Exhibit 7.2
CONTRIBUTION AGREEMENT
CONTRIBUTION AGREEMENT (this "Agreement"), dated as of December 1,
2003, between Two Winthrop Properties, Inc., a Massachusetts corporation
("Winthrop"), AIMCO Properties, L.P., a Delaware limited partnership ("AIMCO")
and AIMCO/Winthrop Growth Investors 1 GP, LLC, a Delaware limited liability
company (the "Subsidiary"; and together with AIMCO, the "AIMCO Parties").
W I T N E S S E T H:
WHEREAS, Winthrop holds a general partner interest (the "GP Interest")
in Winthrop Growth Investors 1 Limited Partnership (the "Partnership");
WHEREAS, Subsidiary is wholly-owned by AIMCO;
WHEREAS, Winthrop desires to contribute the GP Interest to Subsidiary,
and Subsidiary desires to acquire the GP Interest, in exchange for limited
partnership interests in AIMCO, all upon the terms and conditions set forth
herein;
WHEREAS, pursuant to that certain Allocation Agreement, dated of even
date herewith, among Winthrop Financial Associates, First Winthrop Corporation,
W.T. Limited Partnership, NHP Management Company and AIMCO (the "Allocation
Agreement"), the parties thereto have set forth the amount allocable to the GP
Interest;
NOW, THEREFORE, in consideration of the foregoing premises and of the
mutual agreements and other good and valuable consideration hereinafter set
forth, the parties hereto, intending to be legally bound, do hereby agree as
follows:
ARTICLE FIRST
CLOSING
1.1 The Closing. The closing (the "Closing") of the transactions
set forth in Sections 1.2 and 1.3 of this Article FIRST shall take place at
10:00 A.M., New York City time, on the third business day after the day on which
all of the conditions set forth in Articles FIFTH and SIXTH hereof have been
satisfied or waived, or at such other time on such date, or on such other date,
as Winthrop and AIMCO may agree, at the offices of Winthrop's Attorney, 000
Xxxxxxx Xxxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxx Xxxx 00000. (Hereinafter, such date
is referred to as the "Closing Date" and such time on the Closing Date is
referred to as the "Closing Time".)
1.2 Contribution of GP Interest. Subject to the terms and
conditions of this Agreement, Winthrop shall contribute to the Subsidiary, and
the Subsidiary agrees to accept from Winthrop, the GP Interest.
1.3 Consideration. In exchange for the contribution of the GP
Interest to the Subsidiary, AIMCO shall issue to Winthrop a number of units of
limited partnership interest in AIMCO equal
to (i) the amount allocable to the GP Interest as set forth in the Allocation
Agreement divided by the average closing sale price per share of Apartment
Investment and Managing Company ("AIV") common stock on the primary national
securities exchange or national market system on which shares of AIV common
stock are then listed for trading, for the twenty consecutive trading days
preceding the Closing Date multiplied by (ii) the number of shares of AIV common
stock for which each such unit of limited partnership interest in AIMCO may be
converted (the "OP Units").
1.4 Non-Recognition Transaction. It is the intent of the parties
and the parties shall treat the contribution and conveyance of the GP Interest
as a non-recognition transaction pursuant to Section 721(a) of the Internal
Revenue Code of 1986, as amended (the "Code"). Winthrop, the Subsidiary and
AIMCO shall execute any and all documents and take all such further actions as
may be reasonably necessary to cause the transaction contemplated hereby to
comply with such Section 721(a).
ARTICLE SECOND
REPRESENTATIONS AND WARRANTIES OF WINTHROP
Winthrop hereby represents and warrants to the AIMCO Parties that:
2.1 Organization; Good Standing. Winthrop is a corporation duly
organized, validly existing and in good standing under the laws of the
Commonwealth of Massachusetts. Winthrop has the requisite corporate power and
authority to conduct its business in the manner now conducted.
