Standard II Portfolio - First Amendment to Contract



Exhibit 10.41

 

FIRST AMENDMENT TO PURCHASE AND SALE CONTRACT

 

           
First Amendment to Purchase and Sale Contract (this “Amendment”)
is made as of October 28, 2009 between the selling parties identified on
Exhibit A attached hereto (individually, a "Seller" and
collectively “Sellers”) and STANDARD PORTFOLIOS LLC
(“Purchaser”).

W I T N E S S E T H:

           
WHEREAS, Sellers and Purchaser entered into that certain Purchase and
Sale Contract, dated as of September 25, 2009, with respect to the sale of
certain properties described therein (the “Contract”); and

           
WHEREAS, Sellers and Purchaser desire to amend certain provisions of the
Contract.

           
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the sum of $10.00 and other good and valuable consideration, the
mutual receipt and legal sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:

1.     
Capitalized Terms.     Capitalized terms used
in this Amendment shall have the meanings given to them in the Contract, except
as expressly otherwise defined herein.

2.     
Seller Information Schedule. The Seller Information Schedule
attached as Schedule 1 to the Contract shall be deleted and replaced with
the Seller Information Schedule attached as Schedule 1 to this
Amendment.

3.     
Removal of Certain
Properties.        Sellers and Purchaser
hereby agree as follows: (i) the Arbours of Hermitage Property, the Hillmeade
Property, the Hunter’s Chase Property and the Spyglass Property (collectively,
the “Removed Properties”, each a “Removed Property”)
shall each be removed as a “Property” under the Contract (and, accordingly, any
and all references in the Contract to a Removed Property are hereby deleted),
(ii) the owner of each Removed Property shall be removed as a “Seller” under the
Contract, such that each such owner shall no longer constitute a party to the
Contract and (iii) the owner of each Removed Property and Purchaser shall no
longer have any further rights or obligations to each other under the Contract
with respect to each Removed Property, except for the Survival Provisions. 
In furtherance of the foregoing, Escrow Agent is hereby authorized to release to
Purchaser the Allocated Initial Deposit Amount for the Removed Properties; it
being agreed that the aggregate Allocated Initial Deposit Amount for the Removed
Properties is $1,281,270.62. 

4.     
Initial
Deposit.           The
amount of the Initial Deposit set forth in Section 2.2.1 of the Contract
shall hereby be deleted and replaced with $1,218,729.38.

5.     
Additional Deposit.    The amount of the Additional
Deposit set forth in Section 2.2.2 of the Contract shall hereby be
deleted and replaced with $341,244.23.

6.     
Expiration of Feasibility Period.  Section 3.2 of the
Contract shall be deleted in its entirety and replaced as follows: “If any of
the matters in Section 3.1 or any other title or survey matters are
unsatisfactory to Purchaser for any reason, or for no reason whatsoever, in
Purchaser’s sole and absolute discretion, then Purchaser shall the right: (i) to
terminate this Contract in its entirety with respect to all Properties, (ii) to
terminate this Contract in part with respect to all (but not less than all)
Maryland Properties (as such term is defined below) or (iii) terminate this
Contract in part with respect to all (but not less than all) Texas Properties
(as such term is defined below).  If Purchaser elects to exercise its right
to terminate this Contract (in whole or in part) pursuant to the foregoing
sentence, then Purchaser must deliver a Termination Notice to Sellers’
Representative and Escrow Agent no later than 5:00 p.m. on or before the date of
expiration of the Feasibility Period.  If Purchaser timely elects to
terminate this Contract in its entirety pursuant to this Section 3.2,
then this Contract shall terminate and be of no further force and effect, except
for the Survival Provisions, and Escrow Agent shall return the Initial Deposit
to Purchaser.  If Purchaser timely elects to terminate this Contract in
part with respect to the Maryland Properties or the Texas Properties (as
applicable) pursuant to this Section 3.2, then the following provisions
shall apply: (a) this Contract shall terminate with respect to the Maryland
Properties or the Texas Properties, as applicable, except for the Survival
Provisions, (b) Escrow Agent shall release to Purchaser the Allocated Deposit
Amount for the Properties Purchaser so elects to terminate, and the Deposit
shall be deemed to be reduced by such amount of the Allocated Deposit Amount so
released by Escrow Agent, (c) each of the Properties Purchaser so elects to
terminate shall be removed as a “Property” hereunder and (d) the owner of each
of the Properties Purchaser so elects to terminate shall be removed as a
“Seller” hereunder, such that such owner shall no longer constitute a party to
this Contract.  If Purchaser fails to timely exercise Purchaser’s right to
terminate this Contract (in whole or in part) under this
Section 3.2,
then such termination right shall be permanently waived and this
Contract shall remain in full force and effect, the Deposit shall be
non-refundable, except as otherwise provided herein, and Purchaser’s obligation
to purchase the Properties shall be conditional only as provided in
Section 8.1.  The term “Maryland Properties”
shall mean, collectively, the Lazy Hollow Property and the Chimneys of
Cradlerock Property and the term “Texas Properties” shall mean,
collectively, the Woods of Inverness Property, the Parktown Townhouse Property
and the Westway Village Property. 

