Exhibit
10.79
PURCHASE
AND SALE CONTRACT
BETWEEN
CCIP/3
SANDPIPER, LLC ,
a Delaware limited liability company
AS SELLER
AND
DT
GROUP DEVELOPMENT, INC.,
a California corporation
AS
PURCHASER
Property:
Sienna Bay
10501 3
rd Street North, St. Petersburg, FL 33716
TABLE OF CONTENTS
Page
|
|
ARTICLE I
|
DEFINED TERMS
|
1
|
|
|
ARTICLE II
|
PURCHASE AND SALE,
PURCHASE PRICE & DEPOSIT
|
2
|
|
|
2.1
|
Purchase and Sale
|
2
|
|
|
2.2
|
Purchase Price and
Deposit
|
2
|
|
|
2.3
|
Escrow Provisions
Regarding Deposit
|
3
|
|
|
ARTICLE III
|
INSPECTION OF THE
PROPERTY
|
5
|
|
|
3.1
|
Access Rights
|
5
|
|
|
3.2
|
Conduct of
Inspections
|
5
|
|
|
3.3
|
Purchaser
Indemnification
|
6
|
|
|
3.4
|
Property Materials
|
6
|
|
|
3.5
|
Property Contracts
|
8
|
|
|
ARTICLE IV
|
TITLE
|
9
|
|
|
4.1
|
Title Documents
|
9
|
|
|
4.2
|
Survey
|
9
|
|
|
4.3
|
Intentionally
Omitted
|
9
|
|
|
4.4
|
Permitted
Exceptions
|
9
|
|
|
4.5
|
Purchaser’s
Rights in Respect of Seller Inability to Remove
|
|
|
|
|
Title Exceptions
|
11
|
|
|
4.6
|
Subsequently Disclosed
Exceptions
|
12
|
|
|
4.7
|
Assumed
Encumbrances
|
13
|
|
|
4.8
|
AIMCO Purchase Money
Loan
|
17
|
|
|
4.9
|
Purchaser Financing
|
19
|
|
|
ARTICLE V
|
CLOSING
|
19
|
|
|
5.1
|
Closing Date
|
19
|
|
|
5.2
|
Seller Closing
Deliveries
|
21
|
|
|
5.3
|
Purchaser Closing
Deliveries
|
22
|
|
|
5.4
|
Closing Prorations and
Adjustments
|
24
|
|
|
5.5
|
Post Closing
Adjustments
|
30
|
|
|
ARTICLE VI
|
REPRESENTATIONS AND
WARRANTIES OF SELLER AND
|
|
|
|
|
PURCHASER
|
30
|
|
|
6.1
|
Seller’s
Representations
|
30
|
|
|
6.2
|
AS-IS
|
32
|
|
|
6.3
|
Survival of
Seller’s Representations
|
34
|
|
|
6.4
|
Definition of
Seller’s Knowledge
|
34
|
|
|
6.5
|
Representations and
Warranties of Purchaser
|
35
|
|
|
ARTICLE VII
|
OPERATION OF THE
PROPERTY
|
37
|
|
|
7.1
|
Leases and Property
Contracts
|
37
|
|
|
7.2
|
General Operation of
Property
|
37
|
|
|
7.3
|
Liens
|
37
|
|
|
7.4
|
Tax Reduction
Proceedings
|
38
|
|
|
ARTICLE VIII
|
CONDITIONS PRECEDENT TO
CLOSING
|
39
|
|
|
8.1
|
Purchaser’s
Conditions to Closing
|
39
|
|
|
8.2
|
Seller’s
Conditions to Closing
|
40
|
|
|
ARTICLE IX
|
BROKERAGE
|
42
|
|
|
9.1
|
Indemnity
|
42
|
|
|
9.2
|
Broker Commission
|
42
|
|
|
ARTICLE X
|
DEFAULTS AND
REMEDIES
|
43
|
|
|
10.1
|
Purchaser Default
|
43
|
|
|
10.2
|
Seller Default
|
44
|
|
|
ARTICLE XI
|
RISK OF LOSS OR
CASUALTY
|
45
|
|
|
11.1
|
Major Damage
|
45
|
|
|
11.2
|
Minor Damage
|
46
|
|
|
11.3
|
Closing
|
46
|
|
|
11.4
|
Repairs
|
47
|
|
|
ARTICLE XII
|
EMINENT DOMAIN
|
47
|
|
|
12.1
|
Eminent Domain
|
47
|
|
|
ARTICLE XIII
|
MISCELLANEOUS
|
47
|
|
|
13.1
|
Binding Effect of
Contract
|
47
|
|
|
13.2
|
Exhibits and
Schedules
|
48
|
|
|
13.3
|
Assignability
|
48
|
|
|
13.4
|
Captions
|
48
|
|
|
13.5
|
Number and Gender of
Words
|
48
|
|
|
13.6
|
Notices
|
48
|
|
|
13.7
|
Governing Law and
Venue
|
52
|
|
|
13.8
|
Entire Agreement
|
53
|
|
|
13.9
|
Amendments
|
53
|
|
|
13.10
|
Severability
|
53
|
|
|
13.11
|
Multiple
Counterparts/Facsimile Signatures
|
53
|
|
|
13.12
|
Construction
|
53
|
|
|
13.13
|
Confidentiality
|
54
|
|
|
13.14
|
