EXHIBIT (d)(1)
AGREEMENT OF SALE AND PURCHASE
THIS AGREEMENT OF SALE AND PURCHASE (this "AGREEMENT") is made effective
as of the 14th day of February, 2005, by and between SAN XXXX DEL CENTRO LIMITED
PARTNERSHIP, a COLORADO LIMITED PARTNERSHIP ("SELLER"), and AIMCO EQUITY
SERVICES, INC., A VIRGINIA CORPORATION.
W I T N E S S E T H :
In consideration of the covenants and provisions contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Agreement to Sell and Purchase. Seller agrees to sell to Buyer, and
Buyer agrees to purchase from Seller, subject to all of the terms and conditions
of this Agreement, all of Seller's right, title and interest in and to the
residential apartment project commonly known as "SAN XXXX DEL CENTRO
APARTMENTS", located in Boulder, Boulder County, Colorado, consisting of the
following:
(a) Real Property. That certain tract of land more fully described
on Exhibit A attached to this Agreement and incorporated herein by this
reference, together with all improvements now or hereafter located thereon and
all appurtenances thereto (including, without limitation, all easements,
rights-of-way, water rights, mineral and timber rights, development rights,
privileges, licenses, and other rights and benefits belonging to, running with
the owner of, or in any way relating to the aforesaid tract of land and all
trees, shrubbery and plants), together with all right, title and interest of
Seller in and to any land lying in the bed of any street, opened or proposed,
abutting such tract of land, and all right, title and interest of Seller in and
to any unpaid award for the taking by eminent domain of any part of the
aforesaid tract of land or for damage to such tract of land by reason of a
change of grade of any street (collectively, the "REAL PROPERTY"); and
(b) Personal Property. At Closing, Buyer shall reimburse Seller for
the total amount of funds: All fixtures, furniture, equipment, elevators, and
other personal property owned by Seller and attached or appurtenant to, or
located in or on, or used in connection with the Real Property, together with
all intangible personal property used in the ownership, operation or maintenance
of the Real Property, with the exception, however, of any replacement reserves,
escrow accounts, operating accounts and residual receipts accounts now or
hereafter held by Seller (collectively, the "PERSONAL PROPERTY" and, together
with the Real Property, the "PROPERTY")].
2. Purchase Price. The purchase price (the "PURCHASE PRICE") for the
Property, subject to adjustments as provided in this Agreement, shall be Seven
Million Dollars($7,000,000.00), and shall be paid as follows:
(a) ONE THOUSAND DOLLARS ($1,000.00) (the "DEPOSIT") shall be paid
upon the execution of this Agreement by check drawn to the order of Seller or by
wire transfer of immediately available funds to an account specified by Seller.
Seller acknowledges receipt of the Deposit. The Deposit shall be non-refundable
except as set forth in this Agreement.
(b) The balance of the Purchase Price shall be paid at "Closing" (as
defined in Section 4(a)) by any of the following methods, at Buyer's election:
in cash or by certified, cashier's or treasurer's check, or by wire transfer of
immediately available funds.
3. Defaults.
(a) Upon Default.
(i) If Buyer, without the right to do so and in default of its
obligations under this Agreement, fails to complete Closing, or otherwise
defaults under or breaches this Agreement, Seller shall have the right to retain
the Deposit as liquidated damages and not as a penalty. The right of Seller to
be paid the Deposit shall be Seller's exclusive and sole remedy, and Seller
waives any right to recover the balance of the Purchase Price, or any part
thereof, and the right to pursue any other remedy for Buyer's breach of this
Agreement permitted by law or in equity against Buyer or any of Buyer's
"Affiliates". For purposes of this Agreement, "AFFILIATES" shall mean any of a
party's affiliates, parent and subsidiary entities, successors, assigns,
partners, managers, members, employees, officers, directors, trustees,
shareholders, counsel, representatives and agents. BUYER ACKNOWLEDGES THAT
SELLER'S DAMAGES UPON BUYER'S DEFAULT SHALL BE DIFFICULT TO CALCULATE AND THE
DEPOSIT CONSTITUTES REASONABLE LIQUIDATED DAMAGES AND NOT A PENALTY.
(ii) If Seller, without the right to do so and in default of
its obligations under this Agreement, fails to complete Closing or otherwise
defaults under or breaches this Agreement, Buyer shall have the right either (a)
to be paid the Deposit, or (b) to specific performance and injunctive relief;
Buyer waives any right to any and all other remedies for Seller's breach of this
Agreement permitted by law or in equity against Seller or any of Seller's
Affiliates, including any right to damages.
(b) Upon Closing. If Closing is completed hereunder, Seller shall
retain the Deposit and the same shall be credited against the balance of the
Purchase Price due at Closing.
4. Closing.
(a) Place of Closing. The closing and settlement of the transaction
contemplated by this Agreement ("CLOSING") shall take place by escrow closing
with the Title Company (as defined in Section 5(a)) wherein neither Buyer nor
Seller need be physically present.
(b) Closing Date. Closing Date shall occur on DECEMBER 30, 2005 or
such earlier date as the parties may agree.
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5. Condition of Title.
(a) Title to Real Property. Title to the Real Property and Seller's
interest therein shall be good and marketable, and free and clear of all liens,
restrictions, easements, encumbrances, leases, tenancies and other title
objections, except for the "Permitted Encumbrances" (as hereinafter defined),
and shall be insurable as such and as provided in this Agreement at ordinary
rates by FIDELITY NATIONAL TITLE INSURANCE COMPANY, XXX XXXX XXXXXX, XXX XXXX,
XXX XXXX 00000, ATTENTION: XX. XXXXX XXXXX, TELEPHONE (000) 000-0000, FACSIMILE
(000) 000-0000, (the "TITLE COMPANY" or "ESCROW AGENT") pursuant to an ALTA
Owner's Policy of Title Insurance. The term "PERMITTED ENCUMBRANCES" shall mean
the items set forth on Exhibit B to this Agreement and any and all written
tenant leases for apartment units at the Property (the "TENANT LEASES").
