PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
DATED
AUGUST 22, 1997
BY AND BETWEEN
AIMCO PROPERTIES, L.P.,
AS BUYER,
AND
[THE PARTIES IDENTIFIED ON EXHIBIT A
ATTACHED HERETO],
AS SELLER
PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
("AGREEMENT"), is made and entered into as of August 22, 1997 (the "EXECUTION
DATE"), by and between AIMCO PROPERTIES, L.P., a Delaware limited partnership
("BUYER"), and each of the parties identified on EXHIBIT "A" attached hereto
(collectively, "SELLER"), for the purpose of setting forth the agreement of the
parties and of instructing Commonwealth Land Title Company ("ESCROW AGENT") with
respect to the transactions contemplated by this Agreement.
R E C I T A L S:
A. Seller is the owner of an undivided fee simple interest in
certain parcels of real property described on EXHIBIT "B" attached hereto
(collectively, the "LAND PARCELS"), comprising thirty-five (35) multi-family
residential properties (each a "PROJECT," and collectively, the "PROJECTS").
The Land Parcels, together with the improvements, the balance of "Real
Property," "Personal Property," and the "Intangible Property" (each as
hereinafter defined), shall be collectively referred to herein as "Property."
B. Seller desires to sell and Buyer desires to purchase the
Property upon and subject to the terms and conditions set forth in this
Agreement.
A G R E E M E N T:
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Buyer and Seller hereby agree, and
instruct Escrow Agent, as follows:
1. AGREEMENT TO PURCHASE AND SELL.
Subject to all of the terms and conditions of this Agreement, Seller
agrees to sell, transfer and convey to Buyer, and Buyer agrees to acquire and
purchase from Seller, a good and marketable fee simple interest in the Property,
upon the terms and conditions set forth herein. Each representation, warranty
and covenant made by Seller hereunder and any other term of this Agreement which
refers to Seller and Property (or any portion thereof) owned by Seller shall be
deemed to refer to each of the Sellers and to the one or more Projects owned by
such Sellers respectively.
2. PURCHASE PRICE.
The purchase price for the Property (the "PURCHASE PRICE") shall be
the sum of Two Hundred Sixty Million Dollars ($260,000,000), subject to
adjustment for prorations and closing costs as hereinafter provided, which shall
be payable as follows:
2.1 DEPOSIT. Upon the "Opening of Escrow" (as hereinafter
defined), Buyer shall deposit into "Escrow" (as hereinafter defined) the sum of
Two Million Six Hundred Thousand Dollars ($2,600,000) (which amount, together
with any and all interest and dividends earned thereon, shall hereinafter be
referred to as the "DEPOSIT") by wire transfer or by certified or bank check
payable to the order of Escrow Agent. Escrow Agent shall invest the Deposit in
insured money market accounts, certificates of deposit, United States Treasury
Bills or such other instruments as Buyer may instruct from time to time. At the
"Closing" (as hereinafter defined), the Deposit shall be paid to Seller and
credited against the Purchase Price. In the event that the sale of the Property
is not consummated for any reason, other than a default under this Agreement on
the part of Buyer, the Deposit shall be returned to Buyer.
2.2 LOAN OBLIGATIONS. Buyer shall have the option, in its sole and
absolute discretion, to either assume or fully prepay the "Loan Obligations" (as
hereinafter defined), pursuant to the provisions of Section 7 below, on the
"Closing Date" (as hereinafter defined); provided, however, Buyer's ability to
assume the Loan Obligations shall not be a condition precedent to Buyer's
obligation to close under the terms of this Agreement unless Buyer has elected
to terminate this Agreement pursuant to Section 7.2 hereof. At the Closing,
Buyer shall receive a credit towards the Purchase Price equal to the total
amount of the Loan Obligations assumed by Buyer (the "LOAN CREDIT AMOUNT").
2.3 CREDIT AMOUNT. On the Closing Date, Buyer shall receive as a
credit against the Purchase Price an amount (the "CREDIT AMOUNT") equal to the
sum of: (i) security deposits which were paid by "Tenants" (as hereinafter
defined) to or for the account of Seller, plus accrued interest, if and to the
extent required to be paid to such Tenants on such security deposits; (ii)
expenses and
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other sums owed by Seller to Tenants for work or disputes which occur prior to
the Closing Date (as evidenced in any written agreement or correspondence from
Seller or its agents, whereby Seller accepts or acknowledges responsibility for
such amounts); and (iii) the amount, if any, by which prorated amounts allocated
to Seller pursuant to Section 8.5.1 below exceed the prorated amount allocated
to Buyer pursuant to Section 8.5.1 below.
2.4 CASH. On the Closing Date, Buyer shall deposit into Escrow the
Purchase Price, adjusted as follows: (i) add Buyer's share of the closing costs
(as hereinafter provided) and (ii) subtract the sum of the Deposit, the Loan
Credit Amount and the Credit Amount, by wire transfer or by certified or bank
check payable to the order of the Escrow Agent.
3. OPENING OF ESCROW.
On or before the third (3rd) day after the Execution Date, Buyer and
Seller shall cause a purchase and sale escrow ("ESCROW") to be opened with
Escrow Agent by delivery to Escrow Agent of a fully executed copy of this
Agreement together with the Deposit (the "OPENING OF ESCROW"). This Agreement
shall constitute escrow instructions to the Escrow Agent as well as the
agreement of the parties. Escrow Agent is hereby appointed and designated to
act as the Escrow Agent and instructed to deliver, pursuant to the terms of this
Agreement, the documents and funds to be deposited into Escrow as herein
provided. The parties hereto shall execute such additional escrow instructions
(not inconsistent with this Agreement as determined by counsel for Buyer and
Seller) as Escrow Agent shall deem reasonably necessary for its protection,
including Escrow Agent's general provisions (as may be modified by Buyer, Seller
and Escrow Agent). In the event of any inconsistency between this Agreement and
such additional escrow instructions, the provisions of this Agreement shall
govern.
4. ACTIONS PENDING CLOSING.
4.1 DUE DILIGENCE PERIOD.
4.1.1 PROPERTY DOCUMENTS. Not later than five (5) days after
the Execution Date, Seller shall deliver to Buyer (at Seller's sole cost and
expense) true, correct and complete copies of all of the following to the extent
that the same are in the possession or control of Seller or its agents, auditors
or independent contractors: (a) service agreements, equipment leases and other
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contracts relating to the operation and management of the Property, excluding
Seller's management agreement (collectively, the "SERVICE CONTRACTS"); (b)
personal property lists; (c) government permits, approvals and licenses; (d)
existing title policies, reports and surveys; (e) Phase I Environmental Reports
and any engineering, soils and pest reports; and (f) 1995 and 1996 year-end
audited financial statements, 1995, 1996 and 1997 year-to-date income and
expense statements, current rent rolls, 1997 operating budgets and the most
recent tax statements and assessed value notices. From and after the Execution
Date, Seller shall make available for inspection by Buyer during normal business
hours at the Property or Seller's place of business located in Boston,
Massachusetts, such other property documentation as Buyer may reasonably
request, including, without limitation, the "Leases" (as defined herein), the
most current year's utility bills, appraisals, insurance policies, and all
correspondence with all governmental entities regarding the Property and
as-built plans and specifications to the extent available. All of the documents
and materials referred to in this Section 4.1.1 shall hereinafter be
collectively referred to as the "PROPERTY DOCUMENTS".
4.1.2 PROPERTY QUESTIONNAIRES. Not later than fifteen (15)
Business Days after the Execution Date, Seller shall deliver to Buyer a
completed property questionnaire for each Project in the form of EXHIBIT "C"
attached hereto (collectively, the "PROPERTY QUESTIONNAIRES"). Seller makes no
representation or warranty concerning the accuracy of the completed Property
Questionnaires, and will submit the same to assist Buyer in its due diligence
efforts only.
4.1.3 DILIGENCE TESTS. At all reasonable times during the
forty-five (45) day period commencing on the Execution Date (the "DUE DILIGENCE
PERIOD"), Buyer, its agents and representatives shall be entitled at Buyer's
sole cost and expense to (i) enter onto the Property during normal business
hours to perform any inspections, investigations, studies and tests of the
Property, including, without limitation, physical, structural, mechanical,
architectural, engineering, soils, geotechnical and environmental tests and ALTA
Surveys (or updates thereof) of each Land Parcel (collectively, the "SURVEYS")
that Buyer deems appropriate in its sole and absolute discretion; (ii) cause an
environmental assessment of the Property to be performed; (iii) review all
Property Documents and examine and copy any and all books and records maintained
by Seller or its agents (including, without limitation, all documents relating
to utilities, zoning and the access, subdivision and appraisal of, and all legal
requirements affecting, the Property); and (iv) investigate such other matters
as Buyer may desire; provided, however, that Buyer: (i) shall give Seller
reasonable prior notice of
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such inspections and/or investigations, including the name of Buyer's agents and
the description of the tests and inspections to be performed on the Property;
and (ii) Buyer shall use its reasonable efforts to minimize any interference
with the operation of the Property. Seller shall have the right to disapprove
of Buyer's agents and/or the methods of proposed tests and inspections on the
grounds that such proposed tests or inspections are not commercially reasonable,
in which case Buyer may propose reasonable alternative agents and/or testing
methods or terminate this Agreement as provided in Section 4.1.4 below. In the
event this Agreement is terminated, Buyer shall provide Seller a copy of any
environmental or engineering reports obtained by Buyer from third parties in
connection with any such tests and inspections. Prior to the Closing or the
termination of this Agreement, Buyer shall keep confidential any information
regarding the Property contained in any environmental or engineering reports and
shall not disclose such information to any third party other than potential
managers, lenders, underwriters, investors and the like (and their consultants
or attorneys engaged to review such reports) except as required by law or court
order or to comply with Buyer's securities reporting requirements. If any such
disclosure is made by Buyer, Buyer shall instruct any such third party to whom
such information is disclosed to keep such information confidential. Buyer, at
its own expense, shall restore any damage to the Property caused by any of the
tests or studies made by Buyer and/or its agents. Buyer shall indemnify and
hold harmless Seller and its agents from all claims, causes of action, costs,
losses, damages and reasonable attorneys' fees incurred by Seller or its agents
in connection with or arising out of any inspections carried on by or on behalf
of Buyer pursuant to this Section 4.1.3; provided, however, that Buyer shall not
indemnify Seller or its agents for any claim, loss or cause of action caused by
Seller's or its agents' gross negligence or willful misconduct or any physical
condition existing on the Property prior to Buyer's entry thereon. The
indemnification obligation set forth in this Section 4.1.3 shall survive the
termination of this Agreement or the Closing.
