Common use of Assumed Encumbrances Clause in Contracts

Assumed Encumbrances. (a) Purchaser agrees that, at the Closing (i) Purchaser shall reaffirm all of the Partnership's obligations under the Note and all of the other Loan Documents and accept title to the Property subject to the Mortgage and the other Loan Documents, and (ii) USDA shall release Sellers, as well as any guarantors, if any, and other obligated parties (other than the Partnership) under the Loan Documents, from all obligations under the Loan Documents (and any related guarantees or letters of credit), including, without limitation, any obligation to make payments of principal and interest under the Note, to replenish any unfunded required accounts, escrows or reserves and/or cure any physical deficiencies at the Property, all in form and substance satisfactory to Sellers (collectively, the foregoing (i) and (ii) referred to herein as the "Loan Continuation and Release"). Purchaser further acknowledges that the Loan Documents require the satisfaction by Purchaser of certain requirements as set forth therein to allow for the Loan Continuation and Release. Accordingly, Purchaser, at its sole cost and expense shall satisfy the requirements set forth in the Loan Documents to allow for the Loan Continuation and Release, including, without limitation, submitting a complete application to USDA for assumption of the Loan together with all documents and information required in connection therewith (the "Loan Continuation Application") no later than the expiration of the Feasibility Period. Purchaser shall provide Sellers with a copy of the Loan Continuation Application and shall provide evidence of its submission to USDA within three (3) business days after such submittal. Purchaser acknowledges and agrees that Purchaser is solely responsible for the preparation and submittal of the Loan Continuation Application, including the collection of all materials, documents, certificates, financials, signatures, and other items required to be submitted to USDA in connection with the Loan Continuation Application. (b) Purchaser shall pay all fees and expenses (including, without limitation, all servicing fees and charges, assumption fees, and other fees to release Sellers of all liability under the Loan) imposed or charged by USDA or its counsel (such fees and expenses collectively being referred to as the "USDA Fees"), in connection with the Loan Continuation Application and the Loan Continuation and Release. (c) Additionally, Purchaser shall be responsible for (i) replacing (and increasing to the extent required by USDA) of all reserves, impounds, operating accounts and other accounts required to be maintained in connection with the Loan, (ii) funding any additional reserves, impounds or accounts required by USDA to be maintained by Purchaser in connection with the Loan after the Loan Continuation and Release and (iii) making any repairs, replacements and improvements to the Property as required by USDA. (d) Purchaser agrees promptly to deliver to USDA all documents and information required by the Loan Documents, and such other information or documentation as USDA reasonably may request, including, without limitation, financial statements, income tax returns and other financial information for Purchaser and any required guarantor. Sellers agree that they will cooperate with Purchaser and USDA, at no cost or expense to Sellers, in connection with Purchaser's application to USDA for approval of the Loan Continuation and Release.

Assumed Encumbrances. 4.7.1 Purchaser recognizes and agrees that, in connection with the Loan made by Lender, each Property is encumbered by the applicable Assumed Deed of Trust and the applicable Assumed Encumbrances. The Loan is evidenced by the Note applicable to such Property. Within 10 days after the Effective Date, each Seller agrees that it will make available to Purchaser (ain the same manner in which such Seller is permitted to make the Materials available to Purchaser under Section 3.5.1) copies of the Assumed Loan Documents which are in such Seller’s possession or reasonable control (subject to Section 3.5.2). 