(b) Title to Personal Property. Title to the Personal Property shall
be good and marketable, and free and clear of all liens, security interests and
other encumbrances.
(c) Inability to Convey. If, at Closing, Seller is unable to convey
title to the Real Property to Buyer in accordance with the requirements of this
Agreement, Buyer shall have the option of: (i) terminating Buyer's obligations
under this Agreement and returning the Deposit to Buyer, in which event this
Agreement shall be terminated and neither party shall have any obligations
hereunder, (ii) proceeding to Close, or (iii) adjourning Closing for a period of
up to thirty (30) days in order to permit Seller the opportunity to correct such
defects, encumbrances and other title objections (except for Permitted
Encumbrances), and if by such date, Seller has failed to do so, then Buyer shall
again have the options set forth in Section 5(c)(i) and (ii) above. If Buyer
terminates this Agreement pursuant to this Section 5(c), Seller shall
immediately pay the Deposit to Buyer.
6. Delivery of Possession. At the Closing, Seller shall deliver actual
physical possession of the Property free of any leases, claims to or rights of
possession other than the Tenant Leases.
7. Service Agreements. Buyer shall notify Seller on or before the last day
of the Lender Consent Contingency Period of any maintenance, service or similar
contract which relate to the ownership, maintenance, construction or repair
and/or operation of the Property and are cancelable on 90 days' or shorter
notice without penalty which Buyer does not desire to assume ("TERMINATED
CONTRACTS"). Promptly after it is determined that (a) Buyer has no title
objections, or (b) Buyer has elected to proceed to Closing, Seller shall give
notice of cancellation to each service provider under the Terminated Contracts.
To the extent that as of Closing any of the Terminated Contracts have not yet
terminated (due to less advance notice of cancellation than required
thereunder), Buyer shall assume the obligations to such Terminated Contract
after Closing until the cancellation becomes effective. To the extent that any
Service Agreement to be assumed by Buyer (including any Service Agreements that,
because of advance notice requirements, will be temporarily assumed by Buyer
pending the effective date of termination after the Closing Date) is assignable
but requires the applicable vendor to consent to the assignment or assumption of
the Service Agreement by Seller to Buyer, then, prior to the Closing, Buyer
shall be responsible for obtaining from each applicable vendor a consent to the
assignment of the Service Agreement by Seller to Buyer (and the assumption by
Buyer of all obligations under such Service Agreement). For purposes of this
Agreement, "SERVICE
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AGREEMENTS" shall mean all contracts, agreements, equipment leases, purchase
orders, maintenance, service, or utility contracts and similar contracts,
excluding Tenant Leases, which relate to the ownership, maintenance,
construction or repair and/or operation of the Property, but only to the extent
assignable by their terms or applicable law (including any contracts that are
assignable with the consent of the applicable vendor).
8. Apportionments.
(a) Taxes, Rents, etc. Real estate taxes (on the basis of the fiscal
years for which such taxes are assessed, or the most recent assessment if the
assessment for the actual year of Closing is unavailable) on the Real Property,
rents and other sums paid by tenants and collected by Seller prior to Closing
under the Tenant Leases, payments due under Service Agreements which are to be
assigned to Buyer pursuant to Section 7 of this Agreement and utility charges
for utilities not charged to tenants, shall be apportioned pro rata between
Seller and Buyer on a per diem basis as of the Closing Date.
(b) Transfer Taxes. All recordation and documentary fees, stamps and
taxes imposed on the Deed or the financing transaction contemplated by this
Agreement shall be paid by Buyer. Buyer and Seller shall each pay one half of
any fee of the Escrow Agent.
(c) Utility Meter Readings. Seller shall use reasonable efforts to
obtain readings of the water, electric, gas and other utility meters servicing
the Real Property to a date no sooner than five (5) days prior to the Closing
Date. At or prior to Closing, Seller shall pay all charges based upon such meter
readings, adjusted to include a reasonable estimate of the additional charges
due for the period from the dates of the respective readings until the Closing
Date. If Seller is unable to obtain readings of any meters prior to the Closing
Date, Closing shall be completed without such readings and upon the obtaining
thereof, Seller shall pay to Buyer the charges incurred prior to the Closing
Date.
(d) Security Deposits. The total sum of all tenant security deposits
held by Seller under the Tenant Leases, together with all interest earned
thereon as of the Closing Date, shall be given to Buyer at Closing as a credit
against the Purchase Price.
(e) Closing Costs/Escrow Charges. Buyer shall pay any premiums or
fees with respect to its title insurance policy for the Property (the "TITLE
POLICY") in excess of the base premium for the Title Policy, and one-half of the
customary closing costs of the Escrow Agent. Seller shall pay the base premium
for the Title Policy, and one-half of the customary closing costs of the Escrow
Agent.
9. Representations and Warranties.
(a) Seller, to induce Buyer to enter into this Agreement and to
complete Closing, makes the following representations and warranties to Buyer as
of the date of this Agreement and as of the Closing Date (collectively, the
"SELLER REPRESENTATIONS"):
(i) Other than the Tenant Leases, the Property is not subject
to any written lease executed by Seller or, to Seller's knowledge, any other
possessory interests of any person.
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(ii) Seller is not a "foreign person" as that term is used and
defined in Section 1445 of the Internal Revenue Code of 1986, as amended.
