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) October 28, 2005
CONSOLIDATED CAPITAL PROPERTIES VI
(Exact name of Registrant as specified in its charter)
California 0-14099 94-2940204
(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.
Consolidated Capital Properties VI (the "Registrant") owns a 100% interest in
Colony of Springdale Associates, Ltd., a Texas limited partnership (the
"Partnership"). On October 28, 2005, the Partnership sold its investment
property, Colony of Springdale Apartments, a 261-unit apartment complex located
in Springdale, Ohio (the "Property"), to a third party, CNC Investments, Ltd,
LLP, a Texas limited partnership (the "Purchaser"). In addition to the Property,
the Purchaser purchased nine other apartment complexes, each of which was owned
in whole or in part by affiliates of AIMCO Properties, L.P., an affiliate of the
general partners of the Partnership and the Registrant. The total sales price
for the Property and the nine other properties is approximately $96,500,000, of
which approximately $10,400,000 is allocated to the Property. As a result of
this sale, the Registrant no longer holds an ownership interest in any
investment properties or in any other assets.
In accordance with the Amended and Restated Limited Partnership Agreement of the
Registrant, the Registrant's general partner is evaluating the cash requirements
of the Registrant to determine what portion of the net proceeds will be
distributed to the Registrant's partners.
Item 9.01 Financial Statements and Exhibits
(c) Exhibits
The following exhibits are filed with this report:
10.23 Purchase and Sale Contract between Colony of Springdale Associates
Ltd., a Texas limited partnership, and CNC Investments, Ltd., LLP, a
Texas limited liability partnership dated August 19, 2005. *
10.24 Amendment of Purchase and Sale Contract between Colony of Springdale
Associates Ltd., a Texas limited partnership, and CNC Investments,
Ltd., LLP, a Texas limited liability partnership dated September 12,
2005.
10.25 Assignment and Assumption Agreement between CNC Investments, Ltd., LLP, a
Texas limited liability partnership and Mayuri, LLC, a Delaware limited
liability company dated October 7, 2005.
10.26 Second Amendment of Purchase and Sale Contract between Colony of
Springdale Associates Ltd., a Texas limited partnership, and CNC
Investments, Ltd., LLP, a Texas limited liability partnership and Mayuri,
LLC a Delaware limited liability company dated October 13, 2005.
10.27 Third Amendment of Purchase and Sale Contract between Colony of
Springdale Associates Ltd., a Texas limited partnership, and CNC
Investments, Ltd., LLP, a Texas limited liability partnership and Mayuri,
LLC a Delaware limited liability company dated October 27, 2005.
*Schedules and supplemental materials to the exhibit have been omitted but will
be provided to the Securities and Exchange Commission upon request.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CONSOLIDATED CAPITAL PROPERTIES VI
(a California Limited Partnership)
By: Concap Equities, Inc.
General Partner
By: /s/Martha L. Long
Martha L. Long
Senior Vice President
Date: November 3, 2005
Exhibit 10.23
PURCHASE AND SALE CONTRACT
AMONG
BURGUNDY COURT ASSOCIATES, L.P., a Delaware limited partnership
CHIMNEYS-OXFORD ASSOCIATES, L.P.,
an Indiana limited partnership
KETTERING-OXFORD ASSOCIATES L.P., an Indiana limited partnership
COLLEGE PARK APARTMENTS, A LIMITED PARTNERSHIP, a Pennsylvania limited
partnership
COLONY OF SPRINGDALE ASSOCIATES, Ltd., a Texas limited partnership
DAYTON III-OXFORD ASSOCIATES LIMITED PARTNERSHIP, a Maryland limited
partnership
CINCINNATI-OXFORD ASSOCIATES LIMITED PARTNERSHIP, a Maryland limited
partnership
STONERIDGE ASSOCIATES OF OHIO LIMITED PARTNERSHIP, an Ohio limited partnership
TRINITY PLACE COMMUNITY URBAN REDEVELOPMENT CORPORATION, an Ohio corporation
TRINITY-OXFORD ASSOCIATES, L.P., an Indiana limited partnership
WOODMERE ASSOCIATES, L.P., a Delaware limited partnership
AS SELLERS
AND
CNC INVESTMENTS, LTD., L.L.P.,
a Texas limited liability partnership
AS PURCHASER
Page(s)
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINED TERMS.............................................1
ARTICLE 2 PURCHASE AND SALE, PURCHASE PRICE & DEPOSIT...............9
2.1 Purchase and Sale. ......................................9
2.2 Purchase Price and Deposit. .............................9
2.3 Escrow Provisions Regarding Deposit......................10
ARTICLE 3 FEASIBILITY PERIOD.......................................11
3.1 Feasibility Period.......................................11
3.2 Expiration of Feasibility Period.........................12
3.3 Conduct of Investigation.................................12
3.4 Purchaser Indemnification................................13
3.5 Property Materials.......................................14
3.6 Property Contracts.......................................14
ARTICLE 4 TITLE....................................................15
4.1 Title Documents..........................................15
4.2 Survey...................................................15
4.3 Objection and Response Process...........................16
4.4 Permitted Exceptions.....................................16
4.5 Existing Deed of Trust...................................17
4.6 Intentionally deleted....................................17
4.7 Purchaser Financing......................................17
ARTICLE 5 CLOSING..................................................17
5.1 Closing Date " ".........................................17
5.2 Seller Closing Deliveries................................18
5.3 Purchaser Closing Deliveries.............................19
5.4 Closing Prorations and Adjustments.......................20
5.5 Post Closing Adjustments.................................25
ARTICLE 6 REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER...25
6.1 Seller's Representations.................................25
6.2 AS-IS....................................................26
6.3 Survival of Seller's Representations.....................27
6.4 Definition of Seller's Knowledge.........................28
6.5 Representations And Warranties Of Purchaser..............28
ARTICLE 7 OPERATION OF THE PROPERTIES..............................29
7.1 Leases and Property Contracts............................29
7.2 General Operation of Property............................29
7.3 Liens....................................................30
ARTICLE 8 CONDITIONS PRECEDENT TO CLOSING..........................30
8.1 Purchaser's Conditions to Closing........................30
8.2 Sellers' Conditions to Closing...........................31
ARTICLE 9 BROKERAGE................................................32
9.1 Indemnity................................................32
9.2 Broker Commission........................................32
9.3 Broker Signature Page. .................................32
9.4 Acquisition Fee. .......................................33
ARTICLE 10 DEFAULTS AND REMEDIES....................................33
10.1 Purchaser Default........................................33
10.2 Seller Default...........................................33
ARTICLE 11 RISK OF LOSS OR CASUALTY.................................34
11.1 Major Damage.............................................34
11.2 Minor Damage.............................................35
11.3 Repairs..................................................35
ARTICLE 12 EMINENT DOMAIN...........................................35
12.1 Eminent Domain...........................................35
ARTICLE 13 MISCELLANEOUS............................................36
13.1 Binding Effect of Contract...............................36
13.2 Exhibits And Schedules...................................36
13.3 Assignability............................................36
13.4 Binding Effect...........................................36
13.5 Captions.................................................36
13.6 Number And Gender Of Words...............................36
13.7 Notices..................................................37
13.8 Governing Law And Venue..................................39
13.9 Entire Agreement.........................................39
13.10 Amendments...............................................39
13.11 Severability.............................................39
13.12 Multiple Counterparts/Facsimile Signatures...............39
13.13 Construction.............................................40
13.14 Confidentiality..........................................40
13.15 Time Of The Essence......................................40
13.16 Waiver...................................................40
13.17 Attorneys' Fees..........................................40
13.18 Time Periods.............................................40
13.19 1031 Exchange............................................40
13.20 No Personal Liability of Officers, Trustees or Directors
of Seller's Partners.....................................41
13.21 No Exclusive Negotiations................................41
13.22 ADA Disclosure...........................................41
13.23 No Recording.............................................42
13.24 Relationship of Parties..................................42
13.25 Dispute Resolution.......................................42
13.26 AIMCO Marks..............................................42
13.27 Non-Solicitation of Employees............................43
13.28 Survival.................................................43
13.29 Multiple Purchasers......................................43
13.30 Sellers' Several Obligations.............................43
13.31 Obligation to Close on all Properties....................44
ARTICLE 14 LEAD-BASED PAINT DISCLOSURE..............................44
14.1 Disclosure...............................................44
14.2 Consent Agreement - Pre-1978 - Not Certified.............44
14.3 Consent Agreement - Pre-1978 Certified...................45
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 19th day of August, 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 CNC INVESTMENTS, LTD.,
L.L.P., a Texas limited liability partnership (or its permitted assignee in
accordance with the provisions of Section 13.3 below), having a principal
address at 4420 FM 1960 West, Suite 800, Houston, Texas 77068 ("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-10 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 1
DEFINED TERMS
1.1 Unless otherwise defined herein, any term with its initial letter
capitalized in this Contract shall have the meaning set forth in this ARTICLE 1.
Any reference to a specific "Property" shall be to the "Common Name of the
Property" as set forth in the Seller Information Schedule attached hereto.
1.1.1 "Acquisition Fee" shall have the meaning set forth in Section 9.4.
1.1.2 "ADA" shall have the meaning set forth in Section 13.22.
1.1.3 "Additional Deposit" shall have the meaning set forth in Section 2.2.2.
1.1.4 "AIMCO" means Apartment Investment and Management Company.
1.1.5 "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).
1.1.6 "Appeal" shall have the meaning set forth in Section 5.4.4.2.
1.1.7 "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 $96,500,000.00.
1.1.8 Intentionally deleted
1.1.9 Intentionally deleted
1.1.10......Intentionally deleted
1.1.11......Intentionally deleted
1.1.12......Intentionally deleted
1.1.13......"Base Purchase Price" means the "Base Purchase Price" for a Property
set forth on the Seller Information Schedule.
1.1.14......"Broker" shall have the meaning set forth in Section 9.1.
1.1.15......"Business Day" means any day other than a Saturday or Sunday or
Federal holiday or legal holiday in the States of Colorado, Texas, Ohio or
Pennyslvania.
1.1.16......"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.
1.1.17......"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.
1.1.18......"Code" shall have the meaning set forth in Section 2.3.6.
1.1.19......"Consent Agreement" shall have the meaning set forth in
Section 14.2.
1.1.20......"Consultants" shall have the meaning set forth in Section 3.1.
1.1.21......"Damage Notice" shall have the meaning set forth in Section 11.1.
1.1.22......"Deeds" shall have the meaning set forth in Section 5.2.1.
1.1.23......"Deed of Trust" means any deeds of trust and/or mortgages which
secure a Note against a Payoff Property.
1.1.24......"Deposit" means, to the extent actually deposited by Purchaser with
Escrow Agent, the Initial Deposit, the Additional Deposit, and the Extension
Deposit.
1.1.25......"Escrow Agent" shall have the meaning set forth in Section 2.2.1.
1.1.26......"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.
1.1.27......"Existing Survey" shall have the meaning set forth in Section 4.2.
1.1.28......"Extension Deposit" shall have the meaning set forth in
Section 5.1.
1.1.29......"Feasibility Period" shall have the meaning set forth in
Section 3.1.
1.1.30......"FHA " shall have the meaning set forth in Section 13.22.
1.1.31......"FHC" means, in connection with the Ground Lease (as hereinafter
defined), the Federal Housing Commissioner.
1.1.32......"Final Response Deadline" shall have the meaning set forth in
Section 4.3.
1.1.33......"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 1.1.33 or
listed on the Seller Information Schedule as "Excluded FF&E."
1.1.34......"General Assignment" shall have the meaning set forth in
Section 5.2.3.
