CALL OPTION, PUT OPTION AND PURCHASE PRICE ADJUSTMENT AGREEMENT
(this "Agreement") dated as of March 17, 1998, by and between Apartment
Investment and Management Company, a Maryland corporation ("AIMCO"), and
▇▇▇▇▇▇ ▇▇▇▇▇▇ (the "Stockholder").
WHEREAS, the Stockholder beneficially owns (i) an aggregate of
_____________ shares of Common Stock, par value $.01 per share ("IFG
Stock"), of Insignia Financial Group, Inc. ("IFG"), (ii) options and/or
warrants to purchase an aggregate of ___________ shares of IFG Stock, but
only to the extent they are outstanding on the Call Option Trigger Date (as
hereinafter defined) or the Put Option Trigger Date (as hereinafter
defined), and if any option or warrant is exercised, then the number of
shares of IFG Stock shall be increased by the number of shares received
upon such exercise (collectively, "Insignia Options"), and (iii) ________
shares of beneficial interest, par value $0.01 per share ("IPT Stock"), of
Insignia Properties Trust ("IPT");
WHEREAS, AIMCO, IFG and Insignia/ESG, Inc., a Delaware
corporation ("SpinCo"), are entering into an Agreement and Plan of Merger
dated as of the date hereof (the "Merger Agreement"), which provides, among
other things, for the merger of IFG with and into AIMCO, with AIMCO as the
surviving corporation; and
WHEREAS, in order to induce AIMCO to enter into the Merger
Agreement and in further consideration thereof, the Stockholder has agreed
to grant AIMCO the Call Option (as hereinafter defined) on the terms and
subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto intending to
be legally bound agree as follows:
1. Grant of Call Option; Price Protection; Put Option. (a)
Upon the terms and subject to the conditions contained herein, the
Stockholder hereby grants AIMCO an irrevocable option (the "Call Option")
to purchase in the aggregate 45% of the shares of IFG Stock, 45% of the
shares of IFG Stock issuable upon the exercise of the Insignia Options and
45% of the shares of IPT Stock (collectively, the "Stockholder's Shares");
provided, however, in the event (a) the Spin Off has occurred or (b) the
Merger Agreement is terminated by Target pursuant to Section 9.1(e)
thereof, or pursuant to Section 9.1(b), (c) or (d) of the Merger Agreement
following the making of an Acquisition Proposal, unless such Acquisition
Proposal relates only to SpinCo (whether or not the Spin Off has occurred),
"Stockholder's Shares" shall mean 100% of the shares of IFG Stock, 100% of
the shares of IFG Stock issuable upon the exercise of the Insignia Options
and 100% of the shares of IPT Stock. The per share purchase price for each
share of IFG Stock shall be $25.00 per share (the "IFG Per Share Purchase
Price") and the per share purchase price for each share of IPT Stock shall
be $13.25 per share; provided, however, that in the event the Spin Off has
occurred, the IFG Per Share Purchase Price shall be reduced to $11.00 per
share. The aggregate purchase price for the Stockholder's Shares shall be
payable by AIMCO at the Closing (as hereinafter defined) by wire transfer
in immediately available funds to an account or accounts designated by the
Stockholder prior to the Closing Date (as hereinafter defined).