(iii) To Seller's knowledge, there are no actions,
proceedings, litigation or governmental investigations or condemnation actions
either pending or threatened against the Property.
(iv) To Seller's knowledge, Seller has not received any
written notice of any material default by Seller under any Service Agreements
(but not the Terminated Contracts).
(v) To Seller's knowledge, on or prior to the Closing Date,
Seller shall have delivered or made available to Buyer all the following
materials related to the Property within its actual possession and located at
the Property (collectively, the "MATERIALS"): plans and specifications,
engineering reports, feasibility studies, Tenant Leases, Service Agreements,
governmental permits and approvals, surveys and title information.
(vi) To Seller's knowledge, Seller has not received written
notice, which remains outstanding, of any violation of any applicable law,
ordinance, code, rule, order, regulation or requirement of any governmental
authority.
(vii) To Seller's knowledge, Seller has not received any
written notice of any pending or threatened condemnation or eminent domain
proceeding ("TAKING") in connection with the Property.
(viii) Except for the requirement to obtain the Consents, the
execution and delivery of this Agreement and the performance by Seller of its
obligations hereunder have been duly authorized by all requisite partnership
action, will not conflict with or result in a breach of any of the terms,
conditions or provisions of Seller's limited partnership agreement, and will not
conflict with or result in a breach of any law, regulation or order, or any
agreement or instrument to which Seller is a party or by which Seller is bound
or the Property is subject. This Agreement and the documents to be delivered by
Seller pursuant to this Agreement each will constitute the legal, valid, and
binding obligations of Seller, enforceable in accordance with their respective
terms, covenants, and conditions.
As used in this SECTION 9(a), "SELLER'S KNOWLEDGE" means the actual
knowledge of the "Property Manager" (as hereinafter defined) of the Property and
shall not be construed to refer to the knowledge of any other partner, officer,
director, agent, employee or representative of the Seller, or any affiliate of
the Seller, or to impose upon the Property Manager any duty to investigate the
matter to which such actual knowledge or the absence thereof pertains, or to
impose upon the Property Manager any individual personal liability. For purposes
of this Agreement, "PROPERTY MANAGER" shall mean Xx. Xxx Xxxxxxxx.
(b) Buyer, to induce Seller to enter into this Agreement and to
complete Closing, makes the following representations and warranties to Seller
as of the date of this Agreement and as of the Closing Date (collectively, the
"BUYER REPRESENTATIONS"):
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(i) The execution and delivery of this Agreement and the
performance by Buyer of its obligations hereunder have been duly authorized by
all requisite corporate action, and will not conflict with or result in a breach
of any of the terms, conditions or provisions of the Buyer, and will not
conflict with or result in a breach of Buyer's corporate charter, any law,
regulation or order, or any agreement or instrument to which Buyer is a party or
by which Buyer is bound.
(ii) This Agreement and the documents to be delivered by Buyer
pursuant to this Agreement, will each constitute the legal, valid, and binding
obligations of Buyer, enforceable in accordance with their respective terms,
covenants, and conditions.
10. Survival.
(a) Survival of Seller Representations, Warranties and Obligations.
The Seller Representations shall remain in effect for a period of six (6) months
following the Closing Date. Seller shall have no liability after such 6-month
period with respect to the Seller Representations except to the extent that
Buyer has requested arbitration against Seller during such 6-month period for
breach of any Seller Representations. Under no circumstances shall Seller be
liable to Buyer for more than $20,000.00 in any individual instance or in the
aggregate for all breaches of Seller Representations, nor shall Buyer be
entitled to bring any claim for a breach of Seller's Representations unless the
claim for damage (either in the aggregate or as to any individual claim) by
Buyer exceeds $5,000.00. In the event that Seller breaches any of the Seller
Representations, and Buyer had knowledge of such breach prior to the Closing
Date, Buyer shall be deemed to have waived any right of recovery and, with
respect to such breach, Seller shall have no liability in connection therewith.
(b) Survival of Buyer Representations, Warranties and Obligations.
All of the Buyer Representations and all of the obligations of Buyer hereunder
shall survive Closing and delivery of the Deed for a period of six (6) months
following the Closing Date.
11. Operations Prior to Closing. Between the date of the execution of this
Agreement and Closing:
(a) Repairs, Maintenance, Operations and Management. Seller shall
manage, operate, maintain and repair the Property in the same manner as the
Property has been managed, operated, maintained and repaired prior to the date
of this Agreement.
(b) Buyer's Access. Seller shall continue to make available to Buyer
and Buyer's attorneys, architects, engineers and other representatives,
reasonable access to the Property and all records and files relating thereto.
Buyer hereby acknowledges that, prior to the date hereof, it and its attorneys,
architects, engineers and other representatives, have been afforded access to
the Property and to all records and files relating thereto for the purposes of
inspections, preparation of plans, taking of measurements, making of surveys,
making of appraisals, and generally for the ascertainment of the condition of
the Property. Buyer further acknowledges that the Materials have been delivered
or made available to Buyer prior to the date hereof.