2.2 Authorization and Enforceability. Winthrop has all requisite
power and authority to execute, deliver and, upon receipt of the Limited Partner
Consent (as defined in Section 4.1 hereto) perform this Agreement. Except for
the receipt of Limited Partner Consent, all necessary proceedings of Winthrop
have been taken to authorize the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby. This
Agreement has been duly authorized, executed and delivered by Winthrop and, upon
the receipt of Limited Partner Consent, this Agreement constitutes the legal,
valid and binding obligation of Winthrop enforceable as to it in accordance with
its terms, except as the same may be limited by applicable bankruptcy,
insolvency, moratorium, reorganization, fraudulent conveyance and other similar
laws of general application relating to or affecting the rights of creditors.
2.3 Ownership of the GP Interest. Good title to the GP Interest is
owned by Winthrop free and clear of all pledges, security interests, liens,
charges, encumbrances, restrictions and claims of every kind other than the
liabilities and obligations applicable to the ownership of the GP Interest as
set forth in the partnership agreement of the Partnership.
2.4 No Conflict. The execution, delivery and performance of this
Agreement does not conflict with or result in any breach of any of the terms,
conditions or provisions of, or (with or without the giving of notice or the
passage of time or both) constitute a default under the organizational documents
of Winthrop or violate any provision of any law or regulation applicable to
Winthrop.
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2.5 Approvals and Consents. No consent, approval, order, license,
certificate or permit of or from, or declaration or filing with, any federal,
state, local or other governmental authority or any court or other tribunal,
domestic or foreign, is required by Winthrop in connection with the execution,
delivery and performance of this Agreement.
2.6 Litigation. There is no litigation pending, or to Winthrop's
knowledge threatened, that questions the validity of this Agreement or that, if
adversely determined, could reasonably be expected to have a material adverse
effect on the ability of Winthrop to perform its obligations under this
Agreement or on the GP Interest, and there is not in existence any judgment that
could reasonably be expected to have a material adverse effect on the ability of
Winthrop to perform its obligations under this Agreement or on the GP Interest.
2.7 No Rights to Purchase GP Interest. Except for affiliates of
AIMCO, no person, firm, corporation or other entity has any right or option to
purchase or otherwise acquire all or any part of the GP Interest.
2.8 No Brokers or Other Fees. No broker, finder or investment
banker is entitled to any brokerage, finder or other fee or commission in
connection with the transactions contemplated by this Agreement.
2.9 Investment Representations. The OP Units are being acquired in
a transaction not involving any public offering, within the meaning of the
Securities Act of 1933, as amended (the "Securities Act"), and the OP Units, and
any securities of AIMCO issued in exchange for OP Units, have not been, and may
never be, registered under the Securities Act. Winthrop (i) has such knowledge
and experience in financial and business matters that it is capable of
evaluating the merits and risks of an acquisition of the OP Units and it is able
to bear the economic risk of a loss of an investment in the OP Units and (ii) is
not acquiring any OP Units with a view to the distribution of the OP Units or
any present intention of offering or selling any of the OP Units in a
transaction that would violate the Securities Act or the securities laws of any
state or any other applicable jurisdiction. Winthrop is not relying on AIMCO (or
any agent, representative or affiliate of AIMCO) with respect to legal, tax,
accounting, financial and other economic considerations involved in connection
with the transactions contemplated hereby, including an investment in OP Units.
Winthrop has carefully considered and has, to the extent necessary, sought
legal, tax, accounting, financial and other advice with respect to the
suitability of the proposed investment in the OP Units.
2.10 FIRPTA. In order to induce the AIMCO to waive the requirement
of withholding tax under Section 1445 of the Internal Revenue Code of 1986, as
amended (the "Code"), Winthrop represents and warrants that (a) Winthrop is a
United States citizen, (b) Winthrop is not a foreign person for purposes of
Section 1445 of the Internal Revenue Code, and (c) Winthrop's correct and
complete Taxpayer Identification Number is set forth below Winthrop's signature
hereon.
