements located on the
Land corresponding to each Property, taken "as is."
1.1.33......"Initial Deposit" shall have the meaning set forth in
Section 2.2.1.
1.1.34......"Land" means, with respect to each Property, the corresponding tract
of land described on Exhibits A-1 to A-8, and all rights, privileges and
appurtenances pertaining thereto.
1.1.35......"LBP Report" means, with respect to a Property, the report
identified on the Seller Information Schedule, prepared by the consultant
identified therein with respect to lead-based paint.
1.1.36......"Lease(s)" means, with respect to each Property, the interest of the
applicable Seller in and to all leases, subleases and other occupancy contracts,
whether or not of record, which provide for the use or occupancy of space or
facilities on or relating to such Seller's Property and which are in force as of
the Closing Date for the applicable Property.
1.1.37......"Leases Assignment" shall have the meaning set forth in
Section 5.2.4.
1.1.38......"Lender" means, with respect to each Property, those "Lenders"
identified on the Seller Information Schedule, each of whose servicer, if any,
also is identified on the Seller Information Schedule.
1.1.39......"Lender Fees" means, with respect to each Property, all fees and
expenses (including, without limitation, all prepayment penalties and pay-off
fees) imposed or charged by each Lender or its counsel in connection with the
Loan Payoff, and, to the extent that the Loan Payoff occurs on a date other than
as permitted under the applicable Note and Deed of Trust, any amounts of
interest charged by the applicable Lender for the period from the Closing Date
to the permitted prepayment date. The exact amount of the Lender Fees shall be
determined as of the Closing Date.
1.1.40......"Loan" means the indebtedness owing to Lender evidenced by a Note.
1.1.41......[intentionally deleted]
1.1.42......[intentionally deleted]
1.1.43......[intentionally deleted]
1.1.44......[intentionally deleted]
1.1.45......"Loan Payoff" shall have the meaning set forth in Section 5.4.7.
1.1.46......"Losses" shall have the meaning set forth in Section 3.4.1.
1.1.47......"Materials" shall have the meaning set forth in Section 3.5.
............. 1.1.47.5 "Materials Security Deposit" shall have the meaning set
forth in Section 2.3.7.
1.1.48......"Miscellaneous Property Assets" means, with respect to each
Property, all contract rights, leases, concessions, warranties, plans, drawings
and other items of intangible personal property relating to the ownership or
operation of a Property and owned by its respective Seller, excluding, however,
with respect to each Property (a) receivables, (b) Property Contracts, (c)
Leases, (d) Permits, (e) cash or other funds, whether in petty cash or house
"banks," or on deposit in bank accounts or in transit for deposit, (f) refunds,
rebates or other claims, or any interest thereon, for periods or events
occurring prior to the Closing Date, (g) utility and similar deposits, (h)
insurance or other prepaid items, (i) such Seller's proprietary books and
records, or (j) any right, title or interest in or to the AIMCO Marks. The term
"Miscellaneous Property Assets" also shall include all of the applicable
Seller's rights, if any, in and to the "Community Name" identified in the Seller
Information Schedule as it relates solely to use in connection with the
applicable Property (and not with respect to any other property owned or managed
by any Seller, Property Manager, AIMCO, or their respective affiliates).
1.1.49......"Note" means, with respect to each Property, the promissory note(s)
identified in the Seller Information Schedule.
1.1.50......"Objection Deadline" shall have the meaning set forth in
Section 4.3.
1.1.51......"Objection Notice" shall have the meaning set forth in
Section 4.3.
1.1.52......"Objections" shall have the meaning set forth in Section 4.3.
1.1.53......[intentionally deleted]
1.1.54......"Permits" means, with respect to each Property, all licenses and
permits granted by any governmental authority having jurisdiction over such
Property and required in order to own and operate such Property.
1.1.55......"Permitted Exceptions" shall have the meaning set forth in Section
4.4.
1.1.56......"Prohibited Person" means any of the following: (a) a person or
entity that is listed in the Annex to, or is otherwise subject to the provisions
of, Executive Order No. 13224 on Terrorist Financing (effective September 24,
2001) (the "Executive Order"); (b) a person or entity owned or controlled by, or
acting for or on behalf of any person or entity that is listed in the Annex to,
or is otherwise subject to the provisions of, the Executive Order; (c) a person
or entity that is named as a "specially designated national" or "blocked person"
on the most current list published by the U.S. Treasury Department's Office of
Foreign Assets Control ("OFAC") at its official website,
http://www.treas.gov/offices/enforcement/ofac; (d) a person or entity that is
otherwise the target of any economic sanctions program currently administered by
OFAC; or (e) a person or entity that is affiliated with any person or entity
identified in clause (a), (b), (c) and/or (d) above.
1.1.57......"Property" means (a) the Land and Improvements and all rights of the
applicable Seller, if any, in and to all of the easements, rights, privileges,
and appurtenances belonging or in any way appertaining to such Land and
Improvements, (b) the right, if any and only to the extent transferable, of such
Seller in the Property Contracts, Leases, Permits (other than Excluded Permits),
and the Fixtures and Tangible Personal Property related to such Land and
Improvements, and (c) the Miscellaneous Property Assets owned by Seller which
are located on such Land and Improvements and used in its operation.
1.1.57.5 "Properties" means, collectively, each Property to be
conveyed hereunder.
1.1.58......"Property Contracts" means, with respect to each Property, all
contracts, agreements, equipment leases, purchase orders, maintenance, service,
or utility contracts and similar contracts, excluding Leases, which relate to
the ownership, maintenance, construction or repair and/or operation of such
Property, but only to the extent assignable by their terms or applicable law
(including any contracts that are assignable with the consent of the applicable
vendor), and not including (a) any national contracts entered into by the
applicable Seller, Property Manager, or AIMCO with respect to the applicable
Property (i) which terminate automatically upon transfer of such Property by
such Seller, or (ii) which such Seller, in Seller's sole discretion, elects to
terminate with respect to such Property effective as of the Closing Date, or (b)
any property management contract for such Property. Property Contracts shall not
include forward or similar long-term contracts to purchase electricity, natural
gas, or other utilities, which contracts shall be "Utility Contracts" governed
by the provisions of Section 5.4.12.
1.1.59......"Property Contracts Notice" shall have the meaning set forth in
Section 3.6.
1.1.60......"Property Manager" means the current property manager of each
Property.
1.1.65 "Property Taxes" shall have the meaning set forth in Section
5.4.4.
1.1.61......"Proration Schedule" shall have the meaning set forth in
Section 5.4.1.
1.1.62......"Purchase Price" shall have the meaning set forth in Section 2.2.
1.1.63......"Records Disposal Notice" shall have the meaning set forth in
Section 5.4.13.
1.1.64......"Records Hold Period" shall have the meaning set forth in Section
5.4.13.
1.1.65......"Regional Property Manager" means, with respect to each Property,
the individual identified in the Seller Information Schedule.
1.1.66......"Reinstatement Notice" shall have the meaning set forth in Section
8.1.
1.1.66.6 "Related Contract" means the PURCHASE AND SALE CONTRACT
dated of even date herewith among SINGLETON-OXFORD ASSOCIATES LIMITED
PARTNERSHIP, a Maryland limited partnership, SUMMERWALK PROPERTIES, L.L.C., a
Maryland limited liability company, NORTH POINT-OXFORD ASSOCIATES LIMITED
PARTNERSHIP, a Maryland limited partnership, HOME-OXFORD ASSOCIATES LIMITED
PARTNERSHIP, a Maryland limited partnership, and NHP VILLAS, L.P., a Delaware
limited partnership, as sellers, and THE BETHANY GROUP, LLC, a Delaware limited
liability company, as purchaser.
1.1.67......"Remediation" shall have the meaning set forth in Section 14.2.
1.1.67.5 "Rent Roll" shall have the meaning set forth in Section
3.5.3.
1.1.68......"Required Assignment Consent" shall have the meaning set forth in
Section 3.6.
1.1.69......[intentionally deleted]
1.1.70......"Response Deadline" shall have the meaning set forth in
Section 4.3.
1.1.71......"Response Notice" shall have the meaning set forth in Section 4.3.
1.1.71.4 "Seller Third-Party Reports" means any reports, studies or
other information with respect to a Property prepared or compiled for a Seller
by any Consultant or other third-party not in the employ of Seller.
1.1.72......"Seller's Indemnified Parties" shall have the meaning set forth
in Section 3.4.1.
1.1.73......"Seller Information Schedule" shall have the meaning set forth in
the introductory paragraph.
1.1.74......"Seller's Property-Related Files and Records" shall have the meaning
set forth in Section 5.4.13.
1.1.75......"Seller's Representations" shall have the meaning set forth in
Section 6.1.
1.1.76......"Seller's Representative" means AIMCO.
1.1.77......[intentionally deleted]
1.1.78......"Survey" shall have the meaning ascribed thereto in Section 4.2.
1.1.79......"Survival Period" shall have the meaning set forth in Section 6.3.
1.1.80......"Survival Provisions" shall have the meaning set forth in Section
13.28.
1.1.80.5 "Tax Year" means each 12-month period for which the
applicable taxing authority assesses Property Taxes, which may or may not be a
calendar year.
1.1.81......"Tenant" means any person or entity entitled to occupy any portion
of the applicable Property under a Lease.
1.1.82......"Tenant Deposits" means, with respect to a Property, all security
deposits, prepaid rentals, cleaning fees and other refundable deposits and fees
collected from Tenants, plus any interest accrued thereon, paid by Tenants to
the applicable Seller pursuant to its Leases. Tenant Deposits shall not include
any non-refundable deposits or fees paid by Tenants to the applicable Seller,
either pursuant to the Leases or otherwise.
1.1.83......"Tenant Security Deposit Balance" shall have the meaning set forth
in Section 5.4.6.2.
1.1.84......"Terminated Contracts" shall have the meaning set forth in Section
3.6.
1.1.85......"Termination Notice" shall have the meaning set forth in Section
8.1.
1.1.86......"Testing" shall have the meaning set forth in Section 14.2.
1.1.87......"Third-Party Reports" means any reports, studies or other
information prepared or compiled for Purchaser by any Consultant or other
third-party in connection with Purchaser's investigation of a Property.
1.1.88......"Title Commitment" shall have the meaning ascribed thereto in
Section 4.1.
1.1.89......"Title Documents" shall have the meaning set forth in Section 4.1.
1.1.90......"Title Insurer" shall have the meaning set forth in Section 2.2.1.
1.1.91......"Title Policy" shall have the meaning set forth in Section 4.1.
1.1.92......"Uncollected Rents" shall have the meaning set forth in Section
5.4.6.1.
1.1.93......"Utility Contract " shall have the meaning set forth in Section
5.4.12.
1.1.94......"Vendor Terminations" shall have the meaning set forth in Section
5.2.5.
ARTICLE II
PURCHASE AND SALE, PURCHASE PRICE & DEPOSIT
2.1 Purchase and Sale. Each Seller agrees to sell and convey its Property listed
on the Seller Information Schedule to Purchaser and Purchaser agrees to purchase
such Property from each Seller, all in accordance with the terms and conditions
set forth in this Contract.
2.2 Purchase Price and Deposit. The Base Purchase Price for each Property is set
forth in the Seller Information Schedule, and shall be reduced by the Lender
Fees applicable to such Property in accordance with a statement from the
applicable Lender (for each such Property that Property's "Purchase Price"). The
Purchase Price for each Property shall be paid as follows:
2.2.1 On the Effective Date, Purchaser shall deliver to Stewart Title Guaranty
Company, c/o Wendy Howell, National Commercial Closing Specialist, 1980 Post Oak
Boulevard, Suite 610, Houston, Texas 77056, 800-729-1906 ("Escrow Agent" or
"Title Insurer"), with accompanying investment instructions to Escrow Agent
pursuant to Section 2.3.1, an initial aggregate deposit for all of the
Properties (the "Initial Deposit") of $969,192.00 by wire transfer of
immediately available funds ("Good Funds"). The Initial Deposit shall be held
and disbursed in accordance with the escrow provisions set forth in Section 2.3.
The Initial Deposit shall be allocated among the Sellers of the Properties
pursuant to the Applicable Share attributable to each of their respective
Properties.
2.2.2 On the day that the Feasibility Period expires, Purchaser shall deliver to
Escrow Agent an additional aggregate deposit (the "Additional Deposit") of
$969,192.00 by wire by transfer of Good Funds. The Additional Deposit shall be
held and disbursed in accordance with the escrow provisions set forth in Section
2.3. The Additional Deposit shall be allocated among the Sellers of the
Properties pursuant to the Applicable Share attributable to each of their
respective Properties.
2.2.3 [intentionally deleted]
2.2.4 The balance of the Purchase Price for each Property shall be paid to and
received by Escrow Agent by wire transfer of Good Funds no later than 11:00 a.m.
(in the time zone in which Escrow Agent is located) on the Closing Date (or, if
required by any Seller's lender, the Business Day before the Closing Date).
2.3 Escrow Provisions Regarding Deposit.
2.3.1 Escrow Agent shall hold the Deposit and make delivery of the Deposit to
the party entitled thereto under the terms of this Contract. Escrow Agent shall
invest the Deposit in such short-term, high-grade securities, interest-bearing
bank accounts, money market funds or accounts, bank certificates of deposit or
bank repurchase contracts as Escrow Agent, in its discretion, deems suitable,
subject to Purchaser's written consent or ratification, and all interest and
income thereon shall become part of the Deposit and shall be remitted to the
party entitled to the Deposit pursuant to this Contract.
2.3.2 Escrow Agent shall hold the Deposit until the earlier occurrence of (i)
the Closing Date, at which time the Deposit shall be applied against the
Purchase Price for each Property, or (ii) the date on which Escrow Agent shall
be authorized to disburse the Deposit as set forth in Section 2.3.3. The tax
identification numbers of the parties shall be furnished to Escrow Agent upon
request.
2.3.3 If the Deposit has not been released earlier in accordance with Section
2.3.2, and Purchaser or Seller's Representative makes a written demand upon
Escrow Agent for payment of the Deposit, Escrow Agent shall give written notice
to the other parties of such demand. If Escrow Agent does not receive a written
objection from another party to the proposed payment within 5 Business Days
after the giving of such notice, Escrow Agent is hereby authorized to make such
payment. If Escrow Agent does receive such written objection within such
5-Business Day period, Escrow Agent shall continue to hold such amount until
otherwise directed by written instructions from the parties to this Contract or
a final judgment or arbitrator's decision. However, in the event of a
disagreement among the parties as to the proper disposition of the Deposit,
Escrow Agent shall have the right at any time to deposit the portion of the
Deposit in issue, and interest thereon, if any, with a court of competent
jurisdiction in the state or commonwealth in which a Property is located. Escrow
Agent shall give written notice of such deposit to Seller's Representative and
Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of
all further obligations and responsibilities hereunder (other than those that
accrued prior to such deposit). Sellers hereby appoint Seller's Representative
to give and receive notices to Escrow Agent regarding the Deposit.
2.3.4 The parties acknowledge that Escrow Agent is acting solely as a
stakeholder at their request and for their convenience, that Escrow Agent shall
not be deemed to be the agent of any of the parties for any act or omission on
its part unless taken or suffered in bad faith in willful disregard of this
Contract or involving gross negligence. Sellers and Purchaser jointly and
severally shall indemnify and hold Escrow Agent harmless from and against all
costs, claims and expenses, including reasonable attorneys' fees, incurred in
connection with the performance of Escrow Agent's duties hereunder, except with
respect to actions or omissions taken or suffered by Escrow Agent in bad faith,
in willful disregard of this Contract or involving gross negligence on the part
of the Escrow Agent.
2.3.5 The parties shall deliver to Escrow Agent an executed copy of this
Contract, which shall constitute the sole instructions to Escrow Agent. Escrow
Agent shall execute the signature page for Escrow Agent attached hereto with
respect to the provisions of this Section 2.3; provided, however, that (a)
Escrow Agent's signature hereon shall not be a prerequisite to the binding
nature of this Contract on Purchaser and Sellers, and the same shall become
fully effective upon execution by Purchaser and Sellers, and (b) the signature
of Escrow Agent will not be necessary to amend any provision of this Contract
other than this Section 2.3.
2.3.6 Escrow Agent, as the person responsible for closing the transaction within
the meaning of Section 6045(e)(2)(A) of the Internal Revenue Code of 1986, as
amended (the "Code"), shall file all necessary information, reports, returns,
and statements regarding the transaction required by the Code including, but not
limited to, the tax reports required pursuant to Section 6045 of the Code.
Further, Escrow Agent agrees to indemnify and hold Purchaser, Sellers, and their
respective attorneys and brokers harmless from and against any Losses resulting
from Escrow Agent's failure to file the reports Escrow Agent is required to file
pursuant to this section.