1.1.35......"Good Funds" shall have the meaning set forth in Section 2.2.1.
1.1.36......"Ground Lease" shall have the meaning set forth in Section 1.1.68.
1.1.37......"Ground Lease Assignment" shall have the meaning set forth in
Section 5.2.10.
1.1.38......"Ground Lease Property" shall have the meaning set forth in
Section 1.1.68.
1.1.39......"Improvements" means all buildings and improvements located on the
Land corresponding to each Property, taken "as is."
1.1.40......"Information Statement" shall have the meaning set forth in Section
8.2.4.
1.1.41......"Initial Deposit" shall have the meaning set forth in
Section 2.2.1.
1.1.42......"Land" means, with respect to each Property, the corresponding tract
of land described on Exhibits A-1 to A-10, and all rights, privileges and
appurtenances pertaining thereto.
1.1.43......"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.
1.1.44......"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.
1.1.45......"Leases Assignment" shall have the meaning set forth in
Section 5.2.4.
1.1.46......"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.
1.1.47......"Lender Fees" means, with respect to each Payoff 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.
1.1.48......"Loan" means the indebtedness owing to Lender evidenced by a Note.
1.1.49......Intentionally deleted
1.1.50......Intentionally deleted
1.1.51......Intentionally deleted
1.1.52......Intentionally deleted
1.1.53......"Loan Payoff" shall have the meaning set forth in Section 5.4.7.
1.1.54......"Losses" shall have the meaning set forth in Section 3.4.1.
1.1.55......"Materials" shall have the meaning set forth in Section 3.5.
1.1.56......"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, (j) any right, title or interest in or to the AIMCO Marks, or (k) with
respect to the Hunter's Chase Property, any proceeds resulting from the
resolution of that certain lawsuit, Hunter's Chase Apartment, as plaintiff v.
T.L. Palms Painting Contractor, et al, as defendant, filed in the Court of
Common Pleases, Montgomery County, Ohio. The term "Miscellaneous Property
Assets" also shall include all of the applicable Seller's rights, if any, in and
to the name "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).
1.1.57......"Non-Refundable Deposit Amount" shall have the meaning set forth in
Section 2.2.1.
1.1.58......"Note" means, with respect to each Property, the promissory note(s)
identified in the Seller Information Schedule.
1.1.59......"Objection Deadline" shall have the meaning set forth in
Section 4.3.
1.1.60......"Objection Notice" shall have the meaning set forth in
Section 4.3.
1.1.61......"Objections" shall have the meaning set forth in Section 4.3.
1.1.62......"Official Records" shall have the meaning set forth in
Section 1.1.68.
1.1.63......"Payoff Property" means those Properties for which the Loan will be
paid off at Closing and identified as a Payoff Property on the Seller
Information Schedule.
1.1.64......"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.
1.1.65......"Permitted Exceptions" shall have the meaning set forth in Section
4.4.
1.1.66......"Portfolio Acquisition Fee" shall have the meaning set forth in
Section 2.2.5.
1.1.67......"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.
1.1.68......"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, the (c) the Miscellaneous Property Assets owned by Seller which
are located on such Land and Improvements and used in its operation, and (d)
Seller's interest as successor lessee under that certain Lease ("Ground Lease")
dated May 11, 1982, and evidenced by that certain Memorandum of Lease recorded
of even dated therewith, as Instrument No. 5900 in Book 60, Pages 267 through
270, in the official records of the Recorder's Office of the County of Butler,
Ohio (the "Official Records") by and between Trinity Place Community Urban
Redevelopment Corporation as "Ground Lessor", and Trinity-Oxford Associates, an
Indiana limited partnership, as "Ground Lessee", covering the real property and
improvements on top of the land as more particularly described on Exhibit "A-9"
hereto (the "Ground Lease Property").
1.1.69......"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.
1.1.70......"Property Contracts Notice" shall have the meaning set forth in
Section 3.6.
1.1.71......"Property Manager" means the current property manager of each
Property.
1.1.72......"Property Taxes" shall have the meaning set forth in Section
5.4.4.2.
1.1.73......"Proration Schedule" shall have the meaning set forth in
Section 5.4.1.
1.1.74......"Purchase Price" shall have the meaning set forth in Section 2.2.
1.1.75......"Refund" shall have the meaning set forth in Section 5.4.4.2.
1.1.76......"Records Disposal Notice" shall have the meaning set forth in
Section 5.4.13.
1.1.77......"Records Hold Period" shall have the meaning set forth in Section
5.4.13.
1.1.78......"Refundable Event" shall have the meaning set forth in
Section 2.2.1.
1.1.79......"Regional Property Manager" means, with respect to each Property,
the individual identified in the Seller Information Schedule.
1.1.80......"Reinstatement Notice" shall have the meaning set forth in Section
8.1.
1.1.81......"Remediation" shall have the meaning set forth in Section 14.2.
1.1.82......"Required Assignment Consent" shall have the meaning set forth in
Section 3.6.
1.1.83......"Required Loan Fund Amounts" shall have the meaning set forth in
Section 4.6.6.
1.1.84......"Response Deadline" shall have the meaning set forth in
Section 4.3.
1.1.85......"Response Notice" shall have the meaning set forth in Section 4.3.
1.1.86......"SEC" shall have the meaning set forth in Section 8.2.4
1.1.87......"Seller's Indemnified Parties" shall have the meaning set forth
in Section 3.4.1.
1.1.88......"Seller Information Schedule" shall have the meaning set forth in
the introductory paragraph.
1.1.89......"Seller's Property-Related Files and Records" shall have the meaning
set forth in Section 5.4.13.
1.1.90......"Seller's Representations" shall have the meaning set forth in
Section 6.1.
1.1.91......"Seller's Representative" means AIMCO.
1.1.92......"Specific AIMCO Provisions" shall have the meaning set forth in
Section 4.6.2.
1.1.93......"Survey" shall have the meaning ascribed thereto in Section 4.2.
1.1.94......"Survival Period" shall have the meaning set forth in Section 6.3.
1.1.95......"Survival Provisions" shall have the meaning set forth in Section
13.28.
1.1.96......"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.
1.1.97......"Tenant" means any person or entity entitled to occupy any portion
of the applicable Property under a Lease.
1.1.98......"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.
1.1.99......"Tenant Security Deposit Balance" shall have the meaning set forth
in Section 5.4.6.2.
1.1.100....."Terminated Contracts" shall have the meaning set forth in Section
3.6.
1.1.101....."Termination Notice" shall have the meaning set forth in Section
8.1.
1.1.102....."Testing" shall have the meaning set forth in Section 14.2.
1.1.103....."Third Party Costs" shall have the meaning set forth in
Section 5.4.4.2.
1.1.104....."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.
1.1.105....."Title Commitment" shall have the meaning ascribed thereto in
Section 4.1.
1.1.106....."Title Documents" shall have the meaning set forth in Section 4.1.
1.1.107....."Title Insurer" shall have the meaning set forth in Section 2.2.1.
1.1.108....."Title Policy" shall have the meaning set forth in Section 4.1.
1.1.109....."Uncollected Rents" shall have the meaning set forth in Section
5.4.6.1.
1.1.110....."Utility Contract" shall have the meaning set forth in Section
5.4.12.
1.1.111....."Vendor Terminations" shall have the meaning set forth in Section
5.2.5.
ARTICLE 2
PURCHASE AND SALE, PURCHASE PRICE & DEPOSIT
2.1 Purchase and Sale. 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, in the case of a Payoff Property,
also shall be reduced by the Lender Fees applicable to such Property (the
"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 deposit (the "Initial Deposit") of
$500,000.00 by wire transfer of immediately available funds ("Good Funds"), the
entire amount (the "Non-Refundable Deposit Amount") of which shall become
immediately non-refundable upon delivery to Escrow Agent other than upon the
occurrence of a Refundable Event (as hereinafter defined). As used herein, the
term "Refundable Event" shall mean (a) Seller is unable to provide clear,
insurable title to any Property, or to convey any Property free and clear of the
Loan or (b) a Phase I environmental study of any Property indicates that a Phase
II environmental study is recommended, and either (i) Seller does not permit
Purchaser to perform a Phase II environmental study, or (ii) if a Phase II
environmental study is permitted and performed, the results of such Phase II
environmental study are of a type reasonably unacceptable to a conventional
lender and Purchaser gives written notice to that effect to Seller and Escrow
Agent on or before 5:00 p.m. (in the time zone in which the Escrow Agent is
located) on or before the expiration of the Feasibility Period (as hereinafter
defined) of Purchaser's decision to terminate this Contract for the Property for
which there was such a Refundable Event, whereupon Purchaser shall receive a
return of the Applicable Share of the Non-Refundable Deposit Amount.
Notwithstanding the foregoing, a Refundable Event shall also occur if Purchaser
elects (and is permitted) to terminate the Contract pursuant to the express
provisions in Section 10.2, Section 11.1 or Section 12.1. 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
$500,000.00 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 such
earlier time as required by any Seller's lender).
2.2.5 In addition to the Purchase Price, there shall be an aggregate acquisition
fee in the amount of Two Million Dollars and No/100 ($2,000,000.00) (the
"Portfolio Acquisition Fee"), to be paid by Purchaser to Seller and allocated as
set forth for each property on the Seller Information Schedule attached hereto.
Prior to the expiration of the Feasibility Period, Seller and Purchaser reserve
the right to reallocate the Purchase Price and Portfolio Acquisition Fee with
respect to the Properties, except for the Stoneridge and Colony of Springdale
properties, which purchase price allocations shall remain as set forth on the
Seller Information Schedule attached hereto, provided the total Purchase Price
and Portfolio Acquisition Fee shall remain unchanged. Purchaser shall be
obligated to pay for any and all closing costs arising as a result of the
addition of the Portfolio Acquisition Fee to the Purchase Price, including,
without limitation, and incremental cost in transfer taxes and title insurance
premiums.
2.3 Escrow Provisions Regarding Deposit.
2.3.1 Escrow Agent shall hold the Deposit and make delivery of the Deposit to
the party entitled thereto under the terms of this Contract. Escrow Agent shall
invest the Deposit in such short-term, high-grade securities, interest-bearing
bank accounts, money market funds or accounts, bank certificates of deposit or
bank repurchase contracts as Escrow Agent, in its discretion, deems suitable,
and all interest and income thereon shall become part of the Deposit and shall
be remitted to the party entitled to the Deposit pursuant to this Contract.
2.3.2 Escrow Agent shall hold the Deposit until the earlier occurrence of (i)
the Closing Date, at which time the Deposit (including the Non-Refundable
Deposit Amount) 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 or the Non-Refundable Deposit Amount
portion, 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 (subject to Purchaser's
obligation under Section 3.5.2 to return all Third-Party Reports and information
and Materials provided to Purchaser as a pre-condition to the return of the
Deposit to Purchaser). If Escrow Agent does receive such written objection
within such 5-Business Day period, Escrow Agent shall continue to hold such
amount until otherwise directed by written instructions from the parties to this
Contract or a final judgment or arbitrator's decision. However, Escrow Agent
shall have the right at any time to deposit the Deposit and interest thereon, if
any, with a court of competent jurisdiction in the state 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. 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, and 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 attorney's fees, incurred
in connection with the performance of Escrow Agent's duties hereunder, except
with respect to actions or omissions taken or suffered by Escrow Agent in bad
faith, in willful disregard of this Contract or involving gross negligence on
the part of the Escrow Agent.