If during the term of this Agreement AIMCO increases the Merger
Consideration payable pursuant to the Merger Agreement in response to an
Acquisition Proposal, then the IFG Per Share Purchase Price for the
Stockholder's Shares shall be increased by the amount of the increase of
the Merger Consideration. If any portion of the Merger Consideration is
payable in a form of consideration that is not cash, then AIMCO and the
Stockholder shall mutually determine the dollar value of the non-cash
portion of the Merger Consideration (it being understood that for the
purposes of this Agreement the Merger Consideration set forth in the Merger
Agreement is valued by the parties at $25.00 per share, and the Independent
Appraiser (as defined below) shall be bound by such valuation). If AIMCO
and the Stockholder are unable to agree on the dollar value of such non-
cash consideration, then the IFG Per Share Purchase Price shall be
immediately increased to the lower of (a) the estimate of the dollar value
of such non-cash consideration offered by AIMCO and (b) the estimate of the
dollar value of such non-cash consideration offered by the Stockholder, but
in no case shall the IFG Per Share Purchase Price be less than $25 per
share before the Spin Off has occurred or less than $11 per share after the
Spin Off has occurred and no less than the lower of clause (a) or (b) above
(the "Agreed Price"). The IFG Per Share Purchase Price shall later be
adjusted to the extent that the Independent Appraiser provides an appraisal
of the dollar value of the non-cash portion of the increase in the Merger
Consideration offered by AIMCO. "Independent Appraiser" shall mean that
independent qualified appraiser jointly selected by AIMCO and the
Stockholder. AIMCO and the Stockholder shall each bear one-half of the
cost of any appraisal provided by the Independent Appraiser, and shall
instruct the Independent Appraiser to render his report within 30 days.
In the event that, after payment of the Aggregate Purchase Price
to the Stockholder pursuant to this Section 1(a) or Section 1(c) hereof,
the Independent Appraiser delivers an appraisal report to AIMCO and the
Stockholder which indicates that the IFG Per Share Purchase Price is
subject to adjustment pursuant to this Section 1(a), then if the appraisal
report indicates that the Agreed Price was lower than indicated by such
appraisal report, then AIMCO shall, within 10 days, wire transfer
immediately available funds to an account or accounts designated by the
Stockholder the difference between the value set forth in such appraisal
report and the amount theretofore paid to the Stockholder pursuant to this
Section 1(a) or Section 1(c) hereof.
The "Aggregate Purchase Price" shall mean the aggregate purchase
price for the Stockholder's Shares as established pursuant to the preceding
portions of this Section 1(a).
(b) Upon the terms and subject to the conditions contained
herein, AIMCO hereby grants to Stockholder the irrevocable right (the
"Price Protection Right") to receive from AIMCO an amount (the "Price
Protection Payment") equal to the difference between (i) the Aggregate
Purchase Price and (ii) (a) the average closing sale price per share of
IFG Stock on the New York Stock Exchange (the "NYSE") for the three (3)
trading days preceding the date on which the Stockholder gives written
notice to exercise its Purchase Price Right multiplied by 45% of the
aggregate number of shares of IFG Stock plus the aggregate number of shares
of IFG Stock issuable upon the exercise of the Insignia Options which are
subject to the Price Protection Right plus (b) the average closing sale
price per share of IPT Stock on the securities exchange or listing or
quotation service on which the IPT Stock is traded for the three (3)
trading days preceding the date on which the Stockholder gives written
notice to exercise its Price Protection Right, or $13.25, if IPT Stock is
not then listed on any securities exchange or listing or quotation services
multiplied by 45% of the aggregate number of shares of IPT Stock subject to
the Price Protection Right; provided, however, that in the event that (i)
the Spin Off has occurred or (ii) the Merger Agreement is terminated by
Target pursuant to Section 9.1(e) thereof, or pursuant to Section 9.1(b),
(c) or (d) of the Merger Agreement following the making of an Acquisition
Proposal, unless such Acquisition Proposal relates only to SpinCo (whether
or not the Spin Off has occurred), before the Closing with respect to the
Price Protection Trigger Event (as hereinafter defined), "Price Protection
Payment" shall mean an amount equal to the difference between (i) the
Aggregate Purchase Price giving effect to the Spin Off (if the Spin Off has
occurred) and (ii) (a) the average closing sale price per share of IFG
Stock on the NYSE for the three (3) trading days preceding the date the
Stockholder gives written notice to exercise its Price Protection Right
multiplied by the sum of 100% of the shares of IFG Stock plus the aggregate
number of shares of IFG Stock issuable upon the exercise of the Insignia
Options which are subject to the Price Protection Right plus (b) the
average closing sale price per share of IPT Stock on the securities
exchange or listing or quotation service on which the IPT Stock is traded
for the three (3) trading days preceding the date on which the Stockholder
gives written notice to exercise its Price Protection Right, or $13.25 if
the IPT Stock is not then listed on any securities exchange or listing or
quotation service, multiplied by 100% of the shares of IPT Stock subject to
the Price Protection Right. The Price Protection Payment shall be payable
by wire transfer in immediately available funds to an account or accounts
designated by the Stockholder prior to the Closing Date.