2.3.7 If Purchaser becomes entitled, under any provision of this Agreement, to a
return of all, or any portion, of the Deposit, Escrow Agent is hereby instructed
to withhold from the amount of the Deposit to be returned to Purchaser the sum
of $100,000 (the "Materials Security Deposit") and to withhold such amount from
Purchaser until such time as Purchaser has fully complied with its obligations
under Section 3.5.2 to deliver to the applicable Seller all Third-Party Reports
and also all information and Materials provided to Purchaser by such Seller
pursuant to this Contract. The satisfaction of Purchaser's obligations under
Section 3.5.2 shall be evidenced by a written instruction to Escrow Agent signed
by the applicable Seller upon request by Purchaser made at any time after the
performance of Purchaser's obligations, which signature shall not unreasonably
be withheld, conditioned or delayed.
2.3.8 The provisions of Subsections 2.3.3, 2.3.4, 2.3.6 and 2.3.7 shall survive
the termination of this Contract, and if not so terminated, the Closing and
delivery of the Deeds to Purchaser.
ARTICLE III
FEASIBILITY PERIOD
3.1 Feasibility Period. Subject to the terms of Sections 3.3 and 3.4 and the
right of Tenants under the Leases, from the Effective Date to and including June
17, 2005 (the "Feasibility Period"), Purchaser, and its agents, contractors,
engineers, surveyors, attorneys, and employees (collectively, "Consultants")
shall have the right, from time to time and at Purchaser's sole cost and
expense, to enter onto the Properties:
3.1.1 To conduct and make any and all customary studies, tests, examinations,
inquiries, and inspections, or investigations (collectively, the "Inspections")
of or concerning the Properties (including, without limitation, engineering and
feasibility studies, evaluation of drainage and flood plain, soil tests for
bearing capacity and percolation and surveys, including topographical surveys);
3.1.2 To confirm any and all matters which Purchaser may reasonably desire to
confirm with respect to the Properties;
3.1.3 To ascertain and confirm the suitability of the Properties for
Purchaser's intended use of the Properties; and
3.1.4 To review the Materials.
3.2 Expiration of Feasibility Period. If the results of any of the matters
referred to in Section 3.1 appear unsatisfactory to Purchaser for any reason or
if Purchaser elects not to proceed with the transaction contemplated by this
Contract for any other reason, or for no reason whatsoever, in Purchaser's sole
and absolute discretion, then Purchaser shall have the right to terminate this
Contract in its entirety with respect to all Properties (but not in part with
respect to less than all Properties) by giving written notice to that effect to
Seller's Representative and Escrow Agent on or before 5:00 p.m. (in the time
zone in which the Escrow Agent is located) on the date of expiration of the
Feasibility Period. If Purchaser exercises such right to terminate, this
Contract shall terminate and be of no further force and effect subject to and
except for the Survival Provisions, and Escrow Agent shall forthwith return the
Initial Deposit to Purchaser. If Purchaser fails to provide Seller's
Representative with written notice of termination prior to the expiration of the
Feasibility Period in strict accordance with the notice provisions of this
Contract, Purchaser's right to terminate under this Section 3.2 shall be
permanently waived and this Contract shall remain in full force and effect, the
Deposit (including both the Initial Deposit and, when delivered in accordance
with Section 2.2.2, the Additional Deposit) shall be non-refundable, and
Purchaser's obligation to purchase the Properties as set forth in this Contract
shall be non-contingent and unconditional except only for satisfaction of the
conditions expressly stated in Section 8.1.
3.3 Conduct of Investigation. Purchaser shall not permit any mechanic's or
materialmen's liens or any other liens to attach to any Property by reason of
the performance of any work or the purchase of any materials by Purchaser or any
other party in connection with any Inspections conducted by or for Purchaser.
Purchaser shall give written notice to the applicable Seller not less than 24
hours prior to entry onto its Property and shall permit such Seller to have a
representative present during all Inspections conducted at its Property. All
information made available by any of the Sellers to Purchaser in accordance with
this Contract or obtained by Purchaser in the course of its Inspections shall be
treated as confidential information by Purchaser, and, prior to the purchase of
the Properties by Purchaser, Purchaser shall use its best efforts to prevent its
Consultants from divulging such information to any unrelated third parties
except as reasonably necessary to permit third parties engaged by Purchaser to
analyze and investigate such information for the purpose of consummating the
transaction contemplated by this Contract. The provisions of this Section 3.3
shall survive the termination of this Contract, and if not so terminated shall
survive (except for the confidentiality provisions of this Section 3.3) the
Closing and delivery of the Deeds to Purchaser.
3.4 Purchaser Indemnification.
3.4.1 Purchaser shall indemnify, hold harmless and, if requested by a Seller (in
such Seller's sole discretion), defend (with counsel approved by such Seller)
such Seller, together with such Seller's affiliates, parent and subsidiary
entities, successors, assigns, partners, managers, members, employees, officers,
directors, trustees, shareholders, counsel, representatives, agents, Property
Manager, Regional Property Manager, and AIMCO (collectively, including such
Seller, "Seller's Indemnified Parties"), from and against any and all damages,
mechanics' liens, liabilities, penalties, interest, losses, demands, actions,
causes of action, claims, costs and expenses (including reasonable attorneys'
fees, including the cost of in-house counsel and appeals) (collectively,
"Losses") arising from or related to Purchaser's or its Consultant's entry onto
such Seller's Property, and any Inspections or other matters performed by
Purchaser with respect to such Property during the Feasibility Period or
otherwise.
3.4.2 Notwithstanding anything in this Contract to the contrary, Purchaser shall
not be permitted to perform any invasive tests on a Property without the prior
written consent of Seller's Representative, which consent may be withheld in
Seller's Representative's sole discretion. Further, Seller's Representative
shall have the right, without limitation, to disapprove any and all entries,
surveys, tests (including, without limitation, a Phase II environmental study of
its Property), investigations and other matters that in such Seller's
Representative's reasonable judgment could result in any injury to its Property
or breach of any contract, or expose the applicable Seller to any Losses or
violation of applicable law, or otherwise adversely affect such Property or such
Seller's interest therein; provided, however, each Seller hereby expressly
consents to Purchaser's performance of a Phase I environmental study of the
applicable Property (to be conducted by an environmental engineer reasonably
acceptable to Seller's Representative) and an ACM (asbestos containing material)
study (to be conducted by an environmental engineer reasonably acceptable to
Seller's Representative) in connection therewith, but only to the extent
customarily performed in connection with a Phase I environmental study; and,
provided, further, however, if the Phase I for any Property concludes that a
Phase II is recommended, but the applicable Seller refuses permission for such
Phase II (in such Seller's sole and absolute discretion), Purchaser may
terminate this Agreement pursuant to Section 3.2 prior to the expiration of the
Feasibility Period. Purchaser shall use best efforts to minimize disruption to
Tenants in connection with Purchaser's or its Consultants' activities pursuant
to this Section. No consent by Seller's Representative to any such activity
shall be deemed to constitute a waiver by the applicable Seller or assumption of
liability or risk by such Seller. Purchaser hereby agrees to restore, at
Purchaser's sole cost and expense, each Property substantially to the same
condition existing immediately prior to Purchaser's exercise of its rights
pursuant to this Article 3. Purchaser shall maintain and cause its third party
consultants to maintain (a) casualty insurance and comprehensive public
liability insurance with coverages of not less than $1,000,000.00 for injury or
death to any one person and $3,000,000.00 for injury or death to more than one
person and $1,000,000.00 with respect to property damage, by water or otherwise,
and (b) worker's compensation insurance for all of their respective employees in
accordance with the law of the state(s) or commonwealth(s) in which the
Properties are located. Purchaser shall deliver proof of the insurance coverage
required pursuant to this Section 3.4.2 to Sellers (in the form of a certificate
of insurance) prior to Purchaser's or Purchaser's Consultants' entry onto any of
the Properties.
3.4.3 The provisions of this Section 3.4 shall survive the termination of this
Contract, and if not so terminated, the Closing and delivery of the Deeds to
Purchaser.
3.5 Property Materials.
3.5.1 Within 5 days after the Effective Date, and to the extent the same exist
and are in a Seller's possession or reasonable control (subject to Section
3.5.2), each Seller agrees to make the documents set forth on Schedule 3.5 (the
"Materials") relating to its Property available at its Property for review and
copying by Purchaser at Purchaser's sole cost and expense. In the alternative,
at a Seller's option and within the foregoing 5-day period, such Seller may
deliver some or all of its Materials to Purchaser, or make the same available to
Purchaser on a secure web site (Purchaser agrees that any item to be delivered
by a Seller under this Contract shall be deemed delivered to the extent
available to Purchaser on such secured web site). To the extent that Purchaser
determines that any of the Materials have not been made available or delivered
to Purchaser pursuant to this Section 3.5.1, Purchaser shall notify the
applicable Seller and such Seller shall use commercially reasonable efforts to
deliver the same to Purchaser within 5 Business Days after such notification is
received by such Seller; provided, however, that under no circumstances will the
Feasibility Period be extended and Purchaser's sole remedy will be to terminate
this Contract pursuant to Section 3.2.
3.5.2 In providing such information and Materials to Purchaser, other than
Seller's Representations, each Seller makes no representation or warranty,
express, written, oral, statutory, or implied, and all such representations and
warranties are hereby expressly excluded and disclaimed. Any information and
Materials provided by any of the Sellers to Purchaser under the terms of this
Contract is for informational purposes only and, together with all Third-Party
Reports, shall be returned by Purchaser to all applicable Sellers as a condition
to return of the Materials Security Deposit to Purchaser (if Purchaser is
otherwise entitled to such Materials Security Deposit pursuant to the terms of
this Contract) if this Contract is terminated for any reason. Purchaser shall
not in any way be entitled to rely upon the accuracy of such information and
Materials. Purchaser recognizes and agrees that the Materials and other
documents and information delivered or made available by Sellers pursuant to
this Contract may not be complete or constitute all of such documents which are
in a Seller's possession or control, but are those that are readily available to
such Seller after reasonable inquiry to ascertain their availability. Purchaser
understands that, although each Seller will use commercially reasonable efforts
to locate and make available the Materials and other documents required to be
delivered or made available by it pursuant to this Contract, and other than
Seller's Representations, Purchaser will not rely on such Materials or other
documents as being a complete and accurate source of information with respect to
such Seller's Property, and will instead in all instances rely exclusively on
its own Inspections and Consultants with respect to all matters which it deems
relevant to its decision to acquire, own and operate the Properties.
3.5.3 In addition to the items set forth on Schedule 3.5, no later than 15 days
after the Effective Date, the applicable Seller shall deliver to Purchaser (or
otherwise make available to Purchaser as provided under Section 3.5.1) a rent
roll for its Property listing the move-in date, monthly base rent payable, lease
expiration date and unapplied security deposit for each Lease (the "Rent Roll").
The Rent Roll shall be part of the Materials for all purposes under this
Contract and Sellers make no representations or warranties regarding the Rent
Roll other than the express representation set forth in Section 6.1.9. The
applicable Seller shall update the Rent Roll in accordance with Section 5.2.14.
3.5.4 The provisions of this Section 3.5 shall survive the Closing and delivery
of the Deeds to Purchaser.
3.6 Property Contracts. On or before the expiration of the Feasibility Period,
Purchaser may deliver written notice to each Seller (a "Property Contracts
Notice") specifying any Property Contracts of such Seller which Purchaser
desires to terminate at the Closing (the "Terminated Contracts"); provided that
(a) the effective date of such termination after Closing shall be subject to the
express terms of such Terminated Contracts (and, to the extent that the
effective date of termination of any Terminated Contract is after the Closing
Date, Purchaser shall be deemed to have assumed all of the applicable Seller's
obligations under such Terminated Contract as of the Closing Date), (b) if any
such Property Contract cannot by its terms be terminated, it shall be assumed by
Purchaser and not be a Terminated Contract, and (c) to the extent that any such
Terminated Contract requires payment of a penalty or premium for cancellation,
Purchaser shall be solely responsible for the payment of any such cancellation
fees or penalties. If Purchaser fails to deliver a Property Contracts Notice to
a Seller on or before the expiration of the Feasibility Period, there shall be
no Terminated Contracts with respect to such Seller (or its Property) and
Purchaser shall assume all Property Contracts of such Seller at the Closing. To
the extent that any Property Contract to be assumed by Purchaser (including any
Property Contracts that, because of advance notice requirements, will be
temporarily assumed by Purchaser pending the effective date of termination after
the Closing Date) is assignable but requires the applicable vendor to consent to
the assignment or assumption of the Property Contract by the applicable Seller
to Purchaser, then, prior to the Closing, Purchaser shall be responsible for
obtaining from each applicable vendor a consent (each a "Required Assignment
Consent") to the assignment of the Property Contract to Purchaser (and the
assumption by Purchaser of all obligations under such Property Contract).
Purchaser shall indemnify, hold harmless and, if requested by the applicable
Seller (in such Seller's sole discretion), defend (with counsel approved by such
Seller) such Seller's Indemnified Parties from and against any and all Losses
arising from or related to Purchaser's failure to obtain any Required Assignment
Consent.
ARTICLE IV
TITLE
4.1 Title Documents. Within 10 calendar days after the Effective Date, each
Seller shall cause to be delivered to Purchaser a standard form commitment for
title insurance ("Title Commitment") for such Seller's Property in an amount
equal to the Property's Base Purchase Price from Title Insurer for an owner's
title insurance policy (the "Title Policy") on the most recent standard American
Land Title Association form, together with copies of all instruments identified
as exceptions therein (together with the Title Commitment, referred to herein as
the "Title Documents"). Each Seller of a Property located in California, Georgia
and Virginia shall be responsible only for payment of the basic premium for the
Title Policy for its Property located in such states. Purchaser shall be solely
responsible for payment of all other costs relating to procurement of a Title
Commitment, Title Policy, and any requested endorsements with respect to each of
the Properties, including for "extended" coverage, and further including for the
entire Title Policy for any Property located in North Carolina.
4.2 Survey. Within 5 calendar days after the Effective Date, each Seller shall
deliver to Purchaser or make available at such Seller's Property any existing
survey of such Property (the "Existing Survey") which to such Seller's knowledge
is in such Seller's possession or reasonable control (subject to Section 3.5.2).
Purchaser acknowledges and agrees that delivery of the Existing Survey is
subject to Section 3.5.2. In addition, by May 25, 2005 (or such greater time as
may reasonably be required) after the Effective Date, each Seller also shall
deliver to Purchaser an update (or new) survey (such new or updated survey being
the "Survey") of each Property; provided, however, the applicable Seller and
Purchaser shall split equally the cost and expense of the preparation of the
Survey whether the transactions contemplated hereby close or this Agreement is
terminated. The provisions of this Section 4.2 shall survive Closing or the
termination of this Agreement.
4.3 Objection and Response Process.
.............(a) On or before the later of June 3, 2005, or the date that is
10-days after the Purchaser receives the Survey for the applicable Property, but
in no event later than June 8, 2005 (the "Objection Deadline"), Purchaser shall,
with respect to each Property, give written notice (the "Objection Notice") to
the attorneys for Sellers of any matter set forth in any Title Documents or
Survey to which Purchaser objects (the "Objections"). If Purchaser fails to
tender an Objection Notice with respect to a Property on or before its
applicable Objection Deadline, Purchaser shall be deemed to have approved and
irrevocably waived any objections to any matters covered by the Title Documents
and the Survey for such Property. On or before 7 days after receipt of an
Objection Notice (the "Response Deadline"), the Seller who has received such
Objection Notice may, in such Seller's sole discretion, give Purchaser notice
(the "Response Notice") of those Objections which such Seller is willing to
cure, if any. Sellers shall be entitled to reasonable adjournments of the
Closing Date (but not in excess of 30-days in total) for the purpose of curing
such Objections. If a Seller fails to deliver a Response Notice for a Property
by such Property's Response Deadline, such Seller shall be deemed to have
elected not to cure or otherwise resolve any matter set forth in the Objection
Notice for such Property. If Purchaser is dissatisfied with any Response Notice,
Purchaser may, as its exclusive remedy, elect by written notice given to
Seller's Representative on or before the expiration of the Feasibility Period
(the "Final Response Deadline") either (i) to accept the Title Documents and
Survey with resolution, if any, of the Objections as set forth in the Response
Notice (or if no Response Notice is tendered, without any resolution of the
Objections) and without any reduction or abatement of the Purchase Price, or
(ii) to terminate this Contract in its entirety regarding all Properties (but
not less than all Properties), in which event the Initial Deposit shall be
returned to Purchaser. If Purchaser fails to give notice to terminate this
Contract on or before the Final Response Deadline, Purchaser shall be deemed to
have elected to approve and irrevocably waived any objections to any matters
covered by the Title Documents or the Survey applicable to each Property,
subject only to resolution, if any, of the Objections as set forth in the
Response Notice for such Property (or if no Response Notice is tendered, without
any resolution of the Objections).
