Common use of Assumed Loans Clause in Contracts

Assumed Loans. This Section 4.6 applies only to the Assumption Properties. 4.6.1 Purchaser recognizes and agrees that, in connection with the Loan on an Assumption Property made by Lender, such Assumption Property is encumbered by the Assumed Deed of Trust and the Assumed Encumbrances. The Loan is evidenced by the Note applicable to such Assumption Property. Prior to the Effective Date and subject to the provisions of Section 3.5.2, each Seller of an Assumption Property has made available to Purchaser copies of the Assumed Loan Documents which are in such Seller’s possession or reasonable control. 4.6.2 Purchaser agrees that, at the Closing, (a) Purchaser shall assume the applicable Seller’s obligations under the Note and all of the other applicable Assumed Loan Documents and accept title to each Assumption Property subject to the Assumed Deed of Trust and the Assumed Encumbrances applicable to such Assumption Property, and (b) the applicable Lender shall release the applicable Seller, as well as any guarantors and other obligated parties 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 applicable Note (collectively, the foregoing (a) and (b) referred to herein as the “Loan 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. 4.6.3 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, at its sole cost and expense and within 20 days after the Effective Date, but in no event later than October 1, 2009 (the “Submittal Deadline”), shall use commercially reasonable efforts to satisfy the requirements set forth in the Assumed Loan Documents to allow for each Loan Assumption and Release, including, without limitation, submitting a substantially complete application to the applicable Lender for assumption of each Loan together with all documents and information required in connection therewith (the “Loan Assumption Application”). Purchaser agrees to provide Sellers’ Representative with a copy of each Loan Assumption Application no later than the Submittal Deadline and shall provide evidence of its submission to each Lender on or before the Submittal Deadline. Purchaser acknowledges and agrees that Purchaser is solely responsible for the preparation and submittal of each Loan Assumption Application, including the collection of all materials, documents, certificates, financials, signatures, and other items required to be submitted to such Lender in connection with each Loan Assumption Application. 4.6.4 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 person or entity reasonably acceptable to the Lender, to execute and deliver a “non-recourse carve-out” guaranty and 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 such Lender in connection with a Loan Assumption Application no later than five (5) Business Days after notification from such Lender of such deficiency. Purchaser also shall provide Sellers’ Representative with a copy of any correspondence from a Lender with respect to a Loan Assumption Application no later than five (5) Business Days after receipt of such correspondence from such Lender. Purchaser acknowledges that a Lender’s assumption guidelines may not be consistent with the provisions of the applicable Assumed Loan Documents concerning the Loan Assumption and Release. Purchaser shall coordinate with such Lender to comply with the appropriate provisions of both the applicable Assumed Loan Documents and such Lender’s assumption guidelines in order to allow for the Loan Assumption and Release. 4.6.5 Purchaser shall pay all fees and expenses (including, without limitation, all servicing fees and charges, transfer fees, indebtedness taxes, assumption fees, title fees, endorsement fees, and other fees to release each Seller of all liability under a Loan) imposed or charged by the Lender or its counsel (such fees and expenses collectively being referred to as the “Assumption Lender Fees”), in connection with each Loan Assumption Application and each Loan Assumption and Release. The provisions of this Section 4.6.5 shall survive the termination of this Contract and the Closing. 4.6.6 There are currently no reserves, impounds and other accounts held by a Lender in connection with each Loan. Purchaser shall be responsible for funding any new or additional reserves, impounds or accounts required by a Lender to be maintained by Purchaser in connection with each Loan after the Loan Assumption and Release (the “Required Loan Fund Amounts”). 4.6.7 Purchaser agrees promptly to deliver to each Lender all documents and information required by the Assumed Loan Documents, and such other information or documentation as such Lender reasonably may request, including, without limitation, financial statements, income tax returns and other financial information for Purchaser and any required guarantor. Each Seller agrees that it will cooperate with Purchaser and the applicable Lender, at no cost or expense to such Seller, in connection with Purchaser’s application to Lender for approval of each applicable Loan Assumption and Release. 4.6.8 No later than ten (10) days after the Effective Date, Purchaser shall order a Phase I Environmental study and property condition report for each Assumption Property (each prepared by engineers and/or consultants reasonably acceptable to Sellers’ Representative and Lender), and covenants that such Phase I Environmental study and property condition report shall be delivered to Sellers’ Representative and Lender no later than ten (10) days prior to the Closing Date in connection with and as a precondition to a Loan Assumption and Release for each Assumption Property. 4.6.9 If (a) Purchaser complies in all material respects with its obligations under this Contract (including this Section 4.6) and the requirements of each of the Assumed Loan Documents in connection with obtaining the Loan Assumption and Release for each Assumption Property, (b) Purchaser uses commercially reasonable efforts to diligently obtain the Loan Assumption and Release for each Assumption Property, and (c) prior to the Closing Date, Purchaser does not obtain the consent of the Lender to the Loan Assumption and Release for an Assumption Property, then Purchaser shall promptly deliver a Termination Notice to Sellers’ Representative stating that Purchaser has been unable to obtain the Loan Assumption and Release for one or more of the Assumption Properties identified in such Termination Notice. Upon receipt by Sellers’ Representative of such Termination Notice, the Contract shall automatically be deemed terminated with respect to each Assumed Property identified in such Termination Notice. The provisions of Section 13.33 shall apply to each Assumption Property with respect to which this Contract has been so terminated. 4.6.10 Purchaser shall be in default hereunder if, after the expiration of the Feasibility Period, Purchaser fails to use commercially reasonable efforts to diligently obtain Lender's consent to the Loan Assumption and Release for each Assumption Property. If such event occurs, then Sellers may terminate this Contract and the Deposit shall be immediately released by the Escrow Agent to Sellers.