(c) Upon the terms and subject to the conditions contained
herein, AIMCO hereby grants to the Shareholder an irrevocable option (the
"Put Option") to sell to AIMCO the Stockholder's Shares. The per share
purchase price for each share of IFG Stock purchased in connection with the
Put Option shall be the IFG Per Share Purchase Price and the per share
purchase price for each share of IPT Stock purchased in connection with the
Put Option shall be $13.25 per share; provided, however, that in the event
the Spin Off has occurred, the IFG Per Share Purchase Price shall be
reduced to $11.00 per share. The Aggregate Purchase Price shall be payable
by AIMCO at the Closing by wire transfer in immediately available funds to
an account or accounts designated by the Stockholder prior to the Closing
Date.
2. Term of Call Option, Price Protection Right and Put Option.
Each of the Call Option, the Price Protection Right and the Put Option
shall commence on the date hereof and shall expire on the Termination Date
(the "Expiration Date"). "Termination Date" means the earlier to occur of
(i) the time immediately prior to the Effective Time (as defined in the
Merger Agreement), and (ii) five business days after the occurrence of
either, a Call Option Trigger Event, a Put Option Trigger Event or a Price
Protection Trigger Event, provided that if AIMCO or the Stockholder, as the
case may be, provides written notice to the other party of its wish to
exercise the Call Option, in the case of AIMCO, or the Price Protection
Right or the Put Option, in the case of the Stockholder, then ten business
days after the earliest of (a) delivery of the written notice, if any,
exercising the Call Option, (b) delivery of the written notice, if any,
exercising the Price Protection Right, if there has been no Call Option
Trigger Event or if no exercise of the Call Option has been delivered, (c)
delivery of the written notice, if any, exercising the Put Option and (d)
the satisfaction or waiver of the applicable conditions set forth in the
first paragraph of Section 3 hereof.
3. Exercise of Call Option, Price Protection Right and Put
Option. Subject to the provisions set forth below, each of the Call
Option, the Price Protection Right or the Put Option may be exercised by
either AIMCO or the Stockholder, as the case may be, at any time on and
after the date hereof through and including the Expiration Date; provided
that (a) no statute, rule, regulation, court order, or injunction shall
have been enacted, entered, promulgated or enforced, and be in force, by
any court or governmental authority which prohibits the consummation of the
purchase and sale of the Stockholder's Shares hereunder; (b) any waiting
period applicable to the purchase and sale of the Stockholder's Shares
hereunder under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of ▇▇▇▇
(▇▇▇ "▇▇▇ ▇▇▇") shall have expired or been terminated; (c) a Call Option
Trigger Event, with respect to exercise, if any, of the Call Option shall
have occurred prior to the Termination Date; and (d) a Price Protection
Trigger Event, with respect to exercise, if any, of the Price Protection
Right, shall have occurred prior to the Termination Date and (e) a Put
Option Trigger Event, with respect to exercise, if any, of the Put Option,
shall have occurred prior to the Termination Date; provided, further, that
in the case of the Price Protection Right or the Put Option (x) the
representations and warranties of the Stockholder contained in Section 5
hereof shall be true and correct in all material respects as of the Closing
Date with the same force and effect as though the same had been made on and
as of the Closing Date; and (y) the Stockholder shall have performed and
complied in all material respects with each of its obligations under this
Agreement required to be performed by it at or prior to the Closing Date.