4.1.4 TERMINATION RIGHT. Buyer shall have the right at any
time on or before the last day of the Due Diligence Period (the "DUE DILIGENCE
TERMINATION DATE") to terminate this Agreement if Buyer determines in its sole
and absolute discretion that all or any portion of the Property is not
acceptable to Buyer (including, without in any way limiting the foregoing, a
determination by Buyer that consummation of the transactions contemplated by
this Agreement could jeopardize the status of Apartment Investment and
Management Company, a Maryland corporation, as a real estate investment trust,
as defined in Section 856 of the Internal Revenue Code of 1986). In the event
that Buyer delivers a written notice to Seller and Escrow Agent terminating its
rights hereunder on or
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before the Due Diligence Termination Date, then (i) Escrow Agent shall return
the Deposit to Buyer, (ii) Seller shall be responsible for the cancellation
charges of Escrow Agent and "Title Company" (as hereinafter defined), if any,
and (iii) this Agreement shall terminate and be of no further force or effect
and neither party shall have any further rights or obligations hereunder, other
than pursuant to any provision hereof which expressly survives the termination
of this Agreement.
4.2 TITLE.
4.2.1 TITLE AND SURVEY. Within ten (10) days after the
Execution Date, Seller shall, at Seller's sole cost and expense, cause (a)
Commonwealth Land Title Insurance Company (in such capacity, "TITLE COMPANY") to
issue a current preliminary report for an ALTA extended coverage (owner's)
policy of title insurance for each Project (collectively, the "PTRS"); (b) the
Title Company to deliver legible copies of all documents referenced as
exceptions in the PTRs (the "UNDERLYING DOCUMENTS"); (c) a search for filings
pursuant to the Uniform Commercial Code with regard to the Personal Property
(the "UCC SEARCH") to be performed; and (d) Surveys (or updates of existing
Surveys) for each Project to be prepared in accordance with ALTA / ACSM minimum
technical standards and the laws of the state(s) in which the applicable Project
is located, and showing, with respect to each Project, the entire Real Property,
adjoining streets and roads, including the points of ingress and egress thereto,
setting forth the exact location by metes and bounds and the exact dimensions of
the Real Property, a legal description of the Real Property, the exact location
of any Improvements, the location of parking areas on the Real Property, the
location of all easements on and upon the Real Property, together with all
rights-of-way and other matters relating to the Real Property. The PTRs, the
Underlying Documents, the Surveys and the UCC Search shall be collectively
referred to herein as the "TITLE DOCUMENTS." Promptly following the delivery of
the Title Documents to Buyer, Buyer and Seller agree to enter into an amendment
to this Agreement to supplement Exhibit "B" attached hereto with the true,
correct and complete legal descriptions of the Land Parcels.
4.2.2 BUYER'S REVIEW OF TITLE. On or before the Due
Diligence Termination Date, Buyer shall notify Seller and Escrow Agent in
writing of any objection which Buyer may have to any matters reported or shown
in the Title Documents or any updates thereof (provided, however, that Buyer
shall have an additional five (5) Business Days, regardless of the passage of
the Due Diligence Termination Date, following Buyer's receipt of any updates and
legible
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copies of all documents referenced therein to notify Seller of objections to
items shown on any such updates which were not disclosed on the previously
delivered Title Documents). In addition to the Leases, matters reported in or
shown by the Title Documents (or any updates thereof) and not timely objected to
by Buyer as provided above shall be deemed to be "PERMITTED EXCEPTIONS."
Notwithstanding anything to the contrary contained herein, Seller shall be
required to discharge and remove any and all liens affecting the Property which
secure an obligation to pay money, other than installments of real estate taxes
and/or special assessments not delinquent as of the Closing (collectively,
"LIENS") and, even though Buyer does not expressly disapprove such Liens, such
Liens shall not be Permitted Exceptions, except to the extent that Buyer obtains
a "Consent to Assumption" in respect of any "Loan" (as each such term is defined
in Section 7.1 hereof).
4.2.3 REMOVAL OR CURE OF TITLE OBJECTIONS. As a condition to
Closing, Seller shall take all reasonable action necessary to remove from title
to the Property any exceptions and matters so objected to by Buyer, or, in the
alternative, Seller shall use reasonable efforts to obtain for Buyer title
insurance from Title Company insuring over such exceptions or matters, such
insurance to be in form and substance satisfactory to Buyer. If Seller fails to
remove or satisfactorily insure over any exceptions or matters objected to by
Buyer on or before the Closing Date, then Buyer may, as its sole and exclusive
remedy, either: (a) terminate this Agreement, in which case Escrow Agent shall
return the Deposit (to the extent it has been delivered into Escrow) to Buyer,
Seller shall pay the cancellation charges of Escrow Agent and Title Company, if
any, and neither Seller nor Buyer shall have any further rights, liabilities or
obligations hereunder (except for those provisions which expressly survive the
termination of this Agreement); (b) discharge any objected to exceptions or
matters which may consist of deeds of trust, mortgages, mechanics' or
materialmans' liens, tax liens or other liens or charges which can be discharged
by the payment of an undisputed liquidated monetary obligation and deduct from
the Purchase Price the amount necessary to discharge such lien(s); (c) extend
the Closing Date to allow Seller a reasonable period of time to remove such
objected to exceptions or matters to the extent that Seller is diligently
working to cure or discharge such exceptions, not to exceed thirty (30) days; or
(d) proceed to a timely Closing whereupon such objected to exceptions or matters
shall be deemed to be Permitted Exceptions. In the event that Buyer fails to
make such election on a timely basis in accordance with the terms hereof, then
this Agreement shall terminate in accordance with terms of clause (a) above.
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4.2.4 CONDITION OF TITLE AT CLOSING. Upon the Closing,
Seller shall contribute, transfer and convey to Buyer fee simple title to the
Real Property by a duly executed and acknowledged deed (in the form of a special
warranty deed, limited warranty deed, or a similar type of deed, as applicable),
for the Real Property comprising each Project, in a form reasonably satisfactory
to Buyer (collectively, the "DEEDS"), subject only to the Permitted Exceptions
applicable to each such Project. Prior to Closing, Seller shall not take or
permit any action or commit or suffer any acts which would give rise to a
variance from the current legal descriptions of any of the Real Property, or
cause the creation of any exception or encumbrance against or respecting the
Real Property without the prior written consent of Buyer, which consent shall
not be unreasonably withheld or delayed. Nothing in this Section 4.2.4 shall
preclude Buyer from disapproving title matters in accordance with the provisions
of Sections 4.2.2 and 4.2.3 above.
5. DESCRIPTION OF PROPERTY.
5.1 THE IMPROVEMENTS. As used herein, the term "IMPROVEMENTS"
shall mean all buildings, improvements, structures and fixtures now or hereafter
located on or in any Land Parcel.
5.2 THE REAL PROPERTY. As used herein, the term "REAL PROPERTY"
shall include (i) the Land Parcels, (ii) the Improvements, (iii) all apparatus,
equipment and appliances affixed to and used in connection with the operation or
occupancy of any of the Land Parcels and/or any of the Improvements (such as
heating, air conditioning or mechanical systems and facilities used to provide
any utility services, refrigeration, ventilation, waste disposal or other
services) and now or hereafter located on or in any of the Land Parcels or any
of the Improvements, and (iv) all of the rights, privileges and easements
appurtenant to or used in connection with any of the Land Parcels and/or any of
the Improvements, including, without limitation, all minerals, oil, gas and
other hydrocarbon substances, all development rights, air rights, water, water
rights and water stock relating to any of the Land Parcels, all strips and
gores, all of Seller's right, title and interest in and to any streets, alleys,
easements, rights-of-way, public ways, or other rights appurtenant, adjacent or
connected to any of the Land Parcels.
5.3 THE PERSONAL PROPERTY. As used herein, the term "PERSONAL
PROPERTY" shall mean all of that certain tangible personal property, equipment
and supplies owned by Seller and situated at the Real Property and used by
Seller in connection with the use, operation, maintenance or repair of all or
any portion of
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the Real Property, including, without limitation, all Personal Property
described on EXHIBIT "D" attached hereto.
5.4 THE INTANGIBLE PROPERTY. As used herein, the term "INTANGIBLE
PROPERTY" shall mean all of that certain intangible property owned by Seller and
used by Seller in connection with all or any portion of the Real Property and/or
the Personal Property, including, without limitation, all of Seller's right,
title and interest in, to and under: (i) the Leases, all contract rights
(including, without limitation, Service Contracts), books, records, reports,
test results, environmental assessments, if any, as-built plans, specifications
and other similar documents and materials relating to the use, operation,
maintenance, repair, construction or fabrication of all or any portion of the
Real Property and/or the Personal Property; (ii) all rights, if any, in and to
the names listed on EXHIBIT "E" attached hereto; (iii) all transferable business
licenses, architectural, site, landscaping or other permits, applications,
approvals, authorizations and other entitlements affecting any portion of the
Real Property; and (iv) all transferable guarantees, warranties and utility
contracts relating to all or any portion of the Real Property.
6. CONDITIONS PRECEDENT TO CLOSING.
6.1 BUYER'S CONDITIONS. The obligation of Buyer to purchase the
Property in accordance with this Agreement is subject to the following
conditions precedent (and conditions concurrent, with respect to deliveries to
be made by the parties at Closing) (the "BUYER'S CLOSING CONDITIONS"), which
conditions may be waived, or the time for satisfaction thereof extended, by
Buyer only in a writing executed by Buyer.
6.1.1 TITLE. Title Company shall be prepared and irrevocably
committed to issue to Buyer (with an effective date not earlier than the Closing
Date), as to each Project, American Land Title Association extended coverage
owner's policies of title insurance in favor of Buyer for the Real Property with
liability coverage in such amounts as set forth on SCHEDULE 6.1.1 (collectively,
the "BUYER'S TITLE POLICIES"). Each of the Buyer's Title Policies shall show
fee title to the Real Property vested in Buyer or Buyer's nominee, with those
endorsements reasonably requested by Buyer and provided such endorsements are
available in the State where the Property is located, subject only to the
Permitted Exceptions.
6.1.2 SELLER'S DUE PERFORMANCE. All of the representations
and warranties of Seller set forth in this Agreement shall be true, correct and
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complete in all material respects as of the Closing Date, and Seller, on or
prior to the Closing Date, shall have complied with and/or performed all of the
obligations, covenants and agreements required on the part of Seller to be
complied with or performed pursuant to the terms of this Agreement. On the
Closing Date, Seller shall deliver a certificate, in the form of EXHIBIT "F"
attached hereto (the "SELLER'S CERTIFICATE").
6.1.3 PHYSICAL CONDITION OF PROPERTY. Subject to the
provisions of Section 12 below, the physical condition of the Property shall be
substantially the same on the Closing Date as on the expiration of the Due
Diligence Period, excepting casualties (which shall be governed by Section 12
below) and normal wear and tear.
6.1.4 BANKRUPTCY. No action or proceeding shall have been
commenced by or against Seller under the federal bankruptcy code or any state
law for the relief of debtors or for the enforcement of the rights of creditors
and no attachment, execution, lien or levy shall have attached to or been issued
with respect to their interests in the Property or any portion thereof.