............. (b) If any Title Commitment for any Property is re-issued on or
after the expiration of the Feasibility Period and discloses any additional
title matters not shown on the original Title Commitment that are material and
adverse to the ownership or operation of such Property, then Purchaser shall
have the lesser of 5 days after the receipt of such updated Title Commitment or
the Closing Date to object to such title matters (if Purchaser does not object
within such period, the new matters shall be deemed "Permitted Exceptions"
hereunder). The applicable Seller then shall have 5 days after the receipt of
such objections to provide a Response Notice (if at all) as set forth in Section
4.3(a) (Seller's failure to provide a Response Notice shall be deemed a refusal
to cure). If such Seller has refused (or is deemed to have refused) to cure such
title matters (which cure may include, if selected by such Seller in such
Seller's sole discretion, by title endorsement), then Purchaser shall have the
rights set forth in the second to last sentence of Section 4.3(a), which rights
of termination shall be exercised (if at all) within 5 days after receipt of
Seller's Response Notice for such new title objections (or the Closing Date, if
earlier). (The updated Title Commitment shall be part of the Title Documents for
all purposes under this Contract.)
4.4 Permitted Exceptions. The Deed for each Property delivered pursuant to this
Contract shall be subject to the following, all of which shall be deemed
"Permitted Exceptions":
4.4.1 All matters shown in the Title Documents and the Survey for such Property,
other than (a) those Objections, if any, which the applicable Seller has agreed
to cure pursuant to the Response Notice under Section 4.3, (b) the standard
exception regarding the rights of parties in possession, and (c) the standard
exception pertaining to taxes which shall be limited to taxes and assessments
payable in the year in which the Closing occurs and subsequent taxes and
assessments;
4.4.2 All Leases for such Property;
4.4.3 [intentionally deleted];
4.4.4 Applicable zoning and governmental regulations and ordinances;
4.4.5 Any defects in or objections to title to such Property, or title
exceptions or encumbrances, arising by, through or under Purchaser; and
4.4.6 [intentionally deleted].
4.5 Existing Deed of Trust. It is understood and agreed that, whether or not
Purchaser gives an Objection Notice with respect thereto for a Property, any
deeds of trust and/or mortgages which secure a Note (collectively, a "Deed of
Trust") shall not be deemed Permitted Exceptions for such Property, whether
Purchaser gives further written notice of such or not, and shall, pursuant to
Section 5.4.7, be paid off, satisfied, discharged and/or cured from proceeds of
the Purchase Price at Closing, provided that the Lender's Fees due in connection
with such Loan Payoff shall be paid by Purchaser. It is further understood and
agreed that, provided that Purchaser provides prompt notice to Seller, any tax
lien for delinquent property taxes, mechanic's liens for work authorized by the
applicable Seller and judgment liens against the applicable Seller shall not be
deemed a Permitted Exception, and shall be paid off, satisfied, discharged
and/or cured by the applicable Seller at or before Closing.
4.6 [intentionally deleted].
4.7 Purchaser Financing. Purchaser assumes full responsibility to obtain
the funds required for settlement, and Purchaser's acquisition of such funds
shall not be a contingency to the Closing.
ARTICLE V
CLOSING
5.1 Closing Date. The Closing shall occur on June 30, 2005 (the "Closing Date")
through an escrow with Escrow Agent, whereby the Sellers, Purchaser and their
attorneys need not be physically present at the Closing and may deliver
documents by overnight air courier or other means. Notwithstanding the foregoing
to the contrary, any Seller shall have the option, by delivering written notice
to Purchaser, to extend the Closing Date to the last Business Day of the month
in which the Closing Date otherwise would occur pursuant to the preceding
sentence, or to such other date (either in the same month or the next) as such
Seller reasonably determines is desirable in connection with any Loan Payoff and
the exercise of such option shall extend the Closing Date for all Properties.
Further, the Closing Date may be extended without penalty at the option of any
Seller either (i) to a date not later than 30 days following the Closing Date
specified in the first sentence of this paragraph above (or, if applicable, as
extended by any Seller pursuant to the second sentence of this paragraph) to
satisfy a condition set forth in Section 8.2, and (ii) such later date as is
mutually acceptable to Sellers and Purchaser. Provided that Purchaser is not in
default under the terms of this Contract or Related Contract, Purchaser shall be
permitted the right to extend the Closing Date for all Properties (the "First
Extension Right") to July 29, 2005, by (i) delivering written notice to Sellers
no later than 15 days prior to the scheduled Closing Date, (ii) simultaneously
with such notice to Sellers, delivering to Escrow Agent the amount of
$969,192.00, which amount when received by Escrow Agent shall be added to the
Deposit hereunder, shall be non-refundable (except as otherwise expressly
provided herein with respect to the Deposit), and shall be held, credited and
disbursed in the same manner as provided hereunder with respect to the Deposit,
and (iii) unless waived by Sellers in their sole discretion, Purchaser
simultaneously must exercise the similar "First Extension Right" set forth in
the Related Contract. Further, provided that Purchaser has exercised the First
Extension Right and is not in default of this Contract or the Related Contract,
Purchaser shall be permitted a second right to extend the Closing Date for all
Properties to August 16, 2005, by (X) delivering written notice to Sellers no
later than July 15, 2005, (Y) simultaneously with such notice to Sellers,
delivering to Escrow Agent the amount of $646,128.00, which amount when received
by Escrow Agent shall be added to the Deposit hereunder, shall be non-refundable
(except as otherwise expressly provided herein with respect to the Deposit), and
shall be held, credited and disbursed in the same manner as provided hereunder
with respect to the Deposit, and (Z) unless waived by Sellers in their sole
discretion, Purchaser simultaneously must exercise the similar "second extension
right" set forth in the Related Contract.
5.2 Seller Closing Deliveries. No later than 1 Business Day prior to the Closing
Date, each Seller shall, with respect to each Property to be conveyed by such
Seller hereunder, deliver to Escrow Agent, each of the following items:
5.2.1 The following deeds (the "Deeds") to Purchaser, subject to the Permitted
Exceptions: a Grant Deed in the form attached as Exhibit B-1 (California
Property); a Limited Warranty Deed in the form attached as Exhibit B-2
(Georgia); a Special Warranty Deed in the form attached as Exhibit B-3 (North
Carolina); and a Special Warranty Deed in the form attached as Exhibit B-4
(Virginia).
5.2.2 A signed Bill of Sale in the form attached as Exhibit C.
5.2.3 A signed General Assignment in the form attached as Exhibit D (the
"General Assignment").
5.2.4 A signed Assignment of Leases and Security Deposits in the form attached
as Exhibit E (the "Leases Assignment").
5.2.5 A letter in the form attached hereto as Exhibit F prepared by Purchaser
and countersigned by such Seller to each of the vendors under the Terminated
Contracts informing them of the termination of such Terminated Contract as of
the Closing Date (subject to any delay in the effectiveness of such termination
pursuant to the express terms of each applicable Terminated Contract) (the
"Vendor Terminations").
5.2.6 A closing statement executed by such Seller.
5.2.7 A signed title affidavit or at such Seller's option an indemnity, as
applicable, in the customary form reasonably acceptable to such Seller to enable
Title Insurer to delete the standard exceptions to the title insurance policy
set forth in this Contract (other than matters constituting any Permitted
Exceptions and matters which are to be completed or performed post-Closing) to
be issued pursuant to the Title Commitment; provided that such affidavit does
not subject such Seller to any greater liability, or impose any additional
obligations, other than as set forth in this Contract; and
5.2.8 A signed certification of such Seller's non-foreign status pursuant to
Section 1445 of the Internal Revenue Code of 1986, as amended, together with
California Franchise Tax Board Form 593-C, and such other certifications and
declarations as may be required by law of the applicable jurisdiction in which
the Property is located.
5.2.9 Resolutions, certificates of existence or good standing, and such other
organizational documents as Title Insurer shall reasonably require evidencing
such Seller's authority to consummate this transaction.
5.2.10......With respect to Property located in the State of Georgia, a signed
Affidavit of the applicable Seller's residence if such Seller is, or is deemed,
a "resident" of Georgia; or an Affidavit of Seller's Gain if Seller is not a
"resident" of Georgia.
5.2.11......With respect to Property located in the State of Georgia, a signed
Form PT-61 (Real Estate Transfer Tax Declaration) for Property located in the
State of Georgia.
5.2.12......With respect to Property located in the State of Georgia, a signed
Form 1099 (Request for Taxpayer Identification Number and Certain Other
Information in Connection With a Real Estate Transaction).
5.2.13......With respect to Property located in the State of Georgia, a signed
Broker's Lien Waiver.
5.2.14......An updated Rent Roll reflecting the information required in Section
3.5.3; provided, however, that the content of such updated Rent Roll shall in no
event expand or modify the conditions to Purchaser's obligation to close as
specified under Section 8.1.
5.2.15......[intentionally deleted]
5.2.16......Notification letter to all Tenants of a Property located in
California and prepared by Purchaser and countersigned by the applicable Seller
in the form attached hereto as Exhibit G-2.
5.3 Purchaser Closing Deliveries. No later than 1 Business Day prior to the
Closing Date (except for the balance of the Purchase Price which is to be
delivered at the time specified in Section 2.2.4), Purchaser shall deliver to
the Escrow Agent (for disbursement to the applicable Seller upon the Closing)
the following items with respect to each Property being conveyed at such
Closing:
5.3.1 The full Purchase Price for such Property (with credit for the Applicable
Share of the Deposit), plus or minus the adjustments or prorations required by
this Contract.
5.3.2 A signed title affidavit (or at Purchaser's option an indemnity)
pertaining to Purchaser's activity on the applicable Property prior to Closing,
in the customary form reasonably acceptable to Purchaser, to enable Title
Insurer to delete the standard exceptions to the title insurance policy set
forth in this Contract (other than matters constituting any Permitted Exceptions
and matters which are to be completed or performed post-Closing) to be issued
pursuant to the Title Commitment; provided that such affidavit does not subject
Purchaser to any greater liability, or impose any additional obligations, other
than as set forth in this Contract.
5.3.3 Any signed declaration or other statement which may be required to be
submitted to the local assessor with respect to the terms of the sale of such
Property, including a Form PT-61 (Real Estate Transfer Tax Declaration for
Property located in the State of Georgia.
5.3.4 A closing statement executed by Purchaser.
5.3.5 A countersigned counterpart of the General Assignment.
5.3.6 A countersigned counterpart of the Leases Assignment.
5.3.7 Notification letters to all Tenants at such Property prepared and executed
by Purchaser in the form attached hereto as Exhibit G-1 for Tenants of a
Property located in Georgia, North Carolina or Virginia, and Exhibit G-2 for
Tenants of a Property located in California.
5.3.8 The Vendor Terminations (Purchaser shall be solely responsible for
identifying each of the Terminated Contracts (subject to the terms and
conditions of Section 3.6) and addressing and preparing each of the Vendor
Terminations for execution by Purchaser and the applicable Seller).
5.3.9 Any cancellation fees or penalties due to any vendor under any Terminated
Contract as a result of the termination thereof.
5.3.10......Resolutions, certificates of existence or good standing, and such
other organizational documents as Title Insurer shall reasonably require
evidencing Purchaser's authority to consummate this transaction.
5.3.11......[intentionally deleted]
5.3.12......The Lender Fees (subject to deduction from the Purchase Price in
accordance with Section 2.2).
5.3.13......With respect to Property located in the State of Georgia, a Form
G-2RP (Withholding on Sales or Transfers of Real Property and Associated
Tangible Personal Property by Nonresidents) if Seller is not a "resident" of
Georgia, and such affidavits regarding "brokers" as is customary in Georgia.
5.4 Closing Prorations and Adjustments. The prorations set forth in this Section
5.4 shall be on a Property-by-Property basis and not among, or between,
Properties, and shall not be allocated on an Applicable Share basis.
5.4.1 General. With respect to each Property, all normal and customarily
proratable items, including, without limitation, collected rents, operating
expenses, personal property taxes, other operating expenses and fees, shall be
prorated as of the Closing Date, the applicable Seller being charged or
credited, as appropriate, for all of the same attributable to the period up to
the Closing Date (and credited for any amounts paid by the applicable 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 the same attributable to the period on and after the
Closing Date. Each Seller shall prepare a proration schedule (the "Proration
Schedule") of the adjustments described in this Section 5.4 prior to Closing.
Such adjustments shall be paid by Purchaser to the applicable Seller (if the
prorations result in a net credit to such Seller) or by such Seller to Purchaser
(if the prorations result in a net credit to Purchaser for such Property), by
increasing or reducing the cash to be paid by Purchaser at Closing for such
Property.
5.4.2 Operating Expenses. With respect to each Property, all of the operating,
maintenance, taxes (other than real estate taxes, such as rental taxes), and
other expenses incurred in operating such Property that such Seller customarily
pays, and any other costs incurred in the ordinary course of business for the
management and operation of such Property, shall be prorated on an accrual
basis. Each Seller shall pay all such expenses that accrue prior to Closing and
Purchaser shall pay all such expenses that accrue from and after the Closing
Date.
5.4.3 Utilities. With respect to each Property, the final readings and final
billings for utilities will be made if possible as of the Closing Date, in which
case each Seller shall pay all such bills as of the Closing Date and no
proration shall be made at the Closing with respect to utility bills. Otherwise,
a proration shall be made based upon the parties' reasonable good faith estimate
and a readjustment made within 30 days after the Closing, if necessary. Each
Seller shall be entitled to the return of any deposit(s) posted by it with any
utility company, and such Seller shall notify each utility company serving its
Property to terminate its account, effective as of noon on the Closing Date.
5.4.4 Real Estate Taxes.
(a) Any real estate ad valorem or similar taxes for a Property, or
any installment of assessments payable in installments which installment is
payable in the calendar year of Closing, shall be prorated to the date of
Closing, based upon actual days involved. The proration of real property taxes
or installments of assessments shall be based upon the assessed valuation and
tax rate figures (assuming payment at the earliest time to allow for the maximum
possible discount) 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 such 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 (assuming payment at the earliest time to allow for the
maximum possible discount). The proration of real property taxes or installments
of assessments shall be final and not subject to re-adjustment after Closing,
except, in the case of Property located in California, regarding supplemental,
corrective or amendatory real estate tax assessments or billings received after
the Closing applicable to any period during a Seller's ownership of its
Property, as described in the remainder of this Section 5.4.4. With respect to
Property located in California, if (i) the Title Insurer will not issue title
insurance for real property taxes and assessments for the time period before
Closing for which taxes and assessments were due and payable on the Closing Date
and (ii) the law in the state of California permits a governmental agency to
supplement, correct or amend taxes and assessments and collect them from a bona
fide purchaser, the applicable Seller shall be liable for such taxes and
assessments if Purchaser provides such Seller notice of such supplemental,
corrective or amendatory real estate taxes. With respect to Property located in
California, a Seller's liability under this subsection for such real estate
taxes shall survive for 3 years and such Seller shall have no liability for such
taxes after 3 years. A Seller shall have the right to contest the amount and
validity of such real estate taxes.
(b) ..Purchaser acknowledges that certain of the Sellers, including the
Sellers of Foxfire, Park Colony and Walden, have filed (or will file) an appeal
(the "Appeal") with respect to real estate ad valorem or other similar property
taxes applicable to the Property (the "Property Taxes").
.............(i) If such Appeal relates to any Tax Year prior to the Tax Year in
which the Closing occurs, such Seller shall be entitled, in such Seller's sole
discretion, to continue to pursue such Appeal after the Closing Date, and, in
the event that the Appeal is successful in reducing the amount of Property Taxes
payable with respect to any such prior Tax Year, such Seller shall be entitled
to the full amount of any rebate, refund or reduction (collectively, a "Refund")
resulting from the Appeal. Such Seller shall not be obligated to continue to
pursue any Appeal with respect to its Property, including, without limitation,
any Appeal that relates to a Tax Year during or after the Tax Year in which
Closing occurs. If Purchaser receives any refund of Property Taxes for a prior
Tax Year, Purchaser promptly shall remit the same to the applicable Seller.
(ii) If such Appeal relates to the Tax Year in which Closing
occurs, then, prior to the Closing, the applicable Seller shall notify Purchaser
whether such Seller desires to continue to process the Appeal from and after the
Closing Date. If such Seller fails to notify Purchaser of its election to
continue the Appeal, such Seller will be deemed to have elected not to continue
the Appeal from and after the Closing Date and the provisions of Section
5.4.4(b)(i)(II) shall apply.