4.7.2 Purchaser agrees that, at the Closing Closing, (ia) Purchaser shall reaffirm all of assume the Partnership's applicable Seller’s obligations under the Note and all of the other applicable Assumed Loan Documents and accept title to the each Property subject to the Mortgage Assumed Deed of Trust and the other Loan DocumentsAssumed Encumbrances applicable to such Property, and (iib) USDA the applicable Lender shall release Sellersthe applicable Seller, as well as any guarantors, if any, guarantors and other obligated parties (other than the Partnership) under the Assumed Loan Documents, from all obligations under the Assumed Loan Documents (and any related guarantees or letters of credit), including, without limitation, any obligation to make payments of principal and interest under the Note, to replenish any unfunded required accounts, escrows or reserves and/or cure any physical deficiencies at the Property, all in form and substance satisfactory to Sellers applicable Note (collectively, the foregoing (ia) and (iib) referred to herein as the "“Loan Continuation Assumption and Release"”). Purchaser acknowledges and agrees that (x) certain of the provisions of the Assumed Loan Documents may have been negotiated for the exclusive benefit of the applicable Seller, AIMCO or their respective affiliates (the “Specific AIMCO Provision”), and (y) unless the Lender otherwise agrees in such Lender’s sole and arbitrary discretion, Purchaser will not be permitted to assume the benefit of the Specific AIMCO Provisions and the same shall be of no further force or effect from and after the Closing Date. 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 Continuation Assumption and Release. Accordingly, Purchaser, at its sole cost and expense and within 21 days after the Effective Date (the “Loan Assumption Application Submittal Deadline”), shall satisfy the requirements set forth in the Assumed Loan Documents to allow for the each Loan Continuation Assumption and Release, including, without limitation, submitting a complete application to USDA the applicable Lender for assumption of the each Loan together with all documents and information required in connection therewith (the "“Loan Continuation Assumption Application") ”). Purchaser agrees to provide Sellers’ Representative with a copy of each Loan Assumption Application no later than the expiration of the Feasibility Period. Purchaser shall provide Sellers with a copy of the Loan Continuation Assumption Application Submittal Deadline and shall provide evidence of its submission to USDA within three (3) business days after such submittaleach Lender on or before the Loan Assumption Application Submittal Deadline. Purchaser acknowledges and agrees that Purchaser is solely responsible for the preparation and submittal of the each Loan Continuation Assumption Application, including the collection of all materials, documents, certificates, financials, signatures, and other items required to be submitted to USDA such Lender in connection with the each Loan Continuation Assumption Application. (b) Purchaser shall pay all fees and expenses (including, without limitation, all servicing fees and charges, assumption fees, and other fees to release Sellers of all liability under the Loan) imposed or charged by USDA or its counsel (such fees and expenses collectively being referred to as the "USDA Fees"), in connection with the Loan Continuation Application and the Loan Continuation and Release. (c) Additionally, Purchaser shall be responsible for (i) replacing (and increasing to the extent required by USDA) of all reserves, impounds, operating accounts and other accounts required to be maintained in connection with the Loan, (ii) funding any additional reserves, impounds or accounts required by USDA to be maintained by Purchaser in connection with the Loan after the Loan Continuation and Release and (iii) making any repairs, replacements and improvements to the Property as required by USDA. (d) Purchaser agrees promptly to deliver to USDA all documents and information required by the Loan Documents, and such other information or documentation as USDA reasonably may request, including, without limitation, financial statements, income tax returns and other financial information for Purchaser and any required guarantor. Sellers agree that they will cooperate with Purchaser and USDA, at no cost or expense to Sellers, in connection with Purchaser's application to USDA for approval of the Loan Continuation and Release.

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 (a) subject to Section 3.5.2). 4.7.2 Purchaser agrees that, at the Closing Closing, (ia) Purchaser shall reaffirm all of the Partnership's assume Seller’s obligations under the Note and all of the other Assumed Loan Documents and accept title to the Property subject to the Mortgage Assumed Deed of Trust and the other Loan DocumentsAssumed Encumbrances, and (iib) USDA the Lender shall release SellersSeller, as well as any guarantors, if any, guarantors and other obligated parties (other than the Partnership) under the Assumed Loan Documents, from all obligations under the Assumed Loan Documents (and any related guarantees or letters of credit), including, without limitation, any obligation to make payments of principal and interest under the Note, to replenish any unfunded required accounts, escrows or reserves and/or cure any physical deficiencies at the Property, all in form and substance satisfactory to Sellers Note (collectively, the foregoing (ia) and (iib) referred to herein as the "“ Loan Continuation Assumption and Release"”). Purchaser acknowledges and agrees that (x) certain of the provisions of the Assumed Loan Documents may have been negotiated for the exclusive benefit of Seller, AIMCO or their respective affiliates (the “ Specific AIMCO Provisions”), and (y) unless the Lender otherwise agrees in Lender’s sole and arbitrary discretion, Purchaser will not be permitted to assume the benefit of the Specific AIMCO Provisions and the same shall be of no further force or effect from and after the Closing Date. 