6.1.5 LEASES. At the Closing, Seller shall assign all of its
rights and remedies under the Leases (including, without limitation, the right
to any security deposits and prepaid rent) to Buyer, free and clear of all liens
and encumbrances (other than Permitted Exceptions), and Buyer shall assume the
obligations of Seller with respect thereto, pursuant to an assignment of leases
and security deposits with respect to the Property in the form of EXHIBIT "G"
attached hereto (the "ASSIGNMENT OF LEASES").
6.1.6 ▇▇▇▇ OF SALE. At the Closing, Seller shall deliver to
Buyer a ▇▇▇▇ of sale and assignment with respect to the Property in the form of
EXHIBIT "H" attached hereto (the "▇▇▇▇ OF SALE"), by which Seller shall transfer
to Buyer all the Personal Property and the Intangible Property, but excluding
the Leases, in each case free of all liens and encumbrances (other than
Permitted Exceptions).
6.1.7 NON-FOREIGN AFFIDAVIT. On or before the Closing,
Seller shall deliver to Buyer a Non-Foreign Affidavit in the form of EXHIBIT "I"
attached hereto (the "NON-FOREIGN AFFIDAVIT"), executed by Seller.
6.1.8 NO MORATORIA. No moratorium, statute, regulation,
ordinance, legislation, order, judgment, ruling or decree of any governmental
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agency or of any court shall have been enacted, adopted, issued, entered or
pending which is directed specifically at any Project and which would have a
material adverse effect on the value of any Project.
6.1.9 PROPERTY QUESTIONNAIRES. Seller shall have delivered
the Property Questionnaires to Buyer in accordance with the terms of Section
4.1.2 hereof.
6.2 FAILURE OF BUYER'S CLOSING CONDITIONS. Subject to Buyer's
rights under Section 13.2 hereof with respect to any default by Seller
(including, without limitation, any default in the performance of any covenants
of Seller set forth in this Section 6), if any of the Buyer's Closing Conditions
have not been fulfilled within the applicable time periods, Buyer may:
6.2.1 waive such Buyer's Closing Condition and close Escrow
in accordance with this Agreement, without adjustment or abatement of the
Purchase Price; or
6.2.2 terminate this Agreement by written notice to Seller
and to Escrow Agent, in which event Escrow Agent shall return the Deposit to
Buyer, all other documents, instruments and funds delivered into Escrow shall be
returned to the party that delivered the same into Escrow, Seller shall pay for
all of the cancellation charges of the Title Company and Escrow Agent (if any),
and Buyer shall be entitled to pursue all of its rights and remedies pursuant to
Section 13.2 below.
6.3 SELLER'S CONDITIONS. The obligation of Seller to contribute
the Property in accordance with this Agreement is subject to the following
conditions precedent (and conditions concurrent, with respect to deliveries to
be made by the parties at Closing) (the "SELLER'S CLOSING CONDITIONS"), which
conditions may be waived, or the time for satisfaction thereof extended, by
Seller only in a writing executed by Seller (provided, however, that any such
waiver shall not affect Seller's ability to pursue liquidated damages with
respect to any breach hereunder by Buyer):
6.3.1 BUYER'S DUE PERFORMANCE. All of the representations
and warranties of Buyer set forth in this Agreement shall be true, correct and
complete in all material respects as of the Closing Date, and Buyer, on or prior
to the Closing Date, shall have complied with and/or performed all of the
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obligations, covenants and agreements required on the part of Buyer to be
complied with or performed pursuant to the terms of this Agreement.
6.4 FAILURE OF SELLER'S CLOSING CONDITIONS. Subject to Seller's
rights under Section 13.1 hereof with respect to any default by Buyer, if any of
the Seller's Closing Conditions have not been fulfilled within the applicable
time periods, Seller may:
6.4.1 waive the Seller's Closing Conditions and close Escrow
in accordance with this Agreement, without adjustment of the Purchase Price; or
6.4.2 terminate this Agreement by written notice to Buyer and
to Escrow Agent, in which event all documents, instruments and funds delivered
into Escrow (other than the Deposit, which shall be disbursed in accordance with
the terms of Section 13.1 hereof) shall be returned to the party that delivered
the same into Escrow, Buyer shall pay for all of the cancellation charges of
Title Company and Escrow Agent, if any, and Seller shall be entitled to
liquidated damages only as set forth in Section 13.1 hereof.
7. LOAN ASSUMPTION.
7.1 LOAN OBLIGATIONS. The Projects are currently encumbered by
certain deeds of trust or mortgages securing the promissory notes identified on
SCHEDULE 7.1 attached hereto (each, a "LOAN" and collectively, the "LOAN
OBLIGATIONS"). The Buyer may seek written lender consents to the assumption by
Buyer of each of the Loans identified by Buyer as a Loan which Buyer wishes to
assume at the Closing (each, a "CONSENT TO ASSUMPTION"); provided, however, that
Buyer's receipt of any such Consent to Assumption shall not be a condition to
Buyer's obligation to close under the terms of this Agreement, unless Buyer has
elected to terminate this Agreement pursuant to Section 7.2 hereof. Buyer
shall pay all fees and related costs in connection with its assumption and/or
the prepayment of the Loan Obligations (including, without limitation, any
prepayment charges), which fees and costs shall not be credited against the
Purchase Price.
7.2 TERMINATION. In the event that Buyer delivers a written notice
to Seller and Escrow Agent terminating its rights hereunder on or before the Due
Diligence Termination Date, then (i) Escrow Agent shall return the Deposit to
Buyer, (ii) Seller and Buyer shall each be responsible for one-half (1/2) of the
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cancellation charges of Escrow Agent and Title Company, if any, and (iii) this
Agreement shall automatically terminate and be of no further force or effect and
neither party shall have any further rights or obligations hereunder, other than
pursuant to any provision hereof which expressly survives the termination of
this Agreement.
8. CLOSING.
8.1 CLOSING DATE. Subject to the provisions of this Agreement, the
"Closing" (as defined below) shall take place (i) on the date (the "CLOSING
DATE") which is the fifteenth (15th) day after the Due Diligence Termination
Date, and (ii) at the offices of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP in New
York, or on such other date or location upon which the parties hereto may agree
in writing. As used herein, the "CLOSING" shall mean the date upon which the
transactions contemplated by this Agreement are consummated, except to the
extent that the Deeds may be recorded in the Official Records of the appropriate
counties after the Closing.
8.2 DELIVERIES BY SELLER. On or before the Closing Date, Seller,
at its sole cost and expense, shall deliver or cause to be delivered into Escrow
the following documents and instruments, each dated as of the Closing Date, in
addition to the other items and payments required by this Agreement to be
delivered by Seller:
8.2.1 DEEDS. The original executed and acknowledged Deeds
conveying the Real Property to Buyer;
8.2.2 NON-FOREIGN AFFIDAVIT. The original Non-Foreign
Affidavit, executed by Seller;
8.2.3 ASSIGNMENT OF LEASES. Four (4) original executed and
acknowledged counterparts of the Assignment of Leases;
8.2.4 ASSIGNMENT OF SERVICE CONTRACTS. Four (4) original
executed counterparts of the Assignment of Service Contracts in the form of
EXHIBIT "J" attached hereto;
8.2.5 SELLER'S CERTIFICATE. The original executed Seller's
Certificate;
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8.2.6 ▇▇▇▇ OF SALE. Four (4) original executed counterparts
of the ▇▇▇▇ of Sale;
8.2.7 PROOF OF AUTHORITY. Such proof of Seller's authority
and authorization to enter into this Agreement and the transaction contemplated
hereby, and such proof of the power and authority of the individual(s) executing
or delivering any instruments, documents or certificates on behalf of Seller to
act for and bind Seller as may be reasonably required by Title Company or Buyer;
and
8.2.8 OTHER. Such other documents and instruments
(including, without limitation, affidavits reasonably required by the Title
Company to facilitate the issuance of the Buyer's Title Policies at the Closing
prior to the recordation of the Deeds), signed and properly acknowledged by
Seller, if appropriate, as may be reasonably required by Buyer, Title Company,
Escrow Agent, or otherwise in order to effectuate the provisions of this
Agreement and the Closing of the transactions contemplated herein.
8.3 DELIVERIES BY BUYER. On or before the Closing, Buyer shall
deliver or cause to be delivered into escrow (i) the balance of the Purchase
Price pursuant to Section 2.4 hereof and Buyer's share proration and Closing
Costs (as hereinafter defined), as provided in Sections 8.5 and 8.6 hereof,
respectively, (ii) four (4) original executed and acknowledged counterparts of
the Assignment of Leases, (iii) four (4) original executed counterparts of the
Assignment of Service Contracts, and (iv) such other documents and instruments,
signed and properly acknowledged by Buyer, if appropriate, as may reasonably be
required by Escrow Agent or otherwise in order to effectuate the provisions of
this Agreement and the closing of the transactions contemplated herein.
8.4 ACTIONS BY ESCROW AGENT. Provided that Escrow Agent shall not
have received written notice from Buyer or Seller of the failure of any
condition to the Closing or of the termination of the Escrow and this Agreement,
when Buyer and Seller have deposited into Escrow the documents and funds
required by this Agreement, and Title Company is irrevocably committed to issue
the Buyer's Title Policies, with an effective date not earlier than the Closing
Date, Escrow Agent shall, in the order and manner herein below indicated, take
the following actions:
8.4.1 FUNDS AND CERTIFICATES. Following Title Company's
written acknowledgment that it is prepared and irrevocably committed to issue
the
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Buyer's Title Policies (as evidenced by its delivery to Buyer of a "▇▇▇▇-up" of
the PTRs, or other evidence satisfactory to Buyer, on or prior to the Closing
Date), disburse all funds as follows:
8.4.1.1 pursuant to the "Closing Statement" (as
hereinafter defined), retain for Escrow Agent's own account all escrow fees and
costs, disburse to Title Company the fees and expenses incurred in connection
with the issuance of the Buyer's Title Policies, and disburse to any other
persons or entities entitled thereto the amount of any other Closing Costs;
8.4.1.2 disburse funds necessary to discharge and
release any and all Liens against the Property (other than Liens for which Buyer
has obtained a Consent to Assumption);
8.4.1.3 pay to Seller the remaining balance of the
cash deposited into Escrow by Buyer pursuant to Section 2.4 hereof, after all
disbursements pursuant to Sections 8.4.1.1 and 8.4.1.2 above have been
completed; and
8.4.1.4 disburse to Buyer any remaining funds in the
possession of Escrow Agent after payments pursuant to Sections 8.4.1.1, 8.4.1.2
and 8.4.1.3 above have been completed.
8.4.2 RECORDING. Cause the Deeds and any other documents
which the parties hereto may mutually direct to be recorded in the Official
Records and obtain conformed copies thereof for distribution to Buyer and
Seller.