(I) If a Seller elects to continue the Appeal, then,
from and after the Closing Date, such Seller agrees that it will
continue, at such Seller's sole cost and expense, to reasonably process
the Appeal to conclusion with the applicable taxing authority
(including any further appeals which such Seller deems reasonable to
pursue). In the event that the Appeal is successful in reducing the
amount of Property Taxes payable with respect to the Tax Year in which
Closing occurs, then Purchaser and such Seller shall share any Refund
on a pro rata basis (in accordance with the number of days in the Tax
Year of Closing that each held title to the Property) after first
reimbursing such Seller for its actual, reasonable and documented
third-party costs (collectively, the "Third-Party Costs") incurred in
connection with the Appeal. If Third-Party Costs equal or exceed the
amount of the Award, then Seller shall be entitled to the full amount
of the Award.
(II) If a Seller does not elect to continue the Appeal,
then, from and after the Closing Date, Purchaser may, in Purchaser's
discretion, at Purchaser's sole cost and expense, to reasonably process
the Appeal to conclusion with the applicable taxing authority
(including any further appeals which Purchaser deems reasonable to
pursue). In the event that the Appeal is successful in reducing the
amount of Property Taxes payable with respect to the Tax Year in which
Closing occurs, then Purchaser and the applicable Seller shall share
any Refund on a pro rata basis (in accordance with the number of days
in the Tax Year of Closing that each held title to the Property) after
first reimbursing each of Purchaser and the applicable Seller for their
respective Third-Party Costs incurred in connection with the Appeal. If
Third-Party Costs equal or exceed the amount of the Award, then the
Award shall be applied to such Third-Party Costs on a pro rata basis,
with each of Purchaser and such Seller receiving a portion of the Award
equal to the product of (i) a fraction, the numerator of which is the
respective party's Third-Party Costs, and the denominator of which is
the total of both parties' Third-Party Costs, and (ii) the amount of
the Award.
5.4.5 Property Contracts. Purchaser shall assume at Closing the obligations
under the Property Contracts assumed by Purchaser; however, operating expenses
shall be prorated under Section 5.4.2.
5.4.6 Leases.
5.4.6.1.....With respect to each Property, all collected rent (whether fixed
monthly rentals, additional rentals, escalation rentals, retroactive rentals,
operating cost pass-throughs or other sums and charges payable by Tenants under
the Leases), income and expenses from any portion of a Property shall be
prorated as of the Closing Date (prorated for any partial month). Purchaser
shall receive all collected rent and income attributable to dates from and after
the Closing Date. Each Seller shall receive all collected rent and income
attributable to dates prior to the Closing Date. Notwithstanding the foregoing,
no prorations shall be made in relation to either (a) non-delinquent rents which
have not been collected as of the Closing Date, or (b) delinquent rents
existing, if any, as of the Closing Date (the foregoing (a) and (b) referred to
herein as the "Uncollected Rents"). In adjusting for Uncollected Rents, no
adjustments shall be made in a Seller's favor for rents which have accrued and
are unpaid as of the Closing, but Purchaser shall pay to such Seller such
accrued Uncollected Rents as and when collected by Purchaser, after first
applying collected rents to the payment of all current obligations owing to
Purchaser under the applicable Lease, and only then to Uncollected Rents due to
the applicable Seller. Purchaser agrees to bill Tenants of the Properties for
all Uncollected Rents and to take reasonable actions (not including lawsuits or
formal proceedings) to collect Uncollected Rents. After the Closing, each Seller
shall continue to have the right, but not the obligation, in its own name, to
demand payment of and to collect Uncollected Rents owed to such Seller by any
Tenant, which right shall include, without limitation, the right to continue or
commence legal actions or proceedings against any Tenant and the delivery of the
Leases Assignment shall not constitute a waiver by any Seller of such right.
Purchaser agrees to cooperate with each Seller in connection with all efforts by
such Seller to collect such Uncollected Rents and to take all steps, whether
before or after the Closing Date, as may be necessary to carry out the intention
of the foregoing, including, without limitation, the delivery to each Seller,
within 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 Uncollected Rents by such Seller; provided, however,
that Purchaser's obligation to cooperate with a Seller pursuant to this sentence
shall not obligate Purchaser to terminate any Tenant Lease with an existing
Tenant, file any formal actions or proceedings, or evict any existing Tenant
from a Property.
5.4.6.2.....At Closing, with respect to each Property, Purchaser shall receive a
credit against the applicable Purchase Price in an amount equal to the received
and unapplied balance of all cash (or cash equivalent) Tenant Deposits,
including, but not limited to, security, damage or other refundable deposits
required to be paid by any of the Tenants to secure their respective obligations
under the Leases, together, in all cases, with any interest payable to the
Tenants thereunder as may be required by their respective Tenant Lease or state
law (the "Tenant Security Deposit Balance"). Any cash (or cash equivalents) held
by a Seller which constitute the Tenant Security Deposit Balance shall be
retained by the applicable Seller in exchange for the foregoing credit against
the applicable Purchase Price and shall not be transferred by such Seller
pursuant to this Contract (or any of the documents delivered at Closing), but
the obligation with respect to the Tenant Security Deposit Balance nonetheless
shall be assumed by Purchaser. The Tenant Security Deposit Balance shall not
include any non-refundable deposits or fees paid by Tenants to any Seller,
either pursuant to the Leases or otherwise.
5.4.6.3.....With respect to operating expenses, taxes, utility charges, other
operating cost pass-throughs, retroactive rental escalations, sums or charges
payable by Tenants under the Tenant Leases for a Property, to the extent that
the applicable Seller has received as of the Closing payments allocable to
periods subsequent to Closing, the same shall be properly prorated with an
adjustment in favor of Purchaser, and Purchaser shall reserve a credit therefor
at Closing for such Property. With respect to any payments received by Purchaser
after the Closing allocable to a Seller prior to Closing, Purchaser shall
promptly pay the same to the applicable Seller.
5.4.7 Existing Loans. Purchaser acknowledges that Purchaser had the opportunity
to assume each Note or to cause prepayment of such Note at Closing (but in
either event, Purchaser would pay the Lender Fees pursuant to Section 2.2).
Purchaser has elected to cause the debt to be prepaid. Therefore, on the Closing
Date, a sufficient amount of the proceeds of the Purchase Price will be used to
pay the outstanding principal balance of the applicable Note together with all
interest accrued under such Note prior to the Closing Date (the "Loan Payoff"),
and Purchaser shall pay all Lender Fees (subject to reduction from the Purchase
Price in accordance with Section 2.2). Any existing reserves, impounds and other
accounts maintained in connection with the Loan shall be released in Good Funds
to the applicable Seller unless credited by Lender against the amount due under
the Note.
5.4.8 [intentionally deleted]
5.4.9 Insurance. No proration shall be made in relation to insurance premiums
and insurance policies will not be assigned to Purchaser.
5.4.10......Employees. All of each Seller's and each Seller's manager's on-site
employees shall have their employment at the applicable Property terminated as
of the Closing Date.
5.4.11......Closing Costs.
............. (a) With respect to any Property located in California, Seller
shall pay any transfer, sales, use, gross receipts or similar taxes, the cost of
recording any instruments required to discharge any liens or encumbrances
against the Property, the base premium for the Title Policy to the extent
required by Section 4.1, and one-half the customary closing costs of the Escrow
Agent. Purchaser shall pay any premiums or fees required to be paid by Purchaser
with respect to the Title Policy pursuant to Section 4.1, and one-half of the
customary closing costs of the Escrow Agent.
............. (b) With respect to any Property in Georgia, Purchaser shall pay
any transfer, sales, use, gross receipts or similar taxes, the cost of recording
any instruments required to discharge any liens or encumbrances against such
Property, any premiums or fees required to be paid by Purchaser with respect to
the applicable Title Policy pursuant to Section 4.1, and one-half of the
customary closing costs of the Escrow Agent. Each Seller shall pay the base
premium for its Title Policy to the extent required by Section 4.1, and one-half
of the customary closing costs of the Escrow Agent.
......(c) With respect to any Property located in North Carolina, Seller
shall be responsible for the payment of any transfer or excise taxes, as well as
for the cost of recording any instruments required to discharge any liens or
encumbrances against such Property. Purchaser shall pay any sales, use, gross
receipts or similar taxes, any premiums or fees required to be paid by Purchaser
with respect to the applicable Title Policy pursuant to Section 4.1, and
one-half of the customary closing costs of the Escrow Agent. Purchaser shall be
solely responsible for the payment of the premium for its Title Policy.
Purchaser shall also be responsible for payment of one-half of the customary
closing costs of the Escrow Agent.
............. (d) With respect to any Property in Virginia, Purchaser shall pay
any transfer, sales, use, gross receipts or similar taxes, the cost of recording
any instruments required to discharge any liens or encumbrances against such
Property, any premiums or fees required to be paid by Purchaser with respect to
the applicable Title Policy pursuant to Section 4.1, and one-half of the
customary closing costs of the Escrow Agent. Each Seller shall pay the base
premium for its Title Policy to the extent required by Section 4.1, and one-half
of the customary closing costs of the Escrow Agent.
5.4.12......Utility Contracts. If any Seller has entered into an agreement for
the purchase of electricity, gas or other utility service for its Property or a
group of properties (including such Property) (a "Utility Contract"), or an
affiliate of such Seller has entered into a Utility Contract, such Utility
Contract shall be identified on the Seller Information Schedule and, as set
forth on the Seller Information Schedule, (a) Purchaser either shall assume the
Utility Contract with respect to such Property, or (b) the reasonably calculated
costs of the Utility Contract attributable to such Property from and after the
Closing shall be paid to the applicable Seller at the Closing and such Seller
shall remain responsible for payments under the Utility Contract.
5.4.13......Possession. Possession of each Property, subject to the Leases,
Property Contracts which are not identified as Terminated Contracts during the
Feasibility Period (subject to the limitations of Section 3.6), and Permitted
Exceptions, shall be delivered to Purchaser at the Closing upon release from
escrow of all items to be delivered by Purchaser pursuant to Section 5.3,
including, without limitation, the applicable Purchase Price. To the extent
reasonably available to each Seller, originals or copies of its Leases and
Property Contracts, lease files, warranties, guaranties, operating manuals, keys
(including Tenant's master keys), access codes and other passwords, plans and
specifications for the Improvements to the Property, and such Seller's books and
records relating to its Property to be conveyed by such Seller (other than
proprietary information) (collectively, "Seller's Property-Related Files and
Records") regarding the applicable Property shall be made available and
delivered to Purchaser at such 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 the applicable Seller reasonable access to Seller's
Property-Related Files and Records for purposes of inspection and copying
thereof, and (b) reasonably maintain and preserve Seller's Property-Related
Files and Records. If at any time after the Records Hold Period, Purchaser
desires to dispose of any Seller's Property-Related Files and Records, Purchaser
must first provide the applicable Seller prior written notice (the "Records
Disposal Notice"). Such Seller shall have a period of 30 days after receipt of
the Records Disposal Notice to enter the applicable Property (or such other
location that such records are then stored) and remove or copy those of Seller's
Property-Related Files and Records that such Seller desires to retain. Purchaser
agrees (i) to include the covenants of this Section 5.4.13 pertaining to
Seller's Property-Related Files and Records in any management contract for each
Property (and to bind the manager thereunder to such covenants), and (ii) to
bind any future purchaser of such Property to the covenants of this Section
5.4.13 pertaining to Seller's Property-Related Files and Records. Purchaser
shall indemnify, hold harmless and, if requested by each Seller (in such
Seller's sole discretion), defend (with counsel approved by such Seller) such
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
5.4.13.
5.4.14......Survival. The provisions of this Section 5.4 shall survive the
Closing and delivery of the Deeds to Purchaser.
5.5 Post Closing Adjustments. In general, and except as provided in this
Contract or the Closing Documents, each Seller shall be entitled to all income,
and shall pay all expenses, relating to the operation of its Property for the
period prior to the Closing Date and Purchaser shall be entitled to all income,
and shall pay all expenses, relating to the operation of such Property for the
period commencing on and after the Closing Date. Purchaser or a Seller may
request that Purchaser and such Seller undertake to re-adjust any item on the
Proration Schedule (or any item omitted therefrom) in accordance with the
provisions of Section 5.4 of this Contract; provided, however, that neither
party shall have any obligation to re-adjust any items for any Property (a)
after the expiration of 60 days after Closing, and (b) unless such items exceed
$5,000.00 in magnitude (either individually or in the aggregate) with respect to
such Property. The provisions of this Section 5.5 shall survive the Closing and
delivery of the Deeds to Purchaser.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER
6.1 Seller's Representations. Except, in all cases, for any fact, information or
condition disclosed in the Title Documents, the Permitted Exceptions, the
Property Contracts, or the Materials, or which is otherwise known by Purchaser
prior to the Closing, each Seller, individually and severally with respect only
to itself and its Property, represents and warrants to Purchaser the following
(collectively, the "Seller's Representations") as of the Effective Date and as
of the Closing Date (provided that Purchaser's remedies if any such Seller's
Representations are untrue as of the Closing Date are limited to those set forth
in Section 8.1):
6.1.1 Such Seller is duly organized, validly existing and in good standing under
the laws of the state or commonwealth of its formation set forth on the Seller
Information Schedule; and, subject to Section 8.2.4, has or at the Closing shall
have the entity power and authority to sell and convey its Property and to
execute the documents to be executed by such Seller and prior to the Closing
will have taken as applicable, all corporate, partnership, limited liability
company or equivalent entity actions required for the execution and delivery of
this Contract, and the consummation of the transactions contemplated by this
Contract. Subject to Section 8.2.4, the compliance with or fulfillment of the
terms and conditions hereof will not conflict with, or result in a breach of,
the terms, conditions or provisions of, or constitute a default under, any
contract to which such Seller is a party or by which such Seller is otherwise
bound, which conflict, breach or default would have a material adverse affect on
such Seller's ability to consummate the transaction contemplated by this
Contract or on the Property. Subject to Section 8.2.4, this Contract is a valid,
binding and enforceable agreement against such Seller in accordance with its
terms;
6.1.2 Other than the Leases, such Seller's Property is not subject to any
written lease executed by such Seller or, to such Seller's knowledge, any other
possessory interests of any person;
6.1.3 Such Seller is not a "foreign person," as that term is used and defined in
the Internal Revenue Code, Section 1445, as amended;
6.1.4 Except (a) as set forth on the Seller Information Schedule, (b) for any
actions by such Seller to evict Tenants under its Leases, or (c) any matter
covered by Seller's current insurance policy(ies), to such Seller's knowledge,
there are no actions, proceedings, litigation (including bankruptcy) or
governmental investigations or condemnation actions either pending or threatened
against such Seller's Property;
6.1.5 To such Seller's knowledge, such Seller has not received any written
notice from a governmental agency of any uncured material violations of any
federal, state, county or municipal law, ordinance, order, regulation or
requirement affecting such Seller's Property; and
6.1.6 To such Seller's knowledge, such Seller has not received any written
notice of any material default by such Seller under any of its Property
Contracts that will not be terminated on the Closing Date.
6.1.7 To the applicable Seller's knowledge: (a) no hazardous or toxic materials
or other substances regulated by applicable federal or state environmental laws
are stored by such Seller on, in or under its Property in quantities which
violate applicable laws governing such materials or substances, (b) such
Seller's Property is not used by such Seller for the storage, treatment,
generation or manufacture of any hazardous or toxic materials or other
substances in a manner which would constitute a violation of applicable federal
or state environmental laws, (c) such Seller has not received, within 1 year
prior to the Effective Date, written notice of water damage at its Property
resulting in suspected fungal growth that has not been remediated pursuant to
such Seller's normal operating procedures, and (d) such Seller has not, within 1
year prior to the Effective Date, received written notice of a hazardous
substance condition at its Property or received a written order from a
governmental authority regarding a hazardous substance condition at its
Property.
6.1.8 The applicable Seller has not intentionally misstated or misrepresented
any information prepared by it and contained in the Materials delivered pursuant
to Section 3.5.1.
6.1.9 To the applicable Seller's knowledge, the factual documentation of current
operating and financial results prepared by the applicable Seller (but not
Seller Third-Party Reports) concerning the applicable Property and disclosed to
Purchaser hereunder has been prepared in such Seller's ordinary course of
business and is substantially identical with the information relied on by such
Seller in the current ownership, operation and reporting of the applicable
Property by such Seller; provided, however, Seller has not provided, and is
under no obligation to provide, internal evaluations or similar internal
analysis (as compared with the results themselves).
6.1.10......At the present time and at the Closing AIMCO will, directly or
indirectly, own more than 50% of the voting interests in each Seller.
6.1.11......To the knowledge of the applicable Seller, the Rent Roll for its
Property delivered pursuant to Section 3.5.3 is accurate in all material
respects.
