Exhibit 10.4


 


EXECUTION
VERSION


 


  


  


 


PURCHASE AGREEMENT


dated as of July 14, 2021


between


American
International Group, Inc.  


and


AZTEC HOLDCO LLC


 





  







 


 












 





TABLE
OF CONTENTS


	
  Page

  
	
  ARTICLE I
  DEFINITIONS

  	
  2

  
	
  Section 1.01.

  	
  Certain Defined Terms..................................................................................................................................................

  	
  2

  
	
  ARTICLE II
  PURCHASE AND SALE

  	
  2

  
	
  Section 2.01.

  	
  Purchase and Sale.........................................................................................................................................................

  	
  2

  
	
  Section 2.02.

  	
  Assumption of Liabilities..............................................................................................................................................

  	
  2

  
	
  Section 2.03.

  	
  Closing..........................................................................................................................................................................

  	
  3

  
	
  Section 2.04.

  	
  Purchase Price...............................................................................................................................................................

  	
  4

  
	
  Section 2.05.

  	
  Allocation of Purchase Price.........................................................................................................................................

  	
  4

  
	
  Section 2.06.

  	
  Payment of Purchase Price............................................................................................................................................

  	
  4

  
	
  Section 2.07.

  	
  Closing Deliveries.........................................................................................................................................................

  	
  7

  
	
  Section 2.08.

  	
  Deposit..........................................................................................................................................................................

  	
  8

  
	
  Section 2.09.

  	
  Method of Payments.....................................................................................................................................................

  	
  9

  
	
  Section 2.10.

  	
  Interest...........................................................................................................................................................................

  	
  9

  
	
  Section 2.11.

  	
  Withholding Taxes........................................................................................................................................................

  	
  9

  
	
  Section 2.12.

  	
  Non-Transferred Assets................................................................................................................................................

  	
  9

  
	
  ARTICLE III
  Title Matters

  	
  12

  
	
  Section 3.01.

  	
  Access to the Properties................................................................................................................................................

  	
  12

  
	
  Section 3.02.

  	
  Disclaimers and Release...............................................................................................................................................

  	
  13

  
	
  Section 3.03.

  	
  Termination...................................................................................................................................................................

  	
  15

  
	
  Section 3.04.

  	
  Title Matters..................................................................................................................................................................

  	
  15

  
	
  ARTICLE IV REPRESENTATIONS
  AND WARRANTIES OF PARENT

  	
  17

  
	
  Section 4.01.

  	
  Incorporation and Authority of Parent
  and the Seller Parties.......................................................................................

  	
  17

  
	
  Section 4.02.

  	
  Incorporation, Qualification and
  Authority of the Transferred Subsidiaries................................................................

  	
  18

  
	
  Section 4.03.

  	
  No Conflict....................................................................................................................................................................

  	
  18

  
	
  Section 4.04.

  	
  Governmental Consents and Approvals........................................................................................................................

  	
  19

  
	
  Section 4.05.

  	
  Absence of Litigation....................................................................................................................................................

  	
  19

  
	
  Section 4.06.

  	
  No Employees...............................................................................................................................................................

  	
  19

  
	
  Section 4.07.

  	
  Taxes.............................................................................................................................................................................

  	
  19

  
	
  Section 4.08.

  	
  Transferred Assets.........................................................................................................................................................

  	
  20

  
	
  Section 4.09.

  	
  Real Property.................................................................................................................................................................

  	
  20

  
	
  Section 4.10.

  	
  Guarantees.....................................................................................................................................................................

  	
  21

  
	
  Section 4.11.

  	
  Material Contracts.........................................................................................................................................................

  	
  21

  
	
  Section 4.12.

  	
  Tax Credit Matters........................................................................................................................................................

  	
  22

  
	
  Section 4.13.

  	
  Brokers..........................................................................................................................................................................

  	
  22

  
	
  Section 4.14.

  	
  Organizational Documents;
  Capitalization...................................................................................................................

  	
  22

  
	
  Section 4.15.

  	
  Financial Statements.....................................................................................................................................................

  	
  23

  
	
  Section 4.16.

  	
  Transferred Debt Interests.............................................................................................................................................

  	
  23

  
	
  Section 4.17.

  	
  Prohibited Person..........................................................................................................................................................

  	
  23

  
	
  Section 4.18.

  	
  ERISA...........................................................................................................................................................................

  	
  24

  
	
  Section 4.19.

  	
  Disclaimer.....................................................................................................................................................................

  	
  24

  






 






i


 












 






	
  ARTICLE V REPRESENTATIONS AND WARRANTIES OF ACQUIROR

  	
  24

  
	
  Section 5.01.

  	
  Incorporation and Authority of
  Acquiror......................................................................................................................

  	
  24

  
	
  Section 5.02.

  	
  No Conflict...................................................................................................................................................................

  	
  25

  
	
  Section 5.03.

  	
  Governmental Consents and Approvals........................................................................................................................

  	
  25

  
	
  Section 5.04.

  	
  Absence of Litigation; Compliance and
  Regulatory Matters.......................................................................................

  	
  25

  
	
  Section 5.05.

  	
  Securities Matters.........................................................................................................................................................

  	
  26

  
	
  Section 5.06.

  	
  Financial Ability............................................................................................................................................................

  	
  26

  
	
  Section 5.07.

  	
  Investigation..................................................................................................................................................................

  	
  26

  
	
  Section 5.08.

  	
  No Acquiror Material Adverse Effect...........................................................................................................................

  	
  27

  
	
  Section 5.09.

  	
  Brokers..........................................................................................................................................................................

  	
  27

  
	
  Section 5.10.

  	
  Prohibited Persons........................................................................................................................................................

  	
  27

  
	
  Section 5.11.

  	
  ERISA...........................................................................................................................................................................

  	
  27

  
	
  Section 5.12.

  	
  Disclaimer.....................................................................................................................................................................

  	
  28

  
	
  ARTICLE VI
  ADDITIONAL AGREEMENTS

  	
  28

  
	
  Section 6.01.

  	
  Conduct of Business Prior to the
  Closing.....................................................................................................................

  	
  28

  
	
  Section 6.02.

  	
  Access to Information...................................................................................................................................................

  	
  30

  
	
  Section 6.03.

  	
  Books and Records.......................................................................................................................................................

  	
  33

  
	
  Section 6.04.

  	
  Confidentiality...............................................................................................................................................................

  	
  33

  
	
  Section 6.05.

  	
  Governmental Approvals and Third-Party
  Consents....................................................................................................

  	
  34

  
	
  Section 6.06.

  	
  Insurance.......................................................................................................................................................................

  	
  37

  
	
  Section 6.07.

  	
  Intellectual Property; Trade Names and
  Trademarks....................................................................................................

  	
  37

  
	
  Section 6.08.

  	
  Mutual Release.............................................................................................................................................................

  	
  40

  
	
  Section 6.09.

  	
  Distributions..................................................................................................................................................................

  	
  41

  
	
  Section 6.10.

  	
  Intentionally Omitted....................................................................................................................................................

  	
  41

  
	
  Section 6.11.

  	
  Tax Credits....................................................................................................................................................................

  	
  41

  
	
  Section 6.12.

  	
  Casualty and Condemnation.........................................................................................................................................

  	
  44

  
	
  Section 6.13.

  	
  Further Action...............................................................................................................................................................

  	
  45

  
	
  ARTICLE VII
  TAX MATTERS

  	
  45

  
	
  Section 7.01.

  	
  Tax Returns...................................................................................................................................................................

  	
  45

  
	
  Section 7.02.

  	
  Contest Provisions........................................................................................................................................................

  	
  46

  
	
  Section 7.03.

  	
  Assistance and Cooperation..........................................................................................................................................

  	
  47

  
	
  ARTICLE VIII
  CONDITIONS TO CLOSING

  	
  48

  
	
  Section 8.01.

  	
  Conditions to Obligations of Each
  Party.......................................................................................................................

  	
  48

  
	
  Section 8.02.

  	
  Conditions to Obligations of Parent..............................................................................................................................

  	
  48

  
	
  Section 8.03.

  	
  Conditions to Obligations of Acquiror..........................................................................................................................

  	
  48

  
	
  ARTICLE
  IX TERMINATION

  	
  49

  
	
  Section 9.01.

  	
  Termination...................................................................................................................................................................

  	
  49

  
	
  Section 9.02.

  	
  Notice of Termination...................................................................................................................................................

  	
  50

  
	
  Section 9.03.

  	
  Effect of Termination....................................................................................................................................................

  	
  50

  






 






ii


 












 






	
  ARTICLE X INDEMNIFICATION

  	
  50

  
	
  Section 10.01.

  	
  Survival.........................................................................................................................................................................

  	
  50

  
	
  Section 10.02.

  	
  Indemnification by Parent.............................................................................................................................................

  	
  50

  
	
  Section 10.03.

  	
  Indemnification by Acquiror.........................................................................................................................................

  	
  51

  
	
  Section 10.04.

  	
  Notification of Claims...................................................................................................................................................

  	
  52

  
	
  Section 10.05.

  	
  Payment.........................................................................................................................................................................

  	
  54

  
	
  Section 10.06.

  	
  Exclusive Remedies......................................................................................................................................................

  	
  54

  
	
  Section 10.07.

  	
  Additional Indemnification Provisions.........................................................................................................................

  	
  55

  
	
  Section 10.08.

  	
  Copies to Parent and Acquiror......................................................................................................................................

  	
  56

  
	
  Section 10.09.

  	
  Mitigation......................................................................................................................................................................

  	
  56

  
	
  ARTICLE XI
  GENERAL PROVISIONS

  	
  56

  
	
  Section 11.01.

  	
  Expenses........................................................................................................................................................................

  	
  56

  
	
  Section 11.02.

  	
  Notices...........................................................................................................................................................................

  	
  57

  
	
  Section 11.03.