Time of the Essence
|
54
|
|
|
13.15
|
Waiver
|
55
|
|
|
13.16
|
Attorneys’
Fees
|
55
|
|
|
13.17
|
Time Zone/Time
Periods
|
55
|
|
|
13.18
|
1031 Exchange
|
55
|
|
|
13.19
|
No Personal Liability
of Officers, Trustees or Directors of
|
|
|
|
|
Seller’s
Partners
|
56
|
|
|
13.20
|
Intentionally
Omitted
|
56
|
|
|
13.21
|
ADA Disclosure
|
56
|
|
|
13.22
|
No Recording
|
56
|
|
|
13.23
|
Relationship of
Parties
|
57
|
|
|
13.24
|
Dispute Resolution
|
57
|
|
|
13.25
|
AIMCO Marks
|
58
|
|
|
13.26
|
Non-Solicitation of
Employees
|
58
|
|
|
13.27
|
Survival
|
59
|
|
|
13.28
|
Multiple Purchasers
|
59
|
|
|
13.29
|
Radon Gas
|
59
|
|
|
13.30
|
Energy Efficiency
|
59
|
|
|
13.31
|
Replacement of Previous
Contract
|
60
|
|
|
13.32
|
Cross Default/Cross
Termination
|
60
|
|
ARTICLE XIV
|
LEAD-BASED PAINT
DISCLOSURE
|
61
|
|
|
14.1
|
Disclosure
|
61
|
|
|
|
|
|
|
|
|
EXHIBITS AND SCHEDULES
EXHIBITS
Exhibit
A
Description of Land
Exhibit
B
Form of Limited Warranty Deed
Exhibit
C
Form of Bill of Sale
Exhibit
D
Form of General Assignment
Exhibit
E
Form of Lease Assignment
Exhibit
F
Form of Vendor Termination Letter
Exhibit
G
Form of Tenant Notice Letters
Exhibit
H
Lead Paint Disclosure
Exhibit
I
Form of Promissory Note
Exhibit
J
Form of Mortgage
Exhibit
K
Form of Guaranty
Exhibit
L
Form of Environmental Indemnity
Exhibit
M
Form of Opinion Letter
SCHEDULES
Schedule
1
Defined Terms
Schedule
2
List of Excluded Permits
Schedule
3
Excluded Fixtures and Tangible Personal Property
Schedule
4
List of Materials
Schedule
5
Certain Permitted Exceptions
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT (this “
Contract ”) is entered into as of the 14
th day of August, 2009 (the “ Effective
Date ”), by CCIP/3 SANDPIPER, LLC, a Delaware limited
liability company (“ Seller ”), having an
address at 4582 South Ulster Street Parkway, Suite 1100, Denver,
Colorado 80237 and DT GROUP DEVELOPMENT, INC., a California
corporation, having a principal address at 5355 Cartwright Avenue,
Suite 317, North Hollywood, California 91601 (“
Purchaser ”).
NOW, THEREFORE, in consideration of mutual covenants set forth
herein, Seller and Purchaser hereby agree as follows:
RECITALS
A.
Seller owns the real estate located in Pinellas County, Florida, as
more particularly described in Exhibit A attached hereto and
made a part hereof, and the improvements thereon, commonly known as
Sienna Bay Apartments.
B.
Purchaser desires to purchase, and Seller desires to sell, the
land, improvements and certain associated property described in
this Contract on the terms and conditions set forth below.
ARTICLE I
DEFINED
TERMS
Unless otherwise defined herein, any term with its initial letter
capitalized in this Contract shall have the meaning set forth in
this Schedule 1 attached hereto and made a part
hereof.
ARTICLE II
PURCHASE AND SALE, PURCHASE PRICE & DEPOSIT
2.1
Purchase and Sale .
Seller agrees to sell and convey the Property to Purchaser
and Purchaser agrees to purchase the Property from Seller, in
accordance with the terms and conditions set forth in this
Contract.
2.2
Purchase Price and Deposit .