For purposes of this Agreement, a "Call Option Trigger Event" means the
date on which the Merger Agreement has been terminated for any reason prior
to consummation of the Merger, other than termination due to (aa) failure
of any waiting period under the HSR Act applicable to the Merger to have
expired or terminated, (bb) any permanent injunction or other order by any
federal or state court preventing consummation of the Merger or (cc)(i)
Target validly terminating the Merger Agreement pursuant to Section
9.1(b)(i) thereof and (ii) the absence of a right by AIMCO to validly
terminate the Merger Agreement pursuant to Section 9.1(b)(i) thereof. For
purposes of this Agreement, "Price Protection Trigger Event" means the date
which is five business days after the occurrence of a Call Option Trigger
Event, provided that no exercise of the Call Option has been delivered by
the last day for the giving of such notice. For purposes of this
Agreement, a "Put Option Trigger Event" means the date on which the Merger
Agreement has been validly terminated by Target pursuant to Section
9.1(b)(i) thereof, but if, and only if, AIMCO did not have the right to
validly terminate the Merger Agreement pursuant to Section 9.1(b)(i)
thereof on the date of such termination.
In the event AIMCO wishes to exercise the Call Option, or the
Stockholder wishes to exercise the Price Protection Right or the Put
Option, such exercising party shall send written notice (which shall be
irrevocable) to the other party specifying that it wishes to purchase the
Stockholder's Shares, in the case of the Call Option, receive the Price
Protection Payment, in the case of the Price Protection Right, or sell the
Stockholder's Shares, in the case of the Put Option, and a date (the
"Closing Date") for the closing of such purchase or receipt of such payment
(a "Closing"). Such notice shall be sent no later than the fifth business
day following the Call Option Trigger Event, the Price Protection Trigger
Event or the Put Option Trigger Event, as the case may be. The Closing
shall take place on the tenth business day after the earliest of (a)
delivery of the written notice, if any, exercising the Call Option, (b)
delivery of the written notice, if any, exercising the Price Protection
Right, (c) delivery of the written notice, if any, exercising the Put
Option, and (d) the satisfaction or waiver of the applicable conditions set
forth in the preceding paragraph, at the offices of Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ or at such other
place as may be mutually agreed upon by AIMCO and the Stockholder. Until
either the Call Option, in the case of AIMCO, or the Price Protection Right
or the Put Option, in the case of the Stockholder, has been exercised and
AIMCO has paid the Aggregate Purchase Price or the Price Protection
Payment, as the case may be, in full as provided for in Section 1 hereof,
the parties hereto agree that the Stockholder shall own the Stockholder's
Shares and Insignia Options for all purposes.
In the event AIMCO delivers written notice exercising the Call
Option, Stockholder shall, immediately prior to the Closing, exercise the
Insignia Options and purchase from IFG the shares of IFG Stock issuable
upon the exercise of the Insignia Options. Concurrent with Stockholder's
exercise of the Insignia Options, AIMCO shall loan to Stockholder an amount
equal to the aggregate exercise price of the Insignia Options in
consideration for a promissory note payable on demand (the "Promissory
Note") which shall be secured by all the shares of IFG Stock owned by
Stockholder, the Insignia Options and the IFG Stock acquired upon the
exercise of the Insignia Options and with full recourse against the
Stockholder. The Promissory Note shall bear interest at a rate equal to
AIMCO's weighted average cost of funds.
If the person signing this Agreement is ▇▇▇▇▇▇ ▇▇▇▇▇▇, he agrees
that in the event the Call Option is exercised and he is unable to deliver
any of the Stockholder's Shares for any reason including, without
limitation, because Metropolitan Asset Partners IV L.P. ("MAP IV") and/or
Metropolitan Asset Partners V L.P. ("MAP V") have not distributed shares to
▇▇. ▇▇▇▇▇▇ for any reason, he will be in breach of this Agreement and
liable to AIMCO for damages.