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 Continuation Assumption and Release. Accordingly, Purchaser represents to Seller that, prior to Effective Date, Purchaser, at its sole cost and expense shall satisfy expense, has submitted an initial application to the requirements set forth in the Loan Documents to allow Lender for the Loan Continuation and Release, including, without limitation, submitting a complete application to USDA for assumption of the Loan Loan, together with all documents and information required in connection therewith (the "“ Loan Continuation Assumption Application"”) no later than and that prior to the expiration of the Feasibility 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 shall agrees to provide Sellers Seller with a copy of the Loan Continuation Assumption Application and shall provide evidence any additional deliveries made to Lender no later than five (5) days prior to the expiration of its submission to USDA within three (3) business days after such submittalthe Loan Assumption Approval Period. Purchaser acknowledges and agrees that Purchaser is solely responsible for the preparation and submittal of the Loan Continuation Assumption Application, including the collection of all materials, documents, certificates, financials, signatures, and other items required to be submitted to USDA Lender in connection with the Loan Continuation 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 (b) 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. 4.7.5 Purchaser shall pay all fees and expenses (including, without limitation, all servicing fees and charges, transfer fees, assumption fees, title fees, endorsement fees, and other fees to release Sellers Seller of all liability under the Loan) imposed or charged by USDA the Lender or its counsel (such fees and expenses collectively being referred to as the "USDA “ Assumption Lender Fees"”), in connection with the Loan Continuation Assumption Application and the Loan Continuation Assumption and Release. The provisions of this Section 4.7.5 shall survive the termination of this Contract and the Closing. (c) 4.7.6 Seller shall assign all of its right, title and interest in and to all reserves, impounds and other accounts held by Lender in connection with the Loan, and at Closing, Purchaser shall reimburse Seller in an amount equal to the balance of such reserves, impounds and accounts so assigned. Additionally, Purchaser shall be responsible for (i) replacing (and increasing to the extent required by USDA) of all reserves, impounds, operating accounts and other accounts required to be maintained in connection with the Loan, (ii) funding any additional or increased reserves, impounds or accounts required by USDA Lender to be maintained by Purchaser in connection with the Loan after the Loan Continuation Assumption and Release and (iii) making any repairs, replacements and improvements to the Property as required by USDA“ Required Loan Fund Amounts”). (d) 4.7.7 Purchaser agrees promptly to use commercially reasonable efforts to deliver to USDA Lender all documents and information required by the Assumed Loan Documents, and such other information or documentation as USDA Lender reasonably may request, including, without limitation, financial statements, income tax returns and other financial information for Purchaser and any required guarantor. Sellers agree Seller agrees that they it will cooperate with Purchaser and USDALender, at no cost or expense to SellersSeller, in connection with Purchaser's ’s application to USDA Lender for approval of the Loan Continuation 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.