8.4.3 DELIVERY OF DOCUMENTS. Deliver (a) to Buyer and Seller
each, two (2) originals of all documents deposited into Escrow, other than the
Deeds and the Non-Foreign Affidavits, and (b) to Buyer, the Non-Foreign
Affidavits.
8.5 PRORATIONS.
8.5.1 Rentals (including all pre-paid rent), revenues, and
other income, if any, from the Property; taxes, assessments and improvement
bonds (on the basis of each such item's current tax fiscal year of closing);
service or other contract fees; interest due and payable under any Loan
Obligations assumed by Buyer; an amount to Seller equal to the balance of any
escrow, impound or reserve accounts held by the holder of any Loan Obligations
assumed
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by Buyer which will inure to the benefit of Buyer; all utility deposits, if any;
and other expenses affecting the Property shall be prorated between Buyer and
Seller as of the Closing Date; provided, however, that Seller shall receive a
credit at the Closing in an amount equal to the rentals that are delinquent as
of the Closing Date, but only to the extent that such delinquent rentals are due
and owing from Tenants occupying a portion of the Property on the Closing Date;
and provided further, that Buyer shall be entitled to any and all payments
subsequently received in satisfaction of such delinquent rentals,
notwithstanding the fact that such rentals are attributable to a period prior to
Closing. For purposes of calculating prorations, Buyer shall be deemed to be
title holder of the Property, and therefore entitled to the income and
responsible for the expenses, after 12:01 a.m. on the Closing Date. After the
Closing, Seller shall have no right to proceed in any manner or make any claim
against Tenants for rents that were delinquent as of the Closing Date, except to
the extent that any such person no longer occupies any portion of the Property.
All non-delinquent real estate taxes or assessments on the Property shall be
prorated based on the actual current tax ▇▇▇▇, but if such tax ▇▇▇▇ has not yet
been received by Seller by the Closing Date or if supplemental taxes are
assessed after the Closing for the period prior to the Closing, the parties
shall make any necessary adjustment after the Closing by cash payment to the
party entitled thereto so that Seller shall have borne all real property taxes,
including, without limitation, all supplemental taxes, allocable to the period
prior to the Closing and Buyer shall bear all real property taxes, including,
without limitation, all supplemental taxes, allocable to the period from and
after the Closing. If any expenses attributable to the Property and allocable
to the period prior to the Closing are discovered or billed after the Closing,
the parties shall make any necessary adjustment after the Closing by cash
payment to the party entitled thereto so that Seller shall have borne all
expenses allocable to the period prior to the Closing and Buyer shall bear all
expenses allocable to the period from and after the Closing. The provisions of
this Section 8.5 shall survive the Closing for a period of one (1) year.
8.5.2 Fifteen (15) days prior to the Closing, Escrow Agent
shall deliver to each of the parties for their review and approval a preliminary
closing statement (the "PRELIMINARY CLOSING STATEMENT") setting forth (i) the
proration amounts allocable to each of the parties pursuant to this Section 8.5,
and (ii) the Closing Costs. Based on each of the party's comments, if any,
regarding the Preliminary Closing Statement, Escrow Agent shall revise the
Preliminary Closing Statement and obtain from and deliver to Seller and Buyer,
at the Closing, a final, signed version of a closing statement (the "CLOSING
STATEMENT").
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8.6 CLOSING COSTS. Each party shall pay its own costs and expenses
arising in connection with the Closing (including, without limitation, its own
attorney and advisor fees), except the following costs (the "CLOSING COSTS"):
8.6.1 all documentary transfer, stamp, sales and other taxes
related to the transfer of the Property, which shall be paid by Seller;
8.6.2 Escrow Agent's escrow fees and costs, which shall be
paid one-half (1/2) by Seller and one-half (1/2) by Buyer;
8.6.3 the cost of the Surveys and the Buyer's Title Policies,
which shall be paid by Seller (excluding any endorsements thereto, which shall
be paid by Buyer);
8.6.4 all recording fees (other than recording fees
associated with any new purchase money financing), which shall be paid by
Seller; and
8.6.5 any and all prepayment penalties due and payable in
connection with the discharge and satisfaction of any Lien not assumed by Buyer
and any recording fees associated with any new purchase money financing, which
shall be paid by Buyer.
8.7 DELIVERIES OUTSIDE OF ESCROW. Seller shall deliver possession
of the Property, subject only to the Permitted Exceptions, to Buyer upon the
Closing. Further, Seller hereby covenants and agrees to deliver to Buyer, on or
prior to the Closing, the following items:
8.7.1 INTANGIBLE PROPERTY. The Intangible Property,
including, without limitation, the original Leases and the Property Documents.
8.7.2 PERSONAL PROPERTY. The Personal Property, including,
without limitation, any and all keys, pass cards, remote controls, security
codes, computer software and other devices relating to access to the
Improvements.
8.7.3 NOTICES.
8.7.3.1 NOTICES TO TENANTS. A letter for each
Project in form and substance reasonably acceptable to Buyer, duly executed by
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Seller, dated as of the Closing Date and addressed to each of the Tenants,
informing the Tenants of the transfer of the Property and the assignment of the
Leases to Buyer together with an instruction to pay all amounts due or to become
due under the Leases to Buyer.
8.7.3.2 SERVICE CONTRACTS NOTICES. A letter to each of the
vendors of the Service Contracts for the Property in form and substance
reasonably acceptable to Buyer, duly executed by Seller, dated as of the Closing
Date and addressed to each Service Contract vendor, informing said vendors of
the assignment of the Service Contracts to Buyer.
9. SELLER'S REPRESENTATIONS AND WARRANTIES.
Seller represents and warrants to and agrees with Buyer, as of the
Execution Date and as of the Closing, as follows:
9.1 TITLE. Seller is the legal and equitable owner of the
Property, and Seller has the full right to convey the Property to Buyer.
9.2 LEASES.
9.2.1 LEASE SCHEDULES. The schedules attached hereto as
SCHEDULE 9.2.1 (collectively, the "RENT ROLLS") are true, correct and complete
with respect to: (i) the leases, licenses, tenancies and other occupancy
agreements (whether written or oral) now in effect at each of the Projects (each
a "LEASE" and collectively, the "LEASES"), (ii) the identities of the tenants
under the Leases (the "TENANTS"), (iii) any delinquencies under the Leases, (iv)
the space occupied by the Tenants, (v) the commencement and expiration dates of
the Leases, (vi) the annual rents payable thereunder, and (vii) any outstanding
agreements, written or oral, to amend or otherwise modify any of the Leases.
9.2.2 DELIVERY OF LEASES. True and complete copies of all
Leases and all amendments, guarantees and other documents relating thereto shall
be made available to Buyer in accordance with Section 4.1.1 hereof; provided,
however, that for purposes of this Agreement, Buyer may rely on the data set
forth on the Rent Rolls.
9.2.3 SECURITY DEPOSITS. Except as set forth on the Rent
Rolls, there are no security deposits held by the landlord under any of the
Leases and there are no arrearages in rent or additional rent under any of the
Leases.
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9.2.4 NO TENANT DISPUTES. Except as set forth on the Rent
Rolls or on SCHEDULE 9.2.4 attached hereto, (i) Seller has not received any
written notice from any Tenant that Seller is in default under the terms of its
lease, and (ii) Seller has not received any written notification from any Tenant
that it disputes the computation of the rents payable pursuant to its Lease.
9.2.5 NO PRE-PAID RENT. No Tenant has paid any rent for more
than one (1) month in advance, except as may otherwise be set forth on the Rent
Rolls.
9.3 SERVICES TO TENANTS. All of the services required to be
supplied to each Tenant are presently being supplied and will continue to be
supplied through the Closing Date, and Seller has received no written notices of
any failure of Seller to supply any of said services to any tenant. Seller has
had no written notice from any Tenant of any items of work to be completed
pursuant to any of the Leases for the benefit of any Tenant and Seller has no
knowledge of any such work to be done except as may otherwise be set forth in
the Rent Rolls. No Tenant is entitled to any additional work during the term of
its Lease except as may be required by their Lease.
9.4 INTENTIONALLY OMITTED.
9.5 NO BROKER'S COMMISSIONS. There will be no brokerage or other
leasing commissions payable in connection with any of the Tenants under
presently existing Leases or new leases or amendments thereto following the
Closing.
9.6 ASSIGNMENT. All of the Leases are assignable to Buyer in
connection with the transfer of the Property without the necessity for any
approval, consent or additional payment, except as may be required by any Loan
Obligations which Buyer assumes.
9.7 EXISTING CONTRACTS. Except as set forth on the schedule
attached hereto as SCHEDULE 9.7, neither Seller nor any agent of Seller has
executed any service, maintenance, repair, management, supply or other contracts
affecting the Property which would be binding on Buyer subsequent to the
Closing. All of the contracts are either (i) assignable to Buyer in connection
with its purchase of the Property without the necessity for any approval,
consent or additional payment, or (ii) terminable upon delivery of 30 days'
prior notice. True, correct and complete copies of the contracts have been
delivered to Buyer.
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The contracts are free from any default by Seller and, to the best knowledge of
Seller, free from any default by any other party thereto.
9.8 INSURANCE. All premiums due on all insurance policies
maintained by Seller with respect to the Property have been paid by Seller and
Seller will maintain such insurance policies from the Execution Date through the
Closing Date or earlier termination of this Agreement. Seller has not received
and has no knowledge of any written notice or request from any insurance company
requesting the performance of any work or alteration with respect to all or any
portion of the Property. Seller has received no written notice from any
insurance company concerning any defects or inadequacies in the Property which,
if not corrected, would result in the termination of insurance coverage or
increase its cost.
9.9 LITIGATION. Except as disclosed on the schedule attached
hereto as SCHEDULE 9.9 (the "LITIGATION SCHEDULE), there is no action, suit or
proceeding pending or, to the knowledge of the Seller, threatened against or
affecting the Seller, or to which Seller is a party, in any court, before any
arbitrator or before or by any governmental body which: (i) in any manner
raises any question affecting the validity or enforceability of this Agreement
or any other agreement or instrument to which Seller is a party or by which it
is bound and that is or is to be used in connection with, or is contemplated by,
this Agreement, (ii) could materially and adversely affect the business,
financial position or results of operations of the Seller; (iii) could
materially and adversely affect the ability of the Seller to perform its
obligations hereunder, or under any document to be delivered pursuant hereto;
(vi) could create a lien on the Property, any part thereof or any interest
therein; or (v) could otherwise materially and adversely affect the Property,
any part thereof or any interest therein or the use, operation, condition or
occupancy thereof. Except for evictions or similar actions brought against
Tenants in the ordinary course of Seller's operation of the Property, Seller
shall not commence or allow to be commenced on its behalf any action, suit or
proceeding with respect to all or any portion of the Property without the prior
written consent of Buyer, which shall not be unreasonably withheld. No
attachments, execution proceedings, assignments for the benefit of creditors,
insolvency, bankruptcy, reorganization or other proceedings are pending, or, to
the best of Seller's knowledge, threatened, against Seller.