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(c) "AS-IS." Buyer agrees that, except for Seller's Representations,
neither Seller nor any agent or representative of Seller has made any
representation regarding the Property and Buyer is purchasing the Property
"AS-IS, WITH ALL FAULTS." Buyer agrees that Seller shall not be responsible or
liable to Buyer for any defects, errors or omissions, or on account of any
conditions affecting the Property. Buyer, its successors and assigns, and anyone
claiming by, through or under Buyer, hereby fully releases Seller and Seller's
Affiliates from, and irrevocably waives its right to maintain, any and all
claims and causes of action that it or they may now have or hereafter acquire
against Seller or Seller's Affiliates with respect to any and all damages,
mechanics' liens, liabilities, losses, demands, actions, causes of action,
claims, costs and expenses (including reasonable attorneys' fees, including the
cost of in-house counsel and appeals) arising from or related to any defects,
errors, omissions or other conditions affecting the Property. If Seller provides
or has provided any documents, summaries, opinions or work product of
consultants, surveyors, architects, engineers, title companies, governmental
authorities or any other person or entity with respect to the Property, Buyer
and Seller agree that Seller has done so or shall do so only for the convenience
of both parties, Buyer shall not rely thereon and the reliance by Buyer upon any
such documents, summaries, opinions or work product shall not create or give
rise to any liability of or against Seller or Seller's Affiliates. Prior to
Closing, Seller shall have the right, but not the obligation, to enforce its
rights against any and all Property occupants, guests or tenants. Buyer agrees
that the departure or removal, prior to Closing, of any of such guests,
occupants or tenants shall not be the basis for, nor shall it give rise to, any
claim on the part of Buyer, nor shall it affect the obligations of Buyer under
this Contract in any manner whatsoever; and Buyer shall close title and accept
delivery of the Deed with or without such tenants in possession and without any
allowance or reduction in the Purchase Price under this Contract. Buyer hereby
releases Seller from any and all claims and liabilities relating to the
foregoing matters. The provisions of this Section 11(c) shall survive the
Closing and delivery of the Deed to Buyer.
12. Casualty.
(a) Major Casualty. If at any time prior to the Closing Date any
portion of the Property is destroyed or damaged as a result of fire or any other
casualty ("CASUALTY") and the cost of repair is more than $300,000.00, Seller
shall promptly give written notice ("CASUALTY NOTICE") thereof to Buyer. If the
Property is the subject of a Casualty, Buyer shall have the right, at its sole
option, of terminating this Agreement (by written notice to Seller given within
thirty (30) days after receipt of the Casualty Notice from Seller). If Buyer
terminates this Agreement pursuant to this Section, Seller shall forthwith pay
the Deposit to Buyer. If Buyer does not terminate this Agreement, (i) any
deductibles and the net proceeds of any insurance with respect to the Property
paid to Seller between the date of this Agreement and the Closing Date and not
used by Seller for repairs to the Property in connection with such Casualty
shall be paid to Buyer at the time of Closing, and (ii) all unpaid claims and
rights in connection with losses to the Property shall be assigned to Buyer at
Closing without in any manner affecting the Purchase Price.
(b) Minor Casualty. If the cost of repair is less than $300,000.00,
then the transaction contemplated by this Agreement shall be closed in
accordance with the terms of this Agreement, notwithstanding the Casualty;
provided, however, that Seller shall make such repairs to the extent of any
recovery from insurance carried on the Property if they can be reasonably
effected before Closing. If Seller is unable to effect such repairs, then at
Closing, Buyer shall be
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paid (i) any deductibles and the net proceeds of any insurance with respect to
the Property paid to Seller between the date of this Agreement and the Closing
Date and not used by Seller for repairs to the Property in connection with such
Casualty shall be paid to Buyer at the time of Closing, and (ii) all unpaid
claims and rights in connection with losses to the Property shall be assigned to
Buyer at Closing without in any manner affecting the Purchase Price.
13. Eminent Domain. If at any time prior to the Closing Date, a Taking
affects all or any part of the Property, if any proceeding for a Taking is
commenced, or if written notice of the contemplated commencement of a Taking is
given, Seller shall promptly give written notice ("TAKING NOTICE") thereof to
Buyer. Buyer shall have the right, at its sole option, of terminating this
Agreement by written notice to Seller within thirty (30) days after receipt by
Buyer of the Taking Notice. If Buyer terminates this Agreement pursuant to this
Section, Seller shall forthwith pay the Deposit to Buyer. If Buyer does not
terminate this Agreement, the Purchase Price shall be reduced by the total
amount of any awards or damages received by Seller and Seller shall, at Closing,
be deemed to have assigned to Buyer all of Seller's right, title and interest in
and to any awards or damages to which Seller may have become entitled or may
thereafter be entitled by reason of any exercise of the power of eminent domain
or condemnation with respect to or for the Taking of the Property or any portion
thereof.
14. Conditions of Buyer's Obligations.
(a) Conditions. The obligations of Buyer under this Agreement are
subject to the satisfaction of each of the following conditions (any one of
which may be waived in whole or in part in writing by Buyer at or prior to
Closing):
(i) at the time of Closing, all of the representations and
warranties by Seller set forth in this Agreement shall be true and correct at
and as of the Closing Date in all respects as though such representations and
warranties were made both at and as of the date of this Agreement and at and as
of the Closing Date; provided, however, that for purposes only of satisfying
this condition contained in this Section, any representation or warranty stated
to be "to the Seller's knowledge" shall be read without reference to any such
qualification; and
(ii) at the time of Closing, Seller shall have performed all
covenants, agreements and conditions required by this Agreement to be performed
by Seller prior to or as of the Closing Date.
(b) Failure of Condition. If any of the conditions set forth in
Sections 14(a)(i) or (ii) are not satisfied as of the Closing Date, Buyer shall
have the right, at Buyer's sole option (by written notice to Seller) to (i)
terminate Buyer's obligations under this Agreement and recover the Deposit, (ii)
complete Closing notwithstanding the unsatisfied condition, or (iii) adjourn the
Closing to a date not later than thirty (30) days after the scheduled Closing
Date, during which period Seller shall use its reasonable efforts to satisfy any
unsatisfied conditions within Seller's reasonable power to satisfy.