Assumed Loans. This Section 4.6 applies only to the Assumption Properties. 4.6.1 Purchaser recognizes and agrees that(i) Not amend, in connection with the Loan on an Assumption Property made by Lendersupplement, or otherwise modify any of such Assumption Property is encumbered by Seller’s Assumed Loans or the Assumed Deed of Trust and the Assumed Encumbrances. The Loan is evidenced by the Note applicable Documents related to such Assumption Property. Prior to the Effective Date and subject to the provisions of Section 3.5.2, each Seller of an Assumption Property has made available to Purchaser copies Assumed Loans or make any partial principal prepayment of the Assumed Loan Documents (other than scheduled amortization or pursuant to Section 2.3(d) or Section 8.9) without the prior written consent of the Buyer, which are consent may be granted or withheld in the Buyer’s sole discretion. (ii) With respect to each Assumed Loan Property owned by such Seller’s possession or reasonable control. 4.6.2 , within five (5) Business Days following the Due Diligence Expiration Time, request in writing that each Assumed Loan Lender Party consent to the assumption of such Assumed Loans by the applicable Assumed Loan Property Purchaser agrees that, at (if the Closing, Buyer has notified Sellers of such Assumed Loan Property Purchaser as of the date of this Agreement) (a) Purchaser a “Loan Assumption Consent”). Such consent request shall assume be in a form determined by the applicable Seller’s obligations . (iii) Not take an action, nor fail to take any action, that would result in a material breach of any covenant under the Note and all of the other applicable any Assumed Loan Documents and accept title Document. (iv) Subject to each Assumption Property subject to Section 4.2 below, authorize the Assumed Deed of Trust Buyer and the Assumed Encumbrances applicable Loan Property Purchaser to such Assumption Property, and (b) the applicable Lender shall release the applicable Seller, as well as any guarantors and other obligated parties under directly contact the Assumed Loan Documents, Lender Parties from all obligations under time to time in order to engage in discussions and negotiations with respect to the Loan Assumption. (v) Make commercially reasonable efforts to assist the Buyer in the consummation of the Loan Assumptions with the Buyer and the Assumed Loan Documents (and any related guarantees or letters of credit)Lender Parties, including, without limitation, by (A) confirming, remaking and updating, as appropriate, any obligation to make payments of principal representations and interest under the applicable Note (collectively, the foregoing (a) and (b) referred to herein as the “Loan 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. 4.6.3 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, at its sole cost and expense and within 20 days after the Effective Date, but in no event later than October 1, 2009 (the “Submittal Deadline”), shall use commercially reasonable efforts to satisfy the requirements set forth warranties in the Assumed Loan Documents as of the Closing Date if required by the Assumed Loan Lender Parties, and (B) providing customary and reasonable releases to allow the Assumed Loan Lender Parties, if required by the Assumed Loan Lender Parties. Except for each the payment of 50% of the Loan Assumption Costs, and Release100% of the Excluded Seller Loan Expenses, the Sellers’ obligations to “make all commercially reasonable efforts” shall not require the Sellers to incur any cost, expense or liability, including, without limitation, submitting a substantially complete application to the applicable Lender for assumption of each Loan together with all documents and information required in connection therewith (the “Loan Assumption Application”). Purchaser agrees to provide Sellers’ Representative with a copy of each Loan Assumption Application no later than the Submittal Deadline and Sellers shall provide evidence of its submission to each Lender on or before the Submittal Deadline. Purchaser acknowledges and agrees that Purchaser is solely responsible for the preparation and submittal of each Loan Assumption Application, including the collection of all materials, documents, certificates, financials, signatures, and other items not be required to be submitted to such Lender in connection with each Loan Assumption Applicationpursue litigation against the holder of any Assumed Loans. 