4. Payment and Delivery of Certificates. At any Closing
pursuant to an exercise of the Call Option, the Price Protection Right or
the Put Option hereunder:
(a) AIMCO will make payment to the Stockholder of the Aggregate
Purchase Price or the Price Protection Payment, as the case may be, as
provided for in Section 1 hereof in immediately available funds.
(b) In the event of the exercise of the Call Option or the Put
Option, Stockholder shall deliver to AIMCO certificates evidencing
Stockholder's Shares, in form ready for transfer, duly endorsed in blank
with all signatures guaranteed by a member firm of the New York Stock
Exchange or by a national bank. At the Closing, and from time to time
thereafter, Stockholder shall execute and deliver such other documents and
instruments, and take such other actions, as AIMCO may reasonably request,
in order to more fully vest in AIMCO and perfect its title to Stockholder's
Shares.
5. Representations and Warranties of Stockholder. Except as
set forth on Schedule 5 attached hereto, the Stockholder represents and
warrants to AIMCO that: (a) Stockholder has duly authorized, executed and
delivered this Agreement and this Agreement is a legal, valid and binding
obligation of Stockholder, enforceable against Stockholder in accordance
with its terms; and neither the execution of this Agreement nor the
consummation by such Stockholder of the transactions contemplated hereby
will constitute a violation of or default under, or conflict with, any
contract, commitment, agreement, understanding, arrangement or restriction
of any kind to which such Stockholder is a party or by which Stockholder is
bound; (b) as of the date hereof, the Shares and Insignia Options listed on
Annex A to this Agreement represent all the shares of IFG Stock and IPT
Stock and Insignia Options as to which the Stockholder has a pecuniary
beneficial interest (other than through a limited partnership of which he
or his controlled entity is not a general partner) and (as to restricted
stock and Insignia Options) are vested, and there are no options, warrants
or rights to purchase or acquire, or agreements relating to, the
Stockholder's Shares and Insignia Options other than this Agreement, and
the instruments permitting or effectuating the grant of restricted stock
and Insignia Options; (c) upon dissolution of MAP IV and MAP V, the
Stockholder will have (without exception) good title to the Stockholder's
Shares and Insignia Options free and clear of all claims, liens, charges,
encumbrances and security interest of any nature whatsoever, except that
the Stockholder may have pledged all or part of the Stockholder's Shares to
a bona fide financial institution if (unless the person signing this
Agreement is one of Messrs. Aston, Garrison, or Uretta) such institution
agrees in writing to be bound by this Agreement, and the Stockholder will
transfer to AIMCO good title to the Stockholder's Shares other than the
Insignia Options, free and clear of all claims, liens, charges,
encumbrances and security interests of any nature whatsoever placed thereon
by the Stockholder or, if the person signing this Agreement is ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, by MAP IV and MAP V; (d) except for the Voting Agreement and the
Proxy, the Stockholder is not a party to or otherwise bound by any proxy,
voting agreement or restriction which affects the voting rights of the
Shares or any shares underlying the Insignia Options or any capital stock
or other security of IFG; and (e) in the case of a Stockholder which is a
trust, the undersigned individual trustees of such trust are lawful and
duly appointed trustees of such trust and have full power and authority on
behalf of such trust to enter into this Agreement and to consummate the
transactions contemplated hereby.
6. Representations and Warranties of AIMCO. AIMCO represents
and warrants to the Stockholder as follows: (a) AIMCO is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Maryland; (b) AIMCO has full power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated
hereby; (c) the execution, delivery and performance of this Agreement by
AIMCO and the consummation by it of the transactions contemplated hereby
have been approved by all necessary corporate action on the part of AIMCO;
(d) this Agreement constitutes the legal, valid and binding obligation of
AIMCO; and (e) AIMCO is purchasing the Stockholder's Shares for investment
only and not with a view to the distribution thereof.