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ARTICLE THIRD
REPRESENTATIONS AND WARRANTIES OF AIMCO
The AIMCO Parties hereby jointly and severally represent and warrant to
Winthrop that:
3.1 Organization; Good Standing. Each of them is a limited
partnership or limited liability company, duly organized, validly existing and
in good standing under the laws of the State of its formation. The AIMCO Parties
have the requisite power and authority to conduct its business in the manner now
conducted.
3.2 Authorization and Enforceability. The AIMCO Parties have all
requisite power and authority to execute, deliver and perform this Agreement.
All necessary proceedings of the AIMCO Parties have been taken to authorize the
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby. This Agreement has been duly authorized,
executed and delivered by the AIMCO Parties and this Agreement constitutes the
legal, valid and binding obligation of the AIMCO Parties enforceable as to them
in accordance with its terms, except as the same may be limited by applicable
bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance and
other similar laws of general application relating to or affecting the rights of
creditors.
3.3 No Conflict. The execution, delivery and performance of this
Agreement does not conflict with or result in any breach of any of the terms,
conditions or provisions of, or (with or without the giving of notice or the
passage of time or both) constitute a default under the organizational documents
of either the AIMCO Parties, or any indenture, lease, agreement or other
material instrument to which either of them or the Partnership is a party or by
which the Subsidiary, AIMCO or the Partnership is bound or violate any provision
of any law or regulation applicable to the Subsidiary, AIMCO or the Partnership.
3.4 Approvals and Consents. No consent, approval, order, license,
certificate or permit of or from, or declaration or filing with, any federal,
state, local or other governmental authority or any court or other tribunal,
domestic or foreign, is required by an AIMCO Party in connection with the
execution, delivery and performance of this Agreement.
3.5 Litigation. There is no litigation pending, or to the AIMCO
Parties' knowledge threatened, that questions the validity of this Agreement or
that, if adversely determined, could reasonably be expected to have a material
adverse effect on the ability of an AIMCO Party to perform its obligations under
this Agreement, and there is not in existence any judgment that could reasonably
be expected to have a material adverse effect on the ability of an AIMCO Party
to perform its obligations under this Agreement.
3.6 No Brokers or Other Fees. No broker, finder or investment
banker is entitled to any brokerage, finder or other fee or commission in
connection with the transactions contemplated by this Agreement.
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ARTICLE FOURTH
LIMITED PARTNER CONSENT
4.1 Limited Partner Consent. The AIMCO Parties covenant and agree
with Winthrop that, to the extent required pursuant to the terms of the
organizational documents of the Partnership, they shall seek the consent of the
limited partners of the Partnership for which consent is required to consummate
the transactions contemplated hereby (the "Limited Partner Consent"). The AIMCO
Parties shall prepare all such documentation necessary to seek the Limited
Partner Consent (the "Solicitation Documents") and such Solicitation Documents
shall comply with all applicable laws, rules and regulations. To the extent
necessary, the Solicitation Documents shall be filed with the Securities and
Exchange Commission as soon as practicable but not later than 45 days of the
date hereof and shall be distributed to the limited partners of the Partnership
on the earliest date permitted by Regulation 14A promulgated under the
Securities Exchange Act of 1934, as amended. The AIMCO Parties shall, and they
shall cause their affiliates to, vote all units of limited partnership interest
held by the AIMCO Parties and their affiliates in the Partnership in favor of
the contribution of the GP Interest as contemplated hereby. The parties shall
cause the current general partners of the Partnership to recommend that the
limited partners of the Partnership vote in favor of the transfer of the GP
Interest and Winthrop shall, and shall cause its affiliates to, vote all units
of limited partnership interest held by Winthrop and its affiliates in the
Partnership in favor of the transfer of the GP Interest as contemplated hereby.
Winthrop covenants and agrees with the AIMCO Parties that it will cooperate in
all reasonable respects with AIMCO in seeking the Limited Partner Consent. All
costs associated with seeking and obtaining Limited Partner Consent shall be
borne by the AIMCO Parties or the Partnership.
ARTICLE FIFTH
CONDITIONS TO OBLIGATIONS OF AIMCO
The obligations of AIMCO under this Agreement are subject to the
satisfaction, at or prior to the Closing Date, of all of the conditions set out
below in this Article FIFTH. AIMCO may waive any or all of such conditions in
whole or in part in its sole discretion.