The total purchase price for the Property shall be Sixteen
Million Eight Hundred Fifty Thousand ($16,850,000) Dollars (the
“ Purchase Price ”). The Purchase
Price shall be payable by Purchaser as follows:
2.2.1 Prior
to the date hereof, Purchaser has delivered to Stewart Title
Guaranty Company c/o Wendy Howell, National Commercial Closing
Specialist, 1980 Post Oak Boulevard, Suite 610, Houston, Texas
77056 (tel) 800-729-1906, (fax) 713-552-1703 (“
Escrow Agent
” or
“ Title
Insurer ”) an initial deposit
(the “ Initial
Deposit ”) of $175,000 by wire
transfer of immediately available funds (“
Good Funds
”).
2.2.2
Intentionally omitted.
2.2.5 The
balance of the Purchase Price shall be paid to and received by
Escrow Agent by wire transfer of Good Funds no later than 10:00
a.m. on the Closing Date.
2.3
Escrow Provisions Regarding Deposit .
2.3.1
Escrow Agent shall hold the Deposit and make delivery of the
Deposit to the party entitled thereto under the terms of this
Contract. Escrow Agent shall invest the Deposit in such
short-term, high-grade securities, interest-bearing bank accounts,
money market funds or accounts, bank certificates of deposit or
bank repurchase contracts as Escrow Agent, in its discretion, deems
suitable, and all interest and income thereon shall become part of
the Deposit and shall be remitted to the party entitled to the
Deposit pursuant to this Contract.
2.3.4 The
parties acknowledge that Escrow Agent is acting solely as a
stakeholder at their request and for their convenience, and that
Escrow Agent shall not be deemed to be the agent of either of the
parties for any act or omission on its part unless taken or
suffered in bad faith in willful disregard of this Contract or
involving gross negligence. Seller and Purchaser jointly and
severally shall indemnify and hold Escrow Agent harmless from and
against all costs, claims and expenses, including reasonable
attorney’s fees, incurred in connection with the performance
of Escrow Agent’s duties hereunder, except with respect to
actions or omissions taken or suffered by Escrow
Agent in bad faith, in willful disregard of this Contract or
involving gross negligence on the part of the Escrow
Agent.
2.3.6
Escrow Agent, as the person responsible for closing the transaction
within the meaning of Section 6045(e)(2)(A) of the Internal
Revenue Code of 1986, as amended (the “
Code ”), shall file all
necessary information, reports, returns, and statements regarding
the transaction required by the Code including, but not limited to,
the tax reports required pursuant to Section 6045 of the
Code. Further, Escrow Agent agrees to indemnify and hold
Purchaser, Seller, and their respective attorneys and brokers
harmless from and against any Losses resulting from Escrow
Agent’s failure to file the reports Escrow Agent is required
to file pursuant to this section.
ARTICLE III
INSPECTION OF THE PROPERTY
3.1
Access Rights .
Subject to the terms of Sections 3.3 and 3.4 and the
rights of Tenants under the Leases, Purchaser, and its agents,
contractors, engineers, surveyors, attorneys, and employees
(collectively, “ Consultants ”) shall, at
no cost or expense to Seller, have the right from time to time to
enter onto the Property to conduct and make any and all customary
studies, tests, examinations, inquiries, inspections and
investigations of or concerning the Property, review the Materials
and otherwise confirm any and all matters which Purchaser may
reasonably desire to confirm with respect to the Property and
Purchaser’s intended use thereof (collectively, the “
Inspections ”). In no event, however,
shall Purchaser have any right to terminate this Contract if
Purchaser is not satisfied with the results of such
Inspections.
3.2
Conduct of Inspections .
Purchaser shall not permit any mechanics’ or
materialmen’s liens or any other liens to attach to the
Property by reason of the performance of any work or the purchase
of any materials by Purchaser or any other party in connection with
any Inspections conducted by or for Purchaser. Purchaser
shall give reasonable advance notice to Seller prior to any entry
onto the Property and shall permit Seller to have a representative
present during all Inspections conducted at the Property.
Purchaser shall take all reasonable actions and implement all
protections necessary to ensure that all actions taken in
connection with the Inspections, and all equipment, materials and
substances generated, used or brought onto the Property pose no
material threat to the safety of persons, property or the
environment.
3.3
Purchaser Indemnification .
Purchaser shall indemnify, hold
harmless and, if requested by Seller (in Seller’s sole
discretion), defend (with counsel approved by Seller) Seller,
together with Seller’s affiliates, parent and subsidiary
entities, successors, assigns, partners, managers, members,
employees, officers, directors, trustees, shareholders, counsel,
representatives, agents, Designated Employees, and AIMCO
(collectively, including Seller, “ Seller’s
Indemnified Parties ”), from and against any and all
damages, mechanics’ liens, materialmen’s liens,
liabilities, penalties, interest, losses, demands, actions, causes
of action, claims, costs and expenses
(including reasonable attorneys’ fees, including the cost of
in-house counsel and appeals) (collectively, “
Losses ”) arising from or related to
Purchaser’s or its Consultants’ entry onto the
Property, and any Inspections or other acts by Purchaser or
Purchaser’s Consultants with respect to the Property during
the Feasibility Period or otherwise. Purchaser shall not be
held liable for any Losses occurring during the period prior to the
Closing Date unless such Losses arise from or are related to
Purchaser’s or its Consultants’ entry onto the
Property, and any Inspections or other acts by Purchaser or
Purchaser’s Consultants with respect to the Property.