6.2 AS-IS. Except for Seller's Representations, each Property is expressly
purchased and sold "AS IS," "WHERE IS," and "WITH ALL FAULTS." The Purchase
Price for each Property 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
Sellers or any broker or statements, representations or warranties, express or
implied, made by or enforceable directly against Sellers or any broker,
including, without limitation, any relating to the value of any Property, the
physical or environmental condition of any Property, any state, federal, county
or local law, ordinance, order or permit; or the suitability, compliance or lack
of compliance of any Property with any regulation, or any other attribute or
matter of or relating to any Property (other than any covenants of title
contained in the Deed conveying a Property and Seller's Representations with
respect to such Property). Purchaser agrees that Sellers shall not be
responsible or liable to Purchaser for any defects, errors or omissions, or on
account of any conditions affecting the Properties. Purchaser, its successors
and assigns, and anyone claiming by, through or under Purchaser, hereby fully
releases each of Seller's Indemnified Parties from, and irrevocably waives its
right to maintain, any and all claims and causes of action that it or they may
now have or hereafter acquire against any Seller's Indemnified Parties with
respect to any and all Losses arising from or related to any defects, errors,
omissions or other conditions affecting the Properties. Purchaser represents and
warrants that, as of the date hereof and as of the Closing Date, it has and
shall have reviewed and conducted such independent analyses, studies (including,
without limitation, environmental studies and analyses concerning the presence
of lead, asbestos, PCBs and radon in and about the Properties), reports,
investigations and inspections as it deems appropriate in connection with the
Properties. If Sellers provide or have 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 Properties, including, without limitation, the offering prepared by any
broker, Purchaser and Sellers agree that Sellers have done so or shall do so
only for the convenience of the 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 any
Seller's Indemnified Parties. Purchaser acknowledges and agrees that no
representation has been made and no responsibility is assumed by Sellers with
respect to current and future applicable zoning or building code requirements or
requirements with respect to condominium conversion or the compliance of the
Properties with any other laws, rules, ordinances or regulations, or the
compliance by the "declarant" under any conditions, covenants or restrictions
affecting the Properties, the financial earning capacity or expense history of
the Properties, the continuation of contracts, continued occupancy levels of the
Properties, or any part thereof, or the continued occupancy by tenants of any
Leases or, without limiting any of the foregoing, occupancy at Closing. Sellers
make no representations or warranty with respect to any homeowners associations
which may be referenced with respect to any of the Properties. Prior to Closing,
each Seller shall have the right, but not the obligation, to enforce its rights
against any and all of its Property occupants, guests or tenants. Purchaser
agrees that the departure or removal, prior to Closing, of any of such guests,
occupants or tenants shall not be the basis for, nor shall it give rise to, any
claim on the part of Purchaser, nor shall it affect the obligations of Purchaser
under this Contract in any manner whatsoever; and Purchaser shall close title
and accept delivery of the Deeds with or without such tenants in possession and
without any allowance or reduction in the applicable Purchase Price under this
Contract. Except for environmental claims or actions brought by unrelated,
non-governmental third-parties relating to the events occurring before Closing,
Purchaser hereby releases Sellers from any and all claims and liabilities
relating to the foregoing matters. The provisions of this Section 6.2 shall
survive the Closing and delivery of the Deeds to Purchaser.
6.3 Survival of Seller's Representations. Sellers and Purchaser agree that
Seller's Representations shall survive Closing for a period of 1 year (the
"Survival Period"). No Seller shall have liability after the Survival Period
with respect to any of its Seller's Representations contained herein except to
the extent that Purchaser has requested arbitration against such Seller during
the Survival Period for breach of any of such Seller's Representations. Each
Seller shall be liable only for the breach of its own Seller's Representations.
Further, the liability for each Seller for breach of its Seller's
Representations shall be limited to, and capped at, $100,000 for each such
Seller's Property for which a breach of Seller's Representations occurred, on a
Property-by-Property basis if a Seller is selling more than one Property. Such
cap on liability shall apply for any individual breach or in the aggregate for
all breaches of such Seller's Seller's Representations with respect to such
Property. Purchaser shall not be entitled to bring any claim for a breach of
Seller's Representations unless the claim for damage (either in the aggregate or
as to any individual claim) by Purchaser for a Property exceeds $5,000. In the
event that a Seller breaches any representation contained in Section 6.1 and
Purchaser had knowledge of such breach prior to the Closing Date, Purchaser
shall be deemed to have waived any right of recovery, and such Seller shall not
have any liability in connection therewith.
6.4 Definition of Seller's Knowledge. Any representations and warranties made
"to the knowledge of [such] Seller" shall not be deemed to imply any duty of
inquiry. For purposes of this Contract, the term Seller's "knowledge" shall mean
and refer only to actual knowledge of the Regional Property Manager and Property
Manager of such Seller and shall not be construed to refer to the knowledge of
any other partner, officer, director, agent, employee or representative of such
Seller, or any affiliate of such Seller, or to impose upon such Regional
Property Manager or Property Manager any duty to investigate the matter to which
such actual knowledge or the absence thereof pertains, or to impose upon such
Regional Property Manager or Property Manager any individual personal liability.
6.5 Representations And Warranties Of Purchaser. For the purpose of inducing
Sellers to enter into this Contract and to consummate the sale and purchase of
the Properties in accordance herewith, Purchaser represents and warrants to
Sellers the following as of the Effective Date and as of the Closing Date:
6.5.1 Purchaser is a limited liability company duly organized, validly existing
and in good standing under the laws of the State of California.
6.5.2 Purchaser, acting through any of its or their duly empowered and
authorized officers or members, has all necessary entity power and authority to
own and use its properties and to transact the business in which it is engaged,
and has full power and authority to enter into this Contract, to execute and
deliver the documents and instruments required of Purchaser herein, and to
perform its obligations hereunder; and no consent of any of Purchaser's
partners, directors, officers or members are required to so empower or authorize
Purchaser. The compliance with or fulfillment of the terms and conditions hereof
will not conflict with, or result in a breach of, the terms, conditions or
provisions of, or constitute a default under, any contract to which Purchaser is
a party or by which Purchaser is otherwise bound, which conflict, breach or
default would have a material adverse affect on Purchaser's ability to
consummate the transaction contemplated by this Contract. This Contract is a
valid, binding and enforceable agreement against Purchaser in accordance with
its terms.
6.5.3 No pending or, to the knowledge of Purchaser, threatened litigation
(including bankruptcy) exists which if determined adversely would restrain the
consummation of the transactions contemplated by this Contract or would declare
illegal, invalid or non-binding any of Purchaser's obligations or covenants to
Sellers.
6.5.4 Other than Seller's Representations, Purchaser has not relied on any
representation or warranty made by Sellers or any representative of Sellers
(including, without limitation, any broker) in connection with this Contract and
the acquisition of the Properties.
6.5.5 Neither any broker involved in this transaction nor any of its affiliates
have, or will at the Closing, have any direct or indirect legal, beneficial,
economic or voting interest in Purchaser (or in an assignee of Purchaser, which
pursuant to Section 13.3, acquires any Property at the Closing), nor has
Purchaser or any affiliate of Purchaser granted (as of the Effective Date or the
Closing Date) any broker involved in this transaction or any of its affiliates
any right or option to acquire any direct or indirect legal, beneficial,
economic or voting interest in Purchaser.
6.5.6 Purchaser is not a Prohibited Person.
6.5.7 To Purchaser's knowledge, none of its investors, affiliates or brokers or
other agents (if any), acting or benefiting in any capacity in connection with
this Contract is a Prohibited Person.
6.5.8 To Purchaser's knowledge, the funds or other assets Purchaser will
transfer to Seller under to this Contract are not the property of, or are
beneficially owned, directly or indirectly, by a Prohibited Person.
6.5.9 To Purchaser's knowledge, the funds or other assets Purchaser will
transfer to Seller under this Contract are not the proceeds of specified
unlawful activity as defined by 18 U.S.C. ss. 1956(c)(7).
.............The provisions of this Section 6.5 shall survive the Closing and
delivery of the Deeds to Purchaser.
ARTICLE VII
OPERATION OF THE PROPERTIES
7.1 Leases and Property Contracts. During the period of time from the Effective
Date to the Closing Date, in the ordinary course of business each Seller may,
with respect to its Property, enter into new Property Contracts, new Leases,
renew existing Leases or modify, terminate or accept the surrender or forfeiture
of any of the Leases, modify any Property Contracts, or institute and prosecute
any available remedies for default under any Lease or Property Contract without
first obtaining the written consent of Purchaser; provided, however, each Seller
agrees that any such new Property Contracts or any new or renewed Leases shall
not have a term in excess of 1 year (or such longer period of time for which
such Property Contracts or Leases are entered into by such Seller in the
ordinary course of its operation of its Property) without the prior written
consent of Purchaser, which consent shall not be unreasonably withheld,
conditioned or delayed.
7.2 General Operation of Property. Except as specifically set forth in this
Article 7, each Seller shall operate its Property after the Effective Date in
the ordinary course of business, and except as necessary in such Seller's sole
discretion to address (a) any life or safety issue at its Property or (b) any
other matter which in such Seller's reasonable discretion materially adversely
affects the use, operation or value of such Property, such Seller will not make
any material alterations to its Property or remove any material Fixtures and
Tangible Personal Property without the prior written consent of Purchaser which
consent shall not be unreasonably withheld, denied or delayed.
7.3 Liens. Other than utility easements and temporary construction easements
granted by a Seller in the ordinary course of business (of which such Seller
shall provide Purchaser reasonable notice), each Seller covenants that it will
not voluntarily create or cause any lien or encumbrance to attach to its
Property between the Effective Date and the Closing Date (other than Leases and
Property Contracts as provided in Section 7.1) unless Purchaser approves such
lien or encumbrance, which approval shall not be unreasonably withheld or
delayed. If Purchaser approves any such subsequent lien or encumbrance, the same
shall be deemed a Permitted Encumbrance for all purposes hereunder.
ARTICLE VIII
CONDITIONS PRECEDENT TO CLOSING
8.1 Purchaser's Conditions to Closing. Subject to the provisions of this Section
8.1, Purchaser's obligation to close under this Contract, shall be subject to
and conditioned upon the fulfillment of each and all of the following conditions
precedent:
8.1.1 All of the documents required to be delivered by Sellers to Purchaser at
the Closing pursuant to the terms and conditions hereof shall have been
delivered;
8.1.2 Each of the representations and warranties of each Seller to Purchaser
shall be true in all material respects as of the Closing Date;
8.1.3 Each 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 such Seller hereunder; and
8.1.4 No Seller nor any of Seller's general partners shall be a debtor in any
bankruptcy proceeding nor shall have been in the last 6 months a debtor in any
bankruptcy proceeding.
.............Notwithstanding anything to the contrary, there are no other
conditions on Purchaser's obligation to Close except as expressly set forth in
this Section 8.1.
.............If any condition set forth in Sections 8.1.1, 8.1.2, 8.1.3 or 8.1.4
is not met, Purchaser may (a) waive any of the foregoing conditions and proceed
to Closing on the Closing Date with no offset or deduction from the Purchase
Price for any Property, or (b) notify Seller's Representative (a "Termination
Notice") in writing of Purchaser's decision to terminate this Contract for the
Property for which there was such a failure of condition or default and receive
a return of the Applicable Share of the Deposit from the Escrow Agent. If
Seller's Representative receives a Termination Notice, Seller's Representative
may, within 3 Business Days after receiving the Termination Notice, give
Purchaser written notice (a "Reinstatement Notice") that Purchaser either must
purchase all of the Properties or terminate this Contract for all of the
Properties. Purchaser shall, within 3 Business Days after receiving a
Reinstatement Notice, give Seller's Representative written notice of whether it
desires to purchase all of the Properties or terminate this Contract in its
entirety; Purchaser's failure to provide Seller's Representative with written
notice that it desires to terminate this Contract in its entirety shall be
deemed Purchaser's decision to purchase all of the Properties.
8.2 Sellers' Conditions to Closing. Without limiting any of the rights of any
Seller elsewhere provided for in this Contract, each Seller's obligation to
close with respect to conveyance of its Property under this Contract shall be
subject to and conditioned upon the fulfillment of each and all of the following
conditions precedent:
8.2.1 All of the documents and funds required to be delivered by Purchaser to
Seller at the Closing pursuant to the terms and conditions hereof shall have
been delivered;
8.2.2 Each of the representations and warranties of Purchaser to such Seller
contained herein shall be true in all material respects as of the Closing Date;
8.2.3 Purchaser shall have complied with, fulfilled and performed in all
material respects each of the covenants, terms and conditions to be complied
with, fulfilled or performed by Purchaser hereunder;
8.2.4 Such Seller shall have received all consents, documentation and approvals
necessary to consummate and facilitate the transactions contemplated hereby (and
the amendment of such Seller's (or such Seller's affiliates') partnership or
other organization documents in connection therewith (a) from Seller's
unaffiliated partners, members, managers, shareholders or directors to the
extent required by Seller's (or Seller's affiliates') organizational documents,
and (b) as required by law. If a Seller fails to obtain any consents required by
Section 8.2.4(a) hereof, and this Contract is terminated with respect to such
Seller's Property and such Property is not conveyed to Purchaser because of such
failures, then each Seller shall pay Purchaser its direct and actual
out-of-pocket expenses and costs (documented by paid invoices to third parties)
in connection with its Property for which this Contract has been so terminated,
which damages shall not exceed $45,000 (individually) for each Property so
terminated.
.............If any of the foregoing conditions in Sections 8.2.1 through
8.2.4 to a Seller's obligation to close with respect to conveyance of its
Property under this Contract are not satisfied prior to the Closing Date set
forth in Section 5.1, such Seller may (a) waive any of the foregoing
conditions and proceed to Closing on the Closing Date, (b) terminate this
Contract either in its entirety or with respect to its Property, and, if such
failure constitutes a default by Purchaser, exercise any of its remedies
under Section 10.1. If a Seller terminates this Contract with respect to its
Property, the remaining Sellers may elect either to terminate this Contract
or proceed to close the remaining Properties. The termination of this
Contract by any Seller pursuant to this Section 8.2 shall be exercised by
written notice from Seller's Representative to Purchaser by 12:00 p.m. (of
the time zone in which the Escrow Agent is located) of the Closing Date.
ARTICLE IX
[INTENTIONALLY DELETED]
ARTICLE X
DEFAULTS AND REMEDIES
10.1 Purchaser Default. IF PURCHASER DEFAULTS IN ITS OBLIGATIONS HEREUNDER TO
(A) DELIVER THE INITIAL DEPOSIT OR ADDITIONAL DEPOSIT (OR ANY OTHER DEPOSIT OR
PAYMENT REQUIRED OF PURCHASER HEREUNDER), (B) DELIVER TO SELLERS THE DELIVERIES
SPECIFIED UNDER SECTION 5.3 ON THE DATE REQUIRED THEREUNDER, OR (C) DELIVER THE
PURCHASE PRICE FOR EACH PROPERTY AT THE TIME REQUIRED BY SECTION 2.2.4 AND CLOSE
ON THE PURCHASE OF THE PROPERTIES ON THE CLOSING DATE, THEN, IMMEDIATELY AND
WITHOUT NOTICE OR CURE, PURCHASER SHALL FORFEIT THE DEPOSIT, AND THE ESCROW
AGENT SHALL DELIVER THE APPLICABLE SHARE OF THE DEPOSIT TO EACH SELLER, AND
NEITHER PARTY SHALL BE OBLIGATED TO PROCEED WITH THE PURCHASE AND SALE OF THE
PROPERTIES. IF PURCHASER DEFAULTS IN ANY OF ITS OTHER REPRESENTATIONS,
WARRANTIES OR OBLIGATIONS UNDER THIS CONTRACT, AND SUCH DEFAULT CONTINUES FOR
MORE THAN 10 DAYS AFTER WRITTEN NOTICE FROM SELLER'S REPRESENTATIVE, THEN
PURCHASER SHALL FORFEIT THE DEPOSIT, AND THE ESCROW AGENT SHALL DELIVER THE
APPLICABLE SHARE OF THE DEPOSIT TO EACH SELLER, AND NEITHER PARTY SHALL BE
OBLIGATED TO PROCEED WITH THE PURCHASE AND SALE OF THE PROPERTIES. THE DEPOSIT
IS LIQUIDATED DAMAGES AND RECOURSE TO THE DEPOSIT IS, EXCEPT FOR PURCHASER'S
INDEMNITY AND CONFIDENTIALITY OBLIGATIONS HEREUNDER, SELLERS' SOLE AND EXCLUSIVE
REMEDY FOR PURCHASER'S FAILURE TO PERFORM ITS OBLIGATION TO PURCHASE THE
PROPERTIES OR BREACH OF A REPRESENTATION OR WARRANTY. SELLERS EXPRESSLY WAIVE
THE REMEDIES OF SPECIFIC PERFORMANCE AND ADDITIONAL DAMAGES FOR SUCH DEFAULT BY
PURCHASER. SELLERS AND PURCHASER ACKNOWLEDGE THAT SELLERS' DAMAGES WOULD BE
DIFFICULT TO DETERMINE, AND THAT THE DEPOSIT IS A REASONABLE ESTIMATE OF
SELLERS' DAMAGES RESULTING FROM A DEFAULT BY PURCHASER IN ITS OBLIGATION TO
PURCHASE THE PROPERTIES. SELLERS AND PURCHASER FURTHER AGREE THAT THIS SECTION
10.1.1 IS INTENDED TO AND DOES LIQUIDATE THE AMOUNT OF DAMAGES DUE SELLERS, AND
SHALL BE SELLERS' EXCLUSIVE REMEDY AGAINST PURCHASER, BOTH AT LAW AND IN EQUITY,
ARISING FROM OR RELATED TO A BREACH BY PURCHASER OF ITS OBLIGATION TO CONSUMMATE
THE TRANSACTIONS CONTEMPLATED BY THIS CONTRACT, OTHER THAN WITH RESPECT TO
PURCHASER'S INDEMNITY AND CONFIDENTIALITY OBLIGATIONS HEREUNDER.