9.10 COMPLIANCE WITH LAWS. To Seller's knowledge, the Property is
in full compliance with all existing laws, rules, regulations, ordinances and
20
orders of all applicable federal, state, city and other governmental authorities
in effect as of the date of this Agreement with respect to the Property
(collectively, "LAWS"), including, without limitation, (i) the Americans with
Disabilities Act, 42 U.S.C. Section 12102, et seq., together with all rules,
regulations and official interpretations promulgated pursuant thereto, and (ii)
all Laws with respect to zoning, building, fire and health codes and sanitation.
9.11 EMPLOYEES. There are no employees of Seller employed in
connection with the use, management, maintenance or operation of the Property
whose employment will continue after the Closing Date. There is no bargaining
unit or union contract relating to any employees of Seller.
9.12 CERTIFICATES OF OCCUPANCY. To Seller's knowledge, Seller has
all necessary valid, final and unconditional certificates of occupancy, or the
equivalent permitting required by the applicable licensing agency, for the
current use and occupancy of each of the Projects.
9.13 EXISTING APPROVALS. The documents set forth on SCHEDULE 9.13
attached hereto (collectively, the "APPROVALS") are in full force and effect
and, to Seller's knowledge, constitute all necessary or appropriate
certifications, approvals, consents, authorizations, waivers, licenses,
variances, permits, easements and rights of way, including proofs of dedication,
which are required by any governmental authority in connection with the
ownership, development, management, use and maintenance of the Property. None
of the Approvals has been assigned or encumbered except for any Loan Obligations
which may be assumed by Buyer. Seller has no knowledge of any governmental
action to suspend or revoke any of the Approvals.
9.14 CONDEMNATION; SPECIAL ASSESSMENTS. Except as disclosed on
SCHEDULE 9.14 attached hereto or depicted on any PTR, there is no pending or, to
the best of Seller's knowledge, contemplated condemnation, eminent domain or
similar proceeding or special assessment which would affect the Property or any
part thereof in any way whatsoever.
9.15 TOXIC OR HAZARDOUS MATERIALS.
9.15.1 DEFINITIONS.
(a) "ENVIRONMENTAL CLAIM" means any claim, action, cause of
action, investigation or written notice by any person or entity alleging
potential
21
liability (including, without limitation, potential liability for investigatory
costs, cleanup costs, governmental response costs, natural resources damages,
property damages, personal injuries, or penalties) arising out of, based on or
resulting from (i) the manufacture, treatment, processing, distribution, use,
transport, handling, deposit, storage, disposal, leaking or other presence, or
release into the environment of any "Hazardous Substance" (as defined below) in,
at, on, under or about any location, whether or not owned or operated by Seller
or (ii) circumstances forming the basis of any violation, or alleged violation,
of any "Environmental Law" (as defined below).
(b) "ENVIRONMENTAL LAWS" means all applicable federal, state,
local and foreign laws and regulations relating to pollution or protection of
human health or the environment, including, without limitation, laws and
regulations relating to emissions, discharges, releases or threatened releases
of Hazardous Substances, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Substances, including, without limitation, the Resource Conservation
and Recovery Act (42 U.S.C. 6901 ET SEQ.), as amended, and the Comprehensive
Environmental Response, Compensation and Liability Act (42 U.S.C. 9601, ET
SEQ.), as amended.
(c) "HAZARDOUS SUBSTANCE" means any chemical, pollutant,
contaminant, waste, toxic substance, petroleum or petroleum product defined in,
governed under or regulated pursuant to any Environmental Laws, including,
without limitation, the Resource Conservation and Recovery Act (42 U.S.C. 6901
ET SEQ.), as amended, the Comprehensive Environmental Response, Compensation and
Liability Act (42 U.S.C. 9601, ET SEQ.), as amended, and any state analogs or
counterparts, as amended. Hazardous Substances shall exclude usual and
customary cleaning and other supplies necessary for the normal operations,
maintenance and/or occupancy of the Property that are used and stored in a safe
location in compliance with all Environmental Laws.
9.15.2 REPRESENTATIONS AND WARRANTIES. Seller represents and
warrants to and agrees with Buyer that, as of the Execution Date, and as of the
Closing, and except as disclosed in the reports which are set forth in SCHEDULE
9.15.2 attached hereto (the "REPORTS"): (i) to Seller's knowledge, Seller is in
compliance with all applicable Environmental Laws relating to the Property,
which compliance includes, but is not limited to, the possession by Seller of
all permits required under applicable Environmental Laws, and compliance with
the terms and conditions thereof; (ii) Seller has not received any written
communication, whether from a governmental authority, citizens group, employee
or
22
otherwise, that alleges that Seller is not in such compliance and, to Seller's
knowledge, there are no circumstances that may prevent or interfere with such
compliance in the future; (iii) there is no Environmental Claim pending or
threatened with regard to the Property; (iv) to Seller's knowledge, there are no
past or present actions, activities, circumstances, conditions, events or
incidents relating to the Property, including, without limitation, the
manufacture, treatment, processing, distribution, use, transport, handling,
deposit, storage, disposal, leaking, or other presence or release of any
Hazardous Substance, that could form the basis of any Environmental Claim
against Seller or against any person or entity, including, without limitation,
persons or entities whose liability for any such Environmental Claim Seller has
or may have retained or assumed either contractually or by operation of law; and
(v) without in any way limiting the generality of the foregoing, (a) Seller has
not stored, disposed or arranged for the disposal of Hazardous Substances on the
Property, (b) there are no underground storage tanks located on the Property,
(c) there is no asbestos contained in or forming part of any Improvement,
including, without limitation, any building, building component, structure or
office space on the Property, and (d) no polychlorinated biphenyls (PCBs) are
used or stored at the Property.
9.15.3 SURVIVAL. Notwithstanding the limitations of any
provision to the contrary contained herein, the representations and warranties
set forth in Section 9.15.2 shall survive the Closing.
9.16 NO CONFLICTS. The execution and delivery of this Agreement,
the consummation of the transactions herein contemplated, and compliance with
the terms of this Agreement will not conflict with, or, with or without notice
or the passage of time or both, result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, deed of trust,
mortgage, loan agreement, or other document, or instrument or agreement, oral or
written, to which Seller is a party or by which Seller or all or any portion of
the Property is bound, or, to Seller's knowledge, any applicable regulation of
any governmental agency, or any judgment, order or decree of any court having
jurisdiction over Seller or all or any portion of the Property.
9.17 DUE ORGANIZATION; CONSENTS. Sellers are duly organized,
validly existing and in good standing as limited partnerships under the laws of
the State of their formation, with their principal place of business in the
Commonwealth of Massachusetts. All requisite action has been taken by Seller in
connection with entering into this Agreement, and will be taken prior to the
Closing in connection with the execution and delivery of the instruments refer-
23
enced herein and the consummation of the transaction contemplated hereby. No
consent of any partner, shareholder, beneficiary, creditor, investor, judicial
or administrative body, governmental authority or other party is required in
connection herewith which has not been obtained, other than any Loan Obligations
which may be assumed by Buyer.
9.18 SELLER AUTHORITY; VALIDITY OF AGREEMENTS. Seller has full
right, power and authority to execute this Agreement and the instruments
referenced herein, to bind Seller to the terms hereof and thereof, to sell and
convey the Property to Buyer as provided in this Agreement, and to carry out its
obligations hereunder. This Agreement is, and all instruments, documents and
agreements to be executed by Seller in connection herewith shall be, duly
authorized, executed and delivered by Seller and (assuming this Agreement
constitutes a valid and binding obligation of Buyer) shall be valid, binding and
enforceable obligations of Seller (except as enforcement may be limited by (and
subject to) the provisions of the United States Bankruptcy Code and other
applicable laws which affect the rights and remedies of creditors generally).
9.19 FOREIGN INVESTMENT IN REAL PROPERTY TAX ACT. Seller is not a
foreign person within the meaning of 42 USCS Section 1445(f)(3).
9.20 TAXES. There are no liens for "Taxes" (as hereinafter defined)
upon all or any portion of the Property, except liens for Taxes that are not yet
due and payable. As used herein, the term "TAXES" shall mean all taxes,
charges, fees, levies or other assessments, together with any interest and any
penalties, additions to tax or additional amounts imposed by any taxing
authority upon all or any portion of the Property.
9.21 SELLER'S KNOWLEDGE. As used in this Agreement, the words "to
Seller's knowledge" or words of similar import shall be deemed to mean, and
shall be limited to, the actual (as distinguished from implied, imputed or
constructive) knowledge of the employees and officers of the general partners of
each of the Sellers, who are directly responsible for the ownership, operation,
management, and sale of the Property, without such persons having any obligation
to make any independent inquiry or investigation whatsoever. Prior to the
Execution Date, Seller delivered to Buyer a list of the names of such employees
and officers. Such employees and officers are the parties most familiar with
the condition and operation of the Property, and the subject matter of the
representations and warranties made by Seller contained in this Agreement.
Nothing in this Agreement shall be deemed to create or impose any personal
24
liability of any kind whatsoever on any of the shareholders, directors,
officers, employees or agents of the general partners of each Seller or the
within named individual.
9.22 SURVIVAL OF SELLER'S REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Seller contained in this Agreement shall
survive the closing for a period of one (1) year after the Closing Date, and any
claim based upon any alleged breach thereof must be alleged (in writing) within
such one (1) year period. Failure to give notice of any alleged breach within
the time period specified herein shall constitute a waiver of any such claim.
Furthermore, Seller's liability for any such claim shall in no event exceed, (i)
with respect to any Project, the allocable portion of the Purchase Price set
forth on SCHEDULE 9.22, and (ii) with respect to the entire Property, the
aggregate amount of $26,000,000.00. In addition, and notwithstanding any other
provision of this Agreement, if, prior to the Closing, Buyer becomes aware of
any misrepresentation of Seller as a result of Seller's written disclosure to
Buyer or through a written report prepared for Buyer in connection with Buyer's
due diligence, and Buyer nevertheless proceeds to close on the Closing Date,
then Buyer shall be deemed to waive, and hereby waives, any such
misrepresentation.
10. BUYER'S REPRESENTATIONS AND WARRANTIES.
Buyer represents and warrants to Seller, as of the Execution Date and
as of the Closing, as follows:
10.1 NO CONFLICTS. The execution and delivery of this Agreement,
the consummation of the transactions herein contemplated, and compliance with
the terms of this Agreement will not conflict with, or, with or without notice
or the passage of time or both, result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, deed of trust,
mortgage, loan agreement, or other document or instrument to which Buyer is a
party or by which Buyer is bound, or any applicable regulation of any
governmental agency, or any judgment, order or decree of any court having
jurisdiction over Buyer or all or any portion of the Property.