  	
  Public Announcements..................................................................................................................................................

  	
  57

  
	
  Section 11.04.

  	
  Severability...................................................................................................................................................................

  	
  57

  
	
  Section 11.05.

  	
  Entire Agreement..........................................................................................................................................................

  	
  57

  
	
  Section 11.06.

  	
  Assignment....................................................................................................................................................................

  	
  57

  
	
  Section 11.07.

  	
  No Third-Party Beneficiaries........................................................................................................................................

  	
  58

  
	
  Section 11.08.

  	
  No Recording................................................................................................................................................................

  	
  58

  
	
  Section 11.09.

  	
  Amendment; Waiver.....................................................................................................................................................

  	
  58

  
	
  Section 11.10.

  	
  Disclosure Schedules....................................................................................................................................................

  	
  59

  
	
  Section 11.11.

  	
  Governing Law; Submission to Jurisdiction;
  Waiver of Jury Trial..............................................................................

  	
  59

  
	
  Section 11.12.

  	
  Rules of Construction....................................................................................................................................................

  	
  60

  
	
  Section 11.13.

  	
  Specific Performance....................................................................................................................................................

  	
  61

  
	
  Section 11.14.

  	
  Counterparts..................................................................................................................................................................

  	
  61

  






 


Annexes


 


	
  Annex I

  	
  Properties and Related Equity Interests

  	
   

  
	
  Annex II

  	
  Transferred Debt Interests

  	
   

  
	
  Annex III

  	
  Assigned Contracts

  	
   

  
	
  Annex IV

  	
  Allocation Schedule

  	
   

  
	
  Annex V

  	
  Permitted Property Sales and Refinancings

  	
   

  
	
  Annex VI

  	
  Additional Virtual Data Room Documents

  	
   

  






 


Exhibits


 


	
  Exhibit A

  	
  Definitions

  	
   

  
	
  Exhibit B

  	
  Form of Hold Harmless Agreement

  	
   

  






 


Disclosure Schedules


 


Parent Disclosure Schedule


Acquiror Disclosure Schedule





  







iii


 












 





This PURCHASE AGREEMENT (this “Agreement”),
dated as of July 14, 2021, is entered into by and between AMERICAN
INTERNATIONAL GROUP, INC., a Delaware corporation (“Parent”), and AZTEC
HOLDCO LLC, a Delaware limited liability company (“Acquiror”).   


Recitals


A.        SAFG
Retirement Services, Inc., a Delaware corporation and a wholly owned subsidiary
of Parent (the “Seller”), is engaged in the business of, directly and
indirectly, holding interests in, providing services relating to and otherwise
managing and disposing of a portfolio of investments in real estate
properties.  


B.         In
connection with such business, the Seller and certain of its Affiliates hold
interests as a general partner, limited partner and/or member with respect to
the following entities (in each case, as more particularly described in and
subject to the exceptions set forth in this Agreement):  (i) certain
upper-tier partnerships (each, an “Investor Fund”) in which the general
partner is an Affiliate of the Seller and the limited partner is or was a
third-party investor (a “Tax Credit Investor”) or an Affiliate of the
Seller; (ii) certain middle-tier partnerships (each, a “Housing Fund”)
in which one or more Investor Funds hold limited partner interests and in which
the general partner is the Seller or an Affiliate thereof; and
(iii) certain lower-tier partnerships and limited liability companies,
each of which is formed for the purpose of owning and developing a Property
(each, an “Operating Partnership”), in which a Housing Fund holds a
limited partner interest and in which the general partner is an Affiliate of
the Seller or a third party (a “Third-Party GP”).  


C.         Set
forth on Annex I is a current list of the interests owned by the Seller
and its Affiliates in certain Investor Funds, Housing Funds, GP Entities and
SLP Entities (such interests set forth on Annex I, the “Transferred Equity
Interests”, and such entities, the “Target Entities”) and the
Operating Partnerships (and any Subsidiaries) in which such Target Entities
hold interests, directly or indirectly.


D.        Parent
owns, directly or indirectly through Seller or certain of its Affiliates,
(i)(x) interests in fees due from the Operating Partnerships, the Investor
Funds or the Housing Funds under the Organizational Documents of such entities
(or, as applicable, under other Contracts with such entities setting forth
entitlements to fees provided for or permitted by such Organizational
Documents) and (y) certain other records, data, software (including the
Parent’s Oracle-based cash flow modelling, but, for the avoidance of doubt,
excluding any software licensed from Oracle), analytical tools and other assets
related to the Business (such assets referred to in clause (i) collectively,
the “Ancillary Transferred Assets”), and (ii) debt interests secured,
directly or indirectly, by liens on the Properties, a current list of which is
set forth on Annex II (the “Transferred Debt Interests”).  


E.         Parent
desires to cause the Seller and the other Seller Parties to sell to Acquiror
(or to an Acquiror Designee), and Acquiror desires to purchase, the Transferred
Equity Interests, the Ancillary Transferred Assets and the Transferred Debt
Interests, and Acquiror is willing to assume the Assumed Liabilities, in each
case upon the terms and subject to the conditions set forth herein.  


F.         Contemporaneously
with the execution of this Agreement, Parent and Acquiror have entered into the
Escrow Agreement pursuant to which the Deposit shall be deposited with the
Escrow Agent in accordance with Section 2.08(a). 


G.        In
connection with this Agreement, at the Closing, in accordance with and pursuant
to the provisions of Section 6.11(c), Acquiror and Parent will enter
into a hold harmless agreement in substantially the form attached hereto as Exhibit
B (the “Hold Harmless Agreement”). 






1 












 





NOW, THEREFORE, the parties hereto hereby agree as follows:


ARTICLE I


DEFINITIONS


Section 1.01.    Certain Defined Terms.
  Capitalized terms used in this Agreement shall have the meanings specified in Exhibit
A or elsewhere in this Agreement.  


ARTICLE II


PURCHASE AND SALE


Section 2.01.    Purchase and Sale.  On
the terms and subject to the conditions set forth in this Agreement, at the
Closing:


(a)        Parent
shall cause the applicable Seller Parties to sell, convey, assign, transfer and
deliver to Acquiror, and Acquiror (or an Acquiror Designee) shall purchase,
acquire and accept from such Seller Parties
(i) the Transferred Equity Interests free and clear of all Liens other
than Permitted Liens, (ii) the Transferred Debt Interests free and clear
of all Liens, (iii) the Ancillary Transferred Assets free and clear of all
Liens, and (iv) the Assigned Contracts free and clear of
all Liens (collectively, the “Transferred Assets”);   


(b)        Parent and its Affiliates shall not sell, assign, transfer
or convey to Acquiror and Acquiror shall not purchase any of Parent’s or any of
its Affiliates’ right, title and interest in and to any assets of Parent and
its Affiliates besides the Transferred Assets (the “Excluded Assets”),
whether directly or indirectly through the transfer of the Transferred Equity
Interests (i.e., whether owned directly by Parent or an Affiliate or
owned by a Target Entity).  Notwithstanding anything to the contrary contained
herein, the Excluded Assets include: 


(i)         all
cash and cash equivalents (including marketable securities and short-term
investments) and deposits other than (x) Transferred Reserves and (y) Transferred Cash Flow;


(ii)        any Intercompany
Agreements; 


(iii)       all consideration
received by, and all rights of, Parent and its Affiliates pursuant to the
Transaction Agreements; 


(iv)       Excluded Property
Assets and Liabilities relating to each Excluded Property;


(v)        Excluded Debt
Interests; and 


(vi)       the items set
forth on Section 2.01 of the Parent Disclosure Schedule.


Section 2.02.    Assumption
of Liabilities.


(a)        On
the terms and subject to the conditions set forth in this Agreement, from and
after the Closing, Acquiror shall assume and
be solely responsible for, and duly and properly perform, discharge and pay,
when due, any and all Liabilities of Parent and its Affiliates, whether
relating to 


 




2 












 





periods prior to, on, or after the Closing Date, to the
extent relating to or arising out of the Transferred Equity Interests, the
Transferred Debt Interests, the Assigned Contracts, any other Transferred
Assets or the Business, including, without limitation, all:  


(i)         Liabilities assumed by Acquiror pursuant to Section
2.12(c); 


(ii)        Liabilities for Transfer Taxes; 


(iii)       Liabilities in
connection with any Existing Loans;


(iv)       Liabilities
for Transferred Reserves; and 


(v)        Liabilities
for the items set forth on Section 2.02(a)(v) of the Parent Disclosure
Schedule;


but excluding, in each
case, any Excluded Liabilities (collectively, the “Assumed Liabilities”). 


(b)        Acquiror shall not assume
or be obligated to pay, perform or otherwise discharge any of the following:


(i)         Liabilities
relating to, arising out of or resulting from the conduct, ownership or
operation of any Excluded Asset or any business of Parent or any of its
Affiliates other than the Business; 


(ii)        Liabilities
for which Parent or its Affiliates are made
responsible pursuant to the express terms of this Agreement;  


(iii)       Liabilities of
Parent or Seller under guarantees provided to Tax Credit Investors (such
guarantees, the “Fund Guarantees”), to the extent such Liabilities arise
out of Prior Noncompliance and not out of Acquiror’s failure to perform its
obligations under Section 6.11 with respect to Prior Noncompliance;  


(iv)       Liabilities relating to each
Excluded Asset, including any Liability arising at any time pursuant to an
agreement entered into in connection with the disposition of an Excluded Asset;
and


(v)        Liabilities of Parent, any
Affiliate of Parent, any Transferred Subsidiary or Operating Partnership to any
Participant Vehicle, including with respect to any Contract or Organizational
Document of Parent, its Affiliates or any Transferred Subsidiary or Operating
Partnership, and including any Liabilities arising out of or relating to
transactions contemplated by this Agreement (collectively, the “Excluded Liabilities”). 


