AMENDMENT NO. 3
TO
REAL ESTATE ACQUISITION AGREEMENT
AMENDMENT NO. 3 TO REAL ESTATE ACQUISITION AGREEMENT, dated as of
August 14, 1997 (this "AMENDMENT"), by and among Apartment Investment and
Management Company, a Maryland corporation ("AIMCO"), AIMCO Properties, L.P.,
a Delaware limited partnership ("AIMCO OP" and, together with AIMCO, the
"BUYERS"), Demeter Holdings Corporation, a Massachusetts corporation
("DEMETER"), Phemus Corporation, a Massachusetts corporation ("PHEMUS"),
Capricorn Investors, L.P., a Delaware limited partnership ("CAPRICORN"), J.
Roderick Heller, III, an individual ("HELLER"), and NHP Partners Two LLC, a
Delaware limited liability company ("PARTNERS TWO LLC" and, together with
Demeter, Phemus, Capricorn and Heller, the "SELLERS"). Capitalized terms
used, but not otherwise defined herein, shall have the respective meanings
ascribed to them in the Real Estate Acquisition Agreement, dated as of May
22, 1997, by and among the Buyers and the Sellers, as amended by (i)
Amendment No. 1 to Real Estate Acquisition Agreement, dated as of June 13,
1997 by and among the Buyers and the Sellers, and (ii) Amendment No. 2 to
Real Estate Acquisition Agreement, dated as of July 14, 1997 by and among the
Buyers and the Sellers (as so amended, the "ACQUISITION AGREEMENT").
WHEREAS, the parties hereto desire to amend the Acquisition
Agreement to extend the date for exercise of the Buyers' Property Put Right
for certain assets.
NOW, THEREFORE, in consideration of the foregoing, and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. AMENDMENT OF SECTION 5.15(b). Section 5.15(b) of the
Acquisition Agreement is hereby amended and restated in its entirety to read
as follows:
"(b) The Buyer's Property Put Right may be exercised, at any time or
from time to time, (1) no later than September 5, 1997, with respect to (A)
the 1% general partnership interest and 15.715% limited partnership
interest in each of Lakehaven Associates One and Lakehaven Associates Two,
or (B) the .01% limited partnership interest in River Loft Apartments
Limited Partnership, and the 0.9% general partnership interest, the 0.1%
general partnership interest and the 4% limited partnership interest in
River Loft Associates, and (2) no later than June 16, 1997, with respect to
any other assets, in each case, by AIMCO's delivery of a written notice to
the Sellers specifying (i) the assets that are requested to be repurchased
by the Sellers pursuant to the Buyers' Property Put Right, (ii) the basis
on which the Buyers are entitled to exercise the Buyers' Property Put
Right, and (iii) the date and time at which the closing (the "BUYERS'
PROPERTY PUT CLOSING") of the repurchase of such assets is to occur. The
date of the Buyers' Property Put Closing shall be at least 30 days after
the date (the "Notice Date") such notice is given; provided, however, that
if (x) it is not possible for the Sellers to cure, at least 5 Business Days
prior to the 30th day after the Notice Date, the breach, liability or
defect that entitles the Buyers to exercise the Buyers' Property Put Right,
or (y) AIMCO determines, in its reasonable discretion, that it is necessary
to consummate the Buyers' Property Put Closing earlier in order to avoid
jeopardizing AIMCO's REIT Status, then the date of the Buyers' Property Put
Closing may be on an earlier date, but not earlier than 5 Business Days
after the Notice Date."
2. GOVERNING LAW. This Amendment and the legal relations among
the parties hereto shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware, without regard to its
principles of conflicts of law.
3. ENTIRE AGREEMENT. This Amendment, together with the
Acquisition Agreement, including the exhibits and schedules attached thereto,
constitutes the entire agreement among the parties pertaining to the subject
matter hereof and supersedes all prior agreements, understandings, letters of
intent, negotiations and discussions, whether oral or written, of the
parties, including the Letter Agreement, and there are no warranties,
representations or other agreements, express or implied, made to any party by
any other party in connection with the subject matter hereof except as
specifically set forth herein or in the documents delivered pursuant hereto
or in connection herewith.
4. ACQUISITION AGREEMENT IN FULL FORCE. Except as expressly
modified hereby, the Acquisition Agreement remains in full force and effect.
5. MODIFICATION; WAIVER. No supplement, modification, waiver or
termination of this Amendment shall be binding unless executed in writing by
the party to be bound thereby. No waiver of any provision of this Amendment
shall be deemed or shall constitute a waiver of any other provision hereof
(whether or not
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similar), nor shall such waiver constitute a continuing waiver unless
otherwise expressly provided.
6. SEVERABILITY. Any provision or part of this Amendment which is
invalid or unenforceable in any situation in any jurisdiction shall, as to
such situation and such jurisdiction, be ineffective only to the extent of
such invalidity and shall not affect the enforceability of the remaining
provisions hereof or the validity or enforceability of any such provision in
any other situation or in any other jurisdiction.
7. COUNTERPARTS. This Amendment may be executed in as many
counterparts as may be deemed necessary and convenient, and by the different
parties hereto on separate counterparts each of which, when so executed,
shall be deemed an original, but all such counterparts shall constitute one
and the same instrument.
8. NEGOTIATION OF AMENDMENT. Each of the parties acknowledges
that it has been represented by independent counsel of its choice throughout
all negotiations that have preceded the execution of this Amendment and that
it has executed the same with consent and upon the advice of said independent
counsel. Each party and its counsel cooperated in the drafting and
preparation of this Amendment and the documents referred to herein, and any
and all drafts relating thereto shall be deemed the work product of the
parties and may not be construed against any party by reason of its
preparation. Accordingly, any rule of law or any legal decision that would
require interpretation of any ambiguities in this Amendment against the party
that drafted it is of no application and is hereby expressly waived. The
provisions of this Amendment shall be interpreted in a reasonable manner to
effect the intentions of the parties and this Amendment.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment
as of the date first above written.
APARTMENT INVESTMENT
AND MANAGEMENT COMPANY
By: /s/ Peter Kompaniez
----------------------------
Name: Peter Kompaniez
Its: Vice Chairman
AIMCO PROPERTIES, L.P.
By: AIMCO-GP, Inc.,
its general partner
By: /s/ Peter Kompaniez
----------------------------
Name: Peter Kompaniez
Its: Vice President
DEMETER HOLDINGS CORPORATION
By: /s/ Michael R. Eisenson
----------------------------
Name: Michael R. Eisenson
Its: Authorized Signatory
By: /s/ Tim R. Palmer
----------------------------
Name: Tim R. Palmer
Its: Authorized Signatory
PHEMUS CORPORATION
By: /s/ Michael R. Eisenson
----------------------------
Name: Michael R. Eisenson
Its: Authorized Signatory
By: /s/ Tim R. Palmer
----------------------------
Name: Tim R. Palmer
Its: Authorized Signatory
CAPRICORN INVESTORS, L.P.
By: Capricorn Holdings, G.P.,
its General Partner
By: Winokur Holdings, Inc.,
its General Partner
By: /s/ Herbert S. Winokur, Jr.
-----------------------------
Name: Herbert S. Winokur, Jr.
Its: President
/s/ J. Roderick Heller, III
----------------------------
J. Roderick Heller, III
NHP PARTNERS TWO LLC
By: /s/ Michael R. Eisenson
----------------------------
Name: Michael R. Eisenson
Its: Authorized Signatory