5.1 Representations and Warranties Correct. The representations
and warranties of Winthrop made in this Agreement shall be true and correct in
all material respects on and as of the Closing Date with the same effect as
though such representations and warranties had been made on and as of the
Closing Date.
5.2 Full Performance. Winthrop shall have performed and complied
in all material respects with the covenants, conditions, terms and agreements to
be performed and complied with by it on or before the Closing Date.
5.3 Officer's Certificate. AIMCO shall have received a certificate
from a duly authorized officer of Winthrop certifying to the compliance by
Winthrop of the conditions set forth in Sections 5.1 and 5.2.
5.4 Limited Partner Consent. Limited Partner Consent shall have
been received with respect to the Partnership.
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5.5 Assignment and Assumption.Winthrop shall have executed and
delivered to The Subsidiary an Assignment and Assumption Agreement in the form
annexed hereto as Exhibit A (the "Assignment and Assumption") with respect to
the Partnership.
5.6 Amendment to Organizational Documents of Partnership. Winthrop
shall have executed and delivered to AIMCO an amendment to the organizational
documents of the Partnership evidencing the withdrawal of Winthrop as the
general partner of the Partnership and the admission of the Subsidiary as the
successor general partner, in form and substance acceptable to Winthrop in its
reasonable discretion.
ARTICLE SIXTH
CONDITIONS TO OBLIGATIONS OF WINTHROP
The obligations of Winthrop under this Agreement are subject to the
satisfaction, at or prior to the Closing Date, of all of the conditions set
forth below in this Article SIXTH. Winthrop may waive any or all of such
conditions in whole or in part in its sole discretion.
6.1 Representations and Warranties Correct. The representations
and warranties of AIMCO made in this Agreement shall be true and correct in all
material respects on and as of the Closing Date with the same effect as though
such representations and warranties had been made on and as of the Closing Date.
6.2 Full Performance. AIMCO shall have performed and complied in
all material respects with the covenants, conditions, terms and agreements to be
performed and complied with by it on or before the Closing Date.
6.3 Officer's Certificate. Winthrop shall have received a
certificate of a duly authorized officer of AIMCO's general partner certifying
to the compliance by AIMCO of the conditions set forth in Sections 6.1 and 6.2.
6.4 Limited Partner Consent. Limited Partner Consent shall have
been received with respect to the Partnership.
6.5 Assignment and Assumption.The Subsidiary shall have executed
and delivered to Winthrop an Assignment and Assumption with respect to the GP
Interest.
ARTICLE SEVENTH
SPECIAL COVENANTS WITH RESPECT TO THE OP UNITS
7.1 Covenants with Respect to the OP Units. In connection with the
issuance of the OP Units as contemplated by Section 1.3 hereof:
(i) any tax items arising from the ownership of the GP
Interest in the Partnership (including items of depreciation,
amortization and gain or loss with respect thereto and, to the extent
allocable to the GP Interest, such tax items of the Partnership) that
are required to be specially allocated to Winthrop under Section 704(c)
of the Code shall, notwithstanding anything to the contrary in AIMCO's
partnership agreement, be allocated using the "traditional method"
provided in Treasury Regulation Section 1.704-3(b)(1), taking into
account the ceiling rule, and Winthrop shall not be specially allocated
any
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other tax items of AIMCO to "cure" the effects of the ceiling rules as
applied to the contribution;
(ii) AIMCO shall close its book for tax purposes for its
taxable year in which the Closing Date occurs on the Closing Date, and
shall treat the portion of its taxable year ending on such date as a
separate taxable year for purposes of allocating its net income and net
loss (and related tax items) for such year, except that income, loss
and deductions from AIMCO's ordinary operations (but not income, gain
or loss from any sales or dispositions of assets or liabilities) of
AIMCO for the calendar month which includes such effective date shall
be apportioned on a per diem basis;
(iii) commencing on the Closing Date through and including
the date (the "Third Anniversary Date") which is the third anniversary
of such date, AIMCO shall not directly or indirectly (such as through a
guarantee or pledge) replace with other property or assets, expand to
include other property or assets not already securing such
indebtedness, guarantee or otherwise change the security for, any
indebtedness to which any real property of the applicable Partnership
is subject at the time of the contribution (and such restriction shall
also apply to any indebtedness obtained to repay, refinance or replace
such indebtedness within such three-year period) (any such indebtedness
being hereinafter called "Contributor Property Indebtedness");
