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EXHIBIT 10.47
OPTION SALE AGREEMENT
THIS OPTION SALE AGREEMENT ("Agreement"), dated September 20, 2000, is
made by and among Apartment Investment and Management Company, a Maryland
corporation, AIMCO Properties, L.P., a Delaware limited partnership, and
AIMCO/NHP Properties, Inc., a Delaware corporation, NHP Management Company, a
District of Columbia corporation (collectively "Buyers"), and Xxxxxxx X.
Xxxxxxx, Xxxx X. Xxxxxxx, Xxxx Xxx Xxxxx, Xxxxx X. Xxxxx, Xxxxx X. Xxxx, Xxxxxxx
X. Xxxxxxx, Xxxxxxx X. Xxxxxx, Xx. and Xxxx X. Xxxxxx and ORFG Operations,
L.L.C., (collectively "Sellers").
WHEREAS, Buyers and Xxx X. Xxxxxxx, Xxxxxxx X. Xxxxx, Xxxxxx X.
Xxxxxxx, Xxxx X. Xxxxxxxx, Xxxx X. Xxxxxx and Xxxxxxx X. Xxxxxxxxx have entered
into an Acquisition Agreement, dated June 28, 2000 (the "Acquisition
Agreement"). Capitalized terms used but not defined herein shall have the
meanings ascribed thereto in the Acquisition Agreement; and
WHEREAS, in connection with closing of the transactions contemplated by
the Acquisition Agreement, Sellers have agreed to sell their options (the
"Options") for Beneficial Assignee Interests ("BAC") Interests in Oxford Tax
Exempt Fund II Limited Partnership, a Maryland limited partnership ("OTEF") on
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Purchase of Options.
(a) On the first Closing of the transactions contemplated by the
Acquisition Agreement, each Seller shall sell to Buyers, and Buyers shall
purchase from each Seller, the Options owned by such Seller set forth in ANNEX I
hereto for the cash purchase price of $8.00 per each Option (the "Option
Purchase Price"); provided, however, in the event that any of the Buyers or
their Affiliates or OTEF close one or more Purchase Transactions (as defined
below) at any time prior to the third anniversary of the date of Closing under
the Acquisition Agreement, at a price, whether cash, fair market value of
non-cash consideration or otherwise, higher than $31.88 per BAC, then, upon
closing of such Purchase Transaction, the Buyers shall promptly pay each Seller
in cash an additional amount for their respective Options equal to the amount
per BAC that is paid,
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or the fair market value of considered offered, to BAC holders generally in any
such Purchase Transaction(s) above the sum of (i) $31.88, and (ii) in the case
of one or more Purchase Transactions, all additional amounts previously paid by
Buyers to Sellers with respect to their Options and attributable to prior
Purchase Transactions occurring on and after the date hereof. "Purchase
Transaction" shall mean any transaction involving a sale, contribution,
exchange, purchase, repurchase or redemption, tender offer, merger,
reorganization, spin-off, consolidation, business combination or similar type of
transaction, relating to the BACs or all or substantially all of the assets of
OTEF, or a liquidation of OTEF or all or any of its assets.
(b) If any Seller shall receive additional Options during the period
subsequent to June 1, 2000 but prior to Closing, Buyers may elect to purchase
such Options from Sellers upon the same terms and conditions set forth herein;
provided, however, that Buyers may elect to purchase such Options subsequent to
the first Closing of the transactions contemplated by the Acquisition Agreement
so long as such purchase is consummated, if at all, prior to the third
anniversary of Closing.
2. Closing.
At the Closing, the Sellers shall sell, assign, transfer and deliver,
to the purchasing Buyers all Options pursuant to documents reasonably acceptable
to Buyers, including an Assignment in the form of ANNEX B hereto, and such
Buyers shall deliver to each Seller the Option Purchase Price for the Options
sold by such Seller by wire transfer of good and immediately available U.S.
funds to such account(s) as may be specified in writing by such Seller.
Notwithstanding the foregoing, Buyers may, by delivery of five (5) days' prior
written notice to Sellers, elect to cause Sellers to exercise the Options
effective as of the Closing, in which event Buyers shall pay the aggregate
exercise price for the Options to OTEF and at the Closing, Buyers shall deliver
the Option Purchase Price to Sellers and Sellers shall deliver the BACs received
upon such exercise to Buyers in lieu of the Options so exercised.
3. Ownership of Options.
Each Seller hereby represents and warrants to each Buyer, with respect
to his or her Options (i) that as of the date hereof he or she is the record and
beneficial owner of each Option sold hereunder by him or her, free and clear of
any and all liens, claims and encumbrances, other than transfer restrictions
under the Securities Act of 1933, as amended, (ii) that neither the Option, nor
any plan of OTEF pursuant to which an Option was granted, restricts the ability
of or prohibits the ability of any Seller to sell or transfer the Option to the
Buyers, (iii) that all of such Options have been duly authorized and validly
issued, and under the terms of the plan and the Options the Options
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are fully vested, and (iv) that the Options of such Seller represent all options
to acquire BACs granted by OTEF and to which such Seller has any right, title or
interest.