10.2 DUE ORGANIZATION. Buyer is a limited partnership duly
organized and existing in good standing under the laws of the State of Delaware,
with its principal place of business in the State of Colorado. All requisite
partnership action has been taken by Buyer in connection with entering into this
Agreement, and will be taken prior to the Closing in connection with, the
execution and
25
delivery of the instruments referenced herein and the consummation of the
transactions contemplated hereby.
10.3 WAIVERS OF DECEPTIVE TRADE PRACTICES ACT AS TO PROJECTS LOCATED
IN THE STATE OF TEXAS. With respect to that portion of the Property located in
the State of Texas, Buyer acknowledged and agrees, on its own behalf and on
behalf of its assigns and successors, that the Texas Deceptive Trade practices
-- Consumer Protection Act, Subchapter E of Chapter 17 of the Texas Business and
Commerce Code (the "DTPA"), is not applicable to this transaction. Accordingly,
Buyer's rights and remedies with respect to this transaction, and with respect
to all acts or practices of Seller and/or Buyer, past, present, or future, in
connection with this transaction, shall be governed by legal principles other
than the DTPA. In furtherance thereof, Buyer agrees as follows:
(a) Buyer is a business consumer and that it seeks to acquire
by purchase or lease the goods or services that are the subject of this
Agreement for commercial or business use. Buyer further represents that it has
knowledge and experience in financial and business matters that enable it to
evaluate the merits and risks of the business transaction that is the subject of
this Agreement. Buyer also represents that it is not in a significantly
disparate bargaining position in relation to Seller.
(b) Buyer is owned or controlled by a corporation or entity
with assets of Twenty-five Million and No/100 Dollars ($25,000,000.00), or more.
(c) Buyer has been represented by legal counsel in seeking or
acquiring the goods or services that are the subject of this Agreement and that
the transaction contemplated in this Agreement does not involve the purchase or
lease of a family residence occupied or to be occupied as the residence of the
Buyer. Buyer shall cause its legal counsel to sign this Agreement in the space
provided at the end of this Agreement for the purpose of complying with
Section 17.42(a)(3) of the DTPA.
(d) Buyer agrees, on its own behalf and on behalf of its
assigns and successors, that all of its rights and remedies under the DTPA are
WAIVED and RELEASED forever, including specifically, without limitation, all
rights and remedies resulting from or arising out of any and all acts or
practices of Seller in connection with this transaction, whether such acts or
practices occur before or after the execution of this Agreement; PROVIDED,
HOWEVER,
26
notwithstanding anything to the contrary herein, in accordance with
Section 17.42 of the DTPA, Buyer does not waive Section 17.555 of the DTPA.
(e) This provision shall survive the Closing or earlier
termination of this Agreement.
(f) This Section 10.3 is only applicable to the Projects
located in the State of Texas.
10.4 NO OTHER REPRESENTATION OR WARRANTIES; AS-IS. (a) Buyer
agrees that (i) except as, and solely to the extent, specifically set forth in
this Agreement, neither Seller nor any of the employees, agents or attorneys of
Seller make any verbal or written representations, warranties, promises or
guaranties whatsoever to Buyer, whether express or implied, of any sort or
nature relating to the condition (physical, financial or otherwise) or operation
of the Property, the access, fitness for any specific use, merchantability,
habitability, or the lie and topography, of all or any portion of the Property,
the existence, location or availability of utility lines for water, sewer,
drainage, electricity or any other utility, the income-producing potential of
the Property, the competition or market of the Property or the actual or
projected revenue and expenses of the Property, the laws, regulations and rules
applicable to the Property or the compliance (or non-compliance) of the Property
therewith, any environmental laws, regulation and rules (or other laws relative
to Hazardous Materials) applicable to the Property or the compliance (or
non-compliance) of the Property therewith, the quantity, quality or condition of
the articles of personal property included in the transactions contemplated
hereby, the use or occupancy of the Property or any part thereof or any other
matter or thing affecting or relating to the Property or the transactions
contemplated hereby, and Buyer has not relied upon any such representations,
warranties, promises or guarantees or upon any statements made in any
informational brochure with respect to the Property, and (ii) upon the
expiration of the Due Diligence Period and provided Buyer does not elect to
terminate the Agreement as provided for herein, Buyer will have examined the
Property, and based upon such examination, will be familiar with the physical
condition thereof, and will have conducted such investigations of the financial
affairs and management of the Property as Buyer considered appropriate, and
elected to proceed with the transaction having made and relied solely on (1)
Buyer's own independent investigation, inspection, analysis, appraisal,
examination and evaluation of the facts and circumstances, and (2) the express
representations and warranties of Seller as set forth in this Agreement.
27
(b) Except as specifically provided in this Agreement, Buyer
agrees to accept the Property "as is" in its present condition, subject to
reasonable use, wear and tear of the Property between the date of this Agreement
and the Closing Date.
10.5 BUYER'S AUTHORITY; VALIDITY OF AGREEMENTS. Buyer has full
right, power and authority to accept the Property from Seller as provided in
this Agreement and to carry out its obligations hereunder. The individual(s)
executing this Agreement and the instruments referenced herein on behalf of
Buyer have the legal power, right and actual authority to bind Buyer to the
terms hereof and thereof. This Agreement is, and all other documents and
instruments to be executed and delivered by Buyer in connection with this
Agreement shall be, duly authorized, executed and delivered by Buyer and shall
be valid, binding and enforceable obligations of Buyer.
10.6 REPRESENTATIONS TRUE AS OF CLOSING DATE. All of the
representations, warranties and agreements of Buyer set forth in this Agreement
shall be true upon the Execution Date, and shall be deemed to be repeated at and
as of the Closing Date (except as otherwise set forth in writing to Seller).
11. ADDITIONAL COVENANTS.
11.1 ADDITIONAL COVENANTS OF SELLER. In addition to the covenants
and agreements of Seller set forth elsewhere in this Agreement, Seller covenants
and agrees that between the Execution Date and the Closing Date:
11.1.1 TITLE. Seller shall not directly or indirectly sell,
contribute, assign or create any right, title or interest whatsoever in or to
the Property, or create or permit to exist thereon any lien, charge or
encumbrance other than the Permitted Exceptions, or enter into any agreement to
do any of the foregoing, including, without limitation, any new leases (or
renewals, modifications or extensions of any Leases) (other than leases entered
into in the ordinary course of Seller's business) or any new service contracts
(or renewals, modifications or extensions of any existing service contracts),
without the prior written consent of Buyer (which consent shall not be
unreasonably withheld or delayed).
11.1.2 DEVELOPMENT ACTIVITIES. Seller shall not take any
actions with respect to the development of the Property, including, without
limitation, applying for, pursuing, accepting or obtaining any permits,
approvals or other development entitlements from any governmental or other
regulatory
28
entities or finalizing or entering into any agreements relating thereto without
the prior written consent of Buyer (which consent may be granted or withheld in
Buyer's sole and absolute discretion). Seller hereby agrees to reasonably
cooperate with Buyer in Buyer's efforts to obtain such governmental approvals as
Buyer deems necessary to permit Buyer to operate the Property as Buyer wishes at
no cost to Seller, and provided no such approval shall be binding upon the
Property until after the Closing.
11.1.3 INTENTIONALLY OMITTED.
11.1.4 NOTICE OF CHANGE IN CIRCUMSTANCES. Seller shall
promptly notify Buyer of any change in any condition with respect to the
Property or any portion thereof or of any event or circumstance of which Seller
obtains actual knowledge subsequent to the Execution Date which (a) materially
and directly affects the Property or any portion thereof, or the use or
operation of the Property or any portion thereof, (b) makes any representation
or warranty of Seller to Buyer under this Agreement untrue or misleading in any
material respect, or (c) makes any covenant or agreement of Seller under this
Agreement incapable or substantially less likely of being performed.
11.1.5 NO DEFAULTS; MAINTENANCE OF PROPERTY. Seller shall not
default with respect to the performance of any material obligation relating to
the Property, including, without limitation, the payment of all amounts due and
the performance of all obligations with respect to any existing indebtedness or
existing leases or contracts affecting the Property. Seller shall operate and
maintain the Property in accordance with Seller's past practice and all
applicable Laws, rules and regulations affecting the Property or any portion
thereof. Except as otherwise expressly provided herein, Seller shall have no
obligation to make any material capital improvement to the Property.
11.1.6 EXCLUSIVE NEGOTIATIONS. Seller shall (i) remove the
Property from the market, and (ii) cease and refrain from any and all
negotiations with any other prospective optionees or purchasers of the Property.
11.1.7 SERVICE, MANAGEMENT AND EMPLOYMENT CONTRACTS. Seller
shall not enter into, extend, renew or replace any existing service, property
management or employment contracts in respect of the Property without the prior
written consent of Buyer (which consent may be withheld in Buyer's sole and
absolute discretion), unless the same shall be cancellable without penalty or
29
premium, upon not more than thirty (30) days' notice from the owner of the
Property.
12. RISK OF LOSS.
12.1 CONDEMNATION. If, prior to the Closing, all or any material
portion of any of the Projects or any other part of the Property is taken by
condemnation or eminent domain (or is the subject of a pending or contemplated
taking which has not been consummated), Seller shall immediately notify Buyer of
such fact. In such event, Buyer shall have the option to terminate this
Agreement, either (i) in its entirety, provided that three (3) or more Projects
are so affected, or (ii) as to the Project or Projects so affected only, upon
written notice to Seller given not later than thirty (30) days after receipt of
such notice from Seller. If Buyer elects to terminate this Agreement in its
entirety, Escrow Agent shall return the Deposit to Buyer, the parties shall
equally share the cancellation charges of Escrow Agent and Title Company, if
any, and neither party shall have any further rights or obligations hereunder,
other than pursuant to any provision hereof which expressly survives the
termination of this Agreement If Buyer elects to terminate this Agreement only
as to the Project or Projects so affected, then the Purchase Price shall be
reduced by an amount equal to that portion of the Purchase Price allocable to
the affected Projects as set forth on Schedule 9.22. Notwithstanding the
foregoing, Buyer shall have no right to terminate this Agreement as a result of
any non-material taking of any portion of a Project. If Buyer does make its
election as described above or has no right to terminate this Agreement, Seller
shall assign and turn over to Buyer, and Buyer shall be entitled to receive and
keep, all awards for the taking by condemnation and Buyer shall be deemed to
have accepted the Property subject to the taking without reduction in the
Purchase Price.
12.2 CASUALTY. Prior to the Closing and notwithstanding the
pendency of this Agreement, the entire risk of loss or damage by earthquake,
flood, landslide, fire or other casualty shall be borne and assumed by Seller.
