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EXHIBIT (c)
EXECUTION COPY
OPTION SALE AGREEMENT
THIS OPTION SALE AGREEMENT ("Agreement"), dated September 20, 2000, is
made by and among Apartment Investment and Management Company, a Maryland
corporation, AIMCO Properties, L.P., a Delaware limited partnership, and
AIMCO/NHP Properties, Inc., a Delaware corporation, NHP Management Company, a
District of Columbia corporation (collectively "Buyers"), and ▇▇▇ ▇. ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇ and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (collectively "Sellers").
WHEREAS, Buyers and Sellers have entered into an Acquisition Agreement,
dated June ___, 2000 (the "Acquisition Agreement"). Capitalized terms used but
not defined herein shall have the meanings ascribed thereto in the Acquisition
Agreement; and
WHEREAS, in connection with closing of the transactions contemplated by
the Acquisition Agreement, Sellers have agreed to sell their options (the
"Options") for Beneficial Assignee Interests ("BAC") Interests in Oxford Tax
Exempt Fund II Limited Partnership, a Maryland limited partnership ("OTEF") on
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Purchase of Options.
(a) On the first Closing of the transactions contemplated by
the Acquisition Agreement, each Seller shall sell to Buyers, and Buyers shall
purchase from each Seller, the Options owned by such Seller set forth in ANNEX I
hereto for the cash purchase price of $8.00 per each Option (the "Option
Purchase Price"); provided, however, in the event that any of the Buyers or
their Affiliates or OTEF close one or more Purchase Transactions (as defined
below) at any time prior to the third anniversary of the date of Closing under
the Acquisition Agreement, at a price, whether cash, fair market value of
non-cash consideration or otherwise, higher than $31.88 per BAC, then, upon
closing of such Purchase Transaction, the Buyers shall promptly pay each Seller
in cash an additional amount for their respective Options equal to the amount
per BAC that is paid, or the fair market value of considered offered, to BAC
holders generally in any such Purchase Transaction(s) above the sum of (i)
$31.88, and (ii) in the case of one or more Purchase Transactions, all
additional amounts previously paid by Buyers to Sellers with respect to their
Options and attributable to prior Purchase Transactions occurring on and after
the date hereof. "Purchase Transaction" shall mean any transaction involving a
sale, contribution, exchange, purchase, repurchase or redemption, tender offer,
merger, reorganization, spin-off, consolidation, business combination or similar
type of
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transaction, relating to the BACs or all or substantially all of the assets of
OTEF, or a liquidation of OTEF or all or any of its assets.
(b) If any Seller shall receive additional Options during the
period subsequent to June 1, 2000 but prior to Closing, Buyers may elect to
purchase such Options from Sellers upon the same terms and conditions set forth
herein; provided, however, that Buyers may elect to purchase such Options
subsequent to the first Closing of the transactions contemplated by the
Acquisition Agreement so long as such purchase is consummated, if at all, prior
to the third anniversary of Closing.
2. Closing.
At the Closing, the Sellers shall sell, assign, transfer and
deliver, to the purchasing Buyers all Options pursuant to documents reasonably
acceptable to Buyers, including an Assignment in the form of ANNEX B hereto, and
such Buyers shall deliver to each Seller the Option Purchase Price for the
Options sold by such Seller by wire transfer of good and immediately available
U.S. funds to such account(s) as may be specified in writing by such Seller.
Notwithstanding the foregoing, Buyers may, by delivery of five (5) days' prior
written notice to Sellers, elect to cause Sellers to exercise the Options
effective as of the Closing, in which event Buyers shall pay the aggregate
exercise price for the Options to OTEF and at the Closing, Buyers shall deliver
the Option Purchase Price to Sellers and Sellers shall deliver the BACs received
upon such exercise to Buyers in lieu of the Options so exercised.