_________________________ _________________________
SELLER'S INITIALS PURCHASER'S INITIALS
10.2 Seller Default. If a Seller, prior to the Closing, defaults in its
representations, warranties, covenants, or obligations under this Contract,
including to sell its Property as required by this Contract and such default
continues for more than 10 days after written notice from Purchaser, then, at
Purchaser's election and as Purchaser's sole and exclusive remedy, Purchaser may
either (A) seek specific performance of the defaulting Seller's obligations to
deliver its Deed pursuant to this Contract (but not damages), or (B) give a
Termination Notice to Seller's Representative of Purchaser's decision to
terminate this Contract for the Property for which there was such a default and
receive a return of the Applicable Share of the Deposit from the Escrow Agent.
If Seller's Representative receives a Termination Notice, Seller's
Representative may, within 3 Business Days after receiving the Termination
Notice, give Purchaser a Reinstatement Notice that Purchaser either must
purchase all of the Properties or terminate this Contract for all of the
Properties. Purchaser shall, within 3 Business Days after receiving a
Reinstatement Notice, give Seller's Representative notice of whether it desires
to purchase all of the Properties or terminate this Contract in its entirety;
Purchaser's failure to provide Seller's Representative notice that it desires to
terminate this Contract in its entirety shall be deemed Purchaser's decision to
purchase all of the Properties. If this Contract is terminated in whole or in
part, Purchaser shall recover the Applicable Share of Deposit for the terminated
Properties and Purchaser may recover, as its sole recoverable damages (but
without limiting its right to receive a refund of the Applicable Share of the
Deposit), its direct and actual out-of-pocket expenses and costs (documented by
paid invoices to third parties) in connection with each Property for which this
Contract has been terminated, which damages shall not exceed $45,000
(individually) for each Property so terminated. If this Contract is terminated
in whole or in part, Purchaser agrees that it shall promptly deliver to each
Seller an assignment of all of Purchaser's right, title and interest in and to
(together with possession of) all plans, studies, surveys, reports, and other
materials paid for with the out-of-pocket expenses reimbursed by Sellers
pursuant to the foregoing sentence. SELLERS AND PURCHASER FURTHER AGREE THAT
THIS SECTION 10.2 IS INTENDED TO AND DOES LIMIT THE AMOUNT OF DAMAGES DUE
PURCHASER AND THE REMEDIES AVAILABLE TO PURCHASER, AND SHALL BE PURCHASER'S
EXCLUSIVE REMEDY AGAINST SELLERS, BOTH AT LAW AND IN EQUITY ARISING FROM OR
RELATED TO A BREACH BY ANY SELLER OF ITS REPRESENTATIONS, WARRANTIES, OR
COVENANTS OR ITS OBLIGATION TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS
CONTRACT. UNDER NO CIRCUMSTANCES MAY PURCHASER SEEK OR BE ENTITLED TO RECOVER
ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, SPECULATIVE OR INDIRECT DAMAGES, ALL OF
WHICH PURCHASER SPECIFICALLY WAIVES, FROM SELLERS FOR ANY BREACH BY A SELLER, OF
ITS REPRESENTATIONS, WARRANTIES OR COVENANTS OR ITS OBLIGATIONS UNDER THIS
CONTRACT. PURCHASER SPECIFICALLY WAIVES THE RIGHT TO FILE ANY LIS PENDENS OR ANY
LIEN AGAINST ANY PROPERTY UNLESS AND UNTIL IT HAS IRREVOCABLY ELECTED TO SEEK
SPECIFIC PERFORMANCE OF THIS CONTRACT AND HAS FILED AN ACTION SEEKING SUCH
REMEDY.
ARTICLE XI
RISK OF LOSS OR CASUALTY
11.1 Major Damage. If, between the Effective Date and the Closing Date, a
Property is damaged or destroyed by fire or other casualty, and the cost of
repair is more than $250,000 for such Property, then the applicable Seller shall
have no obligation to repair such damage or destruction and shall notify
Purchaser in writing of such damage or destruction (the "Damage Notice"). Within
10 days after Purchaser's receipt of the Damage Notice, Purchaser may elect at
its option to give a Termination Notice for the damaged Property to Seller's
Representative. If Seller's Representative receives a Termination Notice,
Seller's Representative may, within 3 Business Days after receiving the
Termination Notice, give Purchaser a Reinstatement Notice that Purchaser either
must purchase all of the Properties or terminate this Contract for all of the
Properties. Purchaser shall, within 3 Business Days after receiving a
Reinstatement Notice, give Seller's Representative notice of whether it desires
to purchase all of the Properties or terminate this Contract in its entirety;
Purchaser's failure to provide Seller's Representative notice that it desires to
terminate this Contract in its entirety shall be deemed Purchaser's decision to
purchase all of the Properties. If this Contract is not terminated as to the
damaged Property, this transaction shall be closed in accordance with the terms
of this Contract for the full Purchase Price for the damaged Property
notwithstanding any such damage or destruction and Purchaser shall receive all
insurance proceeds pertaining thereto (plus a credit against the applicable
Purchase Price in the amount of any deductible payable by the applicable Seller
in connection therewith) at Closing. If this Contract is terminated in whole or
in part from such damage, Purchaser shall recover the Applicable Share of the
Deposit for the terminated Properties.
11.2 Minor Damage. If, prior to the Closing, a Property is damaged or destroyed
by fire or other casualty, and the cost of repair is equal or less than $250,000
for such Property, this transaction shall be closed in accordance with the terms
of this Contract, notwithstanding the damage or destruction; provided, however,
the applicable Seller shall make such repairs to the extent of any recovery from
insurance carried on such Property if they can be reasonably effected before the
Closing. Subject to Section 11.3, if the applicable Seller is unable to effect
such repairs, then Purchaser shall receive all insurance proceeds pertaining
thereto (plus a credit against the Purchase Price for the damaged Property in
the amount of any deductible payable by the applicable Seller in connection
therewith) at Closing.
11.3 Repairs. To the extent that a Seller elects to commence any repair,
replacement or restoration of its damaged Property prior to Closing, then such
Seller shall be entitled to receive and apply available insurance proceeds to
any portion of such repair, replacement or restoration completed or installed
prior to Closing, with Purchaser being responsible for completion of such
repair, replacement or restoration after Closing from the balance of any
available insurance proceeds. After the expiration of the Feasibility Period, to
the extent any single repair, replacement or restoration exceeds $25,000, the
applicable Seller shall give notice to Purchaser and obtain Purchaser's consent
(which shall not be unreasonably withheld, delayed or conditioned) prior to
commencing such repair, replacement or restoration; provided, that, Purchaser's
consent shall not be required if such Seller reasonably believes that such
repair, replacement or restoration is necessary to prevent harm to persons or
property. The provisions of this Section 11.3 shall survive the Closing and
delivery of the Deeds to Purchaser.
ARTICLE XII
EMINENT DOMAIN
12.1 Eminent Domain. If, at the time of Closing, any material part of a Property
is (or previously has been) acquired (including an acquisition that materially
limits access to such Property), or is about to be acquired, by any governmental
agency by the powers of eminent domain or transfer in lieu thereof (or in the
event that at such time there is any notice of any such acquisition or intent to
acquire by any such governmental agency), Purchaser shall have the right, at
Purchaser's option, to give a Termination Notice to Seller's Representative for
the Property for which there was such a condemnation. If Seller's Representative
receives a Termination Notice, Seller's Representative may, within 3 Business
Days after receiving the Termination Notice, give Purchaser a Reinstatement
Notice that Purchaser either must purchase all of the Properties or terminate
this Contract for all of the Properties. Purchaser shall, within 3 Business Days
after receiving a Reinstatement Notice, give Seller's Representative written
notice of whether it desires to purchase all of the Properties or terminate this
Contract in its entirety; Purchaser's failure to provide Seller's Representative
with written notice that it desires to terminate this Contract in its entirety
shall be deemed Purchaser's decision to purchase all of the Properties. If this
Contract is not terminated, this transaction shall be closed in accordance with
the terms of this Contract for the full Purchase Price for the affected Property
and Purchaser shall receive the full benefit of any condemnation award. It is
expressly agreed between the parties hereto that this section shall in no way
apply to customary dedications for public purposes which may be necessary for
the development of a Property. If this Contract is terminated in whole or in
part from such condemnation, Purchaser shall recover the Applicable Share of the
Deposit for the terminated Properties.
ARTICLE XIII
MISCELLANEOUS
13.1 Binding Effect of Contract. This Contract shall not be binding on any party
until executed by both Purchaser and all Sellers. As provided in Section 2.3.5,
the Escrow Agent's execution of this Contract shall not be a prerequisite to its
effectiveness.
13.2 Exhibits And Schedules. All Exhibits and Schedules, whether or not annexed
hereto, are a part of this Contract for all purposes.
13.3 Assignability. This Contract is not assignable by Purchaser without first
obtaining the prior written approval of the Seller's Representative, except that
Purchaser may assign this Contract to one or more entities so long as (a)
Purchaser is an affiliate of the purchasing entity(ies), (b) Purchaser is not
released from its liability hereunder, (c) Purchaser provides written notice to
Seller's Representative of any proposed assignment no later than 10 days prior
to the Closing Date, and (d) Seller's Representative consents thereto (which
consent shall not be unreasonably withheld or delayed). As used herein, an
affiliate is a person or entity controlled by, under common control with, or
controlling another person or entity.
13.4 Binding Effect. Subject to Section 13.3, this Contract shall be binding
upon and inure to the benefit of Sellers and Purchaser, and their respective
successors, heirs and permitted assigns.
13.5 Captions. The captions, headings, and arrangements used in this Contract
are for convenience only and do not in any way affect, limit, amplify, or modify
the terms and provisions hereof.
13.6 Number And Gender Of Words. Whenever herein the singular number is used,
the same shall include the plural where appropriate, and words of any gender
shall include each other gender where appropriate.
13.7 Notices. All notices, demands, requests and other communications required
or permitted hereunder shall be in writing, and shall be (a) personally
delivered with a written receipt of delivery; (b) sent by a nationally
recognized overnight delivery service requiring a written acknowledgement of
receipt or providing a certification of delivery or attempted delivery; (c) sent
by certified mail, return receipt requested, or (d) sent by confirmed facsimile
transmission with an original copy thereof transmitted to the recipient by one
of the means described in subsections (a) through (c) no later than 3 Business
Days thereafter. All notices shall be deemed effective when actually delivered
as documented in a delivery receipt; provided, however, that if the notice was
sent by overnight courier or mail as aforesaid and is affirmatively refused or
cannot be delivered during customary business hours by reason of the absence of
a signatory to acknowledge receipt, or by reason of a change of address with
respect to which the addressor did not have either knowledge or written notice
delivered in accordance with this paragraph, then the first attempted delivery
shall be deemed to constitute delivery. Each party shall be entitled to change
its address for notices from time to time by delivering to the other party
notice thereof in the manner herein provided for the delivery of notices. All
notices shall be sent to the addressee at its address set forth following its
name below:
......To Purchaser:
......Bethany Group, LLC
......c/o Jason Kurtz and Greg Garmon
......2569 McCabe Way
......Irvine, California 92614
......Telephone: 949-585-7615
......Facsimile: 949-585-7639
......with a copy to:
......Thomas and Simondi
......Attention Mike Simondi
......4685 MacArthur Court, Suite 450
......Newport Beach, California 92660
......Telephone: 949-476-2379
......Facsimile: 949-476-2477
......To any Seller or Seller's Representative:
c/o AIMCO
4582 South Ulster Street Parkway
Suite 1100
Denver, Colorado 80237
Attention: Patrick Slavin
Telephone: 303-691-4340
Facsimile: 303-300-3282
......And:
c/o AIMCO
4582 South Ulster Street Parkway
Suite 1100
Denver, Colorado 80237
Attention: Mr. Harry Alcock
Telephone: 303-691-4344
Facsimile: 303-300-3282
......with copy to:
Chad Asarch, Esq.
......Senior Vice President and Associate General Counsel
......AIMCO
4582 South Ulster Street Parkway
Suite 1100
Denver, Colorado 80237
......Telephone: 303-691-4303
Facsimile: 303-300-3260
......and a copy to:
......Brownstein Hyatt & Farber, P.C.
......410 17th Street, 22nd Floor
......Denver, Colorado 80202
......Attention: Gary M. Reiff, Esq.
......Telephone: 303-223-1100
............. Facsimile: 303-223-1111
.............Any notice required hereunder to be delivered to the Escrow Agent
shall be delivered in accordance with above provisions as follows:
......Stewart Title Guaranty Company
......1980 Post Oak Boulevard, Suite 610
......Houston, Texas 77056
......Attention: Wendy Howell
......National Commercial Closing Specialist
............. Telephone: 800-729-1906
.............Unless specifically required to be delivered to the Escrow Agent
pursuant to the terms of this Contract, no notice hereunder must be delivered to
the Escrow Agent in order to be effective so long as it is delivered to the
other party in accordance with the above provisions.
13.8 Governing Law And Venue. The laws of the State of Colorado (other than its
conflicts of laws provisions) shall govern the validity, construction,
enforcement, and interpretation of this Contract, except to the extent the law
of a state or commonwealth in which a Property is situated is required to govern
matters concerning the transfer, titling or ownership of real property in such
state or commonwealth. Subject to Section 13.25, all claims, disputes and other
matters in question arising out of or relating to this Contract, or the breach
thereof, shall be decided by proceedings instituted and litigated in a court of
competent jurisdiction in the State of Colorado except to the extent that
matters are required by law to be brought in a court situated in the state or
commonwealth in which the Property is situated, and the parties hereto expressly
consent to the venue and jurisdiction of such courts.
13.9 Entire Agreement. This Contract embodies the entire Contract between the
parties hereto concerning the subject matter hereof and supersedes all prior
conversations, proposals, negotiations, understandings and agreements, whether
written or oral.
13.10 Amendments. This Contract shall not be amended, altered, changed,
modified, supplemented or rescinded in any manner except by a written contract
executed by all of the parties; provided, however, that, as provided in Section
2.3.5 above, the signature of the Escrow Agent shall not be required as to any
amendment of this Contract other than an amendment of Section 2.3.
13.11 Severability. If any part of this Contract shall be held to be invalid or
unenforceable by a court of competent jurisdiction, such provision shall be
reformed, and enforced to the maximum extent permitted by law. If such provision
cannot be reformed, it shall be severed from this Contract and the remaining
portions of this Contract shall be valid and enforceable.
13.12 Multiple Counterparts/Facsimile Signatures. This Contract may be executed
in a number of identical counterparts. This Contract may be executed by
facsimile signatures which shall be binding on the parties hereto, with original
signatures to be delivered as soon as reasonably practical thereafter.
13.13 Construction. No provision of this Contract shall be construed in favor
of, or against, any particular party by reason of any presumption with respect
to the drafting of this Contract; both parties, being represented by counsel,
having fully participated in the negotiation of this instrument.
13.14 Confidentiality. Purchaser shall not disclose the terms and conditions
contained in this Contract and shall keep the same confidential, provided that
Purchaser may disclose the terms and conditions of this Contract (a) as required
by law, (b) to consummate the terms of this Contract, or any financing relating
thereto, or (c) to Purchaser's or Sellers' lenders, attorneys and accountants.
Any information and Materials provided by Sellers to Purchaser hereunder are
confidential and Purchaser shall be prohibited from making such information
public to any other person or entity other than its agents and legal
representatives, without the prior written authorization of Seller's
Representative, which may be granted or denied in the sole discretion of
Seller's Representative. Notwithstanding the provisions of Section 13.9,
Purchaser agrees that the covenants, restrictions and agreements of Purchaser
contained in any confidentiality agreement executed by Purchaser prior to the
Effective Date shall survive the execution of this Contract and shall not be
superseded hereby.