(iv) commencing on the Closing Date through and including
the Third Anniversary Date, AIMCO shall not, directly or indirectly,
sell, transfer or otherwise dispose of the GP Interest or any real
property owned by the Partnership (and shall not directly or indirectly
consent to or permit any of the foregoing) other than as a result of an
involuntary sale or a deed in lieu of foreclosure following
acceleration of the related Partnership indebtedness; provided,
however, that this provision shall not apply to transactions, such as
like-kind exchanges, which would not result in the recognition of
income or gain by AIMCO for federal income tax purposes that would be
allocable to Winthrop by reason of the application of Code Section
704(c)(but, in the event of any disposition permitted by this proviso,
the disposition of any carryover basis property or other successor
property shall be subject to the provisions of this Section 7.1(iv)),
but shall apply to any distribution of property that would result in
Winthrop's recognition of income or gain under Code Sections 704(c) or
737;
(v) in accordance with paragraph (3)(a) under the heading
"analysis" in Revenue Ruling 95-41, 1995-1 C.B. 132, "excess
nonrecourse liabilities" of AIMCO shall be allocated among Winthrop and
the other partners of AIMCO by taking into account the share of Section
704(c) built-in gain of Winthrop with respect to the contribution to
the extent such gain is not taken into account in making an allocation
of nonrecourse liabilities to the contributor under Treasury Regs.
Section 1.752-3(a)(2);
(vi) AIMCO shall agree to notify Winthrop prior to any
unscheduled reduction or repayment (including by way of a refinancing)
of any Contributor Property Indebtedness that occurs on or before the
Third Anniversary Date, which notice shall include a good faith
estimate of the amount by which the amount of AIMCO liabilities that
Winthrop may include in the tax basis of its OP Units pursuant to
Section 1.752 of the Treasury Regulations shall be reduced as the
result thereof, and shall further agree that, upon receipt of written
notice from Winthrop, AIMCO shall use reasonable best efforts to make
provision for Winthrop to guaranty indebtedness of AIMCO so as to
enable Winthrop to increase its "economic risk of loss" (within the
meaning of Section 1.752-2 of the Treasury Regulations) with respect to
liabilities of AIMCO to the extent of such reduction but minimize the
economic risk of such guarantee to Winthrop to the extent practicable
(by, for example, guaranteeing the "bottom" portion of AIMCO's debt);
and
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(vii) AIMCO shall not directly or indirectly consent to or
permit the Partnership to become a separately taxable entity for
federal income tax purposes, or to change its tax year or accounting
method
7.2 Redemption Rights. (a) Winthrop shall have the right to cause
AIMCO to redeem all or any of the OP Units at any time following the second
anniversary of the date hereof for cash in an amount equal to (i) the number of
OP Units being redeemed, (ii) the conversion ratio applicable to other limited
partners in AIMCO at the time of redemption (but in no event less favorable than
the conversion ratio applicable at such time to any other limited partner in
AIMCO) and (iii) the average closing sale price per share of AIV common stock on
the primary national securities exchange or national market system on which
shares of AIV common stock are then listed for trading, for the twenty
consecutive trading days preceding the date notice of exercise of such
redemption right is received by AIMCO or, if shares of AIV common stock are not
then so listed for trading, the value of a share of AIV common stock determined
pursuant to a valuation methodology proposed by AIV and reasonably acceptable to
Winthrop which appropriately estimates the public market value of a share of AIV
common stock as if such shares were then traded on a national securities
exchange or national market system; provided, however, if AIV and Winthrop
cannot agree on a valuation methodology within 15 days of the date that Winthrop
requests the OP Units be redeemed (the expiration of such 15 day period being
hereinafter referred to as the "Redemption Date"), the value of such shares be
determined in accordance with Section 7.2(b) hereof. AIV shall have the right to
assume AIMCO's redemption obligation and satisfy that obligation by paying such
amount in cash or issuing such number of shares of AIV common stock registered,
or registered for resale by Winthrop (in connection with which each party shall
agree to customary indemnification provisions), under the Securities Act of 1933
as is equal to the product of the conversion ratio described in clause (ii)
above and the number of OP Units being redeemed, provided, however, that if
shares of AIV common stock are not then listed for trading on any national
securities exchange or national market system, then AIV shall only have the
right to satisfy AIMCO's redemption obligation by paying such amount in cash.
