AMENDMENT NO. 5
TO
REAL ESTATE ACQUISITION AGREEMENT
AMENDMENT NO. 5 TO REAL ESTATE ACQUISITION AGREEMENT, dated as of
September 11, 1997 (this "AMENDMENT"), by and among Apartment Investment and
Management Company, a Maryland corporation ("AIMCO"), AIMCO Properties, L.P.,
a Delaware limited partnership ("AIMCO OP" and, together with AIMCO, the
"BUYERS"), Demeter Holdings Corporation, a Massachusetts corporation
("DEMETER"), Phemus Corporation, a Massachusetts corporation ("PHEMUS"),
Capricorn Investors, L.P., a Delaware limited partnership ("CAPRICORN"), J.
Xxxxxxxx Xxxxxx, III, an individual ("XXXXXX"), and NHP Partners Two LLC, a
Delaware limited liability company ("PARTNERS TWO LLC" and, together with
Demeter, Phemus, Capricorn and Xxxxxx, the "SELLERS"). Capitalized terms
used, but not otherwise defined herein, shall have the respective meanings
ascribed to them in the Real Estate Acquisition Agreement, dated as of May
22, 1997, by and among the Buyers and the Sellers, as amended by (i)
Amendment No. 1 to Real Estate Acquisition Agreement, dated as of June 13,
1997, by and among the Buyers and the Sellers, (ii) Amendment No. 2 to Real
Estate Acquisition Agreement, dated as of July 14, 1997, by and among the
Buyers and the Sellers, (iii) Amendment No. 3 to Real Estate Acquisition
Agreement, dated as of August 14, 1997, by and among the Buyers and the
Sellers, and (iii) Amendment No. 4 to Real Estate Acquisition Agreement,
dated as of September 4, 1997, by and among the Buyers and the Sellers (as so
amended, the "ACQUISITION AGREEMENT").
WHEREAS, the parties hereto desire to amend the Acquisition
Agreement to extend the date for exercise of the Buyers' Property Put Right
for certain assets.
NOW, THEREFORE, in consideration of the foregoing, and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. AMENDMENT OF SECTION 5.15(b). Section 5.15(b) of the
Acquisition Agreement is hereby amended and restated in its entirety to read
as follows:
"(b) The Buyers' Property Put Right may be exercised, at any time or
from time to time, (1) no later
than October 31, 1997, with respect to (A) the 1% general partnership
interest and 15.715% limited partnership interest in each of Lakehaven
Associates One and Lakehaven Associates Two, or (B) the .01% limited
partnership interest in River Loft Apartments Limited Partnership, and
the 0.9% general partnership interest, the 0.1% general partnership
interest and the 4% limited partnership interest in River Loft
Associates, and (2) no later than June 16, 1997, with respect to any
other assets; provided, however, that the Buyers shall not have the right
to exercise the Buyers' Property Put Right with respect to any of the
assets described in clause (1) of this Section 5.15(b) if the Sellers
wire transfer funds to such account or accounts as the Buyers shall
specify in an aggregate amount equal to $492,847 on or prior to October
31, 1997. The Buyers' Property Put Right may be exercised by AIMCO's
delivery of a written notice to the Sellers specifying (i) the assets
that are requested to be repurchased by the Sellers pursuant to the
Buyers' Property Put Right, (ii) the basis on which the Buyers are
entitled to exercise the Buyers' Property Put Right, and (iii) the date
and time at which the closing (the "BUYERS' PROPERTY PUT CLOSING") of the
repurchase of such assets is to occur. The date of the Buyers' Property
Put Closing shall be at least 30 days after the date (the "Notice Date")
such notice is given; provided, however, that if (x) it is not possible
for the Sellers to cure, at least 5 Business Days prior to the 30th day
after the Notice Date, the breach, liability or defect that entitles the
Buyers to exercise the Buyers' Property Put Right, or (y) AIMCO
determines, in its reasonable discretion, that it is necessary to
consummate the Buyers' Property Put Closing earlier in order to avoid
jeopardizing AIMCO's REIT Status, then the date of the Buyers' Property
Put Closing may be on an earlier date, but not earlier than 5 Business
Days after the Notice Date."