Notwithstanding anything in this
Contract to the contrary, Purchaser shall not be permitted to
perform any invasive tests on the Property.
3.4
Property Materials .
3.4.1
Within 10 days after the Effective Date, and to the extent the same
exist and are in Seller’s possession or reasonable control
(subject to Section 3.5.2 ), and have not been
heretofore provided by Seller to Purchaser, Seller agrees to make
the documents set forth on Schedule 4 (together with any
other documents or information provided by Seller or its agents to
Purchaser with respect to the Property, the “
Materials ”) available at the
Property for review and copying by Purchaser at Purchaser’s
sole cost and expense. In the alternative, at Seller’s
option and within the foregoing time period, Seller may deliver
some or all of the Materials to Purchaser, or make the same
available to Purchaser on a secure web site (Purchaser agrees that
any item to be delivered by Seller under this Contract shall be
deemed delivered to the extent available to Purchaser on such
secured web site). To the extent that Purchaser determines
that any of the Materials have not been made available or delivered
to Purchaser pursuant to this Section 3.5.1 , Purchaser
shall notify Seller and Seller shall use commercially reasonable
efforts to deliver the same to Purchaser within 5 Business Days
after such notification is received by Seller; provided, however,
that under no circumstances will the Feasibility Period be extended
and Purchaser’s sole remedy will be to terminate this
Contract pursuant to Section 3.2 .
3.5
Property Contracts .
Purchaser shall assume all Property Contracts at the
Closing. To the extent that any Property Contract to be
assigned to Purchaser requires vendor consent, then, prior to the
Closing, Purchaser may attempt to obtain from each applicable
vendor a consent (each, a “ Required Assignment
Consent ”) to such assignment.
ARTICLE IV
TITLE
4.1
Title Documents .
Purchaser acknowledges that, prior to the Effective Date,
Purchaser has received from Title Insurer a commitment for
owner’s title insurance, file no. 08330233 with regard to the
Property (“ Title Commitment ”) to
provide an American Land Title Association owner’s title
insurance policy for the Property, using the current policy jacket
customarily provided by the Title Insurer, in an amount equal to
the Purchase Price (the “ Title Policy
”), together with copies of all instruments identified as
exceptions therein (together with the Title Commitment, referred to
herein as the “ Title Documents ”).
Purchaser shall be responsible for payment of (a) one-half of the
premiums for the Title Policy and (b) all other costs relating to
procurement of the Title Commitment and any requested
endorsements. Seller shall be responsible for one-half of the
premiums for the Title Policy.
4.2
Survey .
Purchaser acknowledges that, prior to the Effective Date,
Seller has delivered to Purchaser a copy of the existing survey of
the Property dated June 9, 2008, prepared by American Surveying
Inc. (the “ Existing Survey ”).
Purchaser may, at its sole cost and expense, order a new or updated
survey for the Property either before or after the Effective Date
(such new or updated survey, together with the Existing Survey, is
referred to herein as the “ Survey
”).
4.3
Intentionally Omitted .
4.4
Permitted Exceptions .
The Deed delivered pursuant to this Contract shall be
subject to the following, all of which shall be deemed “
Permitted Exceptions ”:
4.4.1 (a)
All matters set forth on Schedule 5 to this Contract ,(b)
the title exceptions that Title Insurer shall be willing to (i)
omit as exceptions to coverage or (ii) except with affirmative
insurance (at no cost to Purchaser) against collection out of or
enforcement against the Property with respect to the Title Policy,
and omit as exceptions to coverage with respect to any
lender’s mortgage insurance policy, (c) the standard
exception regarding the rights of parties in possession which shall
be limited to those parties in possession pursuant to the Leases, and (d) any exceptions and matter that are
approved, waived or deemed to have been approved or waived by
Purchaser under this Contract.
4.4.2 The
standard exception pertaining to taxes which shall be limited to
taxes and assessments payable in the year in which the Closing
occurs and subsequent taxes and assessments;
4.4.3 All
Leases;
4.4.4 The
Assumed Encumbrances;
4.4.5 The
AIMCO Loan;
4.4.6
Applicable zoning and governmental regulations and
ordinances;
4.4.7 Any
defects in title to the Property, or title exceptions or
encumbrances, arising by, through or under Purchaser;
and
4.4.8 The
terms and conditions of this Contract.