Section 2.03.    Closing.  The transactions contemplated by this Agreement shall take
place at a closing (the “Closing”) that shall be held no later than 2:00
p.m., New York City time, on December 31, 2021, at the offices of Sullivan
 & Cromwell LLP at 125 Broad Street, New York, New York 10004, or such other
time or place (including by way of remote exchange of documents) as Parent and
Acquiror may agree in writing (the date on which the Closing takes place being
the “Closing Date”); provided  that if the Acquiror consents in
writing to effectuate the Closing prior to December 31, 2021 (which it may do
so in its sole discretion, subject to providing Parent with notice at least one
(1) calendar month in advance of the proposed Closing Date), the Closing shall
occur on the last Business Day of the first month during which all the
conditions set forth in ARTICLE VIII have been satisfied or waived 




3 












 





(other than those conditions that by their nature are to
be satisfied at the Closing, but subject to the satisfaction or waiver of those
conditions at the Closing), unless such date would be less than ten (10)
Business Days after the date on which all conditions set forth in ARTICLE
VIII are so satisfied or waived, in which case on the last Business Day of
the immediately following month, or on such other date as Parent and Acquiror
may agree in writing.  Upon the occurrence of the Closing, the time and date
that the purchase and sale described in Section 2.01 becomes effective
shall be 12:01 a.m., New York City time, on the Closing Date.  


Section 2.04.    Purchase Price.  The
aggregate purchase price to be paid at the Closing in consideration of the
purchase and sale described in Section 2.01 and the assumption of the
Assumed Liabilities shall be an amount in cash equal to $5,095,035,068 (the “Base
Purchase Price”)  as adjusted in accordance with Section 2.06 (as so
adjusted, the “Purchase Price”). 


Section 2.05.    Allocation of Purchase Price.  Attached hereto as Annex IV is a schedule (the “Allocation Schedule”) allocating  the Purchase Price, together with any
other amounts treated as consideration for Tax purposes, among the Transferred
Assets and/or any other assets treated as transferred for Tax purposes in a
manner consistent with applicable Tax Law and with the terms of this Agreement. 
The portion of the Purchase Price allocated to each Property on the
Allocation Schedule is referred to herein as the “Allocated Value” with
respect to such Property.  The portion of the Purchase Price allocated to each
Transferred Debt Interest on the Allocation Schedule is referred to herein as
the “Debt Allocated Value” with respect to such Transferred Debt
Interest.  Each of the parties
agrees to file (and cause its respective Affiliates to file) its respective Tax
Returns consistent with the Allocation Schedule, and not take any position
inconsistent with such schedule in any Tax Return, Tax filing, audit, or refund
claim, unless required by applicable Law.  Each party agrees to provide notification
to the other party if any Tax Authority proposes changes to any allocations
made pursuant to the Allocation Schedule. 


Section 2.06.    Payment of Purchase Price.


(a)        Not less than twenty (20) calendar days prior to the anticipated
Closing Date, Parent shall prepare and deliver to Acquiror a written statement
(the “Closing Statement”) setting forth Parent’s good faith
determination of the Purchase Price.  If,
during such twenty (20) calendar day period prior to the anticipated Closing
Date, Acquiror (acting reasonably and in good faith) objects to any portion of
the Closing Statement on the basis of an error in calculation, Parent shall
consider in good faith any such objection and may, but shall not be required
to, update the Closing Statement to address such objection.  If such objection
is not resolved by the Closing, then the objection will not be taken into
account in the final Closing Statement used for the Closing, and the terms of Section
2.06(d) below shall apply.   


(b)        The Closing
Statement shall designate the Cash Flow Cut-Off Date and include the following:


(i)         (A) a list of the following Properties
(each, an “Excluded Property”): (1) any Property that has been sold
or is expected to be sold by the applicable Operating Partnership prior to the
Closing in accordance with the terms of this Agreement, (2) any Property
with respect to which Parent and its Affiliates will not own any direct or
indirect Equity Interests in the applicable Operating Partnership as of the
Closing in accordance with the terms of this Agreement, and (3) any other
Property designated as an Excluded Property in accordance with this Agreement,
including pursuant to Section 3.04(c) and any Scheduled Pipeline
Property designated as an Excluded Property pursuant to Annex V; and (B)
a statement of the Allocated Value and Net Sales Price (as defined on Annex
V) with respect to each Excluded Property and each Property that is subject
to a Third Party Sale Contract (as defined on Annex V); 







4 












 





(ii)        a
statement of Pre-Closing Cash Flow and Permitted Deductions from Pre-Closing
Cash Flow;    


(iii)       a statement of the amount of any Transferred
Reserves less cash reserves or deposits held by a third-party servicer
with respect to the Transferred Debt Interests (the “Reserve Amount”);  and


(iv)       a
statement of (A) each Transferred Debt Interest that has been paid off (or
redeemed) or is expected to be paid off (or redeemed), in each case, in whole
or in part, prior to the Closing (the “Excluded Debt Interests”) and the
Debt Allocated Value for each such Transferred Debt Interest (which, in the
case of a partial repayment or expected partial repayment of a Transferred Debt
Interest, shall be reduced by the amount of such Transferred Debt Interest
repaid prior to the Closing) and (B) any debt interests secured, directly
or indirectly, by liens on the Properties, acquired or originated by Parent or
its Affiliates after the date hereof and prior to the Closing in accordance
with the terms of this Agreement and the Debt Allocated Value for each such
interest (the “Additional Transferred Debt Interests”). 


(c)        At the
Closing, Acquiror shall pay to Parent, by wire transfer of immediately
available funds to an account designated by Parent at least two (2) Business
Days prior to the Closing, an amount equal to the Base Purchase Price adjusted as follows:


(i)         (A) decreased
on a dollar-for-dollar basis by an amount equal to the aggregated Allocated
Value of all Excluded Properties as set forth in the Closing Statement and (B)
without duplication of clause (A), further adjusted in accordance with Annex
V;   


(ii)        decreased on a
dollar-for-dollar basis by an amount equal to the Deposit; 


(iii)       decreased
on a dollar-for-dollar basis by an amount equal to the Excess Title Exception
Amount;


(iv)       decreased on a
dollar-for-dollar basis by an amount equal to the amount by which (A)
Pre-Closing Cash Flow less  Permitted Deductions from Pre-Closing Cash
Flow (each, as set forth in the Closing Statement) exceeds (B) $70,000,000;


(v)        decreased on a
dollar-for-dollar basis by an amount equal to the Reserve Amount as set forth
in the Closing Statement (in lieu of the Seller Parties transferring cash equal
to the Reserve Amount to Acquiror);


(vi)       decreased on a
dollar-for-dollar basis by an amount equal to any Transferred Cash Flow
actually received by the Seller Parties following the Cash Flow Cut-Off Date,
if any (in lieu of the Seller Parties transferring cash equal to Transferred
Cash Flow to Acquiror);


(vii)      decreased on a
dollar-for-dollar basis by an amount equal to the aggregate Debt Allocated
Value of all Excluded Debt Interests (for the avoidance of doubt, after giving
effect to the reductions of Debt Allocated Value pursuant to Section
2.02(b)(v)) as set forth in the Closing Statement; and


(viii)     increased on a
dollar-for-dollar basis by an amount equal to the aggregate par value and
accrued but unpaid interest of all Additional Transferred Debt Interests as set
forth in the Closing Statement.







5 












 





(d)        Prior to the Closing, Acquiror (acting reasonably and after
consulting with Parent in good faith) shall deliver written notice to Parent of
any dispute Acquiror has with respect to any item contained in the Closing
Statement (the “Dispute Notice”) within the time period set forth in Section
2.06(a).  The Dispute Notice shall set forth in reasonable detail the basis
for any dispute included therein.  Upon receipt by Parent of a Dispute Notice,
Acquiror and Parent shall negotiate in good faith to resolve any dispute set
forth therein prior to the Closing.  If Acquiror and Parent, such good faith
effort notwithstanding, fail to resolve any such dispute prior to Closing, then
Acquiror and Parent jointly shall engage, within ten (10) Business Days
following the Closing Date, a nationally recognized major accounting firm
selected jointly by Acquiror and Parent (the “Independent Accounting
Firm”) to resolve any such
dispute.  If Acquiror and Parent are unable to agree on the Independent
Accounting Firm (or if the firm agreed to is unavailable or conflicted), then
each of Acquiror and Parent shall select a nationally recognized major
accounting firm, and the two (2) firms will mutually select a third (3rd)
nationally recognized major accounting firm to serve as the Independent
Accounting Firm.  As promptly as practicable, and in any event not more than
fifteen (15) days following the engagement of the Independent Accounting Firm,
Acquiror and Parent shall each prepare and submit a presentation detailing each
party’s complete statement of proposed resolution of each issue still in
dispute to the Independent Accounting Firm; provided  that the Independent
Accounting Firm shall act as an expert and not as an arbitrator, and shall
render its final determination based on the submissions of the parties hereto
and not based on independent investigation or review.  Acquiror and Parent
shall cause the Independent Accounting Firm to, as soon as practicable after
the submission of the presentations described in the immediately preceding
sentence and in any event not more than thirty (30) days following such
presentations, make a final determination, binding on the parties hereto, of
the appropriate amount of each of the line items that remain in dispute as
indicated in the Dispute Notice.  All determinations made by the Independent
Accounting Firm, and the Closing Statement, as modified by the Independent Accounting
Firm, will be final, conclusive and binding on the parties hereto.  All fees
and expenses relating to the work, if any, to be performed by the Independent
Accounting Firm shall be allocated between Parent and Acquiror in the same proportion that the
aggregate dollar amount of line items unsuccessfully disputed or defended, as
the case may be, by each such party (as finally determined by the Independent
Accounting Firm) bears to the total dollar amount of disputed line items on
which the Independent Accounting Firm makes a determination presented by both
Acquiror and Parent. 
All payments required to be made by a Party pursuant to this Section 2.06(d)
shall be made within fifteen (15) Business Days of the final determination by
the Independent Accounting Firm.