(b) If the value for the shares of AIV common stock is to
be determined pursuant to this Section 7.2(b), then each of AIMCO and Winthrop
shall, within 10 days of the Redemption Date, give notice to the other party of
their respective appraiser, which appraiser shall have at least five years
experience in valuing shares of unregistered equity interests in entities
similar in business nature to AIV (a "Qualified Appraiser"). The two Qualified
Appraisers shall choose a third impartial Qualified Appraiser (the "Impartial
Appraiser") within 10 days following the selection of the second Qualified
Appraiser. If a party fails to select and notify the other party within the 10
day period described in the preceding sentence, then the Qualified Appraiser
then so selected shall select the Impartial Appraiser. The Impartial Appraiser
so selected shall perform an appraisal to determine the value of the shares of
AIC common stock and shall present the results of such appraisal and his
determination thereof to the parties within 30 days following such appraiser's
selection. Within 15 days following the presentation of such valuation, AIMCO
shall redeem the OP Units as required in Section 7.2(a) hereof.
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7.3 Survival. The provisions of this Article SEVENTH shall survive
the Closing
ARTICLE EIGHTH
SURVIVAL; INDEMNIFICATION
8.1 Survival of Representations and Warranties. Except as
otherwise provided herein, the representations and warranties contained in this
Agreement shall survive the Closing for a period ending on the first anniversary
of the Closing Date; except that the representations and warranties set forth in
Section 2.3 hereof shall survive until the expiration of the applicable statute
of limitations. No party shall be entitled to assert any right of
indemnification hereunder unless notice of such assertion (describing the basis
therefor in reasonable detail to the extent then known) is given by the
Indemnified Party (as defined in Section 8.4) as provided in Section 8.4 no
later than the applicable date on which the representation or warranty with
respect to which the claim for indemnification is being made expires in
accordance with the foregoing. In the event that the Closing occurs
notwithstanding actual knowledge by any party hereto (whether by notice or
otherwise) of a breach of any representation or warranty of another party under
this Agreement, such party shall not be entitled to any remedy against any such
other breaching party hereto with respect to, or for damages arising out of or
as a result of, such breach and such party's consummation of the transactions
contemplated hereby and participation in the Closing shall constitute a waiver
and release by such party of any such breach.
8.2 Indemnification by Winthrop. Subject to the limitations
heretofore set forth and in Section 8.1, Winthrop shall indemnify AIMCO, its
affiliates, partners, directors, officers, employees and agents for, and shall
defend and hold AIMCO harmless from, against and with respect to all loss,
liability, damage and expense (including, without limitation, reasonable
attorneys' fees and costs and expenses incurred in investigating any claim)
(collectively, "Damages"), incurred by AIMCO as a result of or arising from (i)
any breach or failure of any written representation, warranty, covenant or
agreement of Winthrop contained in this Agreement; (ii) the material failure of
Winthrop to perform any agreement required hereunder or under any agreement
entered into in connection herewith to be performed by Winthrop, and (iii) all
actions, suits and proceedings arising out of the foregoing including, without
limitation, any Damages arising out of an action, suit or proceeding relating to
the Limited Partner Consent and based solely on information provided by Winthrop
and set forth in the Soliciting Documents.