7. Covenants of the Stockholder. (a) The Stockholder shall not
transfer, pledge, hypothecate, sell, exchange or offer to transfer or sell
or otherwise dispose of or encumber or grant any proxy or consent with
respect to any of the Shares or Insignia Options at any time prior to the
Termination Date, except that the Stockholder may execute the Voting
Agreement and the Irrevocable Proxy, dated as of the date hereof, by and
between the parties hereto (the "Voting Agreement and the Proxy"), sell the
Insignia Options to IFG after the Spin Off and prior to the consummation of
the Merger or pledge all or part of the Stockholder's Shares to a bona fide
financial institution which agrees in writing to be bound by this
Agreement.
(b) The Stockholder, in his or its capacity as a holder of
Shares and Insignia Options, agrees that prior to the Closing the
Stockholder will retain record (to the extent he or it possesses record
ownership as of the date hereof) and beneficial ownership of all of the
Stockholder's Shares and (except as contemplated by Section 7(a)) the
Insignia Options.
(c) If this Agreement is signed by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, in the
event that (a) at the time of delivery of the Call Option Notice or (b) at
any time following an Acquisition Proposal (as defined in the Merger
Agreement) upon the written request of AIMCO, ▇▇. ▇▇▇▇▇▇ does not own of
record any of the Stockholder's Shares and such shares are beneficially
owned by MAP IV or MAP V, ▇▇. ▇▇▇▇▇▇ in his capacity as the sole
stockholder and director of Metro Shelter Directives, Inc., the sole
general partner of MAP IV, and in his capacity as the sole stockholder and
director of MV Inc., the sole general partner of MAP V, will cause each of
MAP IV and MAP V to distribute, within three business days following
delivery of the Call Option or within three business days following AIMCO's
written request, to him the number of shares of IFG Stock set forth on
Annex A.
8. Resale of AIMCO Shares. The Stockholder hereby agrees that
unless he or it receives prior written consent of AIMCO, such Stockholder
will not sell, assign, transfer or otherwise dispose of any shares of
capital stock of AIMCO obtained pursuant to the Merger, or enter into any
negotiations, commitments or agreements with respect to any such
disposition, during the period ending on the second anniversary of the
consummation of the Merger, as applicable; provided; however, such
Stockholder may dispose of any such capital stock to a family member or
related trust or estate planning vehicle if such person, trust or entity
agrees in writing to be bound by the provisions of this Agreement, or may
pledge all or part of the shares of capital stock of AIMCO held by the
Stockholder to a bona fide financial institution which agrees in writing to
be bound by this Agreement; provided further, that the Stockholder may sell
or otherwise dispose of up to twenty-five (25)% of such shares of capital
stock of AIMCO during the period commencing on the Closing Date and ending
six months thereafter and an additional 25% during each subsequent six
month period. AIMCO agrees that it will respond to any request by the
Stockholder pursuant to the preceding sentence within five business days of
its receipt thereof.
If the Stockholder is unable after reasonable efforts to locate a
bona fide financial institution which is willing to be bound in writing to
this Agreement, then AIMCO shall, upon execution of customary loan and
security agreements, provide a loan to the Stockholder, in an amount equal
to fifty (50)% of the aggregate fair market value of the shares of capital
stock of AIMCO then owned by the Stockholder (or the Stockholder's Shares,
if the Merger has not been consummated), which loan shall be secured by all
the shares of capital stock of AIMCO then owned by the Stockholder (or the
Stockholder's Shares, if the Merger has not been consummated) provided,
however, that the value of such loan shall not exceed five percent of the
value of the total assets of AIMCO, all as measured for purposes of Section
856(c)(4)(B) of the Code. Such loan shall be recourse to the Stockholder,
shall be for a term of three years, shall bear interest at a rate which is
equal to AIMCO's weighted average cost of capital, as calculated on the
date such loan is provided to the Stockholder, and all accrued interest on
the principal amount of such loan shall be due and payable semi-annually.