Assumed Encumbrances. 4.5.1 Purchaser recognizes and agrees that, in connection with a loan (athe “ Loan”) made to Seller by Federal Home Loan Mortgage Corporation (the “Lender”), the Property presently is encumbered by (i) a deed of trust dated December 30, 2008 and recorded January 7, 2009 and (ii) a deed of trust dated December 30, 2008 and recorded January 7, 2009 (collectively, the “ Assumed Deed of Trust”) and certain other security and related documents in connection with the Loan (collectively, the “ Assumed Encumbrances”). The Loan is evidenced by that certain (i) promissory note dated December 30, 2008 in the stated principal amount of $5,548,680.93 and (ii) promissory note dated December 30, 2008 in the stated principal amount of $2,000,000 (collectively, the “ Note,” and together with the Assumed Deed of Trust, the Assumed Encumbrances and any other documents executed by Seller in connection with the Loan, the “ Assumed Loan Documents”), executed by Seller and payable to the order of the Lender. Within 5 days after the Effective Date, Seller agrees that it will make available to Purchaser (in the same manner in which Seller is permitted to make the Materials available to Purchaser under Section 3.5.1) copies of the Assumed Loan Documents which are in Seller’s possession or reasonable control (subject to Section 3.5.2). 4.5.2 Purchaser agrees that, at the Closing Closing, (ia) Purchaser shall reaffirm all of the Partnership's assume Seller’s obligations under the Note and all of the other Assumed Loan Documents and accept title to the Property subject to the Mortgage Deed of Trust and the other Loan DocumentsAssumed Encumbrances, and (iib) USDA the Lender shall release SellersSeller, as well as any guarantors, if any, guarantors and other obligated parties (other than the Partnership) under the Assumed Loan Documents, from all obligations under the Assumed Loan Documents (and any related guarantees or letters of credit), including, without limitation, any obligation to make payments of principal and interest under the Note, to replenish any unfunded required accounts, escrows Note upon terms that such releases are commonly provided by Lender in connection with assumptions of debt Lender holds or reserves and/or cure any physical deficiencies at as otherwise provided for in the Property, all in form and substance satisfactory to Sellers Assumed Loan Documents (collectively, the foregoing (ia) and (iib) referred to herein as the "“ Loan Continuation Assumption and Release"”). Purchaser further acknowledges that the Loan Documents require the satisfaction by Purchaser of certain requirements as set forth therein to allow for the Loan Continuation and Release. Accordingly, Purchaser, at its sole cost and expense shall satisfy the requirements set forth in the Loan Documents to allow for the Loan Continuation and Release, including, without limitation, submitting a complete application to USDA for assumption of the Loan together with all documents and information required in connection therewith (the "Loan Continuation Application") no later than the expiration of the Feasibility Period. Purchaser shall provide Sellers with a copy of the Loan Continuation Application and shall provide evidence of its submission to USDA within three (3) business days after such submittal. Purchaser acknowledges and agrees that Purchaser is solely responsible (x) certain of the provisions of the Assumed Loan Documents may have been negotiated for the preparation exclusive benefit of Seller, AIMCO or their respective affiliates (the “ Specific AIMCO Provisions”), and submittal (y) unless Lender otherwise agrees in Lender’s sole and arbitrary discretion, Purchaser will not be permitted to assume the benefit of the Loan Continuation Application, including the collection of all materials, documents, certificates, financials, signatures, and other items required to be submitted to USDA in connection with the Loan Continuation Application. (b) Purchaser shall pay all fees and expenses (including, without limitation, all servicing fees and charges, assumption fees, and other fees to release Sellers of all liability under the Loan) imposed or charged by USDA or its counsel (such fees and expenses collectively being referred to as the "USDA Fees"), in connection with the Loan Continuation Application Specific AIMCO Provisions and the Loan Continuation and Release. (c) Additionally, Purchaser same shall be responsible for (i) replacing (of no further force or effect from and increasing to the extent required by USDA) of all reserves, impounds, operating accounts and other accounts required to be maintained in connection with the Loan, (ii) funding any additional reserves, impounds or accounts required by USDA to be maintained by Purchaser in connection with the Loan after the Loan Continuation and Release and (iii) making any repairs, replacements and improvements to the Property as required by USDAClosing Date. (d) Purchaser agrees promptly to deliver to USDA all documents and information required by the Loan Documents, and such other information or documentation as USDA reasonably may request, including, without limitation, financial statements, income tax returns and other financial information for Purchaser and any required guarantor. Sellers agree that they will cooperate with Purchaser and USDA, at no cost or expense to Sellers, in connection with Purchaser's application to USDA for approval of the Loan Continuation and Release.