2.3.5 The parties shall deliver to Escrow Agent an executed copy of this
Contract, which shall constitute the sole instructions to Escrow Agent. Escrow
Agent shall execute the signature page for Escrow Agent attached hereto with
respect to the provisions of this Section 2.3; provided, however, that (a)
Escrow Agent's signature hereon shall not be a prerequisite to the binding
nature of this Contract on Purchaser and 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 The provisions of this Section 2.3 shall survive the termination of this
Contract, and if not so terminated, the Closing and delivery of the Deeds to
Purchaser.
ARTICLE 3
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 the
date which is 30 days after the Effective Date (the "Feasibility Period"),
Purchaser, and its agents, contractors, engineers, surveyors, attorneys, and
employees (collectively, "Consultants") shall have the right from time to time
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 property for
Purchaser's intended use of the Properties; and
3.1.4 To review the Materials at Purchaser's sole cost and expense.
3.2 Expiration of Feasibility Period. If the results of any of the matters
referred to in Section 3.1 appear unsatisfactory to Purchaser for any reason or
if Purchaser elects not to proceed with the transaction contemplated by this
Contract for any other reason, or for no reason whatsoever, in Purchaser's sole
and absolute discretion, then Purchaser shall have the right to terminate this
Contract 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
Deposit (less the Non-Refundable Deposit Amount unless a Refundable Event has
occurred) to Purchaser (subject to Purchaser's obligation under Section 3.5.2 to
return all Third-Party Reports and information and Materials provided to
Purchaser as a pre-condition to the return of the Initial Deposit). 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 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 notice to the applicable Seller a reasonable time prior to
entry onto its Property and shall permit such Seller to have a representative
present during all Inspections conducted at its Property. Purchaser shall take
all reasonable actions and implement all protections necessary to ensure that
all actions taken in connection with the investigations and inspections of each
Property, and all equipment, materials and substances generated, used or brought
onto each Property pose no material threat to the safety of persons or the
environment and cause no damage to each Property or other property of Seller or
other persons. 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 third parties engaged
by Purchaser for the limited purpose of analyzing and investigating such
information for the purpose of consummating the transaction contemplated by this
Contract. The provisions of this Section 3.3 shall survive the termination of
this Contract, and if not so terminated shall survive (except for the
confidentiality provisions of this Section 3.3) the Closing and delivery of the
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 Consultants' 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, 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. 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'
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 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, 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 the earlier to occur of (i) Purchaser's or
Purchaser's Consultants' entry onto any of the Properties, or (ii) the
expiration of 5 days after the Effective Date.
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 10-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 2 Business Days after such notification is
received by such Seller; provided, however, that under no circumstances will the
Feasibility Period be extended and Buyer's sole remedy will be to terminate this
Contract pursuant to Section 3.2, whereupon Escrow Agent shall forthwith return
the Deposit (less the Non-Refundable Deposit Amount) to Purchaser.
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 Deposit to Purchaser (if Purchaser is otherwise entitled to
such 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, 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 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 Contract 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 by the applicable Seller 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 4
TITLE
4.1 Title Documents. Within 7 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 shall be responsible only for payment of the
basic premium for the Title Policy for its Property. Purchaser shall be solely
responsible for payment of all costs relating to procurement of the Title
Commitment, and any requested endorsements with respect to each of the
Properties, including for "extended" coverage.
4.2 Survey. Within 7 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).
Seller and Purchaser shall share equally in the costs of the Existing Survey.
Purchaser acknowledges and agrees that delivery of the Existing Survey is
subject to Section 3.5.2. To the extent that Purchaser desires that a new survey
of a Property be prepared (or that the Existing Survey be updated), Purchaser
shall request the same in writing to Seller's Representative no later than 10
calendar days after the Effective Date, in which event such Seller's
Representative shall order such new or updated survey (together with the
Existing Survey, referred to herein as the "Survey") from the surveyor who
prepared the Existing Survey (or from such other surveyor as such Seller
determines in its reasonable discretion). Purchaser shall be solely responsible
for the cost and expense of the preparation of any new or updated survey
requested pursuant to the terms of this Section 4.2.
4.3 Objection and Response Process. On or before the date which is 20 days after
the Effective Date (the "Objection Deadline"), Purchaser shall, on a
Property-by-Property basis, give written notice (the "Objection Notice") to the
attorneys for Sellers of any matter set forth in any Title Documents or Surveys
to which Purchaser objects (the "Objections"). If Purchaser fails to tender an
Objection Notice with respect to a Property on or before the Objection Deadline,
Purchaser shall be deemed to have approved and irrevocably waived any objections
to any matters covered by the Title Documents and the Survey for such Property.
On or before 25 days after the Effective Date (the "Response Deadline"), a
Seller who has received an 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 to cure any Objections applicable to
any Seller. If a Seller fails to deliver a Response Notice by the Response
Deadline, such Seller shall be deemed to have elected not to cure or otherwise
resolve any matter set forth in the Objection Notice. If Purchaser is
dissatisfied with 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 (a)
to accept the Title Documents and Survey with resolution, if any, of the
Objections as set forth in the Response Notice (or if no Response Notice is
tendered, without any resolution of the Objections) and without any reduction or
abatement of the Purchase Price, or (b) to terminate this Contract in its
entirety regarding all Properties (but not less than all Properties), in which
event the Deposit (less the Non-Refundable Deposit Amount unless a Refundable
Event has occurred) shall be returned to Purchaser (subject to Purchaser's
obligation under Section 3.5.2 to return all Third-Party Reports and information
and Materials provided to Purchaser as a pre-condition to the return of the
Initial Deposit). 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).
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, including any standard
exceptions not customarily removed by a title affidavit, the Survey for such
Property and the Ground Lease, 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) mechanics' liens and taxes due and payable with respect to the
period preceding Closing, (c) the standard exception regarding the rights of
parties in possession which shall be limited to those parties in possession
pursuant to the Leases, and (d) the standard exception pertaining to taxes and
assessments 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 The terms and conditions of this Contract.
4.5 Existing Deed of Trust. It is understood and agreed that, whether or not
Purchaser gives an Objection Notice with respect thereto 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 5
CLOSING
5.1 Closing Date. The Closing shall occur 60 days after the Effective Date (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 any condition to Closing, (ii) to a date 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), and (iii) such later date as is mutually acceptable to Seller and
Purchaser. Provided that Purchaser is not in default under the terms of this
Contract, Purchaser shall be permitted a one-time 30-day extension of the
Closing Date specified in the first sentence of this Section 5.1 by (i)
delivering written notice to Seller no later than 15 days prior to the scheduled
Closing Date, and (ii) simultaneously with such notice to Seller, delivering to
Escrow Agent the amount of $250,000.00 (the "Extension Deposit"), 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. Additionally, if the SEC (as
hereinafter defined) elects to review the Information Statement (as hereinafter
defined), Seller shall have the option to extend the Closing Date without
penalty to a date not later than 90 days following the then scheduled Closing
Date.
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") in the form attached as Exhibit B to
Purchaser, subject to the Permitted Exceptions: (a) a Limited Warranty Deed in
the form attached as Exhibit B-1 (Ohio) with respect to the Chimneys of Oak
Creek I, Chimneys of Oak Creek II, College Park, Colony of Springdale, Hunter's
Chase, The Oaks at Woodridge, Stoneridge and Trinity Place Properties; (b) a
Limited Warranty Deed in the form attached as Exhibit B-1 (Ohio) together with a
Certificate of Title for Hamilton County, with respect to the Burgundy Court and
Woodmere Properties and; (c) a Special Warranty Deed in the form attached as
Exhibit B-2 (Pennsylvania).
5.2.2 A Bill of Sale in the form attached as Exhibit C.
5.2.3 A General Assignment in the form attached as Exhibit D (the "General
Assignment").
5.2.4 An Assignment of Leases and Security Deposits in the form attached as
Exhibit E (the "Leases Assignment").
5.2.5 A letter in the form attached hereto as Exhibit F prepared by 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 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
pertaining to rights of parties in possession, mechanic's liens, and liens and
taxes due and payable in respect of the period preceding Closing (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 certification of such Seller's non-foreign status pursuant to Section
1445 of the Internal Revenue Code of 1986, as amended.
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......An Assignment and Assumption of the Ground Lease in the form
approved and executed by the FHC (the "Ground Lease Assignment"), assigning
without warranty or representation all of Seller's respective right, title and
interest in and to the Ground Lease and the Ground Lease Property.
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 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 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.
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.-
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 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......With respect to each Payoff Property, the Lender Fees (subject to
reduction from the Purchase Price in accordance with Section 2.2).
5.3.13......A countersigned counterpart of the Ground Lease Assignment.
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.
5.4.4.1.....Any real estate ad valorem or similar taxes for a Property, which
are a lien for the year in which the closing occurs, even if such taxes are not
yet due and payable, 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, however, 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. Purchaser shall pay all taxes and
installments of assessments which may become due and payable following the date
of Closing.
5.4.4.2.....Purchaser acknowledges that certain of the Sellers may 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. Purchaser agrees
to bill Tenants of the Properties for all Uncollected Rents and to take
reasonable actions to collect Uncollected Rents. All rents paid after the
Closing Date by delinquent Tenants and not otherwise designated to be current
rent shall be deemed to be payments to be credited against 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 or evict any
existing Tenant from a Property. Notwithstanding anything in this provision to
the contrary but subject to Seller's right to demand payment of and to collect
Uncollected Rents in accordance with this Section, Purchaser's collection of
rents shall be applied, first, towards current rent due and owning under the
Leases, and second, to Uncollected Rents.
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 constitutes 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 receive 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 Loan-Payoff Properties. This Section 5.4.7 shall be applicable
only to Payoff Properties. On the Closing Date, each Seller of a Payoff Property
shall pay (which payment may be made by such Seller out of the proceeds of the
Purchase Price applicable to its Property) or defease, as applicable, the
outstanding principal balance of the Note applicable to its Property together
with all interest accrued under such Note prior to the Closing Date (the "Loan
Payoff"). Purchaser shall pay all Lender Fees (subject to reduction from the
applicable Purchase Price in accordance with Section 2.2). Any existing
reserves, impounds and other accounts maintained in connection with the
applicable Loan shall be released in Good Funds to the applicable Seller at the
Closing unless credited by the applicable Lender against the amount due from the
applicable Seller 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. With respect to each Property, Purchaser shall pay
its legal fees, the cost of recording any deeds, mortgages, 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, the
costs of recording any instruments required to discharge any liens or other
monetary encumbrances against such Property to the extent required by Section
4.5, its legal fees, and one-half of the customary closing costs of the Escrow
Agent. Seller and Purchaser shall share equally in the costs and expenses of (a)
any and all state and/or county transfer taxes, sales, use, gross receipts or
similar taxes, and the (b) the Existing Survey (as provided for in Section 4.2).
Purchaser shall be responsible for the costs and expenses relating to (i)
procurement of the Title Commitment, and any requested endorsements with respect
to each of the Properties, including for "extended" coverage, in accordance with
the terms set forth in Section 4.1, and (ii) any new or updated Survey, in
accordance with the terms set forth in Section 4.2.
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, either (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
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 to Purchaser at such Property after the Closing.
Purchaser agrees, for a period of not less than 10 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 where 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, or (b) subject to such 60-day
period, unless such items exceed $5,000.00 in magnitude (either individually or
in the aggregate) with respect to such Property. There shall be no readjustment
of real estate taxes in accordance with Section 5.4.4. The provisions of this
Section 5.5 shall survive the Closing and delivery of the Deeds to Purchaser.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER
6.1 Seller's Representations. Except, in all cases, for any fact, information or
condition disclosed in the Title Documents, the Permitted Exceptions, the
Property Contracts, or the Materials, or which is otherwise known by Purchaser
prior to the Closing, 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 as set forth on the Seller Information Schedule and for (a) any
actions by such Seller to evict Tenants under its Leases ,or (b) any matter
covered by such Seller's current insurance policy(ies), to such Seller's
knowledge, there are no actions, proceedings, litigation 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.