4. Miscellaneous.
(a) Governing Law. This Agreement 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 Maryland, without regard to its principles of
conflicts of law.
(b) Entire Agreement. This Agreement 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, and there are no
warranties, representations or other agreements, express or implied, made to
either party by the 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.
(c) Modification; Waiver. No supplement, modification, waiver or
termination of this Agreement shall be binding unless executed in writing by the
party to be bound thereby. No waiver of any provision of this Agreement 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.
(d) Notices. Unless otherwise provided for herein, all notices,
claims, certificates, requests, demands and other communications required or
permitted hereunder shall be in writing and shall be deemed to have been given
(i) three (3) days after the date of mailing, if sent by registered or certified
mail, postage prepaid, with return receipt requested; (ii) when delivered, if
delivered personally; (iii) when transmitted, if sent by facsimile if a
confirmation of transmission is produced by the sending machine (and a copy of
such facsimile is promptly sent by another means specified herein); (iv) on the
first business day following the date of sending, if sent by overnight U.S.
Postal Service mail or nationally recognized overnight courier service; in each
case to the address set forth below or to such other address as may be specified
in writing by the applicable party:
if to any of Buyers, to:
Apartment Investment and Management
Company
0000 Xxxxx Xxxxxxxx Xxxxxxxxx,
Tower Two; Xxxxx 0 - 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxx Xxxxxxxxx
Telephone: (000) 000-0000
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and
Apartment Investment and Management
Company
00000 Xx. Xxxxxxx Xxx. Xxxxx 000
Xxxxxxxx Xxxxxx, XX 00000
Attention: Xx. Xxxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
If to any of Sellers, to:
Xxxxxxx X. Xxxxxxx, Xxxx X. Xxxxxxx,
Xxxx Xxx Xxxxx, Xxxxx X. Xxxxx,
Xxxxx X. Xxxx, Xxxxxxx X. Xxxxxxx,
Xxxxxxx X. Xxxxxx, Xx., Xxxx X. Xxxxxx,
and ORFG Operations, L.L.C.
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000
Attention: Named Seller
Telephone: (000) 000-0000
with a copy to:
Xxxx and Xxxx LLP
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, Xxxxxxxx xx Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxx, Esq.
Telephone: 000-000-0000
or to such other address or such other person as the addressee party shall have
last designated by notice to the other party.
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(e) Expenses. Whether or not the transactions contemplated by this
Agreement shall be consummated, all fees and expenses incurred by any party
hereto in connection with this Agreement shall be borne by such party.
(f) Assignment. No party hereto shall have the right, power, or
authority to assign or pledge this Agreement or any portion of this Agreement,
or to delegate any duties or obligations arising under this Agreement,
voluntarily, involuntarily, or by operation of law, without the prior written
consent of the other parties hereto, which consent may be granted or withheld in
such parties' sole discretion; provided however, Buyers may, upon providing not
less than five days' prior written notice, assign their rights under this
Agreement to a controlled Affiliate; provided further, however, no such
assignment by Buyers shall relieve Buyers of any of their respective obligations
hereunder.
(g) Severability. Any provision or part of this Agreement 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.
(h) Successors and Assigns; Third Parties. Subject to Section 4(f) and
the limitations set forth elsewhere in this Agreement, all of the rights,
duties, benefits, liabilities and obligations of the parties shall inure to the
benefit of, and be binding upon, their respective successors, permitted assigns,
heirs and legal representatives. Except as specifically set forth or referred to
herein, nothing herein expressed or implied is intended or shall be construed to
confer upon or give to any Person, other than the parties hereto and their
successors or permitted assigns, any rights or remedies under or by reason of
this Agreement.
(i) Counterparts. This Agreement 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.
(j) Headings. The Section headings of this Agreement are for
convenience of reference only and shall not be deemed to modify, explain,
restrict, alter or affect the meaning or interpretation of any provision hereof.
(k) Time of Essence. Time shall be of the essence with respect to all
matters contemplated by this Agreement.
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(l) Construction. This Agreement shall not be construed more strictly
against one party hereto than against any other party hereto merely by virtue of
the fact that it may have been prepared by counsel for one of the parties.
(m) Attorneys' Fees. In the event Buyers or Sellers file or otherwise
commence any action, suit, proceeding or arbitration against the other for any
claim or matter arising from or relating to this Agreement, the prevailing party
shall be entitled to recover such sums, in addition to any other damages or
compensation received, as will reimburse the prevailing party for reasonable
attorney's fees and costs of such action, suit, proceeding or arbitration
incurred on account thereof.