7.     
AIMCO
Loan.           
Section 4.8 of the Contract shall be deleted in its entirety and replaced
as follows:

           
“Section 4.8     AIMCO Loan.  The terms
of this Section 4.8 apply only to the Lazy Hollow Property and the Woods
of Inverness Property (each an “AIMCO Loan Property”, and
collectively, the “AIMCO Loan Properties”).

4.8.1   
At the Closing, and subject to the provisions of Section 4.8.5 below,
Seller shall make, or cause one or more Affiliates of Seller (the entity(ies)
making the AIMCO Loans being herein called, collectively, “AIMCO
Lender”) to make two (2) loans to Purchaser in the aggregate amount of
$1,750,000 (collectively, the “AIMCO Loans”, each an “AIMCO
Loan”), which AIMCO Loans shall be used as follows: (i) a portion of the
AIMCO Loans in the amount of $1,250,000 shall be used to fund a portion of the
Purchase Price for the Lazy Hollow Property and shall be secured by a third deed
of trust on such Property and (ii) a portion of the AIMCO Loans in the amount of
$500,000 shall be used to fund a portion of the Purchase
Price for the Woods of Inverness Property and shall be secured by a second deed
of trust on such Property.  

4.8.2   
Each AIMCO Loan shall be made by the AIMCO Lender to Purchaser on the following
terms: (a) monthly payments of interest only shall be due at an interest rate of
six percent (6.0%) per annum during the term of the AIMCO Loan, and  (b)
shall have a term of five (5) years. 

4.8.3   
At the Closing Purchaser shall, with respect to each AIMCO Loan, execute and
deliver to the AIMCO Lender the following loan documents (herein collectively
called the “AIMCO Loan Documents”):

(a)       
a promissory note executed by Purchaser in the form attached hereto as
Exhibit I, evidencing such AIMCO Loan; 

(b)       
a security instrument executed by the Purchaser in the form attached hereto as
Exhibit J, securing such AIMCO Loan (the “AIMCO Loan Security
Instrument”); 

(c)       
an assignment of leases and rents executed by the Purchaser in the form attached
hereto as Exhibit K;

(d)       
a non-recourse carveout guaranty executed by such person or entity reasonably
acceptable to AIMCO Lender (the “Guarantor”) in the form annexed
hereto as Exhibit L; 

(e)       
an environmental indemnity agreement executed by the Guarantor in the form
annexed hereto as Exhibit M; 

(f)        
an opinion letter from counsel to Purchaser, in a form reasonably acceptable to
AIMCO Lender, which shall opine to, among other things, the following matters:
(i) the due formation, existence and organization of Purchaser and Guarantor (if
Guarantor is an entity) for such AIMCO Loan, (ii) the power and authority of
Purchaser and Guarantor (if Guarantor is an entity) to execute, deliver, and
perform its obligations under the AIMCO Loan Documents which it is a party to,
(iii) the due execution and delivery by Purchaser and Guarantor of the AIMCO
Loan Documents which it is a party to, (iv) the AIMCO Loan Documents are
enforceable against Purchaser and Guarantor (as applicable) in accordance with
their terms, (v) the execution, delivery and performance by Purchaser and
Guarantor of the AIMCO Loan Documents which it is a party to does not conflict
with or violate any law, rule, regulation or ordinance applicable to Purchaser
and Guarantor (as applicable) and (vi) such AIMCO Loan does not violate the
provisions of the usury laws of the State in which such AIMCO Loan Property is
located; and 

(g)       
such other consents or authorizing documents as the AIMCO Lender may reasonably
request to evidence that the AIMCO Loan Documents have been duly authorized by
Purchaser and the Guarantor.  