If, prior to the Closing any material part of the Improvements located on any of
the Land Parcels or any other part of the Property is damaged or destroyed by
earthquake, flood, landslide, fire or other casualty, Seller shall immediately
notify Buyer of such fact. In such event, Buyer shall have the option to
terminate this Agreement, either (i) in its entirety, provided that three (3) or
more Projects are so affected, or (ii) as to the Project or Projects so affected
only, in the same manner as provided in Section 12.1 hereof upon written notice
to Seller given not later than thirty (30) days after receipt of any such notice
from Seller. Buyer
30
shall have no right to terminate this Agreement as a result of any
non-material damage or destruction of any portion of a Project. If Buyer does
not make an election as described in Section 12.1 or has no right to terminate
this Agreement, Seller shall assign and turn over, and Buyer shall be entitled
to receive and keep, all insurance proceeds payable with respect to such damage
or destruction (which shall then be repaired or not at Buyer's option and cost)
and Buyer shall receive as a credit against the Purchase Price an amount equal
to the deductible amount with respect to the insurance and the parties shall
proceed to the Closing pursuant to the terms hereof without modification of the
terms of this Agreement, and Buyer shall have the right to participate in any
adjustment of the insurance claim.
12.3 MATERIALITY. Materiality for the purposes of Sections 12.1 and
12.2 shall be deemed to mean a claim or loss in excess of $250,000 per Project.
13. REMEDIES.
13.1 DEFAULT BY BUYER. IN THE EVENT THAT THE ESCROW AND THIS
TRANSACTION FAIL TO CLOSE SOLELY AS A RESULT OF THE DEFAULT OF BUYER IN THE
PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT, BUYER AND SELLER AGREE THAT
SELLER'S ACTUAL DAMAGES WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX.
THE PARTIES THEREFORE AGREE THAT IN THE EVENT THAT ESCROW AND THIS TRANSACTION
FAIL TO CLOSE SOLELY AS A RESULT OF THE DEFAULT OF BUYER IN THE PERFORMANCE OF
ITS OBLIGATIONS HEREUNDER, SELLER, AS SELLER'S SOLE AND EXCLUSIVE REMEDY, IS
ENTITLED TO LIQUIDATED DAMAGES IN THE AMOUNT OF THE DEPOSIT (EXCLUSIVE OF
INTEREST AND DIVIDENDS EARNED THEREON). IN THE EVENT ESCROW FAILS TO CLOSE
SOLELY AS A RESULT OF BUYER'S DEFAULT, THEN (I) THIS AGREEMENT AND THE RIGHTS
AND OBLIGATIONS OF BUYER AND SELLER HEREUNDER AND THE ESCROW CREATED HEREBY
SHALL TERMINATE, (II) ESCROW AGENT SHALL, AND IS HEREBY AUTHORIZED AND
INSTRUCTED TO, RETURN PROMPTLY TO BUYER AND SELLER ALL DOCUMENTS AND INSTRUMENTS
TO THE PARTIES WHO DEPOSITED THE SAME, (III) ESCROW AGENT SHALL DELIVER THE
DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON) TO SELLER PURSUANT
TO SELLER'S INSTRUCTIONS, AND THE SAME SHALL BE THE FULL, AGREED AND LIQUIDATED
DAMAGES, AND (IV) ALL TITLE COMPANY AND
31
ESCROW AGENT CANCELLATION CHARGES, IF ANY, SHALL BE CHARGED TO BUYER.
13.2 DEFAULT BY SELLER. IN THE EVENT THAT THE ESCROW AND THIS
TRANSACTION FAIL TO CLOSE SOLELY AS A RESULT OF A DEFAULT OF SELLER IN THE
PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT, BUYER SHALL HAVE THE RIGHT
TO EITHER:
(a) DECLARE THIS AGREEMENT TERMINATED, IN WHICH EVENT THE
DEPOSIT SHALL BE RETURNED TO BUYER AND SELLER SHALL PAY TO BUYER, AS LIQUIDATED
DAMAGES, THE SUM OF $2,600,000.00, SINCE BUYER AND SELLER AGREE THAT BUYER'S
ACTUAL DAMAGES WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX. UPON
TERMINATION OF THIS AGREEMENT AS PROVIDED HEREIN, ALL OF THE RIGHTS OF BUYER AND
SELLER HEREUNDER SHALL IMMEDIATELY TERMINATE, AND THIS AGREEMENT SHALL BE OF NO
FURTHER FORCE OR EFFECT, EXCEPT TO THE EXTENT BUYER IS ENTITLED TO, AND MAY
ENFORCE ITS RIGHTS TO COLLECT, THE SUMS SPECIFIED IN THIS SECTION 13.2(a); OR
(b) ENFORCE SPECIFIC PERFORMANCE OF THE OBLIGATIONS OF SELLER
HEREUNDER; PROVIDED, HOWEVER, IN EXERCISING ITS RIGHT OF SPECIFIC PERFORMANCE,
BUYER MAY NOT REQUIRE SELLER TO EXPEND IN EXCESS OF TWO MILLION SIX HUNDRED
THOUSAND DOLLARS ($2,600,000.00) TO CORRECT ANY DEFECT WHICH SELLER DID NOT
CAUSE; OR
(c) ONLY IN THE EVENT SPECIFIC PERFORMANCE OF THIS AGREEMENT
CANNOT BE OBTAINED BY REASON OF SELLER'S CONVEYANCE OR ENCUMBRANCE OF ALL OR ANY
PART OF THE PROPERTY SUBSEQUENT TO THE DATE OF THIS AGREEMENT, TERMINATE THIS
AGREEMENT, RECEIVE A FULL REFUND OF THE DEPOSIT, AND SEEK DAMAGES FOR THE BREACH
OF THIS AGREEMENT BY SELLER.
32
SELLER AND BUYER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THE
PROVISIONS OF THIS SECTION 13, AND BY THEIR INITIALS IMMEDIATELY BELOW AGREE TO
BE BOUND BY ITS TERMS.
------------------------------ -----------------------------------
Seller's Initials Buyer's Initials
14. BROKERS.
Buyer and Seller each hereby represent, warrant to and agree with each
other that it has not had, and shall not have, any dealings with any third party
to whom the payment of any broker's fee, finder's fee, commission or other
similar compensation shall or may become due or payable in connection with the
transaction contemplated hereby, other than Bear ▇▇▇▇▇▇▇ & Co., Inc., which
Seller agrees to pay pursuant to a separate agreement. Seller shall indemnify,
defend and hold Buyer harmless from and against any and all claims, losses,
damages, costs and expenses (including reasonable attorneys' fees, charges and
disbursements) incurred by Buyer by reason of any breach or inaccuracy of the
representation, warranty and agreement of Seller contained in this Section 14.
Buyer shall indemnify, protect, defend and hold Seller harmless from and against
any and all claims, losses, damages, costs and expenses (including reasonable
attorneys' fees, charges and disbursements) incurred by Seller by reason of any
breach or inaccuracy of the representation, warranty and agreement of Buyer
contained in this Section 14. The provisions of this Section 14 shall survive
the Closing or earlier termination of this Agreement.
15. INDEMNIFICATION.
Buyer hereby agrees to indemnify, defend and hold Seller harmless from and
against any claims, demands, obligations, losses, costs, damages, liabilities,
judgments or expenses (including reasonable attorneys' fees, charges and
disbursements) (collectively, "CLAIMS") arising out of or in connection with the
ownership, operation or maintenance of the Property after the Closing. Seller
hereby agrees to indemnify, defend and hold Buyer harmless from and against any
Claims arising out of or in connection with any and all obligations to,
liabilities to or claims asserted by any third parties pertaining to any injury
to or the death of any person or damage to property of any third parties in any
way
33
relating to or arising out of Seller's ownership, operation or management of the
Property prior to the Closing (except to the extent same is caused by Buyer or
its agents). Each party shall do, execute and deliver, or shall cause to be
done, executed and delivered, all such further acts and instruments which the
other party may reasonably request in order to more fully effectuate the
indemnifications provided for in this Agreement. The provisions of this Section
15 shall survive the Closing.
16. MISCELLANEOUS PROVISIONS.
16.1 GOVERNING LAW. This Agreement and the legal relations between
the parties hereto shall be governed by and construed and enforced in accordance
with the laws of the State of New York, without regard to its principles of
conflicts of law. The parties each hereby irrevocably consent and submit to the
jurisdiction of the courts in the State of New York, for the purposes of all
legal proceedings arising out of or relating to this Agreement.
16.2 ENTIRE AGREEMENT; MODIFICATIONS; WAIVER.
16.2.1 ENTIRE AGREEMENT. This Agreement, including the
exhibits and schedules attached hereto, constitutes the entire agreement between
Buyer and Seller 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, 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. Without in any way limiting the foregoing,
the parties expressly acknowledge and agree that the Letter of Intent, dated
July 18, 1997, is hereby terminated.
16.2.2 MODIFICATION. 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.
16.3 NOTICES. All notices, consents, requests, reports, demands,
deliveries or other communications hereunder (collectively, "NOTICES") shall be
in writing, signed by the party giving the same or by its attorney, and may be
given
34
personally, by registered or certified mail, or by Federal Express (or other
reputable overnight delivery service) as follows:
To Buyer: AIMCO Properties, L.P.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
and to: AIMCO Properties, L.P.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇-▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
With A Copy To: Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
To Seller: c/o First Winthrop Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
With A Copy To: Post & ▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. Post, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
To Escrow Commonwealth Land Title Company
Agent: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇-▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
35
or to such other address or such other person as the addressee party shall have
last designated by notice to the other party. All Notices shall be deemed to
have been given when received. Notices shall be deemed to be timely delivered
if such Notice is received by the intended recipient on or before 6:00 p.m. New
York time on the date of such Notice.
16.4 EXPENSES. Subject to the provision for payment of Closing
Costs in accordance with Section 8.6 hereof, 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.
16.5 ASSIGNMENT.
16.5.1 SELLER'S RIGHT TO ASSIGN. Seller shall not have the
right to assign, this Agreement or any portion therefor to delegate any duties
or obligations arising under this Agreement, voluntarily, involuntarily or by
operation of law, without Buyer's prior written consent.
16.5.2 BUYER'S RIGHT TO ASSIGN. Buyer shall only have the
right, power and authority to assign this Agreement or any portion of this
Agreement or Buyer's rights hereunder or to delegate any duties or obligations
arising under this Agreement, voluntarily, involuntarily or by operation of law,
without Seller's consent, to any "Affiliate" of Buyer; provided, however, that
no such assignment or delegation shall relieve Buyer of its obligations or
liabilities under this Agreement. For the purposes of this Section 16.5.2,
"Affiliate" shall be defined as an entity which Buyer directly, or indirectly
through one or more intermediaries, controls, or is controlled by, or is under
common control with the Buyer.
16.6 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.