This Section 8 shall not apply if the Stockholder is a Trust.
9. Covenants of AIMCO. AIMCO hereby agrees that if it consents
in writing to the Stockholder's request to sell shares of capital stock of
AIMCO pursuant to Section 8 hereof, then it will, from the date of
delivering such written consent to the Stockholder, consent in writing to
any requests by any other person or entity signing an agreement
substantially the same as this Agreement in the two weeks before or after
this Agreement is executed (the "Parallel Agreements") to sell shares of
capital stock of AIMCO pursuant to Section 8 of the Parallel Agreements.
AIMCO hereby agrees not to exercise the Call Option granted herein unless
it simultaneously exercises the call options granted to it pursuant to the
Parallel Agreements.
10. Trustee Liability. Any undersigned individual trustee of a
trust which is a Stockholder of IFG shall have no personal liability
hereunder, and it is understood that any such trustee that signs this
Agreement shall do so on behalf of such trust in his or her capacity as
trustee of such trust, and not in his or her individual capacity.
11. HSR Act. Each party hereto shall file or cause to be filed
with the FTC and the Department of Justice any notifications required to be
filed by their respective "ultimate parent" companies under the HSR Act and
the rules and regulations promulgated thereunder with respect to the
transactions contemplated hereby. Such parties will use all commercially
reasonable efforts to make any such filings in a timely manner and respond
on a timely basis to any requests for additional information made by either
of such agencies.
12. Specific Performance. The parties hereto agree that their
respective remedies at law would be inadequate in the event of any default
by the other party in the performance of such party's obligations under
this Agreement. Accordingly, the parties hereto agree that in the event of
any such default the non-defaulting party shall have the right to seek
specific performance of such obligations as well as any other legal
remedies to which such non-defaulting party may be entitled.
13. Assignment; Parties in Interest. This Agreement shall not
be assignable, except that AIMCO may assign its rights under this Agreement
to a subsidiary or affiliate of AIMCO or, if AIMCO determines that its
status as a real estate investment trust would make advisable a partial
purchase by AIMCO and assignment of its remaining rights under this
Agreement to a third party, to any third party who agrees in writing to be
bound by this Agreement; provided, however, that no assignment shall effect
the obligations of AIMCO under this Agreement. This Agreement shall be
binding upon, inure to the benefit of and be enforceable by and against the
parties hereto and their successors (including administrators and executors
of individuals or trusts).
14. Amendments. No amendment or waiver of any provision of this
Agreement shall be effective unless the same shall be in writing and signed
by or on behalf of AIMCO and by or on behalf of each Stockholder or their
respective heirs, representatives, successors or assigns. All notices and
other communications pursuant to this Agreement shall be in writing or by
fax and mailed or sent to each party hereto at its address set forth on the
signature page hereto or at such other address as shall be designated by
such party in a written notice to the other parties hereto.
15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO PRINCIPLES OF CONFLICT OF LAWS THEREOF.
16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed to be an original but all of
which together will constitute one and the same instrument.
15. Effect of Headings. The descriptive headings
contained herein are for convenience only and shall not effect in any way
the meaning or interpretation of this Agreement.
16. Capitalized Terms. Capitalized terms used and not defined
herein shall have the meanings ascribed to them in the Merger Agreement.
17. Information to be Supplied. If the person signing this
Agreement is one of Messrs. Aston, Garrison, or Uretta, the number of
shares and options is not yet filled in and he agrees to supply such
information to AIMCO promptly but in any case within two weeks and agrees
that he is bound by this Agreement prior to and following delivery of such
information.
* * * * *
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed on the day and year first written above.
APARTMENT INVESTMENT AND
MANAGEMENT COMPANY
By: ____________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Its: President
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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