8.3 Indemnification by AIMCO. Subject to the limitations
heretofore set forth and in Section 8.1, AIMCO shall indemnify Winthrop and its
affiliates, partners, directors, officers and employees for, and shall defend
and hold harmless each of them from, against and with respect to any Damages
incurred by any of them, as a result of, or arising from, (i) any breach or
failure of any written representation, warranty, covenant or agreement of AIMCO
contained in this Agreement; (ii) the material failure of AIMCO to perform any
agreement required hereunder or under any agreement entered into in connection
herewith to be performed by AIMCO, including, without limitation, the provisions
of Section 7.1 hereof, and (iii) all actions, suits and proceedings incident to
the foregoing, including, without limitation, any Damages arising out of an
action, suit or proceeding relating to (1) the GP Interest or the Partnership to
which Winthrop is made a party to the extent that the facts and circumstances of
such action, suit or proceeding arose after the Closing Time or (2) the Limited
Partner Consent unless such action, suit or
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proceeding is based solely on information provided by Winthrop and set forth in
the Soliciting Documents.
8.4 General Procedure. The provisions of Sections 8.2 and 8.3 are
expressly subject to the following: A party that may be entitled to
indemnification under this Article EIGHTH (an "Indemnified Party") shall give
notice to the party obligated to indemnify it (an "Indemnifying Party") with
reasonable promptness upon becoming aware of the claim or other facts upon which
a claim for indemnification or reimbursement will be based; the notice shall set
forth such information with respect thereto as is then reasonably available to
the Indemnified Party. The Indemnifying Party shall have the right to undertake
the defense of any such claim asserted by a third party and the Indemnified
Party shall cooperate in such defense and make available all records and
materials requested by the Indemnified Party in connection therewith. The
Indemnified Party shall be entitled to participate in such defense, but shall
not be entitled to indemnification with respect to the costs and expenses of
such defense if the Indemnifying Party shall have assumed the defense of the
claim with counsel reasonably satisfactory to the Indemnified Party. The
Indemnifying Party shall not be liable for any claim settled without its
consent, which shall not be unreasonably withheld or delayed; the Indemnifying
Party may settle any claim without the consent of the Indemnified Party, but
only if such settlement requires only the payment of monetary damages that are
paid in full by the Indemnifying Party.
8.5 Partnership Agreement Indemnity. Nothing in this Agreement
shall be deemed to limit or supercede any indemnification rights any of the
parties hereto or their affiliates have under that certain Second Amended and
Restated Agreement of Limited Partnership of Winthrop, dated October 27, 1997,
among Linnaeus Associates Limited Partnership, Londonderry Holdings LLC and NHP,
as amended by that certain Amendment No. 1, dated as of February 26, 1999.
ARTICLE NINTH
TERMINATION
9.1 Termination. This Agreement may be terminated at any time
prior to the Closing Time:
(a) by mutual written consent of Winthrop and AIMCO;
(b) by AIMCO on the one hand, or Winthrop on the other hand, if
the other breaches in any material respect any of their respective
representations, warranties or agreements contained in this Agreement and, such
breach is not cured or otherwise corrected to the reasonable satisfaction of
Winthrop on the one hand, or AIMCO on the other hand, within ten business days
of receipt of notice of such breach;
(c) by either Winthrop or AIMCO if Limited Partner Consent is not
obtained by September 30, 2004;
(d) by either Winthrop or AIMCO if either of them is prohibited by
an order or injunction (other than an order or injunction on a temporary or
preliminary basis) of a court of
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competent jurisdiction from consummating the transactions contemplated hereby
and all means of appeal and all appeals from such order or injunction have been
finally exhausted;
(e) by either Winthrop of AIMCO as provided in the Allocation
Agreement.
9.2 Manner of Exercise: Effect on Termination. In the event this
Agreement is terminated in accordance with Section 9.1, written notice thereof
shall forthwith be given to the other party, and this Agreement shall terminate,
be null and void and of no further force and effect and shall not be referred to
by the parties for any purpose whatsoever and the transactions contemplated
hereunder shall be abandoned without further action by AIMCO or Winthrop, except
to the extent that any such transactions shall have already been consummated.