Notwithstanding
the foregoing, in no event shall any monetary liens or judgments
(except as provided in Sections 4.4.2, 4.4.4 and 4.4.5 )
affecting the Property be considered a Permitted Exception, unless
expressly agreed to in writing by Purchaser.
4.5
Purchaser’s Rights in Respect of Seller Inability to Remove
Title Exceptions .
If Seller shall be unable to cause title to the Property to
be subject only to the Permitted Exceptions, and Purchaser shall
not, prior to the Closing Date, give notice to Seller that
Purchaser is willing to waive objection to each title exception
which is not a Permitted Exception and close this transaction
without abatement of the Purchase Price, credit or allowance of any
kind or any claim or right of action against Seller for damages or
otherwise, then Seller shall have the right, at Seller’s sole
election, to either (1) take such action as Seller shall deem
advisable to discharge each such title exception which is not a
Permitted Exception or (2) terminate this Contract. If Seller
shall elect to take action to discharge each such title exception
which is not a Permitted Exception, including pursuant to
Section 4.6 below, then Seller shall be entitled to one or
more adjournments of the scheduled Closing Date set forth in
Section 5.1 for a period not to exceed thirty (30) days in
the aggregate, and the Closing shall be adjourned to a date
specified by Seller not beyond such thirty (30) day
period. If, for any reason whatsoever, excluding
willful default, Seller shall not have succeeded in discharging
each such title exception at the expiration of such adjournment(s)
and if Purchaser shall not, prior to the expiration of the last of
such adjournments, give notice to Seller that Purchaser is willing
to waive objection to each such title exception and to close this
transaction without abatement of the Purchase Price, credit or
allowance of any kind or any claim or right of action against
Seller for damages or otherwise, then this Contract shall be deemed
to be terminated as of the last date to which the Closing Date was
adjourned by Seller pursuant to this Section 4.5 . No
action taken by Seller to discharge, or attempt to discharge, any
purported title exception shall be an admission that any such
purported title exception is not a Permitted Exception. If
Seller elects to proceed under (2) above, then Purchaser shall have
the right, by notice to be given within three (3) Business Days
after Seller elects to terminate this Contract,
to cancel such termination, waive the objection and close title
subject thereto without any adjustment to the Purchase
Price.
4.6
Subsequently Disclosed Exceptions .
If at any time after the expiration of the Feasibility
Period, an update to the Title Commitment discloses any additional
item that materially adversely affects title to the Property which
was not disclosed on any version of, or update to, the Title
Commitment delivered to Purchaser during the Feasibility Period
(the “ New Exception ”), Purchaser shall
have a period of 5 days from the date of its receipt of such update
(the “ New Exception Review Period ”) to
review and notify Seller in writing of Purchaser’s approval
or disapproval of the New Exception. If Purchaser disapproves
of the New Exception, then Seller may, in Seller’s sole
discretion, notify Purchaser as to whether it is willing to cure
the New Exception. If Seller elects to cure (or cause the
Title Insurer to omit as an exception to title insurance coverage
or otherwise insure against collection against the Property) the
New Exception, Seller shall be entitled to reasonable adjournments
of the Closing Date to cure the New Exception. If Seller
fails to deliver a notice to Purchaser within 3 days after the
expiration of the New Exception Review Period, then Seller shall be
deemed to have elected not to cure the New Exception. If
Purchaser is dissatisfied with Seller’s response, or lack
thereof, Purchaser may, as its exclusive remedy elect either:
(i) to terminate this Contract, whereupon the Deposit shall be
returned to Purchaser, or (ii) to waive the New Exception and
proceed with the transactions contemplated by this Contract, in
which event Purchaser shall be deemed to have approved the New
Exception. If Purchaser fails to notify the Seller of its
election to terminate this Contract in accordance with the
foregoing sentence within 6 days after the expiration of the New
Exception Review Period, Purchaser shall be deemed to have elected
to approve and irrevocably waive any objections to the New
Exception.
4.7
Assumed Encumbrances .
4.7.1
Purchaser recognizes and agrees that, in connection with the Loan
made by Lender, the Property is encumbered by the Assumed Deed of
Trust and the Assumed Encumbrances. The Loan is evidenced by
the Note. Purchaser acknowledges that, prior to the Effective
Date, Seller has delivered to Purchaser copies of the Assumed Loan
Documents which are in Seller’s possession or reasonable
control (subject to Section 3.5.2 ).