(e)        If the
matter(s) subject to the Dispute Notice is resolved (or are resolved, on a net
basis, if there are multiple such matters) in Acquiror’s favor such that the
Purchase Price actually paid at Closing exceeded the Purchase Price that should
have been paid, then Parent shall pay or cause to be paid an amount in cash
equal to such excess to Acquiror by wire transfer of immediately available
funds to an account or accounts designated in writing by Acquiror to Parent at
least two (2) Business Days prior to such payment date.  If the matter(s)
subject to the Dispute Notice is resolved (or are resolved, on a net basis, if
there are multiple such matters) in Parent’s favor such that the Purchase Price
actually paid at Closing was less than the Purchase Price that should have been
paid, then Acquiror shall pay or cause to be paid an amount in cash equal to
such shortfall to Parent by wire transfer of immediately available funds to an
account or accounts designated in writing by Parent to Acquiror at least two
(2) Business Days prior to such payment date.  Any such payment is to be made
within five (5) Business Days following the date on which the Purchase Price is
finally determined pursuant to this Section 2.06. 


(f)        To the extent that, following the Closing but prior to the
first (1st) anniversary of the Closing Date, Acquiror or its Affiliates receive
distributions from the Target Entities or Operating Partnerships (or a Target
Entity receives a distribution or payment from an Operating Partnership) which
represent repayment of advances previously made by Seller Parties (and not
reimbursed to Seller Parties at or prior to Closing) for (i) good faith
deposits and actual out of pocket costs in connection with 






6 












 





contemplated refinancings or (ii)
restoration expenses relating to the Properties that are subject to
reimbursement from insurance claims or government fundings, to the extent such
advances are reflected on Section 2.06(f) of the Parent Disclosure Schedule, as
Section 2.06(f) of the Parent Disclosure Schedule may be updated by
Parent prior to Closing to reflect such advances made after the date of this
Agreement and prior to the Closing, then, in each case, Acquiror shall promptly
remit or cause to be remitted the amount of any such distributions to Parent.  


Section 2.07.    Closing Deliveries.


(a)        At the Closing, in addition to the payments pursuant to Section
2.06: 


(i)         Parent shall, to
the extent requested in writing at least fifteen (15) days prior to the
Closing, cause to be delivered to Acquiror written resignations of each
officer, manager and/or director, if any, of each of the applicable Transferred
Subsidiaries; 


(ii)        Parent
shall deliver, or cause to be delivered, to Acquiror counterparts of each of
the applicable Ancillary Agreements duly executed by Parent or its applicable
Affiliate(s) party thereto; 


(iii)       Acquiror shall
deliver, or cause to be delivered, to Parent counterparts of each of the
applicable Ancillary Agreements duly executed by Acquiror or its applicable
Affiliate(s) party thereto;


(iv)       each
party hereto shall deliver a duly executed counterpart of applicable transfer
tax and other documentary recording tax forms and related documents as are
required by Law in connection with the payment of all state or local Transfer
Taxes that may be due in connection with such Closing; 


(v)        each
Seller Party shall deliver, or cause to be delivered, to Acquiror a properly
completed IRS Form W-9 executed by such Seller Party, as well as any
corresponding state and local forms or certifications Seller Parties elect to
provide to establish an exemption from or reduction of any state or local
withholding tax requirements with respect to the transactions hereunder; and


(vi)       each party hereto
shall deliver to the other such other documents and instruments as may be
reasonably necessary to consummate the transactions contemplated by this
Agreement for the Closing.  


(b)        In addition to the deliverables set forth in Section
2.07(a), at or prior to the Closing, (i) Parent shall deliver to Acquiror
the certificate referred to in Section 8.03(a) and (ii) Acquiror shall deliver
to Parent the certificate referred to in Section 8.02(a).   


(c)        To the extent required under applicable Law or as
reasonably deemed necessary by either of the parties hereto to effect the
transactions contemplated hereunder, the parties shall execute and deliver, or
cause their respective Affiliates to execute and deliver, such stock, asset
and/or business transfer agreements, bills of sale, deeds, assignments,
assumptions, allonges and other documents and instruments of sale, conveyance,
assignment, transfer and assumption and Parent shall deliver a certificate that
all Intercompany Agreements have been terminated at no cost or liability to
Acquiror, Transferred Subsidiary or Operating Partnership after the Closing,
and shall use commercially reasonable efforts to deliver or cause the delivery
to Acquiror of all certificated interests and stock certificates representing
ownership interests in each Target Entity and Transferred Subsidiary and all
original notes and mortgages 






7 












 





with respect to the Transferred Debt
Interests to the extent such certificated interests, stock certificates,
original notes and mortgages are in Parent’s possession or control (the “Business
Transfer Documents”) as are necessary to effect any transfer of the
Transferred Assets or any assumption of the Assumed Liabilities at the
Closing.  Each Business Transfer Document shall be substantially in the form
attached as the applicable Exhibit hereto, if any, and shall otherwise be in
form and substance reasonably agreed to by the parties and as is usual and
customary in the applicable jurisdiction; provided  that the parties
agree and acknowledge that the Business Transfer Documents are intended solely
to formalize the terms and conditions of this Agreement or otherwise to comply
with any applicable Law and shall be, in all respects, consistent with the
terms and conditions set forth in this Agreement.  In the event of any
inconsistency between this Agreement and a Business Transfer Document, this
Agreement shall control.


(d)        With
respect to each of the Properties, as applicable, the Seller Parties and
Acquiror shall apportion as of the Closing Date any other item that, under the
explicit terms of this Agreement, is to be apportioned at the Closing.


Section 2.08.    Deposit.


(a)        Within one
(1) Business Day after the date hereof, Acquiror shall deposit with Wilmington
Trust, N.A. (“Escrow Agent”) in a single wire transfer an amount in cash
equal to $500,000,000.00 (together with interest earned thereon, the “Deposit”). 
Subject to the terms of the Escrow Agreement, while held by the Escrow Agent,
upon the request of Acquiror, the Deposit shall be placed in an
interest-bearing account under Acquiror’s taxpayer identification number, and
all interest so earned in connection with the Deposit shall be deemed a part of
the Deposit and shall accrue to the benefit of the party receiving the Deposit.  Acquiror shall be
responsible for any Taxes on the interest or earnings from the Deposit and any
fee charged by the Escrow Agent in connection with the placement of the Deposit
in an interest-bearing account.


(b)        The Deposit
shall be applied as a credit to the Purchase Price at Closing.  In the event of
(i) a valid termination of this Agreement by Parent pursuant to Section
9.01(b) if, at the time of such termination, (A) the closing condition in Section
8.01(a) has been satisfied and Parent has irrevocably confirmed in writing
to Acquiror that it stands ready, willing and able to consummate the
transactions contemplated by this Agreement on the date falling ten (10)
Business Days after delivery of such confirmation, and (B) at the end of such
ten (10) Business Day period, Acquiror does not consummate the transactions
contemplated by this Agreement or (ii) termination of this Agreement pursuant
to any other provision of Section 9.01 except for a valid termination by
(x) either party pursuant to Section 9.01(c) or (y) Acquiror pursuant to
Section 9.01(d) or Section 9.01(f), Escrow Agent is authorized to
deliver the Deposit to Parent on or before the tenth (10th) Business Day
following receipt by Escrow Agent and the non-terminating party of written
notice of such termination, unless (solely if Acquiror is the non-terminating
party) Acquiror notifies Escrow Agent within five (5) Business Days following
receipt by Escrow Agent and Acquiror of written notice of such termination that
Acquiror disputes the right of Parent to receive the Deposit.  In the event of
a valid termination of this Agreement by (x) either party pursuant to Section
9.01(c) or (y) Acquiror pursuant to Section 9.01(d) or Section
9.01(f), Escrow Agent is authorized to deliver the Deposit to Acquiror on
or before the tenth (10th) Business Day following receipt by Escrow Agent and
the non-terminating party of written notice of such termination, unless (solely
if Parent is the non-terminating party) Parent notifies Escrow Agent within
five (5) Business Days following receipt by Escrow Agent and Parent of written
notice of such termination that Parent disputes the right of Acquiror to
receive the Deposit.  In the event of a notification by the non-terminating
party that it disputes the right of the other party to receive the Deposit,
Escrow Agent may interplead the Deposit into a court of competent jurisdiction
in the county in which the Deposit has been deposited.  All attorneys’ fees and
costs and Escrow Agent’s costs and expenses incurred in connection with such
interpleader shall be assessed against the party that is not awarded the 






8 












 





Deposit, or if the Deposit is distributed
in part to both parties, then in the inverse proportion of such distribution. 
It is understood and agreed that the Deposit shall be deemed earned by Parent,
represents adequate bargained-for consideration for Parent’s execution and
delivery of this Agreement, and is non-refundable to Acquiror except as
expressly set forth in this Section 2.08. 


Section 2.09.    Method of Payments. 
With respect to any payment due under this Agreement, except as otherwise
expressly specified herein, such payment shall be (i) made by no later than
10:00 a.m., New York City time, on the day when due (unless otherwise consented
to by the party hereto (or its Affiliate) to whom such payment is due) and
(ii) paid by wire transfer of immediately available funds to the account
or accounts designated in writing by the party hereto (or its Affiliate)
receiving such payment.  


Section 2.10.    Interest.  All
computations of interest with respect to any payment due under this Agreement
shall be based on the Interest Rate on the basis of a year of 365 days, in each
case for the actual number of days (including the first day but excluding the
last day) occurring in the period for which such interest is payable.  Whenever
any payment under this Agreement will be due on a day other than a Business
Day, such payment shall be made on the next succeeding Business Day, and such
extension of time shall be included in the computation of payment of interest.