4.8.4   
At the Closing Purchaser shall pay all mortgage recording, transfer and grantor taxes and fees incident to the recording of each AIMCO
Loan Security Instrument, if any, and the filing fees for any financing
statements delivered in connection therewith.  In addition, Purchaser, at
its expense, shall at the Closing obtain for the AIMCO Lender a lender’s policy
of title insurance from the Title Insurer, insuring (i) with respect to the Lazy
Hollow Property, the AIMCO Loan Security Instrument as a third priority lien on
the Lazy Hollow Property (subject only to the Permitted Exceptions) and (ii)
with respect to the Woods of Inverness Property, the AIMCO Loan Security
Instrument as a second priority lien on the Woods of Inverness Property (subject
only to the Permitted Exceptions).  Purchaser shall be responsible for all
fees and expenses charged by Lender in connection with the AIMCO Loans
(including, without limitation, all fees charged by the Lender pursuant to the
Assumed Loan Documents).  The provisions of this Section 4.8.4 shall
survive the termination of this Contract and the Closing.  

4.8.5   
From and after the Effective Date, (i) Purchaser, at its sole cost and expense,
shall use commercially reasonable efforts to obtain the consent of any and all
senior lenders for each AIMCO Loan Property to the applicable AIMCO Loan and
(ii) Seller, at its sole cost and expense, shall cause AIMCO Lender to use
commercially reasonable efforts to agree with such senior lender(s) of each
AIMCO Loan Property on a form of intercreditor agreement (on such terms as are
reasonably acceptable to AIMCO Lender) to be entered into at the Closing of such
AIMCO Loan Property.  If, on or before the expiration of the Feasibility
Period, the AIMCO Lender and such senior lender(s) of an AIMCO Loan Property
shall fail to agree on the terms of an intercreditor agreement (which
requirement may be waived by the AIMCO Lender in its sole discretion), then the
Seller of such AIMCO Loan Property, by notice to Purchaser given on or before
three (3) Business Days after the expiration of the Feasibility Period, may
elect not to cause the AIMCO Lender to make the AIMCO Loan for such AIMCO Loan
Property to Purchaser.  In such event, Purchaser may, within five (5)
Business Days after the expiration of the Feasibility Period, terminate this
Contract only with respect to such AIMCO Loan Property by delivering a
Termination Notice to Seller’s Representative and the Escrow Agent. 
Further, Seller and Purchaser acknowledge and agree that AIMCO Lender’s making
the AIMCO Loans are expressly conditioned on the following occurring on or
before the Closing of an AIMCO Loan Property (which conditions may be waived by
the AIMCO Lender in its sole discretion):  (A) the senior lender(s) for
each AIMCO Loan Property has given its written consent to the applicable AIMCO
Loan, and (B) any senior lender is not requiring AIMCO Lender to enter into a
so-called “standstill agreement” (or other agreement of similar import) with
such senior lender.  If either (x) such consent of senior lender(s) has not
been obtained by the Closing for such AIMCO Loan Property or (y) any such senior
lender is requiring the AIMCO Lender to enter into a “standstill agreement” (or
other agreement of similar import), then, unless the AIMCO Lender agrees to
waive such conditions precedent set forth in the foregoing clauses (A) and (B),
Seller shall not have any further obligation to cause the AIMCO Lender to make
the AIMCO Loans to Purchaser.  In such event, Purchaser may terminate this
Contract only with respect to such AIMCO Loan Property by delivering a
Termination Notice to Seller’s Representative and the Escrow Agent.  If
Purchaser so elects to terminate this Contract with respect to such AIMCO Loan
Property in accordance with this Section 4.8.5, then (i) this Contract
shall terminate for such AIMCO Loan Property only, and the provisions of Section 13.33 shall apply with respect to
such AIMCO Loan Property.”