6.2 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 Broker or statements, representations or warranties, express or
implied, made by or enforceable directly against Sellers or 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 Deeds 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,
water intrusion and/or fungal growth and any resulting damage, 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 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 the compliance of the
Properties with any other laws, rules, ordinances or regulations, 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. 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
applicable Deeds with or without such tenants in possession and without any
allowance or reduction in the applicable Purchase Price under this Contract.
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 12 months (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, $75,000 for 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 damages (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 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
any duty to investigate the matter to which such actual knowledge or the absence
thereof pertains, or to impose upon such Regional 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 partnership duly organized, validly
existing and in good standing under the laws of Texas.
6.5.2 Purchaser, acting through any of its or their duly empowered and
authorized officers or members, has all necessary entity power and authority to
own and use its properties and to transact the business in which it is engaged,
and has full power and authority to enter into this Contract, to execute and
deliver the documents and instruments required of Purchaser herein, and to
perform its obligations hereunder; and no consent of any of Purchaser's
partners, directors, officers or members are required to so empower or authorize
Purchaser. The compliance with or fulfillment of the terms and conditions hereof
will not conflict with, or result in a breach of, the terms, conditions or
provisions of, or constitute a default under, any contract to which Purchaser is
a party or by which Purchaser is otherwise bound, which conflict, breach or
default would have a material adverse affect on Purchaser's ability to
consummate the transaction contemplated by this Contract. This Contract is a
valid, binding and enforceable agreement against Purchaser in accordance with
its terms.
6.5.3 No pending or, to the knowledge of Purchaser, threatened litigation exists
which if determined adversely would restrain the consummation of the
transactions contemplated by this Contract or would declare illegal, invalid or
non-binding any of Purchaser's obligations or covenants to 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, Broker) in connection with this Contract and the
acquisition of the Properties.
6.5.5 The Broker and its affiliates do not, and will not at the Closing, have
any direct or indirect legal, beneficial, economic or voting interest in
Purchaser (or in an assignee of Purchaser, which pursuant to Section 13.3,
acquires any Property at the Closing), nor has Purchaser or any affiliate of
Purchaser granted (as of the Effective Date or the Closing Date) the Broker or
any of its affiliates any right or option to acquire any direct or indirect
legal, beneficial, economic or voting interest in Purchaser.
6.5.6 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 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 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 7
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 Seller may enter
into new Property Contracts, new Leases, renew existing Leases or modify,
terminate or accept the surrender or forfeiture of any of the Leases, modify any
Property Contracts, or institute and prosecute any available remedies for
default under any Lease or Property Contract without first obtaining the written
consent of Purchaser; provided, however, Seller agrees that any such new
Property Contracts (a) shall not in the case of a new Property Contract have a
term in excess of 1 year, and in the case of any modified Property Contract
shall not be modified to extend the term thereof in excess of 1 year, (b) shall
be executed in the ordinary course of Seller's business and (c) in the case of
new Property Contracts shall be terminable upon thirty (30) days or less notice
without penalty or cost to Purchaser.
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, 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 8
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 Seller's Representations 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;
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; and
8.1.5 FHC shall have approved Purchaser's assumption of the Ground Lease
pursuant to the terms of the Ground Lease Assignment.
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 (subject to
Purchaser's obligation under Section 3.5.2 to return all Third-Party Reports and
information and Materials provided to Purchaser as a pre-condition to the return
of the Applicable Share of the Deposit). 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, warranties and covenants of Purchaser
contained herein shall be true in all material respects as of the Closing Date;
8.2.3 Purchaser shall have complied with, fulfilled and performed in all
material respects each of the covenants, terms and conditions to be complied
with, fulfilled or performed by Purchaser hereunder;
8.2.4 Such Seller shall have received all consents, opinions, documentation and
approvals necessary to consummate and facilitate the transactions contemplated
hereby, including, without limitation, a tax free exchange pursuant to Section
13.19 (and the amendment of such Seller's (or such Seller's affiliates')
partnership or other organizational 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. In addition to obtaining consents from
Seller's partners for the Stoneridge Property, with respect to the Colony of
Springdale Property, Seller is required to deliver to the Securities and
Exchange Commission (the "SEC") an information statement (the "Information
Statement") and to its partners. If the SEC elects to review the Information
Statement, Seller shall have the right to extend the Closing pursuant to Section
5.1 due to any delays caused by such review;
8.2.5 Intentionally deleted;
8.2.6 AIMCO shall, directly or indirectly, own more than 50% of the voting
interests in each Seller at the time of Closing;
8.2.7 There shall not be pending or, to the knowledge of either Purchaser or
Seller, any litigation or threatened litigation which, if determined adversely,
would restrain the consummation of any of the transactions contemplated by this
Contract or declare illegal, invalid or nonbinding any of the covenants or
obligations of the Purchaser; and
8.2.8 FHC shall have approved Purchaser's assumption of the Ground Lease
pursuant to the terms of the Ground Lease Assignment and Seller shall be
released from its liability under the Ground Lease.
If any of the foregoing conditions in Sections 8.2.1 through 8.2.5 or
8.2.7 to a Seller's obligation to close with respect to conveyance of its
Property under this Contract are not met, 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 the conditions set forth in Sections 8.2.6 or 8.2.8 is
not met, Seller may, as its sole and exclusive remedy (i) terminate this
Contract and Escrow Agent shall return the Deposit (including the Non-Refundable
Deposit Amount) to Purchaser and neither party shall thereafter have any rights
or obligations to the other hereunder, other than pursuant to any provision
hereof which expressly survives the termination of this Contract, or (ii) waive
such condition and proceed to Closing on the Closing date with no offset or
deduction from the Purchase Price. 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.
If the condition set forth in Section 8.2.6 has not occurred for any
Seller, then this Contract shall terminate in its entirety and Purchaser shall
recover the Deposit (including an Applicable Share of the Non-Refundable Deposit
Amount) (subject to Purchaser's obligation under Section 3.5.2 to return all
Third-Party Reports and information and Materials provided to Purchaser as a
pre-condition to the return of the Deposit to Purchaser).
ARTICLE 9
BROKERAGE
9.1 Indemnity. Each Seller, severally and individually, represents and warrants
to Purchaser that it has dealt only with Apartment Realty Advisors Midwest Inc.
("Broker") in connection with this Contract. Each Seller, severally and
individually, and Purchaser each represents and warrants to the other that,
other than Broker, it has not dealt with or utilized the services of any other
real estate broker, sales person or finder in connection with this Contract, and
each party agrees to indemnify, hold harmless, and, if requested in the sole and
absolute discretion of the indemnitee, defend (with counsel approved by the
indemnitee) the other party from and against all Losses relating to brokerage
commissions and finder's fees arising from or attributable to the acts or
omissions of the indemnifying party. The provisions of this Section 9.1 shall
survive the termination of this Contract, and if not so terminated, the Closing
and delivery of the Deeds to Purchaser.
9.2 Broker Commission. If the Closing occurs, each Seller agrees to pay Broker a
commission according to the terms of a separate contract. Broker shall not be
deemed a party or third party beneficiary of this Contract.
9.3 Broker Signature Page. As a condition to each Seller's obligation to pay the
commission pursuant to Section 9.2, Broker shall execute the signature page for
Broker attached hereto solely for purposes of confirming the matters set forth
therein; provided, however, that (a) Broker's signature hereon shall not be a
prerequisite to the binding nature of this Contract on Purchaser and Sellers,
and the same shall become fully effective upon execution by Purchaser and
Sellers, and (b) the signature of Broker will not be necessary to amend any
provision of this Contract.
9.4 Acquisition Fee. In addition to the commission payable by Seller to the
Broker, as provided above, at Closing, Seller shall pay an acquisition fee of
Two Million Dollars and No/100 (the "Acquisition Fee") to Investors Commercial
Corporation, which Acquisition Fee shall become payable only if and when the
transactions contemplated by this Contract close and Seller receives the
Purchase Price and the Portfolio Acquisition Fee. Buyer hereby agrees that it
shall disclose the terms of the Portfolio Acquisition Fee and the Acquisition
Fee to its investors, if any.
ARTICLE 10
DEFAULTS AND REMEDIES
10.1 Purchaser Default. If Purchaser defaults in its obligations hereunder to
(a) deliver the Initial Deposit or Additional Deposit (or any other deposit or
payment required of Purchaser hereunder), (b) deliver to 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 Property. 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 PROPERTY. SELLERS AND PURCHASER FURTHER AGREE THAT THIS SECTION
10.1 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.
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 Deeds 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 (including an Applicable
Share of the Non-Refundable Deposit Amount portion), from the Escrow Agent
(subject to Purchaser's obligation under Section 3.5.2 to return all Third-Party
Reports and information and Materials provided to Purchaser as a pre-condition
to the return of the Applicable Share of the Deposit). 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 (subject to
Purchaser's obligation under Section 3.5.2 to return all Third Party Reports and
information and Materials provided to Purchaser as a pre-condition to the return
of the Deposit) 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 the Properties for which this
Contract has been terminated, which damages shall not exceed $20,000 per
terminated Property. 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 11
RISK OF LOSS OR CASUALTY
11.1 Major Damage. If a Property is damaged or destroyed by fire or other
casualty prior to Closing, and the cost of repair is more than $300,000, 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,
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
(including an Applicable Share of the Non-Refundable Deposit Amount) for the
terminated Properties (subject to Purchaser's obligation under Section 3.5.2 to
return all Third Party Reports and information and Materials provided to
Purchaser as a pre-condition to a return of the Applicable Share of the
Deposit).
11.2 Minor Damage. If a Property is damaged or destroyed by fire or other
casualty prior to the Closing, and the cost of repair is less than $300,000,
this transaction shall be closed in accordance with the terms of this Contract,
notwithstanding the damage or destruction; provided, however, 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. The provisions of this Section 11.3 shall survive
the Closing and delivery of the Deeds to Purchaser.
ARTICLE 12
EMINENT DOMAIN
12.1 Eminent Domain. If, at the time of Closing, any material part of a Property
is (or previously has been) acquired, or is about to be acquired, by any
governmental agency by the powers of eminent domain or transfer in lieu thereof
(or in the event that at such time there is any notice of any such acquisition
or intent to acquire by any such governmental agency), Purchaser shall have the
right, at Purchaser's option, to 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 (subject to Purchaser's obligation under Section 3.5.2 to return all
Third Party Reports and information and Materials provided to Purchaser as a
pre-condition to a return of the Applicable Share of the Deposit).
ARTICLE 13
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
and Section 9.3 above, neither the Escrow Agent's nor the Broker's execution of
this Contract shall 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. 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:
CNC INVESTMENTS, LTD., L.L.P.
4420 FM 1960 West, Suite 800
Houston, TX 77068
Attention: William Stallings
Telephone: (281) 444-1585
Facsimile: (281) 444-1538
With a copy to:
Chernesky Heyman & Kress P.L.L.
10 Courthouse Plaza SW, Suite 1100
Dayton, Ohio 45402
Attention: Karen R. Adams, Esq.
Telephone: (937) 449-2825
Facsimile: (937) 463-4947
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:
Stucker & Company, LLC
4643 S. Ulster Street, Suite 800
Denver, CO 80237
Attention: Mr. Pat Stucker
Telephone: (720) 228-4040
Facsimile: (720) 228-4033
and a copy to:
Loeb & Loeb LLP
10100 Santa Monica Boulevard, Suite 2200
Los Angeles, California 90067-4164
Attention: Karen N. Higgins, Esq. and Loretta Thompson
Telephone: 310 282-2345
Facsimile: 310-919-3578
Email: khiggins@loeb.com
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 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 court.