Section 2.11.    Withholding
Taxes.  As of the
date of this Agreement, neither Parent nor Acquiror is aware of any requirement
to deduct or withhold any Tax from the payment of any amount specified in this
Agreement under any applicable Law, provided  that each applicable Seller
Party has delivered a properly completed IRS Form W-9 at Closing.
Notwithstanding the foregoing sentence, Acquiror and
its Affiliates shall be entitled to deduct and
withhold from the payment of any amount specified in this Agreement such
amount as it is required to deduct and withhold with respect to the making of
such payment under applicable Law; provided  that, unless required by a
change in Tax Law, Acquiror and its Affiliates shall not be permitted to deduct
and withhold from any payments under this Agreement under Section 1445 or 1446
of the Code if the applicable Seller Party has delivered a properly completed
IRS Form W-9 at Closing, pursuant to Section 2.07(a)(v) herein, and
Acquiror shall provide Parent with notice (which shall include the basis and
method of calculation of the proposed deduction or withholding) as soon as
reasonably practicable (and in any case prior to making the deduction or
withholding and in no event later than three (3) Business Days prior to the
Closing) upon becoming aware of any other requirements to deduct and withhold
from any consideration otherwise payable to Parent and shall cooperate with
Parent to mitigate, reduce or eliminate any such deduction or withholding.  To
the extent that amounts are so withheld, and paid to the proper Tax Authority
pursuant to applicable Law, such withheld amounts shall be treated for all
purposes of this agreement as having been paid to such holder in respect of
which such deduction and withholding was made.


Section 2.12.    Non-Transferred Assets. 



(a)        Preemptive
Rights.  


(i)         Acquiror hereby
acknowledges that certain of the Properties and Operating Partnerships are
subject to rights of first refusal, purchase options or other preemptive rights
in favor of third parties (the “Option Holders”), in accordance with
applicable Laws or the Contracts (a “Preemptive Right”).    


(ii)        Unless
otherwise mutually agreed between Parent and Acquiror, (A) Parent shall
deliver, as soon as reasonably practicable following the date hereof, a valid
notice to the Option Holders with respect to certain Preemptive Rights that
will be exercisable prior to December 31, 2021 as a result of the transactions
contemplated by this Agreement, as set 


 




9 












 





forth on Section 2.12(a)(ii) of the Parent Disclosure
Schedule (each, a “Triggered Preemptive Right”), (B) Parent and
Acquiror shall use their commercially reasonable efforts to obtain a waiver of
each Triggered Preemptive Right, provided, that the obligation to use
such efforts shall not include the payment of any consideration or grant of any
financial accommodation to any Person in order to obtain any such consent,
approval, license, permit, order, qualification or other authorization (collectively,
the “Option Waivers”), and (C) if an Option Waiver is not obtained
with respect to any Triggered Preemptive Right, Parent and Acquiror shall each
comply with the terms of such Triggered Preemptive Right.


(iii)       In
the event that prior to the Closing, Parent receives any notice pursuant to
which a Person purports to exercise, or claim entitlement to, a Preemptive
Right (for clarity, whether or not a Triggered Preemptive Right) with respect
to any Property that would otherwise have been transferred at the Closing or
any direct or indirect Equity Interests in the Operating Partnership that owns
such a Property, whether valid or invalid, Parent shall deliver a notice of
such exercise or claim to Acquiror as soon as reasonably practicable. 
Thereafter, Seller Parties shall keep Acquiror reasonably apprised of, and
shall obtain Acquiror’s prior consent, not to be unreasonably withheld,
conditioned or delayed, with respect to (A) material communications with the
applicable third party exercising its Preemptive Right, (B) any acceptance of a
Preemptive Right, (C) any commencement or response to litigation in connection
with the exercise of such Preemptive Right and (D) any settlement agreement in
connection with the exercise of the Preemptive Right.  The payment of any
settlement or other costs associated with such Preemptive Right shall, to the
extent arising from actions or inactions requested or caused by Acquiror, be
solely for the account of Acquiror, unless otherwise agreed to in writing by
Parent.  


(iv)       If any sale with
respect to a Property (or the Operating Partnership that owns such Property) is
consummated pursuant to a Preemptive Right prior to the Closing, such Property
will be treated as an Excluded Property from and after such consummation. 
Neither Parent, Seller Parties nor Acquiror shall have any liability hereunder
with regard to any such Property, except for the obligations hereunder that
expressly survive a termination of this Agreement.


(b)        Excluded Properties and Excluded Debt Interests.


(i)         To
the extent that a Property becomes, prior to the Closing and in accordance with
the terms of this Agreement, an Excluded Property, (A) Parent’s
representations, warranties and covenants hereunder shall, in each case, cease
to be of any force and effect with respect to, and Acquiror shall have no
rights or entitlements relating to, the Excluded Property or any direct or
indirect Transferred Assets of any kind exclusively relating to the Excluded
Property (collectively, the “Excluded Property Assets”) (for
the avoidance of doubt, including any obligation of the Parent to deliver, and
any right of the Acquiror to receive, any Excluded Property Asset), nor shall
Acquiror shall have any obligation to assume any Liability with respect to the
Excluded Property Assets; provided, that any Transferred Debt Interests
relating to an Excluded Property shall be treated as Excluded Property Assets
only if they are designated as such in a written notice delivered by Parent to
Acquiror, (B) Parent’s representations, warranties and covenants hereunder
shall, in each case, cease to be of any force and effect with respect to any
Seller Party’s, Target Entity’s or Operating Partnership’s direct or indirect
interest in, or actions or omissions to the extent relating to, any Excluded
Property Asset, (C) the Base Purchase Price shall be reduced by the Allocated
Value of any Property that is an Excluded Property as of the Closing (subject
to adjustment pursuant to Annex V), and (D) this Agreement shall be
deemed amended, without any action on the part of any Person, to reflect the
foregoing.   


 




10 












 





(ii)        Intentionally
Omitted.  


(iii)       If a Transferred
Debt Interest becomes an Excluded Debt Interest pursuant to the terms hereof,
Parent’s representations, warranties and covenants hereunder shall, in each
case, cease to be of any force and effect with respect to, and Acquiror shall
have no rights or entitlements relating to, such Transferred Debt Interest or
any obligation to assume any Liability with respect to the Excluded Debt
Interest, and this Agreement shall be deemed amended, without any action on the
part of any Person, to reflect the foregoing; provided, that, in the
case of a partial repayment or expected partial repayment of a Transferred Debt
Interest, Parent’s representations, warranties and covenants hereunder shall,
in each case, cease to be of any force and effect solely to the extent of the
Transferred Debt Interest that has been repaid as at the Closing.  In addition,
this Agreement shall be deemed amended, without any action on the part of any
Person, to reflect the acquisition by Parent or its Affiliates of any
Additional Transferred Debt Interests in accordance with the terms of this
Agreement prior to the Closing.


(c)        Absence of Consents.


(i)         In the event that (x)
Acquiror has not obtained, prior to the Closing, any consent of a third party
or any Governmental Approval  required in connection with the sale of any Transferred
Assets relating to a Property (including any Existing Loan Consent with respect
to such Property) or (y) any third party (including a Third-Party GP) purports
to have a consent right over the sale of any Transferred Asset and Acquiror
reasonably believes the sale of such Transferred Assets will result in
litigation if a consent from such third party is not obtained, then the terms of
Section 2.12(c) of the Parent Disclosure Schedule shall apply with respect to
such Transferred Assets. 


(ii)        In the absence of
an Existing Loan Consent, from and after the Closing and until such time as the
applicable Existing Loan encumbering any Property (or any direct or indirect
Equity Interests in the entity owning such Property) has been refinanced or
repaid in full, or the applicable Existing Lender with respect thereto has otherwise
agreed in writing to release Parent and each of its applicable Affiliates from
any further Liability arising under such Existing Loan in respect of
obligations arising on or after the Closing Date (whether pursuant to recourse
obligations, guarantees, indemnification agreements, letters of credit or
otherwise), any such Liability shall be treated as an Assumed Liability. 


(iii)       Subject to Section
2.12(c)(i), to the extent that the assignment, transfer, conveyance or
delivery or attempted assignment, transfer, conveyance or delivery of any
Ancillary Transferred Asset or Assigned Contract or any claim or right or any
benefit arising under or resulting from any Ancillary Transferred Asset or Assigned
Contract is prohibited by any applicable Law or would require the consent,
approval, license, permit, order, qualification or other authorization of any
third party or Governmental Authority that has not been obtained prior to the
Closing Date, the Closing shall proceed without the assignment, transfer,
conveyance or delivery of such Ancillary Transferred Asset or Assigned
Contract.  In the event that the Closing proceeds without the assignment,
transfer, conveyance or delivery of any such Ancillary Transferred Asset or
Assigned Contract, then, following the Closing, Acquiror shall use its
commercially reasonable efforts to obtain promptly such consent, approval,
license, permit, order, qualification or other authorization and Parent shall
reasonably cooperate therewith; provided, however, that no party
hereto shall be obligated to pay any consideration or grant any financial
accommodation to any Person in order to obtain any such consent, approval,
license, permit, order, qualification or other authorization.  To the extent
the requisite consent, approval, license, permit, order, qualification or other
authorization is obtained, Parent shall (or shall cause its 


 




11 












 





applicable Affiliates to) assign, transfer, convey and
deliver the relevant Ancillary Transferred Asset or Assigned Contract to
Acquiror at no additional cost. 


(iv)       For the avoidance of doubt, there shall be no adjustment to
the Purchase Price as a result of the matters referred to in this Section
2.12(c), nor shall this Section 2.12(c) be construed to limit each
party’s obligations under Section 6.05 or to limit the applicability of,
or require the waiver of, the conditions to Closing set forth in ARTICLE VIII.