4.7.3
Purchaser further acknowledges that the Assumed Loan Documents
require the satisfaction by Purchaser of certain requirements as
set forth therein to allow for the Loan Assumption and
Release. Accordingly, Purchaser represents to Seller that,
prior to Effective Date, Purchaser, at its sole cost and expense,
has submitted an initial application to the Lender for the
assumption of the Loan, together with all documents and information
required in connection therewith (the “
Loan Assumption
Application ”) and that prior to
the expiration of the Loan Assumption Approval Period, shall
satisfy any other requirements set forth in the Assumed Loan
Documents to allow for the Loan Assumption and Release.
Purchaser agrees to provide Seller with a copy of the Loan
Assumption Application and any additional deliveries made to Lender
no later than five (5) days prior to the expiration of the Loan
Assumption Approval Period. Purchaser acknowledges and agrees
that Purchaser is solely responsible for the preparation and
submittal of the Loan Assumption Application, including the
collection of all materials, documents, certificates, financials,
signatures, and other items required to be submitted to Lender in
connection with the Loan Assumption Application; provided however,
Seller agrees to cooperate in good faith and promptly comply with
any reasonable requests made by Purchaser in connection with
Purchaser’s efforts to properly prepare and submit the Loan
Assumption Application and to effectuate and obtain the Loan
Assumption and Release.
4.7.4
Purchaser shall comply with Lender’s assumption guidelines in
connection with the Loan Assumption and Release and, if required by
the Lender, Purchaser shall cause such other person or entity
reasonably acceptable to the Lender (the “
Guarantor ”), to execute and
deliver a customary “non-recourse carve-out” guaranty
and customary environmental indemnity in favor of Lender.
Purchaser shall be responsible, at its sole cost and expense,
for correcting and re-submitting any deficiencies noted by Lender
in connection with the Loan Assumption Application promptly after
notification from Lender of such deficiency. Purchaser
acknowledges that Lender’s assumption guidelines may not be
consistent with the provisions of the Assumed Loan Documents
concerning the Loan Assumption and Release. Purchaser shall
coordinate with the Lender to comply with the provisions of both
the Assumed Loan Documents and Lender’s assumption guidelines
in order to allow for the Loan Assumption and Release.
4.7.8 If
required by Lender, no later than 10 days after the Effective Date,
Purchaser shall order a Phase I Environmental study and a Property
Condition Assessment Report for the Property (prepared by an
environmental engineer/engineering firm reasonably acceptable to
Lender), and shall use commercially reasonable efforts to cause the
same to be delivered to Seller and Lender no later than 10 days
prior to the Closing Date in connection with and as a precondition
to the Loan Assumption and Release.
4.7.9
Purchaser shall use commercially reasonable efforts to obtain the
Loan Assumption and Release on or before the date which is sixty
(60) days after the Effective Date (the “
Loan Assumption Approval
Period ”).
4.7.9.1 If Purchaser does not
obtain the consent of the Lender to the Loan Assumption and Release
on or before the expiration of the Loan Assumption Approval Period,
then Purchaser shall have the right, exercisable on or before the
expiration of the Loan Assumption Approval Period, to give Escrow
Agent notice terminating this Contract based solely on the fact
that the Loan Assumption and Release has not been approved by the
Lender. If Purchaser timely exercises such termination right, then
(i) the Non-refundable Deposit shall be paid to Seller as
consideration for Seller entering into this Contract, (ii) the
remainder of the Deposit shall be paid to Purchaser and (iii) this
Contract shall be of no further force and effect, subject to and
except for the Survival Provisions.
4.7.9.2 If Purchaser fails to
deliver to Seller a written notice of termination prior to the
expiration of the Loan Assumption Approval Period in accordance
with the terms of this Section 4.7.9 , then Purchaser's
right to terminate this Contract under this
Section 4.7.9 shall be permanently waived, this
Contract shall remain in full force and effect, and Purchaser shall
have no further right to terminate this Contract on account of
Purchaser’s inability or failure to obtain the Loan
Assumption and Release.
4.8
AIMCO Purchase Money Loan .
4.8.1 At
the Closing, and subject to the provisions of Sections 4.8.3
and 4.8.4 below, Seller shall make, or cause an affiliate of
Seller (the entity making the AIMCO Loan being herein called
“ AIMCO Lender
” )
to make, a loan to Purchaser (the “ AIMCO Loan ”) in the principal
amount of Two Million Five Hundred Thousand Dollars ($2,500,000),
which loan shall be made by the AIMCO Lender to Purchaser on the
following terms: (a) monthly payments of
interest only shall be due at an interest rate of five percent (5%)
per annum from the Closing Date through [September 1, 2012], (b)
the outstanding principal balance of the AIMCO Loan, together with
all accrued and unpaid interest thereon, shall be due and payable
in full on [September 1, 2012] and (c) the
AIMCO Loan shall be secured by a second lien mortgage on the
Property, subject only to the Permitted Exceptions.