ARTICLE TENTH
MISCELLANEOUS
10.1 Notices. Any and all notices or other communications required
or permitted to be given hereunder shall be in writing and shall be sent by
hand, by telecopy (confirmed by delivery by another method permitted hereunder),
by U. S. mail or by Federal Express or other similar overnight courier addressed
as follows:
If to AIMCO or
Subsidiary: AIMCO Properties, X.X.
Xxxxxxxx Place 3
0000 Xxxxx Xxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx
Fax: (000) 000-0000
With a copy to: Powell, Goldstein, Xxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X.
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxx, Esq.
Fax: (000) 000-0000
If to Winthrop: Two Winthrop Properties, Inc.
0 Xxxxxxxx Xxxxx - Xxxxx 000
P.O. Box 9507
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Fax: (000) 000-0000
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With a copy to: Post & Xxxxxxx, LLP
000 Xxxxxxx Xxxxxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx, Esq.
Fax: (000) 000-0000
Notices shall be deemed given upon receipt or refusal to accept delivery. Each
party shall promptly notify the other parties of any change in its address by
notice given as provided in this Section 10.1.
10.2 No Modification Except in Writing. This Agreement shall not be
changed, modified, or amended except by a writing signed by the party to be
charged, and this Agreement may not be discharged except by performance in
accordance with its terms or by a writing signed by the party to be charged.
10.3 Further Assurances. Each of the parties hereto hereby agrees
to execute and deliver all such further documents and take all such further
actions as shall be necessary, desirable or expedient to consummate the
transactions contemplated hereby. Winthrop further agrees to cooperate in
completing files or taking such other action with respect to the Partnerships
that may be reasonably requested by AIMCO and that should have been taken by
Winthrop prior to the Closing Date.
10.4 Entire Agreement. This Agreement, together with the Schedules
hereto, sets forth the entire agreement and understanding among the parties as
to the subject matter hereof and merges and supersedes all prior discussions,
agreements and understandings of every kind and nature among them.
10.5 Severability. If any provision of this Agreement or the
application of any provision hereof to any person or circumstances is held
invalid, the remainder of this Agreement and the application of such provision
to other persons or circumstances shall not be affected unless the provision
held invalid shall substantially impair the benefits of the remaining portions
of this Agreement.
10.6 Assignment. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and permitted
assigns, but shall not confer any benefit upon any person or entity other than
the parties hereto and their respective successors and permitted assigns. This
Agreement may not be assigned by either party hereto without the prior written
consent of the other except that this Agreement may be assigned to an affiliated
entity of AIMCO, provided that AIMCO remains responsible for the obligations of
that entity under this Agreement. .
10.7 Governing Law; Service of Process. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of New York
without giving effect to the conflict of laws principles thereof. AIMCO and
Winthrop hereby waive personal service of any and all process upon it and
consent that all such service of process may be made by registered or
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certified mail (return receipt requested) directed to AIMCO or Winthrop, as the
case may be, at its address set forth herein and service so made shall be deemed
to be completed three (3) days after the same shall have been so deposited in
the U.S. Mails.
10.8 Captions. The captions appearing in this Agreement are
inserted only as a matter of convenience and for reference and in no way define,
limit or describe the scope and intent of this Agreement or any of the
provisions hereof.
10.9 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original.
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IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the day and year first above written.
TWO WINTHROP PROPERTIES, INC.
By______________________________
Xxxxx Xxxxxxxxx
Executive Vice President
Tax ID No. 00-0000000
AIMCO PROPERTIES, L.P.
By: AIMCO-GP, Inc.
General Partner
By_________________________
Xxxxxxx X. Xxxx
Executive Vice President
AIMCO/WINTHROP GROWTH INVESTORS 1 GP, LLC
By__________________________
Xxxxxxx X. Xxxx
Executive Vice President
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