ARTICLE III


Title
Matters


Section 3.01.    Access to the Properties.  From
the date hereof until the Closing or earlier termination of this Agreement,
Parent shall cause the applicable Seller Parties to use commercially reasonable
efforts to provide the Acquiror with access to the Properties upon reasonable
prior written notice to Parent (which notice shall in any event be delivered at
least five (5) Business Days in advance), subject in all cases to the
provisions of this Section 3.01 and Section 3.02; provided,
however, that Parent shall be under no obligation to cause the
Acquiror’s access to any Property that the applicable Seller Party lacks
authority to provide.  Under no circumstances shall Acquiror communicate (in
person, by ‎telephone, in writing or otherwise) or in any way initiate
contact with any Residents, employee of any property manager of such
Properties, Third-Party GPs or any Governmental Authority related to a Property
without the prior express written approval of Parent; provided, however,
that no consent shall be required and Acquiror shall be permitted to
(v) conduct ordinary course communications not related to the Business,
(w) conduct customary due diligence with respect to the Properties, which
may require communications with Governmental Authorities to collect typical
real-estate and entity diligence confirmation information including customary
inquiries in connection with the preparation of environmental Phase I reports
and zoning reports (e.g., copies of planning, zoning, and violation
information), (x) communicate with Governmental Authorities in connection
with seeking required Governmental Approvals and third-party consents pursuant
to the terms of this Agreement, (y) communicate with lenders with respect
to any Existing Loan (the “Existing Lenders”) in connection with
obtaining any Existing Loan Consent and (z) communicate with Third-Party
GPs; provided  that (1) Seller Parties shall have the right and
obligation to initiate communications (and an introduction to Acquiror) with
each Third-Party GP and, to the extent Seller does not promptly initiate such
communications, then with reasonable prior notice to (and consultation in good
faith with) Parent, Acquiror shall have the right to initiate such contact, (2) Acquiror
shall keep Parent reasonably apprised of, and reasonably cooperate with Parent
in connection with, all subsequent material communications and correspondence
with any Third-Party GP, including with respect to consents and approvals to be
obtained from Existing Lenders and Housing Authorities, matters reasonably
necessary in order to consummate the transactions contemplated hereby and
post-Closing Operating Partnership and Property matters, and provided, further,
Seller Parties shall have the right to participate in any material
communications related to the transactions contemplated herein.  Parent shall
have the right to have a Representative present at all times while Acquiror or
its Representatives are physically on a Property.  As a condition precedent to
having access to the Properties pursuant to this Section 3.01, Acquiror
shall deliver to Parent certificates evidencing that Acquiror and/or its
relevant Representatives carry and maintain such general liability insurance
policies with such companies and in such scope and amounts as are acceptable to
Parent in its reasonable discretion, in all cases naming Parent and the
applicable Operating Partnership as an additional insured and loss payee
thereunder.  Acquiror’s obligations under this Section 3.01 shall
survive any termination of this Agreement.







12 












 





Section 3.02.    Disclaimers and Release.


(a)        Acquiror does hereby acknowledge, represent, warrant and
agree, on behalf of itself and each of its Affiliates, to and with Parent, that
with respect to each Property and the Transferred Assets relating thereto (if
any), (i) Acquiror is acquiring the Transferred Assets (including an indirect
interest in the Properties related thereto, as applicable) in an “AS IS, WHERE
IS, AND WITH ALL FAULTS” condition with respect to any facts, circumstances,
conditions and defects of all kinds; (ii) Parent and its Affiliates have
no obligation to repair or correct any such facts, circumstances, conditions or
defects or compensate Acquiror for the same; (iii) Acquiror has not relied
and will not rely on, and Parent and its Affiliates have not made and are not
liable for or bound by, any express or implied warranties, guarantees,
statements, representations or information pertaining to the Properties or
relating thereto made or furnished by Parent, its Affiliates, the asset
manager(s) of the Properties, or any real estate broker, agent or third party
representing or purporting to represent Parent or its Affiliates, to whomever
made or given, directly or indirectly, orally or in writing (including
specifically, without limitation, information in the CIM, the Virtual Data
Room, any information packages distributed with respect to a Property or other
information provided to Acquiror or its Representatives by Parent or its
Representatives, the Operating Partnerships or their partners or
Representatives, or any property management company or its Representatives),
other than those representations and warranties expressly provided in ARTICLE
IV; (iv) Acquiror is and will be relying strictly and solely upon the
advice and counsel of its own Representatives and Acquiror is and will be fully
satisfied that the portion of the Purchase Price allocable to each Transferred
Asset is fair and adequate consideration; (v) Acquiror has had an adequate
opportunity to make such legal, factual and other inquiries and investigations
as Acquiror deems necessary, desirable or appropriate with respect to the
Transferred Assets and each Property; (vi) except as otherwise expressly
provided in ARTICLE IV, Parent and its Affiliates have not at any time
made and are not now making, and specifically disclaim, any warranties or
representations of any kind or character, express or implied, with respect to
any Transferred Asset or any Property as an inducement to Acquiror to enter
into this Agreement and to purchase the Transferred Assets, or for any other
purpose including, but not limited to, warranties or representations as to
(A) matters of title, (B) environmental matters relating to a
Property or any portion thereof, including, without limitation, the presence of
Hazardous Materials in, on, under or in the vicinity of a Property,
(C) geological conditions, including, without limitation, subsidence,
subsurface conditions, water table, underground water reservoirs, limitations
regarding the withdrawal of water, and geologic faults and the resulting damage
of past and/or future faulting, (D) whether, and to the extent to which, a
Property or any portion thereof is affected by any stream (surface or
underground), body of water, wetlands, flood prone area, flood plain, floodway
or special flood hazard, (E) drainage, (F) soil conditions, including
the existence of instability, past soil repairs, soil additions or conditions
of soil fill, or susceptibility to landslides, or the sufficiency of any
undershoring, (G) the presence of endangered species or any
environmentally sensitive or protected areas, (H) zoning or building
entitlements to which a Property or any portion thereof may be subject,
(I) the availability of any utilities to a Property or any portion thereof
including, without limitation, water, sewage, gas and electric, (J) usages
of adjoining property, (K) access to a Property or any portion thereof,
(L) the value, compliance with the plans and specifications, size,
location, age, use, design, quality, description, suitability, structural
integrity, operation, title to, or physical or financial condition of a
Property or any portion thereof, or any income, expenses, charges, liens,
encumbrances, rights or claims on or affecting or pertaining to a Property or
any part thereof, (M) the condition or use of a Property or compliance of
a Property with any or all past, present or future federal, state or local ordinances,
rules, regulations or laws, building, fire or zoning ordinances, codes or other
similar laws, (N) the existence or non-existence of underground storage
tanks, surface impoundments, or landfills, (O) any other matter affecting the
stability and integrity of a Property, (P) the potential for further
development of a Property, (Q) the merchantability of a Property or
fitness of a Property for any particular purpose, (R) the truth, accuracy
or completeness of any information provided by or on behalf of Parent or its
Affiliates or any information contained in the Virtual Data Room, (S) tax
consequences or (T) any other matter or thing 


 




13 












 





with respect to any Property or any of the Transferred
Assets; and (vii) by reason of all of the foregoing, from and after the
Closing, except as expressly provided in this Agreement, Acquiror shall assume
the full risk of any loss or damage occasioned by any fact, circumstance,
condition or defect pertaining to the Transferred Assets and/or the physical
and other conditions of the Properties and/or the operation of the Properties,
regardless of whether the same is capable of being observed or ascertained.


(b)        EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PARENT AND
ITS AFFILIATES HAVE NOT, DO NOT AND WILL NOT, WITH RESPECT TO ANY PROPERTY OR
ANY TRANSFERRED ASSETS RELATING THERETO, MAKE ANY REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING, BUT
IN NO WAY LIMITED TO, ANY WARRANTY OF CONDITION OR MERCHANTABILITY, OR WITH
RESPECT TO THE VALUE, PROFITABILITY OR OPERATING POTENTIAL OF ANY PROPERTY OR ANY OPERATING PARTNERSHIP OR TRANSFERRED ASSETS
RELATING THERETO.


(c)        Except as expressly set forth in this Agreement, from and
after the Closing, Acquiror FOREVER RELEASES AND DISCHARGES Parent and its
Affiliates from all responsibility, obligations, claims, demands and liability
whatsoever regarding the condition, valuation, salability or utility of the
Properties or any of the Transferred Assets, or their suitability for any
purpose whatsoever including, but not limited to, with respect to the presence
in the soil, air, structures and surface and subsurface waters, of Hazardous
Materials or other materials or substances that have been or may in the future
be determined to be toxic, hazardous, undesirable or subject to regulation and
that may need to be specially treated, handled and/or removed from any Property
under current or future federal, state and local laws, regulations or
guidelines, and any structural and geologic conditions, subsurface soil and
water conditions and solid and hazardous waste and Hazardous Materials on,
under, adjacent to or otherwise affecting the Properties, and further
including, but not limited to, liabilities under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C.
Sections 9601 et seq.), as amended (“CERCLA”).  


(d)        Acquiror further hereby WAIVES (and by Closing will be deemed
to have WAIVED) any and all objections and complaints (including, but not
limited to, federal, state and local statutory and common law-based actions,
and any private right of action under any federal, state or local Laws
guidelines to which the Properties are or may be subject, including, but not
limited to, CERCLA) concerning the physical characteristics and any existing
conditions of the Properties, including, without limitation, any lessor’s
obligations under the Leases relating to the physical, environmental or legal
compliance status of any Property, whether arising before or after the date
hereof.  Acquiror further hereby assumes the risk of changes in applicable Law
relating to past, present and future environmental conditions on the Properties
and the risk that adverse physical characteristics and conditions, including,
without limitation, the presence of Hazardous Materials or other contaminants,
may not have been revealed by its investigation.