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(i) Buyer shall, during the period (the "INSPECTION PERIOD")
from the date Buyer receives from Seller a fully executed counterpart of this
Agreement to September 30, 2005, have the opportunity to examine the Property,
the Permitted Encumbrances, the Tenant Leases and any items to be delivered by
Seller to Buyer, to make environmental surveys, and to conduct such other
surveys, tests, investigations and inspections as Buyer, in its discretion, may
elect.
(ii) Seller will cooperate with buyer and buyer's agents in
buyer's investigation.
(iii) Buyer shall have the right to terminate this Agreement
by giving written notice of termination to Seller not later than five (5) days
after the end of the Inspection Period.
(c) Lender Consent Contingency.
(i) Buyer acknowledges that the Property is currently
encumbered by (A) a first mortgage loan dated MAY 1, 1970 in favor of The
Colorado Springs National Bank and insured by the Federal Housing Administration
and (collectively, the "LOAN")]. The current holder of the Loan is hereinafter
collectively referred to as the "LENDER". Buyer shall, during the period (the
"LENDER CONSENT CONTINGENCY PERIOD") commencing on the date on which Buyer
receives from Seller a fully executed counterpart of this Agreement and ending
on December 15, 2005, use reasonable efforts to pursue obtaining the written
consents to the transactions described in this Agreement from the Lender and
United States Department of Housing and Urban Development ("HUD") (collectively,
the "LENDER CONSENTS") and which Lender Consents shall include provisions
pursuant to which Buyer assumes all of Seller's obligations under the Loans
accruing from and after the Closing and the Lenders release Seller (and any
guarantors) from any and all obligations under the Loans accruing from and after
the Closing. Buyer shall pay all costs and expenses incurred in connection with
the foregoing assumption and release and of obtaining the Lender Consents.
(ii) Seller will reasonably cooperate with Buyer and Buyer's
agents in obtaining the Lender Consents.
(iii) Each of Buyer and Seller shall have the right to
terminate this Agreement by giving written notice of termination to the other
party not later than five (5) days after the end of the Lender Consent
Contingency Period if all of the Lender Consents shall not have been received
during the Lender Consent Contingency Period and, thereafter, Seller shall
forthwith return the Deposit to Buyer.
(d) Partnership Approval Contingency.
(i) If required by the limited partnership agreement of Seller
or by law, Seller shall, during the period (the "PARTNERSHIP APPROVAL
CONTINGENCY PERIOD") commencing on the date on which Buyer receives from Seller
a fully executed counterpart of this Agreement and ending on December 15, 2005,
use reasonable efforts to pursue obtaining the approval of the transactions
described in this Agreement from the necessary partners of Seller (other than
the general partner of Seller or any of its affiliates) (the "PARTNERSHIP
APPROVAL" and, together with the Lender Consents, the "CONSENTS").
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(ii) Each of Buyer and Seller shall have the right to
terminate this Agreement by giving written notice of termination to the other
party not later than five (5) days after the end of the Partnership Approval
Contingency Period if the Partnership Approval shall not have been received
during the Partnership Approval Contingency Period, and, thereafter, Seller
shall forthwith return the Deposit to Buyer.
(e) Tax Credit Contingency.
(i) Buyer shall, during the period (the "Tax Credit
Contingency Period") from the date Buyer receives from Seller a fully executed
counterpart of this Agreement to December 15, 2005, pursue the obtaining of a
"42 m letter" from the Colorado Housing and Finance Agency, stating that the
acquisition and rehabilitation of the Property qualifies for a minimum of
$9,688,265.00 in annual low income housing tax credits under Section 42 of the
Internal Revenue Code (the "Tax Credit Letter").
(ii) Seller will cooperate with Buyer and Buyer's agents in
obtaining the Tax Credit Letter.
(iii) Buyer shall have the right to terminate this Agreement
by giving written notice of termination to Seller not later than five (5) days
after the end of the Tax Credit Contingency Period if Buyer shall not have
received the Tax Credit Letter during the Tax Credit Contingency Period.
15. Items to be Delivered at Closing.
(a) By Seller. At Closing, Seller shall deliver to Buyer the
following:
(i) Deed. A deed transferring Seller's interest in the Real
Property described on Exhibit A to Buyer, in form and substance customary for
transactions similar to the transaction contemplated hereby for comparable
property in the city, state and county in which the Property is located, duly
executed and acknowledged by Seller and, if customary, Buyer, and in proper form
for recording (the "DEED"). If Buyer causes a survey of the Real Property to be
made prior to Closing, then, at Buyer's option (and with Seller's reasonable
approval) the description of the Real Property conveyed by the Deed shall be
based upon such survey's legal description.
(ii) Xxxx of Sale. A xxxx of sale, in customary form and
substance and reasonably satisfactory to Buyer and Seller, duly executed and
acknowledged by Seller (the "XXXX OF SALE").
(iii) Certificates, Etc. An assignment, duly executed and
acknowledged by Seller, of (and to the extent in Seller's actual possession,
delivery to Buyer of originals or copies of): all existing and assignable
permanent certificates of occupancy and all other existing and assignable
licenses, permits, authorizations, consents, certificates and approvals required
by all governmental authorities having jurisdiction over the Property; all
existing plans and specifications for the Property; all assignable guarantees,
bonds and warranties with respect to the Property (together with original
counterparts of such instruments); and all keys to the Property.
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(iv) Assignment and Assumption of Tenant Leases. An assignment
and assumption agreement (the "ASSIGNMENT AND ASSUMPTION OF TENANT LEASES")
assigning the Tenant Leases to Buyer, in form and substance acceptable to Buyer
and Seller.