Assumed Encumbrances. 4.5.1 Purchaser recognizes and agrees that, in connection with a loan (athe “Loan”) made to Seller by Key Bank and assigned to the Federal Home Loan Mortgage Corporation (the “Lender”), the Property presently is encumbered by a deed of trust dated June 30, 2008 and recorded July 1, 2008 at Reception No. 2008091358 and re-recorded July 9, 2008 at Reception No. 2008094512 (the “Assumed Deed of Trust”) and certain other security and related documents in connection with the Loan (collectively, the “Assumed Encumbrances”). The Loan is evidenced by that certain promissory note dated June 30, 2008 in the stated principal amount of $14,082,000.00 (the “Note,” and together with the Assumed Deed of Trust, the Assumed Encumbrances and any other documents executed by Seller in connection with the Loan, the “Assumed Loan Documents”), executed by Seller and payable to the order of the Lender. Within 2 Business Days after the Effective Date, Seller agrees that it will make available to Purchaser (in the same manner in which Seller is permitted to make the Materials available to Purchaser under Section 3.5.1) copies of the Assumed Loan Documents (subject to Section 3.5.2). Within 5 days after the Effective Date, Seller shall request that Lender provide Purchaser with an assumption application. 4.5.2 Purchaser agrees that, at the Closing Closing, (ia) Purchaser shall reaffirm all of the Partnership's assume Seller’s obligations under the Note and all of the other Assumed Loan Documents arising from and after Closing, subject to the terms of Lender’s requirements relating to the Loan Assumption and Release, and accept title to the Property subject to the Mortgage Deed of Trust and the other Loan DocumentsAssumed Encumbrances, and (iib) USDA the Lender shall release SellersSeller, as well as any guarantors, if any, guarantors and other obligated parties (other than the Partnership) under the Assumed Loan Documents, from all obligations under the Assumed Loan Documents (and any related guarantees or letters of credit)) first arising from and after Closing, subject to the terms of Lender’s requirements relating to the Loan Assumption and Release, including, without limitation, any obligation to make payments of principal and interest under the Note, to replenish any unfunded required accounts, escrows or reserves and/or cure any physical deficiencies at the Property, all in form and substance satisfactory to Sellers Note (collectively, the foregoing (ia) and (iib) referred to herein as the "“Loan Continuation Assumption and Release"”). Purchaser acknowledges and agrees that (x) certain of the provisions of the Assumed Loan Documents may have been negotiated for the exclusive benefit of Seller, AIMCO or their respective affiliates (the “Specific AIMCO Provisions”), and (y) unless Lender otherwise agrees in Lender’s sole and arbitrary discretion, Purchaser will not be permitted to assume the benefit of the Specific AIMCO Provisions and the same shall be of no further force or effect from and after the Closing Date. 4.5.3 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 Continuation Assumption and Release. Accordingly, Purchaser, at its sole cost and expense and within 15 days after the Effective Date (the “Loan Assumption Application Submittal Deadline”), shall satisfy the requirements set forth in the Loan Documents to allow for the Loan Continuation and Release, including, without limitation, submitting submit a complete application to USDA Lender for assumption of the Loan together with all documents and information required in connection therewith (the "“Loan Continuation Assumption Application"”) no later than and Purchaser shall otherwise satisfy the expiration of requirements set forth in the Feasibility PeriodAssumed Loan Documents to allow for the Loan Assumption and Release to occur within the time limits contemplated by this Contract. Purchaser shall agrees to provide Sellers Seller with a copy of the Loan Continuation Assumption Application on or prior to the Loan Assumption Application Submittal Deadline and shall provide evidence of its submission to USDA within three (3) business days after such submittalLender on or before the Loan Assumption Application Submittal Deadline. Purchaser acknowledges and agrees that Purchaser is solely responsible for the preparation and submittal of the Loan Continuation Assumption Application, including the collection of all materials, documents, certificates, financials, signatures, and other items required to be submitted to USDA Lender in connection with the Loan Continuation Assumption Application. (b) Purchaser shall pay all fees and expenses (including, without limitation, all servicing fees and charges, assumption fees, and other fees to release Sellers of all liability under the Loan) imposed or charged by USDA or its counsel (such fees and expenses collectively being referred to as the "USDA Fees"), in connection with the Loan Continuation Application and the Loan Continuation and Release. (c) Additionally, Purchaser shall be responsible for (i) replacing (and increasing to the extent required by USDA) of all reserves, impounds, operating accounts and other accounts required to be maintained in connection with the Loan, (ii) funding any additional reserves, impounds or accounts required by USDA to be maintained by Purchaser in connection with the Loan after the Loan Continuation and Release and (iii) making any repairs, replacements and improvements to the Property as required by USDA. (d) Purchaser agrees promptly to deliver to USDA all documents and information required by the Loan Documents, and such other information or documentation as USDA reasonably may request, including, without limitation, financial statements, income tax returns and other financial information for Purchaser and any required guarantor. Sellers agree that they will cooperate with Purchaser and USDA, at no cost or expense to Sellers, in connection with Purchaser's application to USDA for approval of the Loan Continuation and Release.