(e)        The term “Hazardous Materials” shall mean asbestos,
any petroleum fuel and any hazardous or toxic substance, material or waste
which is or becomes regulated by any local governmental authority, the state
where a Property is located or the government of the United States, including,
but not limited to, any material or substance defined as a “hazardous waste,”
 “extremely hazardous waste,” “restricted hazardous waste,” “hazardous
substance,” “hazardous material” or “toxic pollutant” under state law and/or
under CERCLA.


(f)        The provisions of this Section 3.02 shall survive
any termination of this Agreement and shall survive the Closing.


 




14 












 





(g)        Acquiror acknowledges and agrees that the disclaimers and
other agreements set forth in this Section 3.02 are an integral part of
this Agreement and that Parent would not have entered into this Agreement for
the Purchase Price in the absence of such disclaimers and other agreements.


Section 3.03.    Termination.  In the
event of termination of this Agreement and within a reasonable period of time
after Parent requests such information, Acquiror shall deliver to Parent copies
of all third-party reports, plans, studies, applications or any other matters
obtained by or prepared for Acquiror in connection with Acquiror’s review of
the Properties and which relate to the physical condition of the Properties,
including, without limitation, any engineering and environmental reports
completed and/or obtained by Acquiror in connection with Acquiror’s review of
the Properties.  IN ALL EVENTS, ACQUIROR SHALL INDEMNIFY, DEFEND, AND HOLD
HARMLESS THE APPLICABLE OPERATING PARTNERSHIPS AND PARENT INDEMNIFIED PERSONS
FREE FROM AND AGAINST:  (i) ANY AND ALL LOSSES (INCLUDING REASONABLE ATTORNEY’S
FEES) OR LIENS THAT IN ANY WAY RELATE TO, ARISE OUT OF, ARE OCCASIONED BY OR
ARE CONNECTED WITH THE ACCESS, INSPECTIONS AND OTHER EXAMINATIONS CONDUCTED BY
ACQUIROR OR ITS REPRESENTATIVES HEREOF (“ACCESS”), WHETHER SUCH ACCESS
OCCURRED BEFORE OR AFTER THE DATE HEREOF, INCLUDING, WITHOUT LIMITATION, ANY
CLAIMS BY A THIRD PARTY ARISING FROM ANY ACT OR FAILURE TO ACT AUTHORIZED BY
ACQUIROR OR ITS REPRESENTATIVES, BUT EXCLUDING ANY PREEXISTING CONDITIONS
(EXCEPT TO THE EXTENT EXACERBATED BY THE ACTIVITIES OF ACQUIROR AND/OR ITS
REPRESENTATIVES) AND EXCLUDING ANY LOSSES ARISING OUT OF THE DISCOVERY OR
DISCLOSURE OF A PROPERTY’S CONDITION; AND (ii) ANY DAMAGE OR INJURY TO PERSON
OR PROPERTY CAUSED BY ACQUIROR AND/OR ITS REPRESENTATIVES.  WITHOUT LIMITING
THE FOREGOING, ACQUIROR SHALL, AND SHALL CAUSE ITS REPRESENTATIVES TO, KEEP THE
PROPERTIES FREE AND CLEAR OF ANY MECHANICS’ LIENS OR MATERIALMEN’S LIENS BEING
CLAIMED BY, THROUGH OR UNDER ACQUIROR AND/OR ITS REPRESENTATIVES AND RELATED TO
ANY SUCH ACCESS.  ACQUIROR FURTHER WAIVES AND RELEASES any claims, demands, damages, actions, causes of action or other
remedies of any kind whatsoever against the Seller Parties for property damages
or bodily and/or personal injuries to ACQUIROR, its agents, independent
contractors, servants and/or employees arising out of any entry onto a Property
by, or any investigations, examinations or examinations performed by said
persons, except to the extent of any gross negligence or willful misconduct of
any Seller Party.  NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED
HEREIN, ACQUIROR’S OBLIGATIONS UNDER THIS SECTION 3.03  SHALL SURVIVE ANY TERMINATION OF THIS
AGREEMENT.


Section 3.04.    Title Matters.  


(a)        Parent has
made available to Acquiror or its Representative copies of certain title
insurance policies, commitments, or pro formas, whether owner’s or lender’s, if
any, relating to the Properties in Parent’s possession or the possession of its
Affiliates (each, an “Existing Policy” and collectively, the “Existing
Policies”) .  From the date hereof until
Closing, Parent shall use commercially reasonable efforts to provide to
Acquiror the most recent survey, if any, relating to each of the Properties in
Parent’s possession or the possession of a Seller Party, upon Acquiror’s
reasonable request (each, an “Existing Survey” and collectively, the “Existing
Surveys”). 


(b)        Parent
has ordered current title commitments for one or more of the Properties
(together with the underlying exception documents, the “Title Commitments”). 







15 












 





(c)        Title Exceptions.  


(i)         Any
title matters disclosed in the Title Commitments (or any update thereto) that
materially impair the current use, operation or value of a Property and are not
Permitted Liens or Permitted Encumbrances are referred to collectively herein
as “Material Title Exceptions”; provided, that without limiting
the generality of the foregoing, the items set forth on Section 3.04(c) of the
Parent Disclosure Schedule shall not be deemed to be Material Title Exceptions.
  Except as expressly provided in this Agreement, the existence of any Material
Title Exception shall not give rise to any right of Acquiror to exclude any
assets required to be purchased hereunder or to terminate this Agreement.   


(ii)        Within ten (10) Business Days
following the receipt by Acquiror of the Title Commitments but in any event no
later than thirty (30) days after the date hereof, Acquiror shall notify Parent
in writing as to which Material Title Exceptions, if any, disclosed in a Title
Commitment are not acceptable to Acquiror (the “Acquiror’s
Title Notice”).   


(A)       If any
Material Title Exception(s) identified in the Acquiror’s Title Notices
collectively would reasonably be expected to have an effect on the value of the
Transferred Equity Interests that relate to the applicable Property, as
reasonably determined by Parent in good faith and notified to Acquiror in
writing following Parent’s receipt of the Acquiror’s Title Notice (the “Title
Exception Adjustment Amount”) that, individually
or in the aggregate with all other Title Exception Adjustment Amounts, exceeds
two percent (2%) of the Base Purchase Price, Parent may, but shall not be
required to, use such measures as Parent may deem appropriate to seek to
satisfy or eliminate any such Material Title Exceptions at Parent’s sole cost
and expense, and Acquiror shall reasonably cooperate with Parent in connection
therewith.  If Parent does not cause any Material Title Exception identified in
the Acquiror’s Title Notice to be eliminated as an exception to, or insured
through an endorsement to, the title policy issued with respect to the
applicable Property at or prior to the Closing (an “Uninsured
Exception”), then the Purchase
Price shall be reduced by the corresponding Title Exception Adjustment Amount
for such Uninsured Exception, but solely to the extent that the Title Exception
Adjustment Amounts corresponding to all Uninsured Exceptions, in the aggregate,
exceed two percent (2%) of the Base Purchase Price (the amount of such excess,
the “Excess Title Exception Amount”).  In addition, Parent may at any time determine to
exclude from the Transferred Assets any Property affected by a Material Title
Exception identified in Acquiror’s Title Notice, in which event such Property
shall be deemed to be an Excluded Property and the Purchase Price shall be
adjusted with regard to such Property as provided in Section 2.06(c),
and not, for the avoidance of doubt, as provided in Section 2.06(c)(iii).    


(B)       If, as of the date that is two (2)
Business Days prior to the expected Closing Date, the aggregate Title Exception
Adjustment Amounts with respect to Material Title Exception(s) identified in
the Acquiror’s Title Notice exceeds ten percent (10%) of the Base Purchase
Price (for the avoidance of doubt, excluding any Material Title Exception that
has been satisfied or eliminated and any Material Title Exceptions with respect
to Excluded Properties), Parent shall notify Acquiror of the same and Acquiror may elect, at any time prior to the Closing, to terminate
this Agreement by delivering notice to Parent of such election, whereupon this
Agreement shall be terminated (and the other provisions of ARTICLE IX of
this Agreement shall govern).   


 




16 












 





(C)       Notwithstanding
anything to the contrary contained herein, (1) Parent shall have no obligation
to incur, or to cause to be incurred, any expense or liability to satisfy or
eliminate any Material Title Exception or other item or matter affecting title
to the Properties, whether or not revealed by a Title Commitment, and
(2) no failure by Parent or any Affiliate to satisfy or
eliminate (or to cause any Third-Party GP or other third party to satisfy or
eliminate) any Material Title Exception or other item or matter
affecting title to the Properties shall constitute a breach of or
default under this Agreement, nor shall any such failure give rise to a
liability of Parent hereunder or entitle Acquiror to any recourse to equitable
relief or other remedy against Parent and its Affiliates.    