(v) Assignment and Assumption of Service Agreements. An
assignment and assumption agreement (the "ASSIGNMENT AND ASSUMPTION OF SERVICE
AGREEMENTS") assigning to Buyer the Service Agreements which Buyer has agreed to
assume pursuant to Section 7 of this Agreement, including any contract for
improvements and repairs at the Property entered into by Seller for the benefit
of Buyer pursuant to Section 11(a) hereof.
(vi) Resolutions; Title Company Affidavit. Such resolutions
and certificates as Buyer or the Title Company shall reasonably require to
evidence the due authorization and execution of this Agreement and the documents
to be delivered pursuant hereto; and a reasonable and customary owner's title
affidavit required by the Title Company to permit it to issue to Buyer the
Owner's Policy of Title Insurance required pursuant to Section 5(a). Seller
shall also deliver a certification that Seller is not a foreign person within
the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as
amended.
(vii) Termination letters to vendors under the Terminated
Contracts.
(viii) Assessment and Assumptions of Housing Assistance
Contract. The Assignment, Assumption and Amendment Agreement of Section 8
Housing Assistance Payment Contract in the form then required by HUD
("Assignment and Assumption of HAP Contract") signed by Seller assigning to
Buyer the Section 8 Housing Assistance Contract which Buyer must assume at
Closing.
(ix) Other Documents. Any other document required to be
delivered by Seller pursuant to this Agreement.
(b) By Buyer. At Closing, Buyer shall deliver to Seller the
following:
(i) Purchase Price. The portion of the Purchase Price payable
pursuant to Section 2(b).
(ii) Assignment and Assumption of Tenant Leases. A signed
counterpart to the Assignment and Assumption of Tenant Leases.
(iii) Assignment and Assumption of Service Agreements. A
signed counterpart to the Assignment and Assumption of Service Agreements.
(iv) Assignment and Assumption of Housing Assistance Contract.
The Assignment and Assumption of HAP Contract signed by Buyer and HUD, assigning
to Buyer the Section 8 Housing Assistance Contract which Buyer must assume at
Closing.
(v) Other Documents. Any other document required to be
delivered by Buyer pursuant to any other provisions of this Agreement or
reasonably and customarily required by the Title Company.
-11-
16. Brokerage. Each of Buyer and Seller (the "REPRESENTING AND WARRANTING
PARTY") represents and warrants to the other party hereto that the Representing
and Warranting Party has dealt with no broker, finder or other intermediary in
connection with this sale. Each Representing and Warranting Party agrees to
indemnify, defend and hold the other party hereto harmless from and against all
claims, demands, causes of action, loss, damages, liabilities, costs and
expenses (including without limitation attorneys' fees and court costs) arising
from any claims for commissions made by any broker, finder or other intermediary
claiming to have dealt with the Representing and Warranting Party.
17. Assignability. Buyer shall have the absolute right to assign this
Agreement and its rights hereunder and any assignee of Buyer shall be entitled
to exercise all of the rights and powers of Buyer hereunder.
18. Notices. All notices, demands, requests or other communications from
each party to the other required or permitted under the term of this Agreement
shall be in writing and, unless and until otherwise specified in a written
notice by the party to whom notice is intended to be given, shall be sent to the
parties at the following respective addresses:
if intended for Seller:
AIMCO EQUITY SERVICES, INC.
c/o AIMCO
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxx, Esq.
Ph: 303/691-4303
Fax: 303/000-0000
E-Mail: xxxx.xxxxxx@xxxxx.xxx
if intended for Buyer:
SAN XXXX DEL CENTRO LIMITED PARTNERSHIP
c/o AIMCO
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxx, Esq.
Ph: 303/691-4303
Fax: 303/000-0000
E-Mail: xxxx.xxxxxx@xxxxx.xxx
Each such notice, demand, request or other communication shall be given
(i) personally, (ii) by registered or certified mail of the United States Postal
Service, return receipt requested, postage prepaid, (iii) by a nationally
recognized overnight courier service for next business day delivery, or (iv) via
facsimile or email transmission to the facsimile number or email address (as the
case may be) listed above, provided, however, that if such communication is
given via facsimile or email transmission, an original counterpart of such
communication shall concurrently be sent in either the manner specified in
clause (i) or (iii) above. Each such notice, demand, request or other
communication shall be deemed to have been given upon actual receipt or refusal
by the addressee.
-12-
19. Disclosure. Seller and Buyer hereby acknowledge delivery of the Lead
Based Paint Disclosure attached as Exhibit D hereto. The provisions of this
Section 19 shall survive the Closing and delivery of the Deed to Buyer.
(a) Consent Agreement. Testing (the "TESTING") has been performed at
the Property with respect to lead-based paint. Law Engineering and Environmental
Services, Inc. performed the Testing and reported its findings in the
MULTIFAMILY COMPONENT TYPE REPORT dated November 24-29, 2000, a copy of which
has been delivered to Buyer on January 8, 2005 (the "REPORT"). The Report
certifies the Property as lead based paint free. By execution hereof, Buyer
acknowledges receipt of a copy of the Report, the Lead-Based Paint Disclosure
attached hereto as Exhibit C, and acknowledges receipt of that certain Consent
Agreement (the "CONSENT AGREEMENT") by and among the United States Environmental
Protection Agency (executed December 19, 2001), the United States Department of
Housing and Urban Development (executed January 2, 2002), and Apartment
Investment and Management Company ("AIMCO") (executed December 18, 2001).
Because the Property has been certified as lead based paint free, Seller is not
required under the Consent Agreement to remediate or xxxxx any lead-based paint
condition at the Property prior to the Closing. Buyer acknowledges and agrees
that (1) after Closing, the Buyer and the Property shall be subject to the
Consent Agreement and the provisions contained herein related thereto and (2)
that Buyer shall not be deemed to be a third party beneficiary to the Consent
Agreement. The provisions of this Section 19(a) shall survive the termination of
this Agreement, and if not so terminated, the Closing and delivery of the Deed
to Buyer.