4.6.4 Purchaser shall comply with Lender’s assumption guidelines in connection with the Loan Assumption and Release and(vi) Promptly supply, if required by the Lender, Purchaser shall cause such person or entity reasonably acceptable to the Lender, to execute and deliver a “non-recourse carve-out” guaranty and 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 such Lender in connection with a Loan Assumption Application no later than five (5) Business Days after notification from such Lender of such deficiency. Purchaser also shall provide Sellers’ Representative with a copy of any correspondence from a Lender with respect to a Loan Assumption Application no later than five (5) Business Days after receipt of such correspondence from such Lender. Purchaser acknowledges that a Lender’s assumption guidelines may not be consistent with the provisions of the applicable Assumed Loan Documents concerning the Loan Assumption and Release. Purchaser shall coordinate with such Lender to comply with the appropriate provisions of both the applicable Assumed Loan Documents and such Lender’s assumption guidelines in order to allow for the Loan Assumption and Release. 4.6.5 Purchaser shall pay all fees and expenses (including, without limitation, all servicing fees and charges, transfer fees, indebtedness taxes, assumption fees, title fees, endorsement fees, and other fees to release each Seller of all liability under a Loan) imposed or charged by the Lender or its counsel (such fees and expenses collectively being referred to as the “Assumption Lender Fees”), in connection with each Loan Assumption Application and each Loan Assumption and Release. The provisions of this Section 4.6.5 shall survive the termination of this Contract and the Closing. 4.6.6 There are currently no reserves, impounds and other accounts held by a Lender in connection with each Loan. Purchaser shall be responsible for funding any new or additional reserves, impounds or accounts required by a Lender to be maintained by Purchaser in connection with each Loan after the Loan Assumption and Release (the “Required Loan Fund Amounts”). 4.6.7 Purchaser agrees promptly to deliver to each Lender all documents and information required by the Assumed Loan Documents, and such other information or documentation as such Lender reasonably may request, including, without limitation, financial statements, income tax returns and other financial information for Purchaser and any required guarantor. Each Seller agrees that it will cooperate with Purchaser and the applicable Lender, at no cost or expense to such Seller, in connection with Purchaser’s application to Lender for approval of each applicable Loan Assumption and Release. 4.6.8 No later than ten (10) days after the Effective Date, Purchaser shall order a Phase I Environmental study and property condition report for each Assumption Property (each prepared by engineers and/or consultants reasonably acceptable to Sellers’ Representative and Lender), and covenants that such Phase I Environmental study and property condition report shall be delivered to Sellers’ Representative and Lender no later than ten (10) days prior to the Closing Date in connection with and as a precondition to a Loan Assumption and Release for each Assumption Property. 4.6.9 If (a) Purchaser complies in all material respects with its obligations under this Contract (including this Section 4.6) and the requirements of each of the Assumed Loan Documents in connection with obtaining the Loan Assumption and Release for each Assumption Property, (b) Purchaser uses commercially reasonable efforts to diligently obtain the Loan Assumption and Release for each Assumption Property, and (c) prior to the Closing Date, Purchaser does not obtain the consent of the Lender to the Loan Assumption and Release for an Assumption Property, then Purchaser shall promptly deliver a Termination Notice to Sellers’ Representative stating that Purchaser has been unable to obtain the Loan Assumption and Release for one or more of the Assumption Properties identified in such Termination Notice. Upon receipt by Sellers’ Representative of such Termination Notice, the Contract shall automatically be deemed terminated with respect to each Assumed Property identified in such Termination Notice. The provisions of Section 13.33 shall apply to each Assumption Property with respect to which this Contract has been so terminated. 4.6.10 Purchaser shall be in default hereunder if, after the expiration of the Feasibility Period, Purchaser fails to use commercially reasonable efforts to diligently obtain Lender's consent cause its agents to supply, to the Assumed Loan Lender Parties upon request all financial and other information with respect to the applicable Seller and applicable Property as may be requested by the Assumed Loan Lender Parties from time to time and otherwise reasonably cooperate with requests of the Assumed Loan Lender Parties with respect to the Loan Assumption and Release for each Assumption Property. If such event occurs, then Sellers may terminate this Contract and the Deposit shall be immediately released by the Escrow Agent to SellersAssumptions.