8.     
AIMCO Loan Documents.    The form of AIMCO Loan
Documents attached to the Contract as Exhibit I (Secured Promissory
Note), Exhibit J (AIMCO Loan Security Instrument), Exhibit K
(Absolute Assignment of Leases and Rents) and Exhibit M (Environmental
Indemnity) shall be deleted and replaced with Exhibit I, Exhibit
J, Exhibit K and Exhibit M attached to this Amendment. 


9.     
Section 8.2.     The last paragraph of
Section 8.2 of the Contract shall be deleted and replaced as
follows:  “If any of the foregoing conditions in Sections 8.2.1
through 8.2.6 to a Seller’s obligation to close with respect to the conveyance
of its Property under this Contract are not met, such Seller may (a) waive any
of the foregoing conditions and proceed to Closing on the Closing Date for such
Seller’s Property, (b) terminate this Contract with respect to its Property, or
(c) if such failure constitutes a default by Purchaser, exercise any of Sellers’
remedies under Section 10.1.  The termination of this Contract
by any Seller pursuant to this Section 8.2 shall be exercised by
written notice from Sellers’ Representative to Purchaser by 12:00 p.m. on the
Closing Date for such Property.  If a Seller terminates this Contract with
respect to this Section 8.2, then (i) such Seller’s Property shall be
deemed to be a Terminated Property, (ii) this Contract shall automatically be
deemed modified to (x) remove such Terminated Property as a “Property” hereunder
and (y) remove the owner of such Terminated Property as a “Seller” hereunder,
such that such owner shall no longer constitute a party to this Contract, and,
accordingly, such owner and Purchaser shall no longer have any further rights or
obligations hereunder to each other with respect to such Terminated Property,
except for the Survival Provisions and (iii) subject to the terms of Section
2.3.3 hereof, Escrow Agent shall release to Purchaser the Allocated Deposit
Amount for such Terminated Property, and the Deposit shall be deemed to be
reduced by the amount of the Allocated Deposit Amount for such Terminated
Property.”

10. 
Effect of Partial
Termination.           
Section 13.33 of the Contract shall be deleted in its entirety and
replaced as follows:  “If Purchaser timely exercises its right to terminate
this Contract with respect to any one or more (but not all) of the Properties
(each a “Terminated Property”) pursuant to any one or more of the
provisions of Section 4.4, Section 4.6.9, Section 4.7,
Section 4.8.5, Section 4.11.10, Section 8.1, Section
10.2, Section 11.1 and/or Section 12.1 hereof, then the
following provisions shall apply: (i) if such Terminated Property is located in
the State of Maryland, then this Contract shall automatically terminate with
respect to all (but not less than all) Maryland Properties and each of the
Maryland Properties shall be deemed to be a Terminated Property, (ii) if such
Terminated Property is located in the State of Texas, then this Contract shall
automatically terminate with respect to all (but not less than all) Texas
Properties and each of the Texas Properties shall be deemed to be a Terminated
Property, (iii) this Contract shall automatically be deemed modified to (a)
remove each Terminated Property as a “Property” hereunder and (b) remove the
owner of each Terminated Property as a “Seller” hereunder, such that such owner
shall no longer constitute a party to this Contract, and, accordingly, such
owner and Purchaser shall no longer have any further rights or obligations
hereunder to each other, except for the Survival Provisions and (iv) subject to
the terms of Section 2.3.3 hereof, Escrow Agent shall release to
Purchaser the Allocated Deposit Amount for each Terminated Property, and the
Deposit shall be deemed to be reduced by the amount of the Allocated Deposit
Amount for each Terminated Property.”  

11. 
Miscellaneous.          
This Amendment (a)  supersedes all prior oral or written communications
and agreement between or among the parties with respect to the subject matter
hereof, and (b) may be executed in counterparts, each of which shall be
deemed an original and all of which, when taken together, shall constitute a
single instrument and may be delivered by facsimile transmission, and any such
facsimile transmitted Amendment shall have the same force and effect, and be as
binding, as if original signatures had been delivered.  As modified hereby,
all the terms of the Contract are hereby ratified and confirmed and shall
continue in full force and effect.