20. Dispute Resolution. Any controversy, dispute, or claim of any nature
arising out of, in connection with, or in relation to the interpretation,
performance, enforcement or breach of this Agreement (and any closing document
executed in connection herewith), including any claim based on contract, tort or
statute, shall be resolved at the written request of any party to this Agreement
by binding arbitration. The arbitration shall be administered in accordance with
the then current Commercial Arbitration Rules of the American Arbitration
Association. Any matter to be settled by arbitration shall be submitted to the
American Arbitration Association in the state in which the Property is located.
The parties shall attempt to designate one arbitrator from the American
Arbitration Association. If they are unable to do so within 30 days after
written demand therefor, then the American Arbitration Association shall
designate an arbitrator. The arbitration shall be final and binding, and
enforceable in any court of competent jurisdiction. Notwithstanding anything
herein to the contrary, this Section shall not prevent Buyer or Seller from
seeking and obtaining equitable relief on a temporary or permanent basis,
including, without limitation, a temporary restraining order, a preliminary or
permanent injunction or similar equitable relief, from a court of competent
jurisdiction located in the state in which the Property is located (to which all
parties hereto consent to venue and jurisdiction) by instituting a legal action
or other court proceeding in order to protect or enforce the rights of such
party under this Agreement or to prevent irreparable harm and injury. The
court's jurisdiction over any such equitable matter, however, shall be expressly
limited only to the temporary, preliminary, or permanent equitable relief
sought; all other claims initiated under this Agreement between the parties
hereto shall be determined through final and binding arbitration in accordance
with this Section.
-13-
21. Miscellaneous.
(a) Captions. The captions in this Agreement are inserted for
convenience of reference only; they form no part of this Agreement and shall not
affect its interpretation.
(b) Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties and their respective heirs, personal
representatives, successors and assigns.
(c) Entire Agreement; Governing Law. This Agreement embodies the
entire agreement between the parties hereto concerning the subject matter hereof
and supersedes all prior conversations, proposals, negotiations, understandings
and contracts, whether written or oral. This Agreement shall not be amended,
altered, changed, modified, supplemented or rescinded in any manner except by a
written contract executed by all of the parties. The laws of the State in which
the Property is located shall govern the validity, construction, enforcement,
and interpretation of this Agreement, unless otherwise specified herein except
for the conflict of laws provisions thereof. Subject to Section 20, all claims,
disputes and other matters in question arising out of or relating to this
Agreement, or the breach thereof, shall be decided by proceedings instituted and
litigated in a court of competent jurisdiction in the State of Colorado, and the
parties hereto expressly consent to the venue and jurisdiction of such court.
(d) Provisions Separable. In the event that any part of this
Agreement shall be held to be invalid or unenforceable by a court of competent
jurisdiction, such provision shall be reformed, and enforced to the maximum
extent permitted by law. If such provision cannot be reformed, it shall be
severed from this Agreement and the remaining portions of this Agreement shall
be valid and enforceable.
(e) Use of Terms. Words used in this Agreement, regardless of the
number and gender specifically used, shall be deemed and construed to include
any other number, singular or plural, and any other gender, masculine, feminine
or neuter, as the context indicates is appropriate.
(f) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which shall together
constitute one and the same instrument.
(g) Exhibits. All exhibits attached to this Agreement are
incorporated by reference into and made a part of this Agreement.
(h) No Waiver. No delay or omission to exercise any right or power
accruing upon any default, omission, or failure of performance hereunder shall
impair any right or power or shall be construed to be a waiver thereof, but any
such right and power may be exercised from time to time and as often as may be
deemed expedient. No waiver, amendment, release, or modification of this
Agreement shall be established by conduct, custom, or course of dealing and all
waivers must be in writing and signed by the waiving party.
-14-
(i) Interpretation. No provision of this Agreement is to be
interpreted for or against either party because that party or that party's legal
representative or counsel drafted such provision.
(j) Time. TIME IS OF THE ESSENCE OF THIS AGREEMENT. In computing the
number of days for purposes of this Agreement, all days shall be counted,
including Saturdays, Sundays and holidays (unless "business days" is specified,
in which case Saturdays, Sundays and holidays shall not be counted); provided,
however, that if the final day of any time period provided in this Agreement
shall end on a Saturday, Sunday or legal holiday, then the final day shall
extend to 5:00 p.m. of the next full business day. For the purposes of this
Section, the term "HOLIDAY" shall mean a day other than a Saturday or Sunday on
which national banks in the State in which the Property is located are or may
elect to be closed.
(k) Recording of Agreement. Neither Seller nor Buyer shall cause or
permit this Agreement to be filed of record in any office or place of public
record and, if Buyer or Seller shall fail to comply with the terms hereof by
recording or attempting to record the same, such act shall not operate to bind
or cloud title to the Real Property.
(l) No Personal Liability of Officers, Trustees or Directors of
Seller's Partners. Buyer acknowledges that this Agreement is entered into by
Seller which is a Colorado limited partnership, and Buyer agrees that none of
Seller's Affiliates shall have any personal liability under this Agreement or
any document executed in connection with the transactions contemplated by this
Agreement.
[Remainder of Page Left Blank Internationally]
-15-
[Page Left Blank Intentionally]
-16-
IN WITNESS WHEREOF, intending to be legally bound, the parties have
executed this Agreement as of the day and year first above written.