(n) Jurisdiction and Venue. The parties hereto hereby irrevocably
consent to the non-exclusive jurisdiction of any state or federal court located
within the State of Maryland and waive personal service or any and all process
upon the parties, and consent that all such service of process be made by
registered mail directed to the parties pursuant to Section 4(d). To the extent
permitted by law, the parties hereto waive any objection to venue of any action
instituted hereunder.
(o) JURY TRIAL WAIVER EACH BUYER AND SELLER AND ALL PERSONS CLAIMING
BY, THROUGH OR UNDER EACH BUYER AND SELLER, HEREBY EXPRESSLY, KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION (I) ARISING UNDER THIS AGREEMENT, INCLUDING,
WITHOUT LIMITATION, ANY PRESENT OR FUTURE MODIFICATION OF THIS AGREEMENT OR (II)
IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE
PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS AGREEMENT (AS NOW OR
HEREAFTER MODIFIED) OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO,
IN EACH CASE WHETHER SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION IS NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR
OTHERWISE; AND EACH BUYER AND SELLER HEREBY AGREES AND CONSENTS THAT AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION MAY BE FILED WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT HERETO TO THE WAIVER OF ANY RIGHT TO TRIAL BY JURY. EACH
BUYER AND SELLER ACKNOWLEDGES THAT IT HAS CONSULTED WITH LEGAL COUNSEL REGARDING
THE MEANING OF THIS WAIVER AND ACKNOWLEDGES THAT THIS WAIVER IS AN ESSENTIAL
INDUCEMENT FOR THE OTHER EXECUTING THIS AGREEMENT. THIS WAIVER SHALL SURVIVE THE
TERMINATION OR EXPIRATION OF THIS AGREEMENT.
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(p) Limitations. Each Seller's liability hereunder shall not exceed
the amount of purchase price paid by Buyers. Sellers are not making any
representations or warranties as to their Options other than those expressly set
forth in this Agreement.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto on this 20th day of September 2000.
BUYERS:
APARTMENT INVESTMENT AND
MANAGEMENT COMPANY,
a Maryland corporation
By: /s/ XXXXXXX X. XXXX
--------------------------------
Name: Xxxxxxx X. Xxxx
Title: Executive Vice President
AIMCO PROPERTIES, L.P.,
a Delaware limited partnership
By: AIMCO-GP, INC.
(General Partner)
By: /s/ XXXXXXX X. XXXX
--------------------------------
Name: Xxxxxxx X. Xxxx
Title: Executive Vice President
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AIMCO/NHP PROPERTIES, INC.,
a Delaware corporation
By: /s/ XXXXXXX X. XXXX
--------------------------------
Name: Xxxxxxx X. Xxxx
Title: Executive Vice President
NHP MANAGEMENT COMPANY,
a District of Columbia corporation
By: /s/ XXXXXXX X. XXXX
--------------------------------
Name: Xxxxxxx X. Xxxx
Title: Executive Vice President
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SELLERS:
/s/ XXXXXXX X. XXXXXXX
------------------------------------
XXXXXXX X. XXXXXXX
/s/ XXXX X. XXXXXXX
------------------------------------
XXXX X. XXXXXXX
/s/ XXXX XXX XXXXX
------------------------------------
XXXX XXX XXXXX
/s/ XXXXX X. XXXXX
------------------------------------
XXXXX X. XXXXX
/s/ XXXXX X. XXXX
------------------------------------
XXXXX X. XXXX
/s/ XXXXXXX X. XXXXXXX
------------------------------------
XXXXXXX X. XXXXXXX
/s/ XXXXXXX X. XXXXXX, XX.
------------------------------------
XXXXXXX X. XXXXXX, XX.
/s/ XXXX X. XXXXXX
------------------------------------
XXXX X. XXXXXX
ORFG OPERATIONS, L.L.C.
By: /s/ Xxxxxxx X. Xxxxx,
--------------------------------
Xxxxxxx X. Xxxxx,
President
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ANNEX A
Name Number of Options Owned
---- -----------------------
Xxxxxxx X. Xxxxxxx 13,043
Xxxx X. Xxxxxxx 6,521
Xxxx Xxx Xxxxx 6,521
Xxxxx X. Xxxxx 6,521
Xxxxx X. Xxxx 6,521
Xxxxxxx X. Xxxxxxx 6,521
Xxxxxxx X. Xxxxxx, Xx. 3,261
Xxxx X. Xxxxxx 3,261
ORFG Operations, L.L.C. 6,520
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ANNEX B
ASSIGNMENT OF OPTIONS FOR BENEFICIAL ASSIGNEE INTERESTS IN OXFORD
TAX EXEMPT FUND II LIMITED PARTNERSHIP
THIS ASSIGNMENT OF OPTIONS FOR BENEFICIAL ASSIGNEE INTERESTS IN OXFORD
TAX EXEMPT FUND II LIMITED PARTNERSHIP, dated as of June ___, 2000 (this
"Assignment"), by _______________ ("Assignor"), in favor of ____________, a
_________________ ("Assignee").
WHEREAS, Apartment Investment and Management Company, AIMCO
Properties, L.P., AIMCO/NHP Properties, Inc., and Xxx X. Xxxxxxx, Xxxxxxx X.