13.15 Time Of The Essence. It is expressly agreed by the parties hereto that
time is of the essence with respect to this Contract.
13.16 Waiver. No delay or omission to exercise any right or power accruing upon
any default, omission, or failure of performance hereunder shall impair any
right or power or shall be construed to be a waiver thereof, but any such right
and power may be exercised from time to time and as often as may be deemed
expedient. No waiver, amendment, release, or modification of this Contract shall
be established by conduct, custom, or course of dealing and all waivers must be
in writing and signed by the waiving party.
13.17 Attorneys Fees. In the event either party hereto commences litigation or
arbitration against the other to enforce its rights hereunder, the prevailing
party in such litigation shall be entitled to recover from the other party its
reasonable attorneys' fees and expenses incidental to such litigation and
arbitration, including the cost of in-house counsel and any appeals.
13.18 Time Periods. Should the last day of a time period fall on a weekend or
legal holiday, the next Business Day thereafter shall be considered the end of
the time period.
13.19 1031 Exchange. Sellers and Purchaser acknowledge and agree that the
purchase and sale of each Property may be part of a tax-free exchange under
Section 1031 of the Code for either Purchaser or a 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 a Seller so elects to close the transfer
of a Property as an exchange, then (i) such Seller, at its sole option, may
delegate its obligations to transfer a 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 such Seller pursuant
to this Contract; (iii) such 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 such Seller (or, if applicable, from other affiliates of such Seller whom
such 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 a Property as an exchange, then (i) Purchaser, at its sole
option, may delegate its obligations to acquire such Property under this
Contract, and may assign its rights to receive the Property from such 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 such Seller; and (v) the closing of the acquisition of such Property by
Purchaser or the exchange accommodation titleholder, as the case may be, shall
be undertaken by direct deed from the applicable Seller (or, if applicable, from
other affiliates of such Seller whom such Seller will cause to execute such
deeds) to Purchaser (or to exchange accommodation titleholder, as the case may
be). Notwithstanding anything in this Section 13.19 to the contrary, any Seller
shall have the right to extend the Closing Date (as previously extended pursuant
to Section 5.1) for up to 30 days in order to facilitate a tax free exchange
pursuant to this Section 13.19, and to obtain all documentation in connection
therewith.
13.20 No Personal Liability of Officers, Trustees or Directors of Seller's
Partners. Purchaser agrees that none of any Seller's Indemnified Parties shall
have any personal liability under this Contract or any document executed in
connection with the transactions contemplated by this Contract.
13.21 No Exclusive Negotiations. Sellers 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 any Property with any third-party; provided, however,
that such communications are subject to the terms of this Contract, and that
Sellers shall not enter into any contract with a third-party for the sale of any
Property unless such contract is contingent on the termination of this Contract
without the Property having been conveyed to Purchaser.
13.22 ADA Disclosure. Purchaser acknowledges that the Properties may be subject
to the federal Americans With Disabilities Act (the "ADA") and the federal Fair
Housing Act (the "FHA"). The ADA requires, among other matters, that tenants
and/or owners of "public accommodations" remove barriers in order to make a
property accessible to disabled persons and provide auxiliary aids and services
for hearing, vision or speech impaired persons. Sellers make no warranty,
representation or guarantee of any type or kind with respect to any Property's
compliance with the ADA or the FHA (or any similar state or local law), and
Sellers expressly disclaim any such representation.
13.23 No Recording. Purchaser shall not cause or allow this Contract or any
contract or other document related hereto, nor any memorandum or other evidence
hereof, to be recorded or become a public record without the prior written
consent of Seller's Representative, which consent may be withheld in the sole
discretion of Seller's Representative. If the Purchaser records this Contract or
any other memorandum or evidence thereof, Purchaser shall be in default of its
obligations under this Contract. Purchaser hereby appoints the Seller's
Representative as Purchaser's attorney-in-fact to prepare and record any
documents necessary to effect the nullification and release of the contract or
other memorandum or evidence thereof from the public records. This appointment
shall be coupled with an interest and irrevocable.
13.24 Relationship of Parties. Purchaser and Sellers acknowledge and agree that
the relationship established between the parties pursuant to this Contract is
only that of a seller and a purchaser of property. Neither Purchaser nor Sellers
is, nor shall either hold itself out to be, the agent, employee, joint venturer
or partner of the other party.
13.25 Dispute Resolution. Any controversy, dispute, or claim of any nature
arising out of, in connection with, or in relation to the interpretation,
performance, enforcement or breach of this Contract (and any closing document
executed in connection herewith), including any claim based on contract, tort or
statute, shall be resolved at the written request of any party to this Contract
by binding arbitration. The arbitration shall be administered in accordance with
the then current Commercial Arbitration Rules of the American Arbitration
Association. Any matter to be settled by arbitration shall be submitted to the
American Arbitration Association in the state of Colorado. The parties shall
attempt to designate one arbitrator from the American Arbitration Association.
If they are unable to do so within 30 days after written demand therefor, then
the American Arbitration Association shall designate an arbitrator. The
arbitration shall be final and binding, and enforceable in any court of
competent jurisdiction. The arbitrator shall award attorneys' fees (including
those of in-house counsel) and costs to the prevailing party and charge the cost
of arbitration to the party which is not the prevailing party. Notwithstanding
anything herein to the contrary, this Section 13.25 shall not prevent Purchaser
or Sellers from seeking and obtaining equitable relief on a temporary or
permanent basis, including, without limitation, a temporary restraining order, a
preliminary or permanent injunction or similar equitable relief, from a court of
competent jurisdiction located in the state of Colorado is located (to which all
parties hereto consent to venue and jurisdiction) by instituting a legal action
or other court proceeding in order to protect or enforce the rights of such
party under this Contract or to prevent irreparable harm and injury. The court's
jurisdiction over any such equitable matter, however, shall be expressly limited
only to the temporary, preliminary, or permanent equitable relief sought; all
other claims initiated under this Contract between the parties hereto shall be
determined through final and binding arbitration in accordance with this Section
13.25.
13.26 AIMCO Marks. Purchaser agrees that Sellers, the Property Manager or AIMCO,
or their respective affiliates, are the sole owners of all right, title and
interest in and to the AIMCO Marks (or have the right to use such AIMCO Marks
pursuant to license agreements with third parties) and that no right, title or
interest in or to the AIMCO Marks is granted, transferred, assigned or conveyed
as a result of this Contract. Purchaser further agrees that Purchaser will not
use the AIMCO Marks for any purpose. Notwithstanding the foregoing, each Seller
will convey to Purchaser all of such Seller's right, title and interest in any
computer located at its Property (wiped clean of all software and files).
13.27 Non-Solicitation of Employees. Purchaser acknowledges and agrees that,
without the express written consent of Seller's Representative, neither
Purchaser nor any of Purchaser's employees, affiliates or agents shall (a) prior
to the expiration of the Feasibility Period, solicit any of Seller's employees
or any employees located at any Property for potential employment, or (b) for a
period of 2 years after the Effective Date, directly solicit any employees of
any other affiliates of Sellers located at any property owned by such affiliates
(other than the Properties).
13.28 Survival. Except for (a) all of the provisions of this Article 13 (other
than Section 13.19 and 13.21), and (b) any provision of this Contract which
expressly states that it shall so survive, and (c) any payment obligation of
Purchaser under this Contract (the foregoing (a), (b) and (c) referred to herein
as the "Survival Provisions"), none of the terms and provisions of this Contract
shall survive the termination of this Contract, and, if the Contract is not so
terminated, all of the terms and provisions of this Contract (other than the
Survival Provisions) shall be merged into the Closing documents and shall not
survive Closing.
13.29 Multiple Purchasers. As used in this Contract, the term "Purchaser" means
all entities acquiring any interest in any Properties at the Closing, including,
without limitation, any assignee(s) of the original Purchaser pursuant to
Section 13.3 of this Contract. In the event that "Purchaser" has any obligations
or makes any covenants, representations or warranties under this Contract, the
same shall be made jointly and severally by all entities being a Purchaser
hereunder. In the event that a Seller receives notice from any entity being a
Purchaser hereunder, the same shall be deemed to constitute notice from all
entities being a Purchaser hereunder. In the event that any entity being a
Purchaser hereunder takes any action, breaches any obligation or otherwise acts
pursuant to the terms of this Contract, the same shall be deemed to be the
action of the other entity(ies) being a Purchaser hereunder and the action of
"Purchaser" under this Contract. In the event that a Seller or Seller's
Representative is required to give notice or take action with respect to
Purchaser under this Contract, notice to any entity being a Purchaser hereunder
or action with respect to any entity being a Purchaser hereunder shall be a
notice or action to all entities being a Purchaser hereunder. In the event that
any entity being a Purchaser hereunder desires to bring an action or arbitration
against a Seller, such action must be joined by all entities being a Purchaser
hereunder in order to be effective. In the event that there is any agreement by
a Seller to pay any amount pursuant to this Contract to Purchaser under any
circumstance, that amount shall be deemed the maximum aggregate amount to be
paid to all parties being a Purchaser hereunder and not an amount that can be
paid to each party being a Purchaser hereunder. In the event that a Seller is
required to return the Initial Deposit, Additional Deposit or other amount to
Purchaser, such Seller shall return the same to any entity being a Purchaser
hereunder and, upon such return, shall have no further liability to any other
entity being a Purchaser hereunder for such amount. The foregoing provisions
also shall apply to any documents, including, without limitation, the General
Assignment and Assumption and the Assignment and Assumption of Leases and
Security Deposits, executed in connection with this Contract and the
transaction(s) contemplated hereby.
13.30 Sellers' Several Obligations. Purchaser agrees that, notwithstanding any
other provision of this Contract to the contrary, the representations,
warranties, obligations, and covenants of each Seller are individual and
several, and not joint and several, and that each Seller is responsible and
liable only for its own Property and its own representations, warranties,
obligations, and covenants. Purchaser agrees that it shall look solely to the
applicable Seller for any amount due hereunder or, obligation owed hereunder,
and further waives any and all claims against any other party or Property for
payment or performance of the same, including, without limitation, any other
Seller or AIMCO, or any partner, member, manager, shareholder, director,
officer, employee, affiliate, representative or agent of any Seller or AIMCO.
13.31 Obligation to Close on all Properties. Except as expressly set forth in
this Contract, Purchaser's obligation to purchase the Properties is not
severable and Purchaser must purchase all of the Properties. Similarly, except
as expressly stated this Contract, Sellers' obligations to sell the Properties
are not severable and Sellers must sell all of the Properties to Purchaser.
Further, if Purchaser has the right to terminate the Related Contract in its
entirety, and does so terminate the Related Contract in its entirety (including,
without limitation, pursuant to Sections 3.2 or 4.3), Seller shall have the
option to terminate this Contract in its entirety. In addition, if the sellers
under the Related Contract terminate the Related Contract for any reason, then
the Sellers may (but are not obligated to) terminate this Contract within 5 days
after the termination of the Related Contract. A default by the Purchaser under
the Related Contract is, at the option of the Sellers under this Contract, a
default by the Purchaser hereunder.
ARTICLE XIV
LEAD-BASED PAINT DISCLOSURE
14.1 Disclosure. Sellers and Purchaser hereby acknowledge delivery of the Lead
Based Paint Disclosure attached as Exhibit H hereto. The provisions of this
Section 14.1 shall survive the Closing and delivery of the Deeds to Purchaser.
As an additional "Seller's Representation," and subject to all limitations and
qualifications set forth in Article VI (including limitations on survival and
cap on damages for breach of representation), and further subject to the
limitations in Section 3.5, each Seller severally and individually, represents
as to itself only, that it will include in the Materials copies of any reports
on lead-based paint or asbestos testing and remediation for its Property readily
available to such Seller and commissioned during such Seller's ownership of its
Property.
14.2 Consent Agreement - Pre-1978 - Not Certified. The provisions of this
Section 14.2 apply to those properties identified on the Seller Information
Schedule as "Pre-1978, Not Certified." Using commercially reasonable efforts,
the applicable Seller shall (a) perform any testing (the "Testing") required at
its Property with respect to lead-based paint in accordance with the
requirements of the 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 AIMCO (executed December 18, 2001), and (b) if required under the
Consent Agreement, as reasonably determined by such Seller and its counsel,
remediate or abate (the "Remediation") any lead-based paint condition at such
Property prior to the Closing using commercially reasonable efforts. In the
event that such Seller does not complete such Testing or Remediation, if any is
required under the Consent Agreement, prior to the Closing, such Seller shall
initiate, continue or complete such Testing or Remediation, if any is required
under the Consent Agreement, promptly after Closing. Purchaser shall provide
such Seller with full and unimpeded access to its Property, including, without
limitation, access to all units located thereon, for the purposes of completing
such Testing or Remediation, if any is required under the Consent Agreement, and
Purchaser shall fully cooperate with such Seller regarding, and allow such
Seller to perform, such Testing or Remediation, if any is required under the
Consent Agreement, as determined by such Seller and its counsel in their sole
and absolute discretion, including, without limitation, allowing any alterations
to such Property, to comply with the Consent Agreement, until such time as such
Testing or Remediation, if any is required under the Consent Agreement, has been
completed. Seller shall provide 24 hours' notice to Purchaser in the event that
access to a unit is required to perform such Testing or Remediation, if any is
required under the Consent Agreement; provided, however, such Seller's
obligations hereunder after Closing shall be contingent on Purchaser's
compliance herewith, and such Seller shall be relieved of all liability and
obligations regarding such Testing or Remediation or otherwise under the Consent
Agreement, if any is required under the Consent Agreement, as a result of any
failure by Purchaser to comply with this Section 14.2. Purchaser acknowledges
and agrees that (1) after Closing, the Purchaser and the applicable Property
shall be subject to the Consent Agreement and the provisions contained herein
related thereto; (2) after Closing, Purchaser agrees to undertake the
obligations required by the Consent Agreement; (3) such Seller will need
necessary access to the applicable Property to comply with the requirements of
the Consent Agreement; (4) that Purchaser will provide such access to such
Property after Closing so that such Seller can comply with the requirements of
the Consent Agreement; and (5) Purchaser shall not be deemed to be a third party
beneficiary to the Consent Agreement. By execution hereof, Purchaser further
acknowledges receipt of notice in writing of the existence of the Consent
Agreement and receipt of a copy thereof. Upon completion of its testing and
remediation efforts, the applicable Seller, at its sole cost and expense, shall
restore the affected Property to substantially the condition (exclusive of
remediation effects) as existed immediately prior to the applicable Seller's
testing and remediation activities. The provisions of Sections 3.3 and 3.4 that
are applicable to Purchaser under the provisions of such Sections shall apply to
each Seller in the conduct of the activities contemplated by this Section 14.2
upon any of the Properties and the rights of and benefits to the Sellers that
are specified in such Sections 3.3 and 3.4 shall apply to Purchaser in the case
of activities conducted by any Seller hereunder. The provisions of this Section
14.2 shall survive the termination of this Contract, and if not so terminated,
the Closing and delivery of the Deeds to Purchaser.
14.3 Consent Agreement - Pre-1978 Certified. The provisions of this Section 14.3
apply to those Properties identified on the Seller Information Schedule as
"Pre-1978-Certified Lead Based Paint Free." Testing has been performed at each
Property identified as "Pre-1978, Certified Lead Based Paint Free" with respect
to lead-based paint. The "LPB Consultant" identified on the Seller Information
Schedule prepared the Report with respect to the Property identified therein.
Purchaser may, at its sole cost and expense, and not as a condition to Closing,
request the LPB Consultant to certify such report directly to Purchaser. A copy
of each report will be provided to Purchaser with the Materials. Each Report
certifies the respective Property as lead based paint free. By execution hereof,
Purchaser acknowledges receipt of a copy of the Reports, the Lead-Based Paint
Disclosure Statement attached hereto as Exhibit H, and acknowledges receipt of
the Consent Agreement. Because the applicable Property has been certified as
lead based paint free, the applicable Seller is not required under the Consent
Agreement to remediate or abate any lead-based paint condition at its Property
prior to the Closing. Purchaser acknowledges and agrees that (1) after Closing,
Purchaser and the applicable Property shall be subject to the Consent Agreement
and the provisions contained herein related thereto and (2) Purchaser shall not
be deemed to be a third party beneficiary to the Consent Agreement. The
provisions of this Section 14.3 shall survive the termination of this Contract,
and if not so terminated, the Closing and delivery of the Deeds to Purchaser.