16.7 SUCCESSORS AND ASSIGNS; THIRD PARTIES. Subject to and without
waiver of the provisions of Section 16.5 hereof, all of the rights, duties,
benefits, liabilities and obligations of the parties shall inure to the benefit
of, and
36
be binding upon, their respective successors and assigns. 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
or entity, other than the parties hereto and their successors or permitted
assigns, any rights or remedies under or by reason of this Agreement.
16.8 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.
16.9 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.
16.10 TIME OF ESSENCE. Time shall be of the essence with respect to
all matters contemplated by this Agreement.
16.11 FURTHER ASSURANCES. In addition to the actions recited herein
and contemplated to be performed, executed, and/or delivered by Seller and
Buyer, Seller and Buyer agree to perform, execute and/or deliver or cause to be
performed, executed and/or delivered at closing or after Closing any and all
such further acts, instruments, deeds and assurances as may be reasonably
required to consummate the transactions contemplated hereby.
16.12 NUMBER AND GENDER. Whenever the singular number is used, and
when required by the context, the same includes the plural, and the masculine
gender includes the feminine and neuter genders.
16.13 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.
16.14 EXHIBITS. All exhibits attached hereto are hereby incorporated
by reference as though set out in full herein.
16.15 ATTORNEYS' FEES. In the event that either party hereto brings
an action or proceeding against the other party to enforce or interpret any of
the
37
covenants, conditions, agreements or provisions of this Agreement, the
prevailing party in such action or proceeding shall be entitled to recover all
costs and expenses of such action or proceeding, including, without limitation,
attorneys' fees, charges, disbursements and the fees and costs of expert
witnesses.
16.16 BUSINESS DAYS. As used herein, the term "BUSINESS DAY" shall
mean a day that is not a Saturday, Sunday or legal holiday. In the event that
the date for the performance of any covenant or obligation under this Agreement
shall fall on a Saturday, Sunday or legal holiday, the date for performance
thereof shall be extended to the next Business Day. Unless otherwise specified
herein, all references herein to a "day" or "days" shall refer to calendar days
and not Business Days.
16.17 CONFIDENTIALITY. Seller and Buyer and their representatives,
including any brokers or other professionals, shall keep the existence and terms
of this Agreement strictly confidential, except to the extent disclosure is
compelled by law or Buyer's (or Buyer's affiliates) securities reporting
requirements, and then only to the extent of such compulsion, and except to the
potential lenders, managers, underwriters, investors and the like and their
agents, employees, consultants, managers, accountants, lawyers and other
professional advisors on a need to know basis.
38
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
BUYER:
AIMCO PROPERTIES, L.P.,
a Delaware limited partnership
By: AIMCO-GP, Inc.,
Its: General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Its: Vice President
SELLER:
(AS TO PROPERTIES 1-25
IDENTIFIED ON EXHIBIT "B)
BEACON APTS., L.P.
By: Eleven Winthrop Properties, Inc.,
its sole general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
39
BLOSSOM APTS. LIMITED
PARTNERSHIP
By: Eleven Winthrop Properties, Inc.,
its sole general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
COURT APTS., L.P.
By: Eleven Winthrop Properties, Inc.,
its sole general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
FERN APTS. LIMITED PARTNERSHIP
By: Eleven Winthrop Properties, Inc.,
its sole general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
40
FOOTHILLS APTS. LIMITED
PARTNERSHIP
By: Eleven Winthrop Properties, Inc.,
its sole general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
FOX BAY APTS. LIMITED
PARTNERSHIP
By: Eleven Winthrop Properties, Inc.,
its sole general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
FOX APTS. LIMITED PARTNERSHIP
By: Eleven Winthrop Properties, Inc.,
its sole general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
41
GROVE APTS. LIMITED PARTNERSHIP
By: Eleven Winthrop Properties, Inc.,
its sole general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ APTS. LIMITED PARTNERSHIP
By: Eleven Winthrop Properties, Inc.,
its sole general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
HIDDEN APTS. LIMITED PARTNERSHIP
By: Eleven Winthrop Properties, Inc.,
its sole general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
42
ISLAND APTS., L.P.
By: Eleven Winthrop Properties, Inc.,
its sole general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
ORCHID APTS. LIMITED PARTNERSHIP
By: Eleven Winthrop Properties, Inc.,
its sole general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
PINE APTS. LIMITED PARTNERSHIP
By: Eleven Winthrop Properties, Inc.,
its sole general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
43
POLO PARK APTS., L.P.
By: Eleven Winthrop Properties, Inc.,
its sole general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
QUAIL APTS. LIMITED PARTNERSHIP
By: Eleven Winthrop Properties, Inc.,
its sole general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
RIVER APTS. LIMITED PARTNERSHIP
By: Eleven Winthrop Properties, Inc.,
its sole general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
44
SAND APTS. LIMITED PARTNERSHIP
By: Eleven Winthrop Properties, Inc.,
its sole general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SHADE APTS. LIMITED PARTNERSHIP
By: Eleven Winthrop Properties, Inc.,
its sole general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SILK APTS. LIMITED PARTNERSHIP
By: Eleven Winthrop Properties, Inc.,
its sole general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
45
TIMBER APTS. LIMITED PARTNERSHIP
By: Eleven Winthrop Properties, Inc.,
its sole general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
TWIN APTS. LIMITED PARTNERSHIP
By: Eleven Winthrop Properties, Inc.,
its sole general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
WICKER APTS. LIMITED PARTNERSHIP
By: Eleven Winthrop Properties, Inc.,
its sole general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
46
WILDFLOWER APTS., L.P.
By: Eleven Winthrop Properties, Inc.,
its sole general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
WYDEWOOD APTS., L.P.
By: Eleven Winthrop Properties, Inc.,
its sole general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
YORK APTS., L.P.
By: Eleven Winthrop Properties, Inc.,
its sole general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
47
(AS TO PROPERTY 26 IDENTIFIED ON
EXHIBIT "B")
WINTHROP-AUSTIN HOLDINGS, L.P.,
By: Fifteen Winthrop Properties, Inc.,
its sole general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
(AS TO PROPERTIES 27-35 IDENTIFIED
ON EXHIBIT "B")
WINTHROP FLORIDA APARTMENTS
LIMITED PARTNERSHIP
By: Fourteen Winthrop Properties, Inc.,
its sole general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
48
ESCROW AGENT:
The understand Escrow Agent accepts the foregoing Acquisition and Contribution
Agreement and Joint Escrow Instructions and agrees to act as Escrow Agent
thereunder in strict accordance with its terms.
COMMONWEALTH LAND TITLE INSURANCE COMPANY,
a Pennsylvania corporation
BY: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
NAME: ▇▇▇▇▇▇ ▇▇▇▇▇▇
TITLE: NTS COORDINATOR
49
EXHIBIT "A"
LIST OF SELLERS
SELLER
------
# OF
OPERATING PARTNERSHIP PROPERTY UNITS
--------------------- -------- -----
1. Beacon Apts., L.P., Beacon Hill 120
a Delaware limited partnership ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
2. Blossom Apts. Limited Partnership, Blossomtree 125
a Delaware limited partnership ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
3. Courts Apts., L.P., Village Park 871
a Delaware limited partnership ▇▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
4. Fern Apts. Limited Partnership, Colonnade Apts. 197
a Delaware limited partnership ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
5. Foothills Apts. Limited Partnership, Foothills 270
a Delaware limited partnership ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
6. Fox Apts. Limited Partnership, Foxtree 487
a Delaware limited partnership ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
7. Fox Bay Apts. Limited Partnership, Fox Bay 232
a Delaware limited partnership ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
8. Grove Apts. Limited Partnership, Grovetree (The Arbors) 200
a Delaware limited partnership ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
9. ▇▇▇▇▇ Apts. Limited Partnership, Hazeltree 310
a Delaware limited partnership ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
10. Hidden Apts. Limited Partnership, Hiddentree 261
a Delaware limited partnership ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
1
# OF
OPERATING PARTNERSHIP PROPERTY UNITS
--------------------- -------- -----
11. Island Apts., L.P., Islandtree 216
a Delaware limited partnership Two ▇▇▇▇▇▇ ▇▇▇▇▇▇ Blvd.
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
12. Orchid Apts. Limited Partnership, Orchidtree 278
a Delaware limited partnership ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
13. Pine Apts. Limited Partnership, Pine Creek 233
a Delaware limited partnership ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇. ▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
14. Polo Park Apts., L.P., Polo Park 184
a Delaware limited partnership ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
15. Quail Apts. Limited Partnership, Quailtree 184
a Delaware limited partnership ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
16. River Apts. Limited Partnership, Rivercrest 210
a Delaware limited partnership ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
17. San Apts. Limited Partnership, Sand Pebble 208
a Delaware limited partnership ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
18. Shade Apts. Limited Partnership, Shadetree 123
a Delaware limited partnership ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
19. Silk Apts. Limited Partnership, Silktree 86
a Delaware limited partnership ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
20. Timber Apts. Limited Partnership, Timbertree 387
a Delaware limited partnership ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
2
# OF
OPERATING PARTNERSHIP PROPERTY UNITS
--------------------- -------- -----
21. Twin Apts. Limited Partnership, Twinbridge 104
a Delaware limited partnership ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
22. Wicker Apts. Limited Partnership, Wickertree 226
a Delaware limited partnership ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
23. Wildflower Apts., L.P., Wildflower 264
a Delaware limited partnership ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
24. Wydewood Apts., L.P., Wydewood 218
a Delaware limited partnership ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
25. York Apts., L.P., Yorktree 293
a Delaware limited partnership ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
26. Winthrop-Austin Holdings, L.P., The Hills 336
a Delaware limited partnership ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
27. Winthrop Florida Apartments, ▇▇▇▇▇ Rock 84
Limited Partnership, 12906 ▇▇▇▇▇ Rock Dr.
a Maryland limited partnership ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
28. Winthrop Florida Apartments, Freedom Place Club 352
Limited Partnership, 8335 Freedom Crossing
a Maryland limited partnership ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
29. Winthrop Florida Apartments, ▇▇▇▇▇ Club 134
Limited Partnership, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
a Maryland limited partnership ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
30. Winthrop Florida Apartments, Sand Castles 138
Limited Partnership, 2751 EFM 518
a Maryland limited partnership ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
3
# OF
OPERATING PARTNERSHIP PROPERTY UNITS
--------------------- -------- -----
31. Winthrop Florida Apartments, Shadow Lake 136
Limited Partnership, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
a Maryland limited partnership ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
32. Winthrop Florida Apartments, Surrey Oaks 152
Limited Partnership, 3001 Crystral Springs
a Maryland limited partnership ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
33. Winthrop Florida Apartments, Tall Timbers 256
Limited Partnership, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
a Maryland limited partnership ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
34. Winthrop Florida Apartments, Windsor Landing 200
Limited Partnership, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
a Maryland limited partnership ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
35. Winthrop Florida Apartments, Woodhollow 108
Limited Partnership, 3524 Greystone
a Maryland limited partnership ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
4