13.9 Entire Agreement. This Contract embodies the entire Contract between the
parties hereto concerning the subject matter hereof and supersedes all prior
conversations, proposals, negotiations, understandings and 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, (a) as provided in
Section 2.3.5 above, the signature of the Escrow Agent shall not be required as
to any amendment of this Contract other than an amendment of Section 2.3, and
(b) as provided in Section 9.3 above, the signature of the Broker shall not be
required as to any amendment of this Contract.
13.11 Severability. 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 substantially 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
(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.
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 solicit
any of Seller's employees or any employees located at any Property (or any of
any Seller's affiliates' employees located at any property owned by such
affiliates) for potential employment.
13.28 Survival. Except for (a) all of the provisions of this Article 13 (other
than Section 13.19 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 Deposit (or any portion thereof) 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.
13.32 Coal Notice
.............NOTICE - THIS DOCUMENT MAY NOT SELL, CONVEY, TRANSFER, INCLUDE OR
INSURE THE TITLE TO THE COAL AND RIGHT OF SUPPORT UNDERNEATH THE SURFACE LAND
DESCRIBED OR REFERRED TO HEREIN, AND THE OWNER OR OWNERS OF SUCH COAL MAY
HAVE THE COMPLETE LEGAL RIGHT TO REMOVE ALL OF SUCH COAL AND, IN THAT
CONNECTION, DAMAGE MAY RESULT TO THE SURFACE OF THE LAND AND ANY HOUSE,
BUILDING OR OTHER STRUCTURE ON OR IN SUCH LAND, THE INCLUSION OF THIS NOTICE
DOES NOT ENLARGE, RESTRICT, OR MODIFY ANY LEGAL RIGHTS OR ESTATES OTHERWISE
CREATED, TRANSFERRED, EXCEPTED OR RESERVED BY THIS INSTRUMENT. (This notice
is set forth in the manner provided in Section 1 of the Act of July 17, 1957,
P.L. 984, as amended, and is not intended as notice of unrecorded
instruments, if any.)
.............The Special Warranty Deed conveying Property located in the
Commonwealth of Pennsylvania shall contain the notice as above set forth and
shall also contain, and Purchaser shall sign, the notice specified in the
Bituminous Mine Subsidence and Land Conservation Ave of 1966.
13.33 Waiver of Tender. Formal tender of Special Warranty Deed and of the
Purchase Price are hereby waived by the parties.
ARTICLE 14
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.
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 reasonable and customary 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 determined by such Seller and its counsel in their sole
and absolute discretion, remediate or abate (the "Remediation") any lead-based
paint condition at such Property prior to the Closing using reasonable and
customary 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. 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." Testing has been performed at each Property identified as
"Pre-1978, Certified" 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. 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, Lead-Based Paint Present, No 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. 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.
[Remainder of Page Intentionally Left Blank]
NOW, THEREFORE, the parties hereto have executed this Contract as of the
date first set forth above.
Seller:
BURGUNDY COURT ASSOCIATES, L.P.
a Delaware limited partnership
By: MAE JMA, Inc.,
a Delaware corporation
its managing general partner
By: /s/Kris Vercauteren
Name: Kris Vercauteren
Title: Vice President
By: Jacques-Miller Associates,
a Tennessee general partnership,
its general partner
By: JMA Equities, L.P.,
a Delaware limited partnership,
its managing general partner
By: MAE JMA, Inc.,
a Delaware corporation,
its general partner
By: /s/Kris Vercauteren
Name: Kris Vercauteren
Title: Vice President
CHIMNEYS-OXFORD ASSOCIATES, L.P.,
an Indiana limited partnership
By: Oxford Equities Corporation,
an Indiana corporation,
its sole general partner
By: /s/Kris Vercauteren
Name: Kris Vercauteren
Title: Vice President
KETTERING-OXFORD ASSOCIATES L.P.,
an Indiana limited partnership
By: OAMCO XVIII, L.P.,
a Delaware limited partnership,
its managing general partner
By: OAMCO XVIII, L.L.C.,
a Delaware limited liability
company,
its sole general partner
By: Oxford Realty Financial
Group, Inc.,
a Maryland corporation,
its member
By: /s/Kris Vercauteren
Name: Kris Vercauteren
Title: Vice President
COLLEGE PARK APARTMENTS, A LIMITED PARTNERSHIP,
a Pennsylvania limited partnership
By: The National Housing Partnership,
a District of Columbia limited
partnership,
its sole general partner
By: National Corporation for Housing
Partnerships,
a District of Columbia corporation,
its sole general partner
By: /s/Kris Vercauteren
Name: Kris Vercauteren
Title: Vice President
COLONY OF SPRINGDALE ASSOCIATES, LTD.,
a Texas limited partnership
By: CCP/VI Springdale GP, LLC,
a South Carolina limited liability
company,
its sole general partner
By: Consolidated Capital Properties VI,
a California limited partnership,
its sole member
By: Concap Equities, Inc.
a Delaware corporation,
its managing general partner
By: /s/Kris Vercauteren
Name: Kris Vercauteren
Title: Vice President
DAYTON III-OXFORD ASSOCIATES LIMITED
PARTNERSHIP, a Maryland limited partnership
By: Dayton III Corporation
an Maryland corporation,
its managing general partner
By: /s/Kris Vercauteren
Name: Kris Vercauteren
Title: Vice President
CINCINNATI-OXFORD ASSOCIATES LIMITED
PARTNERSHIP, a Maryland limited partnership
By: Cincinnati Corporation,
a Maryland corporation,
its managing general partner
By: /s/Kris Vercauteren
Name: Kris Vercauteren
Title: Vice President
STONERIDGE ASSOCIATES OF OHIO
LIMITED PARTNERSHIP,
an Ohio limited partnership
By: AIMCO Stoneridge, L.L.C.,
a Delaware limited liability company,
its sole general partner
By: AIMCO Properties, L.P.,
a Delaware limited partnership,
its sole member
By: AIMCO-GP, Inc.,
a Delaware corporation,
its sole general partner
By: /s/Kris Vercauteren
Name: Kris Vercauteren
Title: Vice President
TRINITY PLACE COMMUNITY URBAN REDEVELOPMENT
CORPORATION,
an Ohio corporation
By: /s/Kris Vercauteren
Name: Kris Vercauteren
Title: Vice President
TRINITY-OXFORD ASSOCIATES, L.P.
an Indiana limited partnership
By: Oxford Equities Corporation,
an Indiana corporation,
its managing general partner
By: /s/Kris Vercauteren
Name: Kris Vercauteren
Title: Vice President
WOODMERE ASSOCIATES, L.P.,
a Delaware limited partnership
By: Jacques-Miller Associates,
a Tennessee general partnership,
its general partner
By: JMA Equities, L.P.,
a Delaware limited partnership,
its general partner
By: MAE JMA, Inc.,
a Delaware Corporation,
its general partner
By: /s/Kris Vercauteren
Name: Kris Vercauteren
Title: Vice President
By: Jacques-Miller, Inc.,
a Tennessee corporation,
its general partner
By: /s/Martha L. Long
Name: Martha L. Long
Its: Senior Vice President
Purchaser:
CNC INVESTMENTS, LTD., L.L.P.,
a Texas limited liability partnership
By: /s/Olga Omandam
Name: Olga Omandam
Title: Vice President
Purchaser's Tax Identification Number/Social
Security Number:
76-0391556
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 ________________________, 2005 as the date of
opening of escrow and designates 05330484 as the escrow number assigned to this
escrow.
ESCROW AGENT:
STEWART TITLE COMPANY
By: /s/Wendy Howell
Name: Wendy Howell
Title: Assistant Vice President
BROKER SIGNATURE PAGE
The undersigned Broker hereby executes this Broker Signature Page solely
to confirm the following: (a) Broker represents only Sellers in the transaction
described in the Contract to which this signature page is attached, (b) Broker
acknowledges that the only compensation due to Broker in connection with the
Closing of the transaction described in the Contract to which this signature
page is attached is as set forth in a separate agreement between Sellers and
Broker, and (c) Broker represents and warrants to Sellers that Broker and its
affiliates have not and will not receive any compensation (cash or otherwise)
from or on behalf of Purchaser or any affiliate thereof in connection with the
transaction, and do not, and will not at the Closing, have any direct or
indirect legal, beneficial, economic or voting interest in Purchaser (or in an
assignee of Purchaser, which pursuant to Section 13.3 of the Contract, acquires
any Property at the Closing) nor has Purchaser granted (as of the Effective Date
or the Closing Date) Broker or any of its affiliates any right or option to
acquire any direct or indirect legal, beneficial, economic or voting interest in
Purchaser.
BROKER:
Apartment Realty Advisors Midwest Inc.
By: /s/Debbie Corson
Name: Debbie Corson
Title: Principal
Exhibit 10.24
AMENDMENT OF PURCHASE AND SALE CONTRACT
(Ohio Pooled Sale)
This Amendment of Purchase and Sale Contract (this "Amendment") is entered
into as of the 12 day of September 2005, by and between BURGUNDY COURT
ASSOCIATES, L.P., a Delaware limited partnership, CHIMNEYS-OXFORD ASSOCIATES
L.P., an Indiana limited partnership, KETTERING-OXFORD ASSOCIATES, L.P., an
Indiana limited partnership, COLLEGE PARK APARTMENTS, A LIMITED PARTNERSHIP, a
Pennsylvania limited partnership, COLONY OF SPRINGDALE ASSOCIATES, LTD., a Texas
limited partnership, DAYTON III-OXFORD ASSOCIATES LIMITED PARTNERSHIP, a
Maryland limited partnership, CINCINNATI-OXFORD ASSOCIATES LIMITED PARTNERSHIP,
a Maryland limited partnership, STONERIDGE ASSOCIATES OF OHIO LIMITED
PARTNERSHIP, an Ohio limited partnership, TRINITY PLACE COMMUNITY URBAN
REDEVELOPMENT CORPORATION, an Ohio corporation, TRINITY-OXFORD ASSOCIATES, L.P.,
an Indiana limited partnership and WOODMERE ASSOCIATES, L.P., a Delaware limited
partnership, collectively having a principal address of 4582 South Ulster Street
Parkway, Suite 1100, Denver, Colorado 80237 (collectively, the "Seller"), and
CNC INVESTMENTS, LTD., L.L.P., a Texas limited liability partnership, having a
principal address at 4420 FM 1960 West, Suite 800, Houston, Texas 77068
("Purchaser").
RECITALS
A. Seller and Purchaser entered into that certain Purchase and Sale Contract
dated as of August 19, 2005 (the "Contract"), pursuant to which Seller agreed to
sell and Purchaser agreed to purchase, certain real properties as more
particularly described in the Contract (collectively, the "Property").
B. Seller and Purchaser have agreed to modify the Contract as set forth in this
Amendment. C. Capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Contract.
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
1. Portfolio Acquisition Fee. Section 2.2.5 of the Contract is hereby deleted in
its entirety and substituted with the following:
As a part of the Purchase Price, there shall be included an aggregate
acquisition fee in the amount of Two Million Dollars and No/100
($2,000,000.00) (the "Portfolio Acquisition Fee"), to be paid by Purchaser
to Seller at Closing. Prior to the expiration of the Feasibility Period,
Seller and Purchaser reserve the right to reallocate the Purchase Price
(which includes the Portfolio Acquisition Fee) between all Properties
other than the Stoneridge and Colony of Springdale properties; provided
the total aggregate Purchase Price shall remain unchanged. Purchaser shall
be obligated to pay for any and all closing costs arising as a result of
the inclusion of the Portfolio Acquisition Fee as a part of the Purchase
Price, including, without limitation, and incremental cost in transfer
taxes and title insurance premiums.