14.4 Consent Agreement - Pre-1978-LBP, But No LBP Hazards The provisions of this
Section 14.4 apply to those Properties identified on the Seller Information
Schedule as "Pre-1978, Certified With Lead-Based Paint Present, but Without
Lead-Based Hazard." Testing has been performed at the applicable Property with
respect to lead-based paint. The "LBP Consultant" identified on the Seller
Information Schedule prepared the Report with respect to the Property identified
therein. Purchaser may, at its sole cost and expense, and not as a condition to
Closing, request the LBP Consultant to certify such report directly to
Purchaser. A copy of the Report with respect to the Property will provided to
Purchaser with the Materials. The Report certifies the applicable Property as
free of (a) lead-based hazards, (b) dust lead hazards and (c) soil lead hazards.
By execution hereof, Purchaser acknowledges receipt of a copy of the Report, the
Lead-Based Paint Disclosure Statement attached hereto as Exhibit H, and the
Consent Agreement. Because the applicable Property has been certified as free of
(x) lead based hazards, (y) dust lead hazards and (z) soil lead hazards, the
applicable Seller is not required under the Consent Agreement to remediate or
abate any lead-based paint condition at such Property prior to the Closing.
Purchaser acknowledges and agrees that (1) after Closing, the Purchaser and the
applicable Property shall be subject to the Consent Agreement and the provisions
contained herein related thereto and (2) Purchaser shall not be deemed to be a
third party beneficiary to the Consent Agreement. The provisions of this Section
14.4 shall survive the termination of this Contract, and if not so terminated,
the Closing and delivery of the Deeds to Purchaser.
[signatures on following pages]
NOW, THEREFORE, the parties hereto have executed this Contract as of the
date first set forth above.
Seller:
AIMCO SUNSET VILLAGE, L.L.C.,
a Delaware limited liability company
By: AIMCO PROPERTIES, L.P.,
a Delaware limited partnership
Its Sole Member
By: AIMCO-GP, Inc.,
a Delaware corporation
its General Partner
By: /s/ Patrick F. Slavin
Name: Patrick F. Slavin
Title: Senior Vice President
FOXFIRE APARTMENTS V LIMITED PARTNERSHIP,
a South Carolina limited partnership
By: Shelter V GP-SC Limited Partnership,
a South Carolina limited
partnership
Its General Partner
By: Shelter Realty V Corporation,
a South Carolina corporation
its General Partner
By: /s/ Patrick F. Slavin
Name: Patrick F. Slavin
Title: Senior Vice President
AIMCO WALDEN, L.L.C.,
a Delaware limited liability company
By: Walden Member, Inc.,
a Delaware corporation
its Manager
By: /s/ Patrick F. Slavin
Name: Patrick F. Slavin
Title: Senior Vice President
AIMCO PARK COLONY, L.L.C.,
a Delaware limited liability company
By: AIMCO PROPERTIES, L.P.,
a Delaware limited partnership
Its Sole Member
By: AIMCO-GP, Inc.,
a Delaware corporation
its General Partner
By: /s/ Patrick F. Slavin
Name: Patrick F. Slavin
Title: Senior Vice President
AIMCO/SHADOW LAKE, L.P.,
a Delaware limited partnership
By: AIMCO/Shadow Lake, Inc.,
a Delaware corporation
its General Partner
By: /s/ Patrick F. Slavin
Name: Patrick F. Slavin
Title: Senior Vice President
GREENSBORO-OXFORD ASSOCIATES LIMITED
PARTNERSHIP,
a Maryland limited partnership
By: AIMCO/Greensboro, L.L.C.,
a Delaware limited liability
company
Its General Partner
By: AIMCO PROPERTIES, L.P.,
a Delaware limited partnership
Its Sole Member
By: AIMCO-GP, Inc.,
a Delaware corporation
its General Partner
By: Oxford Equities Corporation,
an Indiana corporation,
Its General Partner
By: /s/ Patrick F. Slavin
Name: Patrick F. Slavin
Title: Senior Vice President
For AIMCO-GP, Inc & Oxford Equities
Corporation
SALEM-OXFORD ASSOCIATES LIMITED
PARTNERSHIP,
a Maryland limited partnership
By: AIMCO/Salem, L.L.C.,
a Delaware limited liability
company
Its General Partner
By: AIMCO PROPERTIES, L.P.,
a Delaware limited partnership
Its Sole Member
By: AIMCO-GP, Inc.,
a Delaware corporation
its General Partner
By: Oxford Equities Corporation,
an Indiana corporation,
Its General Partner
By: /s/ Patrick F. Slavin
Name: Patrick F. Slavin
Title: Senior Vice President
For AIMCO-GP, Inc & Oxford Equities
Corporation
WOODHAVEN ASSOCIATES, a Virginia Limited
Partnership,
a Virginia limited partnership
By: MAERIL, Inc.,
a Delaware corporation
its General Partner
By: /s/ Patrick F. Slavin
Name: Patrick F. Slavin
Title: Senior Vice President
Purchaser:
THE BETHANY GROUP, LLC,
a California limited liability company
By: /s/ Greg Garmon
Name: Greg Garmon
Title: Chief Executive Officer
Purchaser's Tax Identification
Number/Social Security Number:
721829294
ESCROW AGENT SIGNATURE PAGE
The undersigned executes the Contract to which this signature page
is attached for the purpose of agreeing to the provisions of Section 2.3 of the
Contract, and hereby establishes May 4, 2005 as the date of opening of escrow
and designates 04330945 as the escrow number assigned to this escrow.
ESCROW AGENT:
STEWART TITLE GUARANTY COMPANY
By: /s/ Wendy Howell
Name: Wendy Howell
Title: Assistant Vice President
Exhibit 10(ii)c
FIRST AMENDMENT TO PURCHASE AND SALE CONTRACT
THIS FIRST AMENDMENT TO PURCHASE AND SALE CONTRACT (this "First
Amendment") is made as of the 1st day of July, 2005 (the "First Amendment
Date"), by and among AIMCO SUNSET VILLAGE, L.L.C., a Delaware limited liability
company, FOXFIRE APARTMENTS V LIMITED PARTNERSHIP, a South Carolina limited
partnership, AIMCO WALDEN, L.L.C., a Delaware limited liability company, AIMCO
PARK COLONY, L.L.C., a Delaware limited liability company, AIMCO/SHADOW LAKE,
L.P. a Delaware limited partnership, GREENSBORO-OXFORD ASSOCIATES LIMITED
PARTNERSHIP, a Maryland limited partnership, SALEM-OXFORD ASSOCIATES LIMITED
PARTNERSHIP, a Maryland limited partnership, WOODHAVEN ASSOCIATES, a Virginia
limited partnership (individually a "Seller" and collectively "Sellers"), and
THE BETHANY GROUP, LLC, a California limited liability company ("Purchaser").
RECITALS:
WHEREAS, Sellers and Purchaser entered into a Purchase and Sale Contract
dated as of May 12, 2005 (the "Contract"), for the real properties identified
therein; and,
WHEREAS, Sellers and Purchaser desire to amend the Contract on the terms
and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual covenants set forth in the
Contract and herein and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Sellers and Purchaser agree to
amend the Contract as follows:
AGREEMENT:
1. Woodhaven. The Contract is amended to delete Woodhaven Associates, a
Virginia limited partnership ("Woodhaven"), as a Seller under the
Contract, and to delete the property owned by Woodhaven (identified as
Exhibit A-8 to the Contract) as a Property under the Contract. Rather,
Woodhaven shall be a "Seller" under the Related Contract and its property
shall be a "Property" under the Related Contract; provided, however, that
Woodhaven (a) shall remain liable for any breach of its obligations under
the Contract which accrues prior to the First Amendment Date and (b) shall
not have any liability under the Contract which accrues from and after the
First Amendment Date; provided further, however, that any breach by
Woodhaven of the Contract prior to the First Amendment Date shall be
governed by, and treated as a breach of, the Related Contract, rather than
the Contract (for example, if and to the extent any dispute among the
parties arises regarding the disposition of Woodhaven's Applicable Share
of the Contract's Deposit due to one or more breaches of its obligations
alleged to have occurred prior to the First Amendment Date, then the
disposition of such Applicable Share shall be governed by the applicable
terms of the Related Contract as if such Applicable Share had been
credited to the account of the "Deposit" under the Related Contract as of
the "Effective Date" of the Related Contract). The Seller Information
Statement attached to the Contract as Schedule A is hereby amended to
delete all references to Woodhaven. The definition of "Related Contract"
in Article I of the Contract is hereby amended to include Woodhaven as a
party thereto.
2. Purchase Price and Deposit.
(a) Section 2.2 of the Contract, and the Seller Information Schedule
attached to the Contract, are amended to provide that the Base Purchase
Price for each Property is as stated on Schedule 1 attached hereto.
The Base Purchase Price adjustment is in full satisfaction of all
issues raised by Purchaser regarding the applicable Property; provided
however, that the foregoing acknowledgement regarding pricing shall not
in any way modify the respective obligations of Sellers under the
Contract.
(b) Section 2.2.1 of the Contract is amended to provide that,
notwithstanding anything in the Contract to the contrary, including,
but not limited to, Sections 3.2, 4.3(a), 8.1, 11.1 and 12.1 of the
Contract and Article XV of the Contract, $25,000 (the "Non-Refundable
Portion") of the Initial Deposit is non-refundable, except that a
Seller's Applicable Share of such Non-Refundable Portion shall be
refundable to Purchaser only upon the default by such Seller and
termination of the Contract with respect to such Seller's Property by
Purchaser for such default.
(c) Section 2.2.2 of the Contract is amended to delete "$969,192.00" and
insert in lieu thereof "$1,280,808.00".
(d) Section 1.1.5 of the Contract is amended in its entirety as follows:
"Applicable Share" means, a fraction, the numerator of which is the
Property's Base Purchase Price set forth on the Seller Information
Schedule, and the denominator of which is $85,236,082.00.
3. Closing Date. Section 5.1 of the Contract is hereby amended and restated in
its entirety as follows:
5.1 Closing Date. The Closing shall occur on July 29, 2005 (the
"Closing Date") through an escrow with Escrow Agent, whereby the
Sellers, Purchaser and their attorneys need not be physically
present at the Closing and may deliver documents by overnight air
courier or other means. Notwithstanding the foregoing to the
contrary, any Seller shall have the option, by delivering written
notice to Purchaser, to extend the Closing Date to the last Business
Day of the month in which the Closing Date otherwise would occur
pursuant to the preceding sentence, or to such other date (either in
the same month or the next) as such Seller reasonably determines is
desirable in connection with any Loan Payoff and the exercise of
such option shall extend the Closing Date for all Properties.
Further, the Closing Date may be extended without penalty at the
option of any Seller either (i) to a date not later than 30 days
following the Closing Date specified in the first sentence of this
paragraph above (or, if applicable, as extended by any Seller
pursuant to the second sentence of this paragraph) to satisfy a
condition set forth in Section 8.2, or (ii) such later date as is
mutually acceptable to Sellers and Purchaser. Provided that
Purchaser is not in default under the terms of this Contract or
Related Contract, Purchaser shall be permitted the right to extend
the Closing Date for all Properties (the "First Extension Right") to
August 31, 2005, by (i) delivering written notice to Sellers no
later than 5:00 PM (PST), on July 15, 2005, and (ii) simultaneously
with such notice to Sellers, delivering to Escrow Agent the amount
of $1,500,000.00, which amount when received by Escrow Agent shall
be added (and exclusively credited) to the Deposit hereunder, shall
be non-refundable (except as otherwise expressly provided herein
with respect to the Deposit), and shall be held, credited and
disbursed in the same manner as provided hereunder with respect to
the Deposit.
4. Materials, Property Contracts, Title Documents and Surveys. Purchaser
acknowledges receipt of the Property Contracts, Title Documents and Surveys from
Sellers. Purchaser also acknowledges receipt of the Materials identified in the
Contract, including Schedule 3.5 of the Contract, subject, however, to the
applicable Seller's obligation, if any, under the Contract to update and
supplement any such Materials.
5. Feasibility Period/Title Review. Section 3.1 of the Contract is amended by
deleting "June 17, 2005" and inserting in lieu thereof "July 6, 2005".
6. Rent Roll. Section 6.1.11 of the Contract is amended to add the following at
the end of the section:
Prior to the expiration of the Feasibility Period, each Seller shall
provide Purchaser a current Rent Roll, and such updated Rent Roll
shall, to the knowledge of the applicable Seller, be accurate in all
material respects.
7. Lead Based Paint. Section 14.2 of the Contract is amended to add the
following immediately before the last sentence in the section:
Each Seller whose Property is covered by this Section 14.2 shall,
individually, severally and only with respect to its own Property,
hold harmless and indemnify Purchaser from any Losses to the extent
arising from such Seller's entry upon such Property post-Closing for
the purposes of Testing and Remediation.
8. Miscellaneous. The following provisions shall apply with respect to this
First Amendment:
(a) Except as modified herein, the Contract is in full force and effect and is
hereby ratified by Purchaser and Sellers.
(b) Capitalized terms not defined herein shall have the same meaning as set
forth in the Contract.
(c) In the event of any conflict between the Contract and this First
Amendment, the terms and conditions of this First Amendment shall control.
(d) This First Amendment may be executed in counterparts, each of which (or
any combination of which) when signed by all of the parties shall be
deemed an original, but all of which when taken together shall constitute
one agreement. Executed copies hereof may be delivered by telecopier and
upon receipt shall be deemed originals and binding upon the parties
hereto, and actual originals shall be promptly delivered thereafter.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
as of the First Amendment Date.
Seller:
AIMCO SUNSET VILLAGE, L.L.C.,
a Delaware limited liability company
By: AIMCO PROPERTIES, L.P.,
a Delaware limited partnership
Its Sole Member
By: AIMCO-GP, Inc.,
a Delaware corporation
its General Partner
By: /s/Brian V. Bornhorst
Name: Brian V. Bornhorst
Title: Vice President
FOXFIRE APARTMENTS V LIMITED PARTNERSHIP,
a South Carolina limited partnership
By: Shelter V GP-SC Limited Partnership,
a South Carolina limited
partnership
Its General Partner
By: Shelter Realty V Corporation,
a South Carolina corporation
its General Partner
By: /s/Brian V. Bornhorst
Name: Brian V. Bornhorst
Title: Vice President
AIMCO WALDEN, L.L.C.,
a Delaware limited liability company
By: Walden Member, Inc.,
a Delaware corporation
its Manager
By: /s/Brian V. Bornhorst
Name: Brian V. Bornhorst
Title: Vice President
AIMCO PARK COLONY, L.L.C.,
a Delaware limited liability company
By: AIMCO PROPERTIES, L.P.,
a Delaware limited partnership
Its Sole Member
By: AIMCO-GP, Inc.,
a Delaware corporation
its General Partner
By: /s/Brian V. Bornhorst
Name: Brian V. Bornhorst
Title: Vice President
AIMCO/SHADOW LAKE, L.P.,
a Delaware limited partnership
By: AIMCO/Shadow Lake, Inc.,
a Delaware corporation
its General Partner
By: /s/Brian V. Bornhorst
Name: Brian V. Bornhorst
Title: Vice President
GREENSBORO-OXFORD ASSOCIATES
LIMITED PARTNERSHIP,
a Maryland limited partnership
By: AIMCO/Greensboro, L.L.C.,
a Delaware limited liability
company
Its General Partner
By: AIMCO PROPERTIES, L.P.,
a Delaware limited partnership
Its Sole Member
By: AIMCO-GP, Inc.,
a Delaware corporation
its General Partner
By: /s/Brian V. Bornhorst
Name: Brian V. Bornhorst
Title: Vice President
AND
By: Oxford Equities Corporation,
an Indiana corporation,
Its General Partner
By: /s/Brian V. Bornhorst
Name: Brian V. Bornhorst
Title: Vice President
SALEM-OXFORD ASSOCIATES LIMITED
PARTNERSHIP,
a Maryland limited partnership
By: AIMCO/Salem, L.L.C.,
a Delaware limited liability
company
Its General Partner
By: AIMCO PROPERTIES, L.P.,
a Delaware limited partnership
Its Sole Member
By: AIMCO-GP, Inc.,
a Delaware corporation
its General Partner
By: /s/Brian V. Bornhorst
Name: Brian V. Bornhorst
Title: Vice President
AND
By: Oxford Equities Corporation,
an Indiana corporation,
Its General Partner
By: /s/Brian V. Bornhorst
Name: Brian V. Bornhorst
Title: Vice President
WOODHAVEN ASSOCIATES, a Virginia Limited
Partnership,
a Virginia limited partnership
By: MAERIL, Inc.,
a Delaware corporation
its General Partner
By: /s/Brian V. Bornhorst
Name: Brian V. Bornhorst
Title: Vice President
Purchaser:
THE BETHANY GROUP, LLC,
a California limited liability company
By:/s/Greg Garmon
Name: Greg Garmon
Title: Chief Excutive Officer/Managing
Director