4.8.2 At
the Closing, Purchaser shall execute and deliver to the AIMCO
Lender (or cause to be so executed and delivered, as the case may
be) the following loan documents for the AIMCO Loan (the
“ AIMCO Loan
Documents ”):
4.8.2.1 a promissory note executed
by the Purchaser in the form attached hereto as Exhibit I ,
evidencing the AIMCO Loan;
4.8.2.2 a mortgage executed by the
Purchaser in the form attached hereto as Exhibit J ,
securing the AIMCO Loan (the “ AIMCO Loan Security
Instrument ”);
4.8.2.3 a non-recourse carveout
guaranty executed by the Guarantor in the form annexed hereto as
Exhibit K ;
4.8.2.4 an environmental indemnity
agreement executed by the Guarantor in the form annexed hereto as
Exhibit L ;
4.8.2.5 an opinion letter from
counsel to Purchaser, substantially in the form annexed hereto as
Exhibit M ; and
4.8.2.6 such other consents or
authorizing documents as the AIMCO Lender may reasonably request to
evidence that the AIMCO Loan Documents have been duly authorized by
the Purchaser and the Guarantor.
4.8.3 At
the Closing Purchaser shall pay all mortgage recording taxes and
recording fees incident to the recording of the AIMCO Loan Security
Instrument and the filing fees for any financing statements
delivered in connection therewith. In addition, Purchaser, at
its expense, shall at the Closing obtain for the AIMCO Lender a
lender’s policy of title insurance from the Title Insurer,
insuring the AIMCO Loan Security Instrument as a second priority
mortgage lien on the Property (subject only to the Permitted
Exceptions). Purchaser shall be responsible for all fees and
expenses charged by Lender in connection with the AIMCO Loan
(including, without limitation, all fees charged by the Lender
pursuant to the Assumed Deed of Trust). The provisions of
this Section 4.8.3 shall survive the termination of this
Contract and the Closing.
4.8.4
AIMCO Lender shall not be obligated to make the AIMCO Loan unless
Purchaser has obtained the consent of the Lender to the making of
the AIMCO Loan and the recording of the AIMCO Loan Security
Instrument as a second priority lien against the
Property.
Subject to the terms of Sections 4.7 and 4.8
above, Purchaser assumes full responsibility to obtain the funds
required for settlement, and neither Purchaser’s obtaining
the consent of Lender to the Loan Assumption and Release nor
Purchaser’s acquisition of such funds shall be a contingency
or condition precedent to the Closing or Purchaser’s
obligations under this Contract.
ARTICLE V
CLOSING
5.1
Closing Date .
5.1.1 The
Closing shall occur on October 13, 2009 at the time set forth in
Section 2.2.5 (the “ Closing Date ”) through an escrow
with Escrow Agent, whereby Seller, Purchaser and their attorneys
need not be physically present at the Closing and may deliver
documents by overnight air courier or other means.
Notwithstanding the foregoing to the contrary, Seller shall have
the option, by delivering written notice to Purchaser, to extend
the Closing Date to the last Business Day of the month in which the
Closing Date otherwise would occur pursuant to the preceding
sentence.
5.1.2
Purchaser shall have the right, by delivering written notice
(“ Purchaser’s
First Adjournment Notice ”) to Seller not later
than October 8, 2009, to adjourn the Closing Date to a Business Day
not later than November 12, 2009, provided that Purchaser shall,
concurrently with the delivery of Purchaser’s First
Adjournment Notice, (a) deliver to Escrow Agent an additional
deposit of $250,000.00 (the “ First Adjournment Deposit ”) and (b) deliver to
Escrow Agent the adjournment notice and the adjournment deposit
required under Section 5.1.2 of the Solana Contract. The
First Adjournment Deposit shall be deemed to be part of the
Deposit.
5.1.3 If
Purchaser has delivered Purchaser’s First Adjournment Notice
and First Adjournment Deposit pursuant to Section 5.1.2
above, then Purchaser shall have the further right, by delivering
written notice (“ Purchaser’s Second Adjournment
Notice ”) to Seller not later
than November 6, 2009, to adjourn the Closing Date to a Business
Day not later than December 14, 2009, provided that Purchaser
shall, concurrently with the delivery of Purchaser’s Second
Adjournment Notice, deliver to Escrow Agent an additional deposit
of $250,000 (the “ Second Adjournment Deposit ”). The Second
Adjournment Deposit shall be deemed to be part of the
Deposit.