2. Acquisition Fee. Section 9.4 of the Contract is hereby deleted in its
entirety and substituted with the following:
In addition to the commission payable by Seller to the Broker, as provided
above, at Closing, Seller shall pay an acquisition fee of Two Million
Dollars and No/100 (the "Acquisition Fee") to Investors Commercial
Corporation, which Acquisition Fee shall become payable only if and when
the transactions contemplated by this Contract close and Seller receives
the Purchase Price (which includes the Portfolio Acquisition Fee). Buyer
hereby agrees that it shall disclose the terms of the Portfolio
Acquisition Fee and the Acquisition Fee to its investors, if any.
3. Seller's Representation and Warranty. With respect to the Woodmere Property
only, Section 6.1.4 of the Contract is hereby amended and restated as follows:
Except as set forth on the Seller Information Schedule and for (a) any
actions by such Seller to evict Tenants under its Leases, or (b) any
matter covered by such Seller's current insurance policy(ies), and (c)
that certain tenant claim, Pamela Carrelli v. Woodmere Apartments, dated
as of July 7, 2005 and referenced as HUD Case No. 05-05-1221-8, to such
Seller's knowledge, there are no actions, proceedings, litigation or
governmental investigations or condemnation actions either pending or
threatened against such Seller's Property.
4. Effectiveness of Contract. Except as modified by this Amendment, all the
terms of the Contract shall remain unchanged and in full force and effect. 5.
Counterparts. This Amendment may be executed in counterparts, each of which when
compiled together shall constitute one and the same original. 6. Telecopied
Signatures. A counterpart of this Amendment signed by one party to this
Amendment and telecopied to the other party to this Amendment or its counsel (i)
shall have the same effect as an original signed counterpart of this Amendment,
and (ii) shall be conclusive proof, admissible in judicial proceedings, of such
party's execution of this Amendment. 7. No Further Modifications. All other
terms and conditions of the Contract remain in full force and effect.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, Seller and Purchaser have entered into this
Second Amendment of Purchase and Sale Contract as of the date written above.
Seller:
BURGUNDY COURT ASSOCIATES, L.P.
a Delaware limited partnership
By: MAE JMA, Inc.,
a Delaware corporation
its managing general partner
By: /s/Marshall P. Hayes
Name: Marshall P. Hayes
Title: Vice President
By: Jacques-Miller Associates,
a Tennessee general partnership,
its general partner
By: JMA Equities, L.P.,
a Delaware limited partnership,
its managing general partner
By: MAE JMA, Inc.,
a Delaware corporation,
its general partner
By: /s/Marshall P. Hayes
Name: Marshall P. Hayes
Title: Vice President
CHIMNEYS-OXFORD ASSOCIATES, L.P.,
an Indiana limited partnership
By: Oxford Equities Corporation,
an Indiana corporation,
its sole general partner
By: /s/Marshall P. Hayes
Name: Marshall P. Hayes
Title: Vice President
KETTERING-OXFORD ASSOCIATES L.P.,
an Indiana limited partnership
By: OAMCO XVIII, L.P.,
a Delaware limited partnership,
its managing general partner
By: OAMCO XVIII, L.L.C.,
a Delaware limited liability
company,
its sole general partner
By: Oxford Realty Financial
Group, Inc.,
a Maryland corporation,
its member
By: /s/Marshall P. Hayes
Name: Marshall P. Hayes
Title: Vice President
COLLEGE PARK APARTMENTS, A LIMITED PARTNERSHIP,
a Pennsylvania limited partnership
By: The National Housing Partnership,
a District of Columbia limited
partnership,
its sole general partner
By: National Corporation for Housing
Partnerships,
a District of Columbia corporation,
its sole general partner
By: /s/Marshall P. Hayes
Name: Marshall P. Hayes
Title: Vice President
COLONY OF SPRINGDALE ASSOCIATES, LTD.,
a Texas limited partnership
By: CCP/VI Springdale GP, LLC,
a South Carolina limited liability
company,
its sole general partner
By: Consolidated Capital Properties VI,
a California limited partnership,
its sole member
By: Concap Equities, Inc.
a Delaware corporation,
its managing general partner
By: /s/Marshall P. Hayes
Name: Marshall P. Hayes
Title: Vice President
DAYTON III-OXFORD ASSOCIATES LIMITED
PARTNERSHIP, a Maryland limited partnership
By: Dayton III Corporation
an Maryland corporation,
its managing general partner
By: /s/Marshall P. Hayes
Name: Marshall P. Hayes
Title: Vice President
CINCINNATI-OXFORD ASSOCIATES LIMITED
PARTNERSHIP, a Maryland limited partnership
By: Cincinnati Corporation,
a Maryland corporation,
its managing general partner
By: /s/Marshall P. Hayes
Name: Marshall P. Hayes
Title: Vice President
STONERIDGE ASSOCIATES OF OHIO
LIMITED PARTNERSHIP,
an Ohio limited partnership
By: AIMCO Stoneridge, L.L.C.,
a Delaware limited liability company,
its sole general partner
By: AIMCO Properties, L.P.,
a Delaware limited partnership,
its sole member
By: AIMCO-GP, Inc.,
a Delaware corporation,
its sole general partner
By: /s/Marshall P. Hayes
Name: Marshall P. Hayes
Title: Vice President
TRINITY PLACE COMMUNITY URBAN REDEVELOPMENT
CORPORATION,
an Ohio corporation
By: /s/Marshall P. Hayes
Name: Marshall P. Hayes
Title: Vice President
TRINITY-OXFORD ASSOCIATES, L.P.
an Indiana limited partnership
By: Oxford Equities Corporation,
an Indiana corporation,
its managing general partner
By: /s/Marshall P. Hayes
Name: Marshall P. Hayes
Title: Vice President
WOODMERE ASSOCIATES, L.P.,
a Delaware limited partnership
By: Jacques-Miller Associates,
a Tennessee general partnership,
its general partner
By: JMA Equities, L.P.,
a Delaware limited partnership,
its general partner
By: MAE JMA, Inc.,
a Delaware Corporation,
its general partner
By: /s/Marshall P. Hayes
Name: Marshall P. Hayes
Title: Vice President
By: Jacques-Miller, Inc.,
a Tennessee corporation,
its general partner
By: /s/Martha L. Long
Name: Martha L. Long
Its: Senior Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
Purchaser:
CNC INVESTMENTS, LTD., L.L.P.,
a Texas limited liability partnership
By: /s/Chowdary Yalamanchili
Name: Chowdary Yalamanchili
Title: President
Exhibit 10.25
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Assignment") is made as of
the 7th day of October 2005, between CNC INVESTMENTS, LTD., L.L.P., a Texas
limited liability partnership ("Assignor"), and RAAGA LLC, VIKAS LLC, MAYURI
LLC, HARITHA VANAM LLC, SAMPPOORN LLC, CHAKA-CHAK LLC, TILAK NAGAR LLC, RAJOLE
LLC, AND BASARA LLC, each a Delaware limited liability company (collectively,
"Assignee"), under the following circumstances:
A. Assignor, as Purchaser, entered into Purchase and Sale Contract
dated as of August 19, 2005, as amended by that certain Amendment of
Purchase and Sale Contract dated September 12, 2005 (collectively, the
"Contract"), pursuant to which Burgundy Court Associates, L.P., a Delaware
limited partnership, Chimneys-Oxford Associates L.P., an Indiana limited
partnership, Kettering-Oxford Associates, L.P., an Indiana limited
partnership, College Park Apartments, A Limited Partnership, a
Pennsylvania limited partnership, Colony Of Springdale Associates, Ltd., a
Texas limited partnership, Dayton III-Oxford Associates Limited
Partnership, a Maryland limited partnership, Cincinnati-Oxford Associates
Limited Partnership, a Maryland limited partnership, Stoneridge Associates
Of Ohio Limited Partnership, an Ohio limited partnership, Trinity Place
Community Urban Redevelopment Corporation, an Ohio corporation,
Trinity-Oxford Associates, L.P., an Indiana limited partnership and
Woodmere Associates, L.P., a Delaware limited partnership (collectively,
"Seller") agreed to sell and Assignor agreed to purchase, certain real
properties as more particularly described in the Contract (collectively,
the "Property").
B. Assignor desires to assign the Contract to single purpose
entities formed to acquire each separate apartment complex, and each of
the individual Assignee entities desires to accept and assume the Contract
as to the particular apartment complex as set forth in Exhibit A attached
hereto and made a part hereof.
C. Pursuant to Section 13.3 of the Contract, Assignor may assign the
Contract to one or more entities so long as (a) Assignor is an affiliate
of the purchasing entity(ies), (b) Assignor is not released from its
liability hereunder, (c) Assignor provides written notice to Seller of any
proposed assignment no later than 10 days prior to the "Closing Date" as
defined in the Contract. The Contract defines an affiliate is a person or
entity controlled by, under common control with, or controlling another
person or entity.
NOW, THEREFORE, for valuable consideration paid, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Assignor assigns to Assignee all of Assignor's right, title and
interest in and to the Contract and the Property.
2. Assignor represents and warrants that (a) the Contract is in full force
and effect, (b) the Contract has not been modified or amended, (c) Assignor has
paid all sums required by the Contract to be paid by Assignor, and Assignor is
not otherwise in default of any obligations under the Contract, (d) Assignor has
no setoffs or claims against Seller arising out of the Contract, (e) there are
no existing defaults by Seller under the Contract and (f) Assignee is an
affiliate of each individual Assignee entity.
3. Each individual Assignee assumes and agrees to perform all the terms
and conditions of the Contract that are to be observed and performed by Assignor
from and after the date of this Assignment with respect to that apartment
complex identified on Exhibit A hereto to be acquired by each such individual
Assignee, and Assignee agrees to indemnify and hold harmless Assignor from any
and all claims, damages, losses and expenses that may arise out of, or in
respect of, the Contract, from and after this date.
EXECUTED hereof as of the date first written above.