SELLER:
SAN XXXX DEL CENTRO LIMITED PARTNERSHIP
By: The National Housing Partnership,
its General Partner
By: The National Corporation for Housing
Partnerships, its General Partner
By: /s/ Xxxxx Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx
Title: Executive Vice President
BUYER:
AIMCO EQUITY SERVICES, INC., A VIRGINIA CORPORATION
By: /s/ Xxxxx Xxxxxx
------------------------------------------------
Name: Xxxxx Xxxxxx
Its: Executive Vice President
-17-
EXHIBIT A
LEGAL DESCRIPTION OF REAL PROPERTY
A part of the South 1/2 of Section 20, T. 1 N., R. 70W., of the 6th Principal
Meridian, Boulder County, Colorado, more particularly described as follows:
Beginning at a point on the East line of the S.W. 1/4 of the S.E. 1/4 of
Section 20, T. 1 N., R. 70 W., of the 6th P.M., from whence the N.E. corner of
the said S.W. 1/4 of the S.E. 1/4 of Section bears N. 0 degrees 65'35" W.,
122.66';
thence S. 59 degrees 40'10"E., 38.06';
thence S. 77 degrees 19'20" E., 61.95';
thence S. 83 degrees 19'00" E., 127.28';
thence S. 51 degrees 13'25" E., 250.30';
thence S. 65 degrees 21'00" E., 110.09' to the West line of the Colorado &
Southern Railroad right-of-way;
thence along said West line of the railroad right-of-way, the arc of a curve,
171.65';
said curve being sub-tended by a chord bearing S 24 degrees 14'55" W., 171.65';
thence continuing along said West line of the railroad right-of-way,
S. 24 degrees 06'20"W., 640.78' to a point from whence the S. line of the said
S.E. 1/4 of Section 20, of bears 24 degrees 06'20" W., 230.25';
thence S. 89 degrees 48'55" W., parallel to the S. line of said S.E. 1/4 of
Section 20, 290.49' to a point on the East line of an undesignated 20' wide
roadway;
thence N. 2 degrees 44'05" W., along the said E. line of the 20' wide roadway,
107.93';
thence S. 89 degrees 52'00" E., 59.72';
thence S. 54 degrees 29'30" E., 39.87;
thence S. 48 degrees 26'50" E., 69.64;
thence S. 59 degrees 40'10" E., 16.98 feet to the Point of Beginning,
County of Boulder,
State of Colorado.
A-1
EXHIBIT B
PERMITTED ENCUMBRANCES
2005 real estate taxes and any tax, special assessments, charge or lien imposed
on the Property for water or sewer service, or for any other special taxing
district.
All claims of others to water rights, in, on or under the Property.
An easement for utility lines and incidental purposes granted to Public Service
Company of Colorado by the instrument recorded September 15, 1970 in Film 709 at
Reception No. 954471, Boulder County, Colorado records.
Notes and easements as shown on the plat of San Xxxx Del Centro.
Grant of easement for the installation, construction, repair, maintenance and
reconstruction of an ingress/egress easement as granted to City of Boulder by
instrument recorded July 3, 1985 in Film 1361 at Reception Xx. 00000000, Xxxxxxx
Xxxxxx, Xxxxxxxx records.
Terms, conditions, provisions, agreements and obligations in that certain
Memorandum of Lease, recorded January 21, 1998 at Reception No. 1764947, Boulder
County, Colorado records.
Terms, conditions, provisions, agreements and easements in that certain
Memorandum of Easement, recorded May 9, 2003 at Reception No. 2439208, Boulder
County, Colorado records.
B-1
EXHIBIT C
LEAD BASED PAINT DISCLOSURE
EVERY BUYER OF ANY INTEREST IN RESIDENTIAL REAL PROPERTY ON WHICH A RESIDENTIAL
DWELLING WAS BUILT PRIOR TO 1978 IS NOTIFIED THAT SUCH PROPERTY MAY PRESENT
EXPOSURE TO LEAD FROM LEAD-BASED PAINT THAT MAY PLACE YOUNG CHILDREN AT RISK OF
DEVELOPING LEAD POISONING. LEAD POISONING IN YOUNG CHILDREN MAY PRODUCE
PERMANENT NEUROLOGICAL DAMAGE, INCLUDING LEARNING DISABILITIES, REDUCED
INTELLIGENCE QUOTIENT, BEHAVIORAL PROBLEMS, AND IMPAIRED MEMORY. LEAD POISONING
ALSO POSES A PARTICULAR RISK TO PREGNANT WOMEN. THE SELLER OF ANY INTEREST IN
RESIDENTIAL REAL PROPERTY IS REQUIRED TO PROVIDE THE BUYER WITH ANY INFORMATION
ON LEAD-BASED PAINT HAZARDS FROM RISK ASSESSMENTS OR INSPECTIONS IN THE SELLER'S
POSSESSION, IF ANY, AND NOTIFY THE BUYER OF ANY KNOWN LEAD-BASED PAINT HAZARDS.
A RISK ASSESSMENT OR INSPECTION FOR POSSIBLE LEAD-BASED PAINT HAZARDS IS
RECOMMENDED PRIOR TO PURCHASE.
[Remainder of Page Left Blank Intentionally]
A-1
IN WITNESS WHEREOF, intending to be legally bound, the parties have
executed this Lead Based Paint Disclosure effective as of February 14, 2005.
SELLER:
SAN XXXX DEL CENTRO LIMITED PARTNERSHIP
By: The National Housing Partnership,
its General Partner
By: The National Corporation for Housing
Partnerships, its General Partner
By: /s/ Xxxxx Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx
Title: Executive Vice-President
BUYER:
AIMCO EQUITY SERVICES, INC., A VIRGINIA CORPORATION
By: /s/ Xxxxx Xxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxx
Its: Executive Vice President
-2-