[Signature Page to Follow]


           
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date and year hereinabove written.

 

Seller:

CCP
IV ARBOURS OF HERMITAGE, LLC, a Delaware limited liability company

 

By:
CCP IV ASSOCIATES, LTD., a Texas limited partnership, its member

 

By:
CCP/IV RESIDENTIAL GP, L.L.C., a South Carolina limited liability company, its
general partner

 

By:
CONSOLIDATED CAPITAL PROPERTIES IV, LP, a Delaware limited partnership, its
manager

 

By:
CONCAP EQUITIES, INC., a Delaware corporation, its general partner

 

By: 
/s/Brian J. Bornhorst

Name: 
Brian J. Bornhorst

Title: 
Vice President

 

OXFORD-COLUMBIA
ASSOCIATES, A MARYLAND LIMITED PARTNERSHIP, a Maryland limited
partnership

By:
OAMCO XVI, L.L.C., a Delaware limited liability company, its managing general
partner

 

By:
OXFORD REALTY FINANCIAL GROUP, INC., a Maryland corporation, its managing
member

 

By: 
/s/Brian J. Bornhorst

Name: 
Brian J. Bornhorst

Title: 
Vice President

 




 

AIMCO
HILLMEADE, LLC, a Delaware limited liability company

 

By:
AIMCO PROPERTIES, L.P., a Delaware limited partnership, its member

 

By:
AIMCO-GP, INC., a Delaware corporation, its general partner

 

By: 
/s/Brian J. Bornhorst

Name: 
Brian J. Bornhorst

Title: 
Vice President

 

 

BRANDERMILL-OXFORD
ASSOCIATES LIMITED PARTNERSHIP, a Maryland limited partnership

 

By: 
OXFORD EQUITIES CORPORATION, an Indiana corporation, its managing general
partner

 

By: 
/s/Brian J. Bornhorst

Name: 
Brian J. Bornhorst

Title: 
Vice President

 

LAZY
HOLLOW PARTNERS, a California general partnership

 

By:
ANGELES REALTY CORPORATION II, a California corporation, its managing general
partner

 

By: 
/s/Brian J. Bornhorst

Name: 
Brian J. Bornhorst

Title: 
Vice President

 




 

SHELTER
PROPERTIES II LIMITED PARTNERSHIP, a South Carolina limited partnership

 

By:
SHELTER REALTY II CORPORATION, a South Carolina corporation, its general
partner

 

By: 
/s/Brian J. Bornhorst

Name: 
Brian J. Bornhorst

Title: 
Vice President

 

AMBASSADOR
VII, L.P., a Delaware limited partnership

 

By:
AMBASSADOR VII, INC., a Delaware corporation, its general partner

 

 

By: 
/s/Brian J. Bornhorst

Name: 
Brian J. Bornhorst

Title: 
Vice President

 

WOODS
OF INVERNESS CPF 16, L.P., a Delaware limited partnership

 

By:
CPF 16 WOODS OF INVERNESS GP, L.L.C., a South Carolina limited liability
company, its general partner

 

By:
CENTURY PROPERTIES FUND XVI, a California limited partnership, its member

 

By:
FOX CAPITAL MANAGEMENT CORPORATION, a California corporation, its managing
general partner

 

 

By: 
/s/Brian J. Bornhorst

Name: 
Brian J. Bornhorst

Title: 
Vice President




 

ST.
MARY’S-OXFORD ASSOCIATES LIMITED PARTNERSHIP, a Maryland limited
partnership

 

By:
   OAMCO VII, L.L.C., a Delaware limited liability company, its
managing general partner

 

By: 
OXFORD REALTY FINANCIAL GROUP, INC., a Maryland corporation, its managing
member

 

By: 
/s/Brian J. Bornhorst

Name: 
Brian J. Bornhorst

Title: 
Vice President

 




Purchaser:

Standard Portfolios LLC, a Delaware limited liability company

 

 

By: 
/s/David G. Liu

Name: 
David G. Liu

Title: 
Manager