Assumed Loans. This Section 4.6 applies only (i) Not amend, supplement, or otherwise modify any of such Seller’s Assumed Loans or the Assumed Loan Documents related to such Assumed Loans without the prior written consent of the Buyer, which consent may be granted or withheld in the Buyer’s sole discretion. (ii) With respect to each Assumed Loan Property, within five (5) Business Days following the Buyer’s approval or deemed approval of such Seller’s proposed consent request, request in writing that each Assumed Loan Lender Party approve and deliver the Loan Assumption Consent. Such Seller shall provide a copy of each such consent request to the Assumption PropertiesBuyer of its approval, which shall not be unreasonably withheld, conditioned or delayed. If the Buyer fails to object to any such consent request within five (5) Business Days of its receipt thereof (and provide a reasonably detailed description of its objections), the Buyer shall be deemed to have approved such consent request. Each Seller shall use its commercially reasonable efforts (but shall not be required to pursue litigation against the holder of any Assumed Loans) to obtain such consents prior to the Closing Date and any extensions thereof in accordance with this Agreement. 4.6.1 (iii) Use commercially reasonable efforts to observe and perform its obligations under each Assumed Loan Document. (iv) Authorize Buyer and the Assumed Loan Property Purchaser recognizes to directly contact the Assumed Loan Lender Parties from time to time in order to engage in discussions and agrees thatnegotiations with respect to the Loan Assumption, provided that representatives of the applicable Seller will be afforded a reasonable opportunity to participate in such discussions. (v) Use commercially reasonable efforts to consummate the Loan Assumptions with Buyer and the Assumed Loan Lender Parties, including, without limitation, by (A) confirming, remaking and updating any representations and warranties in the Assumed Loan Documents as of the Closing Date if required by the Assumed Loan Lender Parties, subject to any necessary exceptions or modifications necessitated by new or newly discovered facts and circumstances, and (B) providing customary and reasonable releases to the Assumed Loan Lender Parties, if required by the Assumed Loan Lender Parties. (vi) Promptly supply to the Assumed Loan Lender Parties, upon receipt of written request therefor, all financial and other information with respect to the applicable Property (or with respect to the applicable Seller, provided that the nature of such requested information with respect to the applicable Seller is materially consistent with information with respect to the applicable Seller previously provided to the Assumed Loan Lender Parties) and as may be reasonably requested from time to time by the Assumed Loan Lender Parties in accordance with the terms and conditions of the applicable Third Party Loan Documents and otherwise reasonably cooperate with requests of the Assumed Loan Lender Parties with respect to the Loan Assumptions. (vii) Promptly upon receipt of written request therefor in accordance with the terms and conditions of the applicable Third Party Loan Documents from any Assumed Loan Lender Party in connection with such Assumed Loan Lender Party’s review and approval of the application packages for each Loan on an Assumption Property made by LenderAssumption, pay any deposits, processing fees, legal retainers and any other upfront fees or charges, provided that at such Assumption Property is encumbered by time as the Assumed Deed of Trust and the Assumed Encumbrances. The Loan is evidenced by the Note applicable to such Assumption Property. Prior Sellers have advanced amounts equal to the Effective Date Seller Loan Cost Cap, the Buyer shall promptly advance upon the Sellers’ request all such deposits, processing fees, legal retainers and any other upfront fees or charges. (viii) With respect to any Failed Loan Assumptions that are subject to the provisions of Section 3.5.22.3(d) hereof, each Seller promptly deliver any documents, notices and other deliveries required to be delivered pursuant to the provisions of an Assumption Property has made available to Purchaser copies of the Assumed Loan Documents which are Section 2.3(d), in such Seller’s possession or reasonable control. 4.6.2 Purchaser agrees that, at the Closing, (a) Purchaser shall assume the applicable Seller’s obligations under the Note accordance with and all of the other applicable Assumed Loan Documents and accept title to each Assumption Property subject to the Assumed Deed of Trust terms and the Assumed Encumbrances applicable to such Assumption Property, and (b) the applicable Lender shall release the applicable Seller, as well as any guarantors and other obligated parties 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 applicable Note (collectively, the foregoing (a) and (b) referred to herein as the “Loan 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 Dateconditions thereof. 