3. Ownership of Options.
Each Seller hereby represents and warrants to each Buyer, with
respect to his Options (i) that as of the date hereof he is the record and
beneficial owner of each Option sold hereunder by him, free and clear of any and
all liens, claims and encumbrances, other than transfer restrictions under the
Securities Act of 1933, as amended, (ii) that neither the Option, nor any plan
of OTEF pursuant to which an Option was granted, restricts the ability of or
prohibits the ability of any Seller to sell or transfer the Option to the
Buyers, (iii) that all of such Options have been duly authorized and validly
issued, and under the terms of the plan and the Options the Options are fully
vested, and (iv) that the Options of such Seller represent all options to
acquire BACs granted by OTEF and to which such Seller has any right, title or
interest.
4. Miscellaneous.
(a) Governing Law. This Agreement 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 Maryland, without regard to its
principles of conflicts of law.
(b) Entire Agreement. This Agreement constitutes the entire
agreement among the parties pertaining to the subject matter hereof and
supersedes all prior agreements,
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understandings, letters of intent, negotiations and discussions, whether oral or
written, of the parties, and there are no warranties, representations or other
agreements, express or implied, made to either party by the 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.
(c) Modification; Waiver. No supplement, modification, waiver
or termination of this Agreement shall be binding unless executed in writing by
the party to be bound thereby. No waiver of any provision of this Agreement
shall be deemed or shall constitute a waiver of any other provision hereof
(whether or not similar), nor shall such waiver constitute a continuing waiver
unless otherwise expressly provided.
(d) Notices. Unless otherwise provided for herein, all
notices, claims, certificates, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been given (i) three (3) days after the date of mailing, if sent by registered
or certified mail, postage prepaid, with return receipt requested; (ii) when
delivered, if delivered personally; (iii) when transmitted, if sent by facsimile
if a confirmation of transmission is produced by the sending machine (and a copy
of such facsimile is promptly sent by another means specified herein); (iv) on
the first business day following the date of sending, if sent by overnight U.S.
Postal Service mail or nationally recognized overnight courier service; in each
case to the address set forth below:
if to any of Buyers, to:
Apartment Investment and Management Company
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
Tower Two; ▇▇▇▇▇ ▇ - ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
and
Apartment Investment and Management Company
▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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if to any of Sellers, to:
Oxford Realty Financial Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇ ▇▇▇▇▇▇▇,
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇,
and ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇ and ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
or to such other address or such other person as the addressee party shall have
last designated by notice to the other party.
(e) Expenses. Whether or not the transactions contemplated by
this Agreement shall be consummated, all fees and expenses incurred by any party
hereto in connection with this Agreement shall be borne by such party.
(f) Assignment. No party hereto shall have the right, power,
or authority to assign or pledge this Agreement or any portion of this
Agreement, or to delegate any duties or obligations arising under this
Agreement, voluntarily, involuntarily, or by operation of law, without the prior
written consent of the other parties hereto, which consent may be granted or
withheld in such parties' sole discretion; provided however, Buyers may, upon
providing not less than five days' prior written notice, assign their rights
under this Agreement to a controlled Affiliate; provided further, however, no
such assignment by Buyers shall relieve Buyers of any of their respective
obligations hereunder.
(g) Severability. Any provision or part of this Agreement
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.
(h) Successors and Assigns; Third Parties. Subject to Section
4(f) and the limitations set forth elsewhere in this Agreement, all of the
rights, duties, benefits, liabilities and
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obligations of the parties shall inure to the benefit of, and be binding upon,
their respective successors, permitted assigns, heirs and legal representatives.
Except as specifically set forth or referred to herein, nothing herein expressed
or implied is intended or shall be construed to confer upon or give to any
Person, other than the parties hereto and their successors or permitted assigns,
any rights or remedies under or by reason of this Agreement.
(i) Counterparts. This Agreement 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.
(j) Headings. The Section headings of this Agreement are for
convenience of reference only and shall not be deemed to modify, explain,
restrict, alter or affect the meaning or interpretation of any provision hereof.
(k) Time of Essence. Time shall be of the essence with respect
to all matters contemplated by this Agreement.
(l) Construction. This Agreement shall not be construed more
strictly against one party hereto than against any other party hereto merely by
virtue of the fact that it may have been prepared by counsel for one of the
parties.