CNC INVESTMENTS, LTD., L.L.P.,
a Texas limited liability partnership
By: /s/Chowdary Yalmanachili
Name: Chowdary Yalamanachili
Title: President
RAAGA LLC, a Delaware limited liability
company
By: Raaga Management LLC,
a Delaware limited liability company
Its: Sole Member
By: /s/Chowdary Yalmanachili
Name: Chowdary Yalamanachili
Title: President
VIKAS LLC, a Delaware limited liability
company
By:Vikas Management LLC,
a Delaware limited liability company
Its: Sole Member
By: /s/Chowdary Yalmanachili
Name: Chowdary Yalamanachili
Title: President
MAYURI LLC, a Delaware limited liability
company
By:Mayuri Management LLC,
a Delaware limited liability company
Its: Sole Member
By: /s/Chowdary Yalmanachili
Name: Chowdary Yalamanachili
Title: President
HARITHA VANAM LLC, a Delaware limited
liability company
By:Haritha Vanam Management LLC,
a Delaware limited liability company
Its: Sole Member
By: /s/Chowdary Yalmanachili
Name: Chowdary Yalamanachili
Title: President
SAMPPOORN LLC, a Delaware limited
liability company
By:Samppoorn Management LLC,
a Delaware limited liability company
Its: Sole Member
By: /s/Chowdary Yalmanachili
Name: Chowdary Yalamanachili
Title: President
CHAKA-CHAK LLC, a Delaware limited
liability company
By:Chaka-Chak Management LLC,
a Delaware limited liability company
Its: Sole Member
By: /s/Chowdary Yalmanachili
Name: Chowdary Yalamanachili
Title: President
TILAK NAGAR LLC, a Delaware limited
liability company
By:Tilak Nagar Management LLC,
a Delaware limited liability company
Its: Sole Member
By: /s/Chowdary Yalmanachili
Name: Chowdary Yalamanachili
Title: President
RAJOLE LLC, a Delaware limited liability
company
By:Rajole Management LLC,
a Delaware limited liability company
Its: Sole Member
By: /s/Chowdary Yalmanachili
Name: Chowdary Yalamanachili
Title: President
BASARA LLC, a Delaware limited liability
company
By:Basara Management LLC,
a Delaware limited liability company
Its: Sole Member
By: /s/Chowdary Yalmanachili
Name: Chowdary Yalamanachili
Title: President
Exhibit 10.26
SECOND AMENDMENT
OF PURCHASE AND SALE CONTRACT
(Ohio Pooled Sale)
This Second Amendment of Purchase and Sale Contract (this "Amendment") is
entered into as of the 13 day of October 2005, by and between BURGUNDY COURT
ASSOCIATES, L.P., a Delaware limited partnership, CHIMNEYS-OXFORD ASSOCIATES
L.P., an Indiana limited partnership, KETTERING-OXFORD ASSOCIATES, L.P., an
Indiana limited partnership, COLLEGE PARK APARTMENTS, A LIMITED PARTNERSHIP, a
Pennsylvania limited partnership, COLONY OF SPRINGDALE ASSOCIATES, LTD., a Texas
limited partnership, DAYTON III-OXFORD ASSOCIATES LIMITED PARTNERSHIP, a
Maryland limited partnership, CINCINNATI-OXFORD ASSOCIATES LIMITED PARTNERSHIP,
a Maryland limited partnership, STONERIDGE ASSOCIATES OF OHIO LIMITED
PARTNERSHIP, an Ohio limited partnership, TRINITY PLACE COMMUNITY URBAN
REDEVELOPMENT CORPORATION, an Ohio corporation, TRINITY-OXFORD ASSOCIATES, L.P.,
an Indiana limited partnership and WOODMERE ASSOCIATES, L.P., a Delaware limited
partnership, collectively having a principal address of 4582 South Ulster Street
Parkway, Suite 1100, Denver, Colorado 80237 (individually a "Seller" and
collectively "Sellers"), CNC INVESTMENTS, LTD., L.L.P., a Texas limited
liability partnership, having a principal address at 4420 FM 1960 West, Suite
800, Houston, Texas 77068 ("Original Purchaser"), and RAAGA LLC, VIKAS LLC,
MAYURI LLC, HARITHA VANAM LLC, SAMPPOORN LLC, CHAKA-CHAK LLC, TILAK NAGAR LLC,
RAJOLE LLC, and BASARA LLC, each a Delaware limited liability company,
collectively having a principal address of 4420 FM 1960 West, Suite 800,
Houston, Texas 77068 (individually a "Purchaser" and collectively "Purchasers").
RECITALS
A. Sellers and Original Purchaser entered into that certain Purchase and Sale
Contract dated as of August 19, 2005, as amended and assigned (collectively, the
"Contract"), pursuant to which Seller agreed to sell and Purchaser agreed to
purchase, certain real properties as more particularly described in the Contract
(collectively, the "Property"). B. Sellers and Purchaser have agreed to modify
the Contract as set forth in this Amendment.
C. Capitalized terms not otherwise defined herein shall have the meanings
ascribed to them in the Contract.
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
1. Accommodation for Loan Defeasance. Sellers have informed Purchaser that the
Seller of the Ground Lease Property is required to defease the Loan for the
Ground Lease Property. In connection with such Loan Payoff, Purchaser hereby
agrees to cooperate with such Seller in connection with such Seller's efforts to
defease the Loan by the Closing Date (the "Loan Defeasance"). Lender has
informed Seller of the Ground Lease Property that the Closing for the Loan
Defeasance shall take three (3) Business Days to complete (the "Closing
Period"), and that to accommodate such Loan Defeasance, Purchaser hereby agrees
that it shall be required, among other things, to deposit with Escrow Agent the
balance of the Purchase Price for the Ground Lease Property by wire transfer of
Good Funds no later than 3:00 p.m. Central Standard Time on the second (2nd)
Business Day of the Closing Period.
2. Effectiveness of Contract. Except as modified by this Amendment, all the
terms of the Contract shall remain unchanged and in full force and effect. 3.
Counterparts. This Amendment may be executed in counterparts, each of which when
compiled together shall constitute one and the same original. 4. Telecopied
Signatures. A counterpart of this Amendment signed by one party to this
Amendment and telecopied to the other party to this Amendment or its counsel (i)
shall have the same effect as an original signed counterpart of this Amendment,
and (ii) shall be conclusive proof, admissible in judicial proceedings, of such
party's execution of this Amendment. 5. No Further Modifications. All other
terms and conditions of the Contract remain in full force and effect.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, Sellers, Purchasers, and Original Purchaser have
entered into this Second Amendment of Purchase and Sale Contract as of the date
written above.
Sellers:
BURGUNDY COURT ASSOCIATES, L.P.
a Delaware limited partnership
By: MAE JMA, Inc.,
a Delaware corporation
its managing general partner
By:/s/Kristian D. Vercauteren
Name: Kristian D. Vercauteren
Title: Vice President
By: Jacques-Miller Associates,
a Tennessee general partnership,
its general partner
By: JMA Equities, L.P.,
a Delaware limited partnership,
its managing general partner
By: MAE JMA, Inc.,
a Delaware corporation,
its general partner
By:/s/Kristian D. Vercauteren
Name: Kristian D. Vercauteren
Title: Vice President
CHIMNEYS-OXFORD ASSOCIATES, L.P.,
an Indiana limited partnership
By: Oxford Equities Corporation,
an Indiana corporation,
its sole general partner
By:/s/Kristian D. Vercauteren
Name: Kristian D. Vercauteren
Title: Vice President
KETTERING-OXFORD ASSOCIATES L.P.,
an Indiana limited partnership
By: OAMCO XVIII, L.P.,
a Delaware limited partnership,
its managing general partner
By: OAMCO XVIII, L.L.C.,
a Delaware limited liability
company,
its sole general partner
By: Oxford Realty Financial
Group, Inc.,
a Maryland corporation,
its member
By: /s/Kristian D. Vercauteren
Name: Kristian D. Vercauteren
Title: Vice President
COLLEGE PARK APARTMENTS, A LIMITED PARTNERSHIP,
a Pennsylvania limited partnership
By: The National Housing Partnership,
a District of Columbia limited
partnership,
its sole general partner
By: National Corporation for Housing
Partnerships,
a District of Columbia corporation,
its sole general partner
By:/s/Kristian D. Vercauteren
Name: Kristian D. Vercauteren
Title: Vice President
COLONY OF SPRINGDALE ASSOCIATES, LTD.,
a Texas limited partnership
By: CCP/VI Springdale GP, LLC,
a South Carolina limited liability
company,
its sole general partner
By: Consolidated Capital Properties VI,
a California limited partnership,
its sole member
By: Concap Equities, Inc.
a Delaware corporation,
its managing general partner
By:/s/Kristian D. Vercauteren
Name: Kristian D. Vercauteren
Title: Vice President
DAYTON III-OXFORD ASSOCIATES LIMITED
PARTNERSHIP, a Maryland limited partnership
By: Dayton III Corporation
an Maryland corporation,
its managing general partner
By:/s/Kristian D. Vercauteren
Name: Kristian D. Vercauteren
Title: Vice President
CINCINNATI-OXFORD ASSOCIATES LIMITED
PARTNERSHIP, a Maryland limited partnership
By: Cincinnati Corporation,
a Maryland corporation,
its managing general partner
By:/s/Kristian D. Vercauteren
Name: Kristian D. Vercauteren
Title: Vice President
STONERIDGE ASSOCIATES OF OHIO
LIMITED PARTNERSHIP,
an Ohio limited partnership
By: AIMCO Stoneridge, L.L.C.,
a Delaware limited liability company,
its sole general partner
By: AIMCO Properties, L.P.,
a Delaware limited partnership,
its sole member
By: AIMCO-GP, Inc.,
a Delaware corporation,
its sole general partner
By:/s/Kristian D. Vercauteren
Name: Kristian D. Vercauteren
Title: Vice President
TRINITY PLACE COMMUNITY URBAN REDEVELOPMENT
CORPORATION,
an Ohio corporation
By:/s/Kristian D. Vercauteren
Name: Kristian D. Vercauteren
Title: Vice President
TRINITY-OXFORD ASSOCIATES, L.P.
an Indiana limited partnership
By: Trinity-Oxford Corporation,
a Maryland corporation,
its managing general partner
By:/s/Kristian D. Vercauteren
Name: Kristian D. Vercauteren
Title: Vice President
WOODMERE ASSOCIATES, L.P.,
a Delaware limited partnership
By: Jacques-Miller Associates,
a Tennessee general partnership,
its general partner
By: JMA Equities, L.P.,
a Delaware limited partnership,
its general partner
By: MAE JMA, Inc.,
a Delaware Corporation,
its general partner
By:/s/Kristian D. Vercauteren
Name: Kristian D. Vercauteren
Title: Vice President
By: Jacques-Miller, Inc.,
a Tennessee corporation,
its general partner
By: /s/Martha L. Long
Name: Martha L. Long
Its: Senior Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
Purchasers:
RAAGA LLC, a Delaware limited liability
company
By: Raaga Management LLC,
a Delaware limited liability company
Its: Sole Member
By: /s/Chowdany Yalamanchili
Chowdany Yalamanchili,
President
VIKAS LLC, a Delaware limited liability
company
By: Vikas Management LLC,
a Delaware limited liability company
Its: Sole Member
By: /s/Chowdany Yalamanchili
Chowdany Yalamanchili,
President
MAYURI LLC, a Delaware limited liability
company
By: Mayuri Management LLC,
a Delaware limited liability company
Its: Sole Member
By: /s/Chowdany Yalamanchili
Chowdany Yalamanchili,
President
[SIGNATURES CONTINUED ON NEXT PAGE]
HARITHA VANAM LLC, a Delaware limited
liability company,
By: Haritha Vanam Management LLC,
a Delaware limited liability company
Its: Sole Member
By: /s/Chowdany Yalamanchili
Chowdany Yalamanchili,
President
SAMPPOORN LLC, a Delaware limited
liability company
By: Samppoorn Management LLC,
a Delaware limited liability company
Its: Sole Member
By: /s/Chowdany Yalamanchili
Chowdany Yalamanchili,
President
CHAKA-CHAK LLC, a Delaware limited
liability company
By: Chaka-Chak Management LLC,
a Delaware limited liability company
Its: Sole Member
By: /s/Chowdany Yalamanchili
Chowdany Yalamanchili,
President
[SIGNATURES CONTINUED ON NEXT PAGE]
TILAK NAGAR LLC, a Delaware limited
liability company
By: Tilak Nagar Management LLC,
a Delaware limited liability company
Its: Sole Member
By: /s/Chowdany Yalamanchili
Chowdany Yalamanchili,
President
RAJOLE LLC, a Delaware limited liability
company
By: Rajole Management LLC,
a Delaware limited liability company
Its: Sole Member
By: /s/Chowdany Yalamanchili
Chowdany Yalamanchili,
President
BASARA LLC, a Delaware limited liability
company
By: Basara Management LLC,
a Delaware limited liability company
Its: Sole Member
By: /s/Chowdany Yalamanchili
Chowdany Yalamanchili,
President
[SIGNATURES CONTINUED ON NEXT PAGE]
Original Purchaser:
CNC INVESTMENTS, LTD., L.L.P.,
a Texas limited liability partnership
By: /s/Chowdany Yalamanchili
Chowdany Yalamanchili, President
Exhibit 10.27
THIRD AMENDMENT
OF PURCHASE AND SALE CONTRACT
(Ohio Pooled Sale)
This Third Amendment of Purchase and Sale Contract (this "Amendment") is
entered into as of the 27th day of October 2005, by and between BURGUNDY COURT
ASSOCIATES, L.P., a Delaware limited partnership, CHIMNEYS-OXFORD ASSOCIATES
L.P., an Indiana limited partnership, KETTERING-OXFORD ASSOCIATES, L.P., an
Indiana limited partnership, COLLEGE PARK APARTMENTS, A LIMITED PARTNERSHIP, a
Pennsylvania limited partnership, COLONY OF SPRINGDALE ASSOCIATES, LTD., a Texas
limited partnership, DAYTON III-OXFORD ASSOCIATES LIMITED PARTNERSHIP, a
Maryland limited partnership, CINCINNATI-OXFORD ASSOCIATES LIMITED PARTNERSHIP,
a Maryland limited partnership, STONERIDGE ASSOCIATES OF OHIO LIMITED
PARTNERSHIP, an Ohio limited partnership, TRINITY PLACE COMMUNITY URBAN
REDEVELOPMENT CORPORATION, an Ohio corporation, TRINITY-OXFORD ASSOCIATES, L.P.,
an Indiana limited partnership and WOODMERE ASSOCIATES, L.P., a Delaware limited
partnership, collectively having a principal address of 4582 South Ulster Street
Parkway, Suite 1100, Denver, Colorado 80237 (individually a "Seller" and
collectively "Sellers"), CNC INVESTMENTS, LTD., L.L.P., a Texas limited
liability partnership, having a principal address at 4420 FM 1960 West, Suite
800, Houston, Texas 77068 ("Original Purchaser"), and RAAGA LLC, VIKAS LLC,
MAYURI LLC, HARITHA VANAM LLC, SAMPPOORN LLC, CHAKA-CHAK LLC, TILAK NAGAR LLC,
RAJOLE LLC, and BASARA LLC, each a Delaware limited liability company,
collectively having a principal address of 4420 FM 1960 West, Suite 800,
Houston, Texas 77068 (individually a "Purchaser" and collectively "Purchasers").