4.6.3 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, at its sole cost and expense and within 20 days after the Effective Date, but in no event later than October 1, 2009 (the “Submittal Deadline”), shall use commercially reasonable efforts to satisfy the requirements set forth in the Assumed Loan Documents to allow for each Loan Assumption and Release, including, without limitation, submitting a substantially complete application to the applicable Lender for assumption of each Loan together with all documents and information required in connection therewith (the “Loan Assumption Application”). Purchaser agrees to provide Sellers’ Representative with a copy of each Loan Assumption Application no later than the Submittal Deadline and shall provide evidence of its submission to each Lender on or before the Submittal Deadline. Purchaser acknowledges and agrees that Purchaser is solely responsible for the preparation and submittal of each Loan Assumption Application, including the collection of all materials, documents, certificates, financials, signatures, and other items required to be submitted to such Lender in connection with each Loan Assumption Application. 4.6.4 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 person or entity reasonably acceptable to the Lender, to execute and deliver a “non-recourse carve-out” guaranty and 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 such Lender in connection with a Loan Assumption Application no later than five (5) Business Days after notification from such Lender of such deficiency. Purchaser also shall provide Sellers’ Representative with a copy of any correspondence from a Lender with respect to a Loan Assumption Application no later than five (5) Business Days after receipt of such correspondence from such Lender. Purchaser acknowledges that a Lender’s assumption guidelines may not be consistent with the provisions of the applicable Assumed Loan Documents concerning the Loan Assumption and Release. Purchaser shall coordinate with such Lender to comply with the appropriate provisions of both the applicable Assumed Loan Documents and such Lender’s assumption guidelines in order to allow for the Loan Assumption and Release. 4.6.5 Purchaser shall pay all fees and expenses (including, without limitation, all servicing fees and charges, transfer fees, indebtedness taxes, assumption fees, title fees, endorsement fees, and other fees to release each Seller of all liability under a Loan) imposed or charged by the Lender or its counsel (such fees and expenses collectively being referred to as the “Assumption Lender Fees”), in connection with each Loan Assumption Application and each Loan Assumption and Release. The provisions of this Section 4.6.5 shall survive the termination of this Contract and the Closing. 4.6.6 There are currently no reserves, impounds and other accounts held by a Lender in connection with each Loan. Purchaser shall be responsible for funding any new or additional reserves, impounds or accounts required by a Lender to be maintained by Purchaser in connection with each Loan after the Loan Assumption and Release (the “Required Loan Fund Amounts”). 4.6.7 Purchaser agrees promptly to deliver to each Lender all documents and information required by the Assumed Loan Documents, and such other information or documentation as such Lender reasonably may request, including, without limitation, financial statements, income tax returns and other financial information for Purchaser and any required guarantor. Each Seller agrees that it will cooperate with Purchaser and the applicable Lender, at no cost or expense to such Seller, in connection with Purchaser’s application to Lender for approval of each applicable Loan Assumption and Release. 4.6.8 No later than ten (10) days after the Effective Date, Purchaser shall order a Phase I Environmental study and property condition report for each Assumption Property (each prepared by engineers and/or consultants reasonably acceptable to Sellers’ Representative and Lender), and covenants that such Phase I Environmental study and property condition report shall be delivered to Sellers’ Representative and Lender no later than ten (10) days prior to the Closing Date in connection with and as a precondition to a Loan Assumption and Release for each Assumption Property. 4.6.9 If (a) Purchaser complies in all material respects with its obligations under this Contract (including this Section 4.6) and the requirements of each of the Assumed Loan Documents in connection with obtaining the Loan Assumption and Release for each Assumption Property, (b) Purchaser uses commercially reasonable efforts to diligently obtain the Loan Assumption and Release for each Assumption Property, and (c) prior to the Closing Date, Purchaser does not obtain the consent of the Lender to the Loan Assumption and Release for an Assumption Property, then Purchaser shall promptly deliver a Termination Notice to Sellers’ Representative stating that Purchaser has been unable to obtain the Loan Assumption and Release for one or more of the Assumption Properties identified in such Termination Notice. Upon receipt by Sellers’ Representative of such Termination Notice, the Contract shall automatically be deemed terminated with respect to each Assumed Property identified in such Termination Notice. The provisions of Section 13.33 shall apply to each Assumption Property with respect to which this Contract has been so terminated. 4.6.10 Purchaser shall be in default hereunder if, after the expiration of the Feasibility Period, Purchaser fails to use commercially reasonable efforts to diligently obtain Lender's consent to the Loan Assumption and Release for each Assumption Property. If such event occurs, then Sellers may terminate this Contract and the Deposit shall be immediately released by the Escrow Agent to Sellers.