(m) Attorneys' Fees. In the event Buyers or Sellers file or
otherwise commence any action, suit, proceeding or arbitration against the other
for any claim or matter arising from or relating to this Agreement, the
prevailing party shall be entitled to recover such sums, in addition to any
other damages or compensation received, as will reimburse the prevailing party
for reasonable attorney's fees and costs of such action, suit, proceeding or
arbitration incurred on account thereof.
(n) Jurisdiction and Venue. The parties hereto hereby
irrevocably consent to the non-exclusive jurisdiction of any state or federal
court located within the State of Maryland and waive personal service or any and
all process upon the parties, and consent that all such service of process be
made by registered mail directed to the parties pursuant to Section 4(d). To the
extent permitted by law, the parties hereto waive any objection to venue of any
action instituted hereunder.
(o) JURY TRIAL WAIVER. EACH BUYER AND SELLER AND ALL PERSONS
CLAIMING BY, THROUGH OR UNDER EACH BUYER AND SELLER, HEREBY EXPRESSLY,
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY OF
ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (I) ARISING UNDER THIS AGREEMENT,
INCLUDING, WITHOUT LIMITATION, ANY PRESENT OR FUTURE MODIFICATION OF THIS
AGREEMENT OR (II) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS AGREEMENT (AS
NOW OR HEREAFTER MODIFIED) OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
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EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO
OR THERETO, IN EACH CASE WHETHER SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
IS NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT
OR OTHERWISE; AND EACH BUYER AND SELLER HEREBY AGREES AND CONSENTS THAT AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION MAY BE FILED WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT HERETO TO THE WAIVER OF ANY RIGHT TO TRIAL BY
JURY. EACH BUYER AND SELLER ACKNOWLEDGES THAT IT HAS CONSULTED WITH LEGAL
COUNSEL REGARDING THE MEANING OF THIS WAIVER AND ACKNOWLEDGES THAT THIS WAIVER
IS AN ESSENTIAL INDUCEMENT FOR THE OTHER EXECUTING THIS AGREEMENT. THIS WAIVER
SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
(p) Limitations. Each Sellers liability hereunder is subject
to the Applicable Sellers' Cap set forth in the Acquisition Agreement and
otherwise limited as set forth in the Acquisition Agreement. Sellers are not
making any representations or warranties as to their Options other than those
expressly set forth in this Agreement.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto on this ____th day of _____ 2000.
BUYERS:
APARTMENT INVESTMENT AND
MANAGEMENT COMPANY,
a Maryland corporation
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
AIMCO PROPERTIES, L.P.
a Delaware limited partnership
By: AIMCO-GP, INC.
(General Partner)
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
AIMCO/NHP PROPERTIES, INC.
a Delaware corporation
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
▇-▇
▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ COMPANY,
a District of Columbia corporation
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
SELLERS:
-----------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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ANNEX A
Name Number of Options Owned Certificate Number
---- ----------------------- ------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇ 163,031
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 163,031
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 82,150
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 75,620
▇▇▇▇ ▇. ▇▇▇▇▇▇ 61,606
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 47,997
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ANNEX B
ASSIGNMENT OF OPTIONS FOR BENEFICIAL ASSIGNEE INTERESTS IN OXFORD
TAX EXEMPT FUND II LIMITED PARTNERSHIP
THIS ASSIGNMENT OF OPTIONS FOR BENEFICIAL ASSIGNEE INTERESTS IN OXFORD
TAX EXEMPT FUND II LIMITED PARTNERSHIP, dated as of June ___, 2000 (this
"Assignment"), by ▇▇▇ ▇. ▇▇▇▇▇▇▇ ("Assignor"), in favor of ____________, a
_________________ ("Assignee").
WHEREAS, Apartment Investment and Management Company, AIMCO
Properties, L.P., AIMCO/NHP Properties, Inc., and ▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇ are parties to that certain Acquisition Agreement, dated as of June
__, 2000 (the "Acquisition Agreement"). Capitalized terms used but not otherwise
defined herein shall have the meanings ascribed thereto in the Acquisition
Agreement.