Xxxxx, Xxxxxx X. Xxxxxxx, Xxxx X. Xxxxxxxx, Xxxx X. Xxxxxx and Xxxxxxx X.
Xxxxxxxxx are parties to that certain Acquisition Agreement, dated as of June
28, 2000 (the "Acquisition Agreement"). Capitalized terms used but not otherwise
defined herein shall have the meanings ascribed thereto in the Acquisition
Agreement.
WHEREAS, Assignor is the owner of the number of options (the
"Options") for Beneficial Assignee Interests ("BAC") Interests in Oxford Tax
Exempt Fund II Limited Partnership, a Maryland limited partnership ("OTEF") set
forth on Table I hereto.
WHEREAS, pursuant to the Option Sale Agreement of even date
herewith, Assignor has agreed to sell, convey, assign and transfer all of his
right, title and interest in, to and under the Options to Assignee.
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto do hereby agree as follows:
1. Assignment. Assignor does hereby unconditionally,
absolutely, and irrevocably grant, bargain, sell, transfer, assign, convey, set
over, deliver and contribute unto Assignee all of Assignor's right, title and
interest in, to and under the Options, including the right to exercise the
Option and receive BACs upon such exercise.
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2. Assignor's Representations and Warranties. Assignor hereby
represents and warrants to Assignee as follows:
a. Assignor has good, valid, marketable title
to the Options.
b. Assignor has not sold, assigned,
transferred, mortgaged, hypothecated, pledged or otherwise granted any interest
in, or suffered to occur any lien or encumbrance on or with respect to, any or
all of Assignor's right, title or interest in and to all or any portion of the
Options.
c. Assignor has the right to sell and transfer
the Options and no provision of the agreement for the Options or any plan of
OTEF pursuant to which the Options were issued, prohibits or restricts the sale
and transfer of the Options to the Assignee.
d. The list of Options attached hereto sets
forth a true, correct and complete list and accounting of all options, warrants
or other rights Assignor has to acquire BACs of OTEF. Attached to this Agreement
is a true and correct copy of each Option and the Plan of OTEF pursuant to which
the Options were issued.
e. There is no pending or, to Assignor's
knowledge, threatened litigation or other adversarial proceeding, or any order,
injunction or decree outstanding, existing or relating to all or any portion of
the Options. Assignor has not received written notice of any material violation
of any federal, state or municipal law, statute, ordinance or regulation
relating to all or any portion of the Options.
3. Further Assurances. At any time, and from time to time
hereafter, upon the reasonable request of Assignee, and without payment of
further consideration by Assignee, Assignor will do, execute, acknowledge and
deliver, and cause to be done, executed, acknowledged and delivered, all such
further acts, documents, correspondence, deeds, assignments, transfers,
endorsements and conveyances as may be reasonably required in order to assign,
transfer, grant and convey to Assignee any or all of the Options; provided that
such instruments of further assurance shall not enlarge the obligations of
Sellers under this Agreement and/or the Acquisition Agreement.
4. Successors and Assigns. No party hereto shall have the
right, power, or authority to assign or pledge this Agreement or any portion of
this Agreement, or to delegate any duties or obligations arising under this
Agreement, voluntarily, involuntarily, or by operation of law, without the prior
written consent of the other parties hereto, which consent
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may be granted or withheld in such parties' sole discretion; provided however,
Assignee may, upon providing not less than five days' prior written notice,
assign its rights under this Agreement to a controlled Affiliate; provided
further, however, no such assignment by Assignee shall relieve Assignee of any
of its obligations hereunder. Subject to the foregoing, this Assignment shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective heirs, successors and assigns.
5. Governing Law. This Assignment shall be construed and
enforced in accordance with the laws of the State of Maryland, without regard to
its principles of conflict of laws.
6. Limitations. Each Sellers liability hereunder is subject
to the Applicable Sellers' Cap set forth in the Acquisition Agreement and
otherwise limited as set forth in the Acquisition Agreement. Sellers are not
making any representations or warranties as to their Options other than those
expressly set forth in this Agreement.
IN WITNESS WHEREOF, this Assignment was made and executed as of the
date first above written.
ASSIGNOR:
-----------------------------
ASSIGNEE:
-----------------------------
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TABLE I
OPTIONS
Date of Option Agreement Expiration Date Number of BACs
------------------------ --------------- --------------