2. GOVERNING LAW. This Amendment and the legal relations among
the parties hereto shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware, without regard to its
principles of conflicts of law.
3. ENTIRE AGREEMENT. This Amendment, together with the
Acquisition Agreement, including the exhibits and
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schedules attached thereto, constitutes the entire agreement among the
parties pertaining to the subject matter hereof and supersedes all prior
agreements, understandings, letters of intent, negotiations and discussions,
whether oral or written, of the parties, including the Letter Agreement, and
there are no warranties, representations or other agreements, express or
implied, made to any party by any other party in connection with the subject
matter hereof except as specifically set forth herein or in the documents
delivered pursuant hereto or in connection herewith.
4. ACQUISITION AGREEMENT IN FULL FORCE. Except as expressly
modified hereby, the Acquisition Agreement remains in full force and effect.
5. MODIFICATION; WAIVER. No supplement, modification, waiver or
termination of this Amendment shall be binding unless executed in writing by
the party to be bound thereby. No waiver of any provision of this Amendment
shall be deemed or shall constitute a waiver of any other provision hereof
(whether or not similar), nor shall such waiver constitute a continuing
waiver unless otherwise expressly provided.
6. SEVERABILITY. Any provision or part of this Amendment which is
invalid or unenforceable in any situation in any jurisdiction shall, as to
such situation and such jurisdiction, be ineffective only to the extent of
such invalidity and shall not affect the enforceability of the remaining
provisions hereof or the validity or enforceability of any such provision in
any other situation or in any other jurisdiction.
7. COUNTERPARTS. This Amendment may be executed in as many
counterparts as may be deemed necessary and convenient, and by the different
parties hereto on separate counterparts each of which, when so executed,
shall be deemed an original, but all such counterparts shall constitute one
and the same instrument.
8. NEGOTIATION OF AMENDMENT. Each of the parties acknowledges
that it has been represented by independent counsel of its choice throughout
all negotiations that have preceded the execution of this Amendment and that
it has executed the same with consent and upon the advice of said independent
counsel. Each party and its
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counsel cooperated in the drafting and preparation of this Amendment and the
documents referred to herein, and any and all drafts relating thereto shall
be deemed the work product of the parties and may not be construed against
any party by reason of its preparation. Accordingly, any rule of law or any
legal decision that would require interpretation of any ambiguities in this
Amendment against the party that drafted it is of no application and is
hereby expressly waived. The provisions of this Amendment shall be
interpreted in a reasonable manner to effect the intentions of the parties
and this Amendment.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment
as of the date first above written.
APARTMENT INVESTMENT
AND MANAGEMENT COMPANY
By: /s/ Xxxxx Xxxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxxx
Its: Vice Chairman
AIMCO PROPERTIES, L.P.
By: AIMCO-GP, Inc.,
its general partner
By: /s/ Xxxxx Xxxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxxx
Its: Vice President
DEMETER HOLDINGS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Its: Authorized Signatory
By: /s/ Xxx X. Xxxxxx
----------------------------
Name: Xxx X. Xxxxxx
Its: Authorized Signatory
PHEMUS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Its: Authorized Signatory
By: /s/ Xxx X. Xxxxxx
----------------------------
Name: Xxx X. Xxxxxx
Its: Authorized Signatory
CAPRICORN INVESTORS, L.P.
By: Capricorn Holdings, G.P.,
its General Partner
By: Xxxxxxx Holdings, Inc.,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
----------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Its: President
/s/ J. Xxxxxxxx Xxxxxx, III
----------------------------
J. Xxxxxxxx Xxxxxx, III
NHP PARTNERS TWO LLC
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Its: Authorized Signatory