WHEREAS, Assignor is the owner of the number of options (the
"Options") for Beneficial Assignee Interests ("BAC") Interests in Oxford Tax
Exempt Fund II Limited Partnership, a Maryland limited partnership ("OTEF") set
forth on Table I hereto.
WHEREAS, pursuant to the Option Sale Agreement of even date
herewith, Assignor has agreed to sell, convey, assign and transfer all of his
right, title and interest in, to and under the Options to Assignee.
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto do hereby agree as follows:
1. Assignment. Assignor does hereby unconditionally,
absolutely, and irrevocably grant, bargain, sell, transfer, assign, convey, set
over, deliver and contribute unto Assignee all of Assignor's right, title and
interest in, to and under the Options, including the right to exercise the
Option and receive BACs upon such exercise.
2. Assignor's Representations and Warranties. Assignor hereby
represents and warrants to Assignee as follows:
a. Assignor has good, valid, marketable title to the
Options.
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b. Assignor has not sold, assigned, transferred,
mortgaged, hypothecated, pledged or otherwise granted any interest in, or
suffered to occur any lien or encumbrance on or with respect to, any or all of
Assignor's right, title or interest in and to all or any portion of the Options.
c. Assignor has the right to sell and transfer the
Options and no provision of the agreement for the Options or any plan of OTEF
pursuant to which the Options were issued, prohibits or restricts the sale and
transfer of the Options to the Assignee.
d. The list of Options attached hereto sets forth a
true, correct and complete list and accounting of all options, warrants or other
rights Assignor has to acquire BACs of OTEF. Attached to this Agreement is a
true and correct copy of each Option and the Plan of OTEF pursuant to which the
Options were issued.
e. There is no pending or, to Assignor's knowledge,
threatened litigation or other adversarial proceeding, or any order, injunction
or decree outstanding, existing or relating to all or any portion of the
Options. Assignor has not received written notice of any material violation of
any federal, state or municipal law, statute, ordinance or regulation relating
to all or any portion of the Options.
3. Further Assurances. At any time, and from time to time
hereafter, upon the reasonable request of Assignee, and without payment of
further consideration by Assignee, Assignor will do, execute, acknowledge and
deliver, and cause to be done, executed, acknowledged and delivered, all such
further acts, documents, correspondence, deeds, assignments, transfers,
endorsements and conveyances as may be reasonably required in order to assign,
transfer, grant and convey to Assignee any or all of the Options; provided that
such instruments of further assurance shall not enlarge the obligations of
Sellers under this Agreement and/or the Acquisition Agreement.
4. Successors and Assigns. No party hereto shall have the
right, power, or authority to assign or pledge this Agreement or any portion of
this Agreement, or to delegate any duties or obligations arising under this
Agreement, voluntarily, involuntarily, or by operation of law, without the prior
written consent of the other parties hereto, which consent may be granted or
withheld in such parties' sole discretion; provided however, Assignee may, upon
providing not less than five days' prior written notice, assign its rights under
this Agreement to a controlled Affiliate; provided further, however, no such
assignment by Assignee shall relieve Assignee of any of its obligations
hereunder. Subject to the foregoing, this Assignment shall be binding upon, and
inure to the benefit of, the parties hereto and their respective heirs,
successors and assigns.
5. Governing Law. This Assignment shall be construed and
enforced in accordance with the laws of the State of Maryland, without regard to
its principles of conflict of laws.
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6. Limitations. Each Sellers liability hereunder is subject to
the Applicable Sellers' Cap set forth in the Acquisition Agreement and otherwise
limited as set forth in the Acquisition Agreement. Sellers are not making any
representations or warranties as to their Options other than those expressly set
forth in this Agreement.
IN WITNESS WHEREOF, this Assignment was made and executed as of the
date first above written.
ASSIGNOR:
----------------------------
ASSIGNEE:
----------------------------
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TABLE I
OPTIONS
Date of Option Agreement Expiration Date Number of BACs
------------------------ --------------- --------------
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