5.1.4
Seller and Purchaser acknowledge and agree that the closing under
the Solana Contract (as hereinafter defined) must occur
concurrently with or before the Closing under this Contract, and
that the foregoing is a material term of this Contract without
which Seller would not have agreed to enter into this
Contract. Notwithstanding anything contained in this Contract
to the contrary, if, as of any date, the then current scheduled
closing date under the Solana Contract is, for any reason, later
than the then current scheduled Closing Date under this Contract,
then the scheduled Closing Date under this Contract shall
automatically be adjourned to (and shall be) the then current
scheduled closing date under the Solana Contract. If the
scheduled closing date under the Solana Contract has been adjourned
by the Solana Purchaser (as hereinafter defined) pursuant to the
terms of Section 5.1.2 of the Solana Contract, then Purchaser shall
be deemed to have automatically exercised Purchaser’s
adjournment right under Section 5.1.2 above (regardless of
whether or not Purchaser has delivered Purchaser’s First
Adjournment Notice), and Purchaser shall immediately post the First
Adjournment Deposit pursuant to the terms of Section 5.1.2
above.
5.2
Seller Closing Deliveries.
No later than 1 Business Day prior to the Closing Date,
Seller shall deliver to Escrow Agent each of the following
items:
5.2.1
Special Warranty Deed (the “ Deed ”) in the form attached
as Exhibit B to Purchaser, subject to the Permitted
Exceptions.
5.2.2 A
Bill of Sale in the form attached as Exhibit C
.
5.2.5
Seller’s closing statement.
5.2.6 A
title affidavit or an indemnity form reasonably acceptable to
Seller, which is sufficient to enable Title Insurer to delete the
standard pre-printed exceptions to the title insurance policy to be
issued pursuant to the Title Commitment.
5.2.7 A
certification of Seller’s non-foreign status pursuant to
Section 1445 of the Internal Revenue Code of 1986, as
amended.
5.2.8
Resolutions, certificates of good standing, and such other
organizational documents as Title Insurer shall reasonably require
evidencing Seller’s authority to consummate this
transaction.
5.2.11
Such other documents as are reasonably necessary to consummate the
transactions herein contemplated in accordance with the terms of
this Contract.
5.3
Purchaser Closing Deliveries .
No later than 1 Business Day prior to the Closing Date
(except for the balance of the Purchase Price which is to be
delivered at the time specified in Section 2.2.3 ),
Purchaser shall deliver to the Escrow Agent (for disbursement to
Seller upon the Closing) the following items:
5.3.3 Any
declaration or other statement which may be required to be
submitted to the local assessor.
5.3.4
Purchaser’s closing statement.
5.3.5 A
countersigned counterpart of the General Assignment.
5.3.6 A
countersigned counterpart of the Leases Assignment.
5.3.7
Notification letters to all Tenants at the Property prepared and
executed by Purchaser in the form attached hereto as
Exhibit G , which shall be delivered to all Tenants by
Purchaser immediately after Closing.
5.3.8
Resolutions, certificates of good standing, and such other
organizational documents as Title Insurer shall reasonably require
evidencing Purchaser’s authority to consummate this
transaction.
5.3.9 all
documents, instruments, guaranties, Assumption Lender Fees,
Required Loan Fund Amounts, and other items or funds required by
Lender to cause the Loan Assumption and Release.
5.3.10
Resolutions, limited liability company consents, certificates of
good standing, and such other organizational documents as Title
Insurer and the AIMCO Lender shall reasonably require evidencing
Purchaser's authority to consummate this transaction and the AIMCO
Loan.
5.3.11 The
AIMCO Loan Documents.
5.3.12 A
lender’s policy of title insurance from the Title Insurer,
insuring the AIMCO Loan Security Instrument as a second priority
mortgage lien on the Property (subject only to the Permitted
Exceptions).
5.3.13
Either (x) a duplicate insurance policy for all Hazard Insurance
(as such term is defined in Section 19(a) of the AIMCO Loan
Security Instrument) or (y) a ACORD certificate of insurance
evidencing to the satisfaction of the AIMCO Lender all Hazard
Insurance required under the AIMCO Loan Security Instrument, in
either case naming the AIMCO Lender as an additional insured for
all commercial liability insurance and including a
non-contributing, non-reporting mortgagee clause in favor of the
AIMCO Lender with respect to the property damage insurance for the
Property, in form and substance reasonably satisfactory to the
AIMCO Lender.
5.3.14
Such other documents as are reasonably necessary to consummate the
transactions herein contemplated in accordance with the terms of
this Contract.
5.4
Closing Prorations and Adjustments.
5.4.1 General
. All
normal and customarily proratable items, including, without
limitation, collected rents, operating expenses, personal property
taxes, other operating expenses and fees, shall be prorated as of
the Closing Date, Seller being charged or credited, as appropriate,
for all of the same attributable to the period up to the Closing
Date (and credited for any amounts paid by Seller attributable to
the period on or after the Closing Date, if assumed by Purchaser)
and Purchaser being responsible for, and credited or charged, as
the case may be, for all of
|