RECITALS
A. Sellers and Original Purchaser entered into that certain Purchase and Sale
Contract dated as of August 19, 2005, as amended and as assigned to Purchasers
(collectively, the "Contract"), pursuant to which Seller agreed to sell and
Purchaser agreed to purchase, certain real properties as more particularly
described in the Contract (collectively, the "Property"). Original Purchaser was
not released from liability under the Contract. B. Sellers and Purchaser have
agreed to modify the Contract as set forth in this Amendment.
C. Capitalized terms not otherwise defined herein shall have the meanings
ascribed to them in the Contract.
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller, Original Purchaser and
Purchasers agree as follows:
1. Base Purchase Price Adjustments. For valuable consideration, the receipt and
sufficient of which is hereby acknowledged, in connection with the Purchasers'
financing of the Properties, the Base Purchase Price for the Hunter's Chase I,
Oaks at Woodridge I and Woodmere Properties (as more particularly set forth on
the Seller Information Schedule attached to the Contract) are hereby amended to
read as follows:
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Name of Property Old Base Purchase Price New Base Purchase Price
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Hunter's Chase I $12,250,000 $11,755,000
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Oaks at Woodridge I $17,200,000 $16,600,000
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Woodmere $5,850,000 $6,945,000
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Sellers and Purchasers hereby agree and acknowledge that (a) the
Purchase Price for all of the Properties shall remain the same at $96,500,000
and (b) the Portfolio Acquisition Fee allocations for the Hunter's Chase I, Oaks
at Woodridge I and Woodmere Properties shall remain the same as shown on the
Seller Information Schedule.
2. Effectiveness of Contract. Except as modified by this Amendment, all the
terms of the Contract shall remain unchanged and in full force and effect. 3.
Counterparts. This Amendment may be executed in counterparts, each of which when
compiled together shall constitute one and the same original. 4. Telecopied
Signatures. A counterpart of this Amendment signed by one party to this
Amendment and telecopied to the other party to this Amendment or its counsel (i)
shall have the same effect as an original signed counterpart of this Amendment,
and (ii) shall be conclusive proof, admissible in judicial proceedings, of such
party's execution of this Amendment. 5. No Further Modifications. All other
terms and conditions of the Contract remain in full force and effect.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, Sellers, Purchasers, and Original Purchaser have
entered into this Third Amendment of Purchase and Sale Contract as of the date
written above.
Sellers:
BURGUNDY COURT ASSOCIATES, L.P.
a Delaware limited partnership
By: MAE JMA, Inc.,
a Delaware corporation
its managing general partner
By: /s/Kristian D. Vercauteren
Name: Kristian D. Vercauteren
Title: Vice President
By: Jacques-Miller Associates,
a Tennessee general partnership,
its general partner
By: JMA Equities, L.P.,
a Delaware limited partnership,
its managing general partner
By: MAE JMA, Inc.,
a Delaware corporation,
its general partner
By/s/Kristian D. Vercauteren
Name: Kristian D. Vercauteren
Title: Vice President
CHIMNEYS-OXFORD ASSOCIATES, L.P.,
an Indiana limited partnership
By: Oxford Equities Corporation,
an Indiana corporation,
its sole general partner
By/s/Kristian D. Vercauteren
Name: Kristian D. Vercauteren
Title: Vice President
KETTERING-OXFORD ASSOCIATES L.P.,
an Indiana limited partnership
By: OAMCO XVIII, L.P.,
a Delaware limited partnership,
its managing general partner
By: OAMCO XVIII, L.L.C.,
a Delaware limited liability
company,
its sole general partner
By: Oxford Realty Financial
Group, Inc.,
a Maryland corporation,
its member
By/s/Kristian D. Vercauteren
Name: Kristian D. Vercauteren
Title: Vice President
COLLEGE PARK APARTMENTS, A LIMITED PARTNERSHIP,
a Pennsylvania limited partnership
By: The National Housing Partnership,
a District of Columbia limited
partnership,
its sole general partner
By: National Corporation for Housing
Partnerships,
a District of Columbia corporation,
its sole general partner
By/s/Kristian D. Vercauteren
Name: Kristian D. Vercauteren
Title: Vice President
COLONY OF SPRINGDALE ASSOCIATES, LTD.,
a Texas limited partnership
By: CCP/VI Springdale GP, LLC,
a South Carolina limited liability
company,
its sole general partner
By: Consolidated Capital Properties VI,
a California limited partnership,
its sole member
By: Concap Equities, Inc.
a Delaware corporation,
its managing general partner
By/s/Kristian D. Vercauteren
Name: Kristian D. Vercauteren
Title: Vice President
DAYTON III-OXFORD ASSOCIATES LIMITED
PARTNERSHIP, a Maryland limited partnership
By: Dayton III Corporation
an Maryland corporation,
its managing general partner
By/s/Kristian D. Vercauteren
Name: Kristian D. Vercauteren
Title: Vice President
CINCINNATI-OXFORD ASSOCIATES LIMITED
PARTNERSHIP, a Maryland limited partnership
By: Cincinnati Corporation,
a Maryland corporation,
its managing general partner
By/s/Kristian D. Vercauteren
Name: Kristian D. Vercauteren
Title: Vice President
STONERIDGE ASSOCIATES OF OHIO
LIMITED PARTNERSHIP,
an Ohio limited partnership
By: AIMCO Stoneridge, L.L.C.,
a Delaware limited liability company,
its sole general partner
By: AIMCO Properties, L.P.,
a Delaware limited partnership,
its sole member
By: AIMCO-GP, Inc.,
a Delaware corporation,
its sole general partner
By/s/Kristian D. Vercauteren
Name: Kristian D. Vercauteren
Title: Vice President
TRINITY PLACE COMMUNITY URBAN REDEVELOPMENT
CORPORATION,
an Ohio corporation
By/s/Kristian D. Vercauteren
Name: Kristian D. Vercauteren
Title: Vice President
TRINITY-OXFORD ASSOCIATES, L.P.
an Indiana limited partnership
By: Trinity-Oxford Corporation,
a Maryland corporation,
its managing general partner
By/s/Kristian D. Vercauteren
Name: Kristian D. Vercauteren
Title: Vice President
WOODMERE ASSOCIATES, L.P.,
a Delaware limited partnership
By: Jacques-Miller Associates,
a Tennessee general partnership,
its general partner
By: JMA Equities, L.P.,
a Delaware limited partnership,
its general partner
By: MAE JMA, Inc.,
a Delaware Corporation,
its general partner
By/s/Kristian D. Vercauteren
Name: Kristian D. Vercauteren
Title: Vice President
By: Jacques-Miller, Inc.,
a Tennessee corporation,
its general partner
By: /s/Martha L. Long
Name: Martha L. Long
Its: Senior Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
Purchasers:
RAAGA LLC, a Delaware limited liability
company
By: Raaga Management LLC,
a Delaware limited liability company
Its: Sole Member
By: /s/Chowdany Yalamanchili
Chowdany Yalamanchili,
President
VIKAS LLC, a Delaware limited liability
company
By: Vikas Management LLC,
a Delaware limited liability company
Its: Sole Member
By: /s/Chowdany Yalamanchili
Chowdany Yalamanchili,
President
MAYURI LLC, a Delaware limited liability
company
By: Mayuri Management LLC,
a Delaware limited liability company
Its: Sole Member
By: /s/Chowdany Yalamanchili
Chowdany Yalamanchili,
President
[SIGNATURES CONTINUED ON NEXT PAGE]
HARITHA VANAM LLC, a Delaware limited
liability company,
By: Haritha Vanam Management LLC,
a Delaware limited liability company
Its: Sole Member
By: /s/Chowdany Yalamanchili
Chowdany Yalamanchili,
President
SAMPPOORN LLC, a Delaware limited
liability company
By: Samppoorn Management LLC,
a Delaware limited liability company
Its: Sole Member
By: /s/Chowdany Yalamanchili
Chowdany Yalamanchili,
President
CHAKA-CHAK LLC, a Delaware limited
liability company
By: Chaka-Chak Management LLC,
a Delaware limited liability company
Its: Sole Member
By: /s/Chowdany Yalamanchili
Chowdany Yalamanchili,
President
[SIGNATURES CONTINUED ON NEXT PAGE]
TILAK NAGAR LLC, a Delaware limited
liability company
By: Tilak Nagar Management LLC,
a Delaware limited liability company
Its: Sole Member
By: /s/Chowdany Yalamanchili
Chowdany Yalamanchili,
President
RAJOLE LLC, a Delaware limited liability
company
By: Rajole Management LLC,
a Delaware limited liability company
Its: Sole Member
By: /s/Chowdany Yalamanchili
Chowdany Yalamanchili,
President
BASARA LLC, a Delaware limited liability
company
By: Basara Management LLC,
a Delaware limited liability company
Its: Sole Member
By: /s/Chowdany Yalamanchili
Chowdany Yalamanchili,
President
[SIGNATURES CONTINUED ON NEXT PAGE]
Original Purchaser:
CNC INVESTMENTS, LTD., L.L.P.,
a Texas limited liability partnership
By: /s/Chowdany Yalamanchili
Name: Chowdany Yalamanchili
Title:President