ARTICLE IV


REPRESENTATIONS AND WARRANTIES OF PARENT


Except
(a) as set forth in the corresponding sections or subsections of the
disclosure schedule delivered to Acquiror by Parent prior to entering into this
Agreement (the “Parent Disclosure Schedule”) (it being understood and
agreed by the parties hereto that disclosure of any item in any section or
subsection of the Parent Disclosure Schedule shall be deemed disclosure with
respect to any other section or subsection of the Parent Disclosure Schedule to
which the relevance of such item is reasonably apparent), and (b) for any
fact, information or condition disclosed in any Existing Policy, Existing
Survey provided to Acquiror, Existing Loan Documents, or other material posted
to the Virtual Data Room no later than the Virtual Data Room Cut-Off Date or in
Parent’s Annual Report on Form 10-K for the year ended December 31, 2020
(excluding any risk factor or forward-looking disclosures contained in such
documents under the heading “Risk Factors,” and any disclosure of risks
included in any “forward-looking statements” disclaimer, or other statements
that are similarly nonspecific or predictive, cautionary, or forward-looking)
or any other report, form, schedule, registration statement, definitive proxy
statement or information statement (including any exhibits and documents
incorporated by reference and any amendments thereto) filed with the SEC by
Parent subsequent to December 31, 2020, Parent hereby represents and warrants
to Acquiror as of the date hereof and as of the Closing Date (or in the case of
representations and warranties that speak as of a specified date, as of such
specified date) as follows; provided  that, notwithstanding anything to
the contrary contained in this ARTICLE IV, to the extent any
representation or warranty below relates to any Operating Partnership, or any
Property owned by an Operating Partnership, then each such representation or
warranty shall be deemed to be made to the Knowledge of Parent (with the
exception of the representations and warranties set forth in Section 4.09(a)
and Section 4.14 (but only to the extent such representation in Section
4.14 relates to Organizational Documents executed by a Seller Party or
Target Entity)) as follows: 


Section 4.01.    Incorporation
and Authority of Parent and the Seller Parties.  Each of
Parent and the Seller is a corporation duly incorporated, validly existing and
in good standing under the Laws of the State of Delaware.  Each of the Seller
Parties other than the Seller is a corporation or other organization duly
incorporated or organized, validly existing and in good standing under the Laws
of its jurisdiction of incorporation or organization and has the requisite
corporate or other applicable organizational power and authority to conduct its
business as presently conducted, except where the failure to be so incorporated
or organized, existing or in good standing or to have such power or authority,
individually or in the aggregate, would not reasonably be expected to have a
Business Material Adverse Effect.  Parent or the applicable Affiliate of Parent
(as applicable) has all requisite corporate or other applicable organizational
power to enter into, consummate the transactions contemplated by and carry out
its obligations under each of the Transaction Agreements to which it is a
party.  The execution and delivery by Parent or the applicable Affiliate of
Parent (as applicable) of each of the Transaction Agreements to which it is a
party and the consummation by Parent or the applicable Affiliate of Parent (as 




17 












 





applicable) of the transactions contemplated by each of
the Transaction Agreements to which it is a party have been (with respect to
Parent) or will be prior to the Closing (with respect to each other Affiliate
of Parent, as applicable) duly authorized by all requisite corporate or other
similar organizational action on the part of Parent or the applicable Affiliate
of Parent (as applicable).  Each of the Transaction Agreements to which Parent
or the applicable Affiliate of Parent (as applicable) is a party has been, or
upon execution and delivery thereof will be, duly executed and delivered by
Parent or the applicable Affiliate of Parent (as applicable).  Assuming due
authorization, execution and delivery by the other parties hereto or thereto,
each of the Transaction Agreements to which Parent or the applicable Affiliate
of Parent (as applicable) is a party constitutes, or upon execution and
delivery thereof will constitute, the legal, valid and binding obligation of
Parent or the applicable Affiliate of Parent (as applicable), enforceable
against it in accordance with its terms, subject in each case to the effect of
any applicable bankruptcy, reorganization, insolvency, moratorium,
rehabilitation, liquidation, fraudulent conveyance, preferential transfer or
similar Laws now or hereafter in effect relating to or affecting creditors’
rights and remedies generally and subject, as to enforceability, to the effect
of general equitable principles (regardless of whether enforcement is sought in
a proceeding in equity or at law).  


Section 4.02.    Incorporation,
Qualification and Authority of the Transferred
Subsidiaries.   Each of the Transferred
Subsidiaries is a corporation or other organization duly incorporated or
organized, validly existing and in good standing under the Laws of its
jurisdiction of incorporation or organization and has the requisite corporate
or other applicable organizational power and authority to conduct its business
as presently conducted, except where the failures to be so incorporated, organized
or existing or in good standing or to have such power or authority,
individually or in the aggregate, would not reasonably be expected to have a
Business Material Adverse Effect.  Each of the Transferred Subsidiaries is duly
qualified as a foreign corporation or other organization to do business, and is
in good standing, in each jurisdiction where the character of its owned,
operated or leased properties or the nature of its activities makes such
qualification and good standing necessary, except for failures to so qualify or
be in good standing that, individually or in the aggregate, would not
reasonably be expected to have a Business
Material Adverse Effect.  


Section 4.03.    No Conflict.  Provided
that the consents, approvals, authorizations of third parties and Governmental
Authorities, as contemplated by Section 6.05, have been obtained (and
subject to Section 2.12(c)), and except as may result from the exercise
of any Preemptive Right or from any facts or circumstances relating to the
identity or regulatory status of Acquiror or its Affiliates, the execution and
delivery by Parent or the applicable Seller Party (as applicable) of, and the
consummation by Parent or the applicable Seller Party (as applicable) of the
transactions contemplated by, the Transaction Agreements to which Parent or the
applicable Seller Party (as applicable) is a party do not and will not
(a) violate or conflict with the organizational documents of Parent or the
applicable Seller Party (as applicable) or the Organizational Documents of any
of the Transferred Subsidiaries, (b) subject to Governmental Approvals,
conflict with or violate any Law or Governmental Order applicable to Parent or
the applicable Seller Party (as applicable) or any of the Transferred Subsidiaries
or by which any of them or any of their respective properties or assets is
bound or subject or (c) result in any breach of, or constitute a default
(or event which, with the giving of notice or lapse of time or both, would
constitute a default) under, or result in a termination or give to any Person
any rights of termination, vesting, amendment, acceleration or cancellation of,
trigger any payment or result in the creation of any Lien (other than Permitted
Liens) on any of the assets or properties of the Business or any of the Target
Entities pursuant to, any Material Contract to which any of the Target Entities
is a party or by which any of them or any of their respective properties or
assets is bound or subject, except, in the case of clauses (b) and (c) of
this Section 4.03, for any such conflicts, violations, breaches,
defaults, terminations, accelerations, cancellations or creations that,
individually or in the aggregate, would not reasonably be expected to have a
Business Material Adverse Effect.  







18 












 





Section 4.04.    Governmental Consents and Approvals.  Except as may result from any facts or circumstances
relating to the identity or regulatory status of Acquiror or its Affiliates and
except in connection with consents, approvals, filings and notifications with
respect to applicable Housing Authorities (for the avoidance of doubt,
including in their capacity as lenders or as agencies having jurisdiction with
respect to Tax Credit Laws) or any antitrust or competition Law or by any
Governmental Authority with jurisdiction over enforcement of any applicable
antitrust or competition Laws, the execution and delivery by Parent or the
applicable Seller Party (as applicable) of the Transaction Agreements to which
it is a party do not, and the consummation by Parent or the applicable Seller
Party (as applicable) of the transactions contemplated by the Transaction
Agreements to which it is a party will not, require any consent, approval,
license, permit, order, qualification or authorization of, or registration with
or other action by, or any filing with or notification to, any Governmental
Authority (each, a “Governmental Approval”) to be obtained or made by
Parent or the applicable Affiliate of Parent (as applicable) or any Transferred
Subsidiary, except for any Governmental Approvals the failure to obtain which,
individually or in the aggregate, would not be reasonably expected to have a
Business Material Adverse Effect.


Section 4.05.    Absence
of Litigation. As of the date hereof, to
the Knowledge of Parent, none of Parent, its Affiliates, the Target Entities,
or any Operating Partnership (other than a Third Party Operating Partnership)
has received written notice of any Actions or Governmental Orders pending or
threatened in writing against any of the Target Entities that, individually or
in the aggregate, would reasonably be expected to have a Business Material
Adverse Effect.  As of the date hereof, there is no Governmental Order or
Action to which the Parent or any of the Seller Parties or Target Entities is a
party pending or, to the Knowledge of Parent, threatened in writing seeking to
prevent, hinder, modify, delay or challenge the transactions contemplated by
this Agreement. 


Section 4.06.    No Employees.  The
Transferred Subsidiaries do not have any employees. 


Section 4.07.    Taxes.  


(a)        All income and other
material Tax Returns required to be filed by or on
behalf of each Target Entity have been filed in accordance with all
applicable Law. All such Tax Returns are true, correct and complete in all
material respects. All material Taxes required to be
paid by the Target Entities (whether or not
shown on any Tax Return) have been timely paid.  All Taxes of each Target
Entity, if not yet due or owing, have been adequately accrued and reserved in
accordance with GAAP.  No written claim has ever been received by Parent or a
Target Entity from a Governmental Authority with respect to a Target Entity in
a jurisdiction where such Target Entity does not file Tax Returns that such
Target Entity is or may be subject to material
taxation in that jurisdiction. There are no material Liens with respect to
Taxes upon any Transferred Asset other than Permitted Liens.
There is no pending, or to Parent’s or any Target Entity’s Knowledge
threatened, claim or action concerning any liability for material Taxes of or with respect to any Target Entity.


(b)        No Target Entity has waived any statute of limitations in
respect of U.S. federal income Taxes or other material Taxes or agreed to any
extension of time with respect to a material Tax assessment or deficiency
(other than extensions resulting from an extension of the time to file any Tax
Return) which waiver or agreement is currently in effect (other than (i) as a
result of such Target Entity being a member of any affiliated, combined,
unitary or similar group for federal, state, local or foreign law Tax purposes
or (ii) with respect to non-income Taxes, in the ordinary course of business).
No closing agreements, private letter rulings, technical advice memoranda or
similar agreements or rulings relating to Taxes have been entered into with or
issued by any Governmental Authority with or in respect 


 




19 












 





of any Target Entity that are currently in effect and will
materially affect Acquiror’s or any Target Entity’s liability for Taxes for any
period after the Closing Date.


(c)        No Target
Entity is a party to or is bound by any Tax allocation agreement, Tax
indemnification agreement, Tax sharing agreement, or any contractual obligation
requiring it to indemnify or reimburse any other Person (other than a Target
Entity or its Subsidiary) with respect to Taxes (other than pursuant to a
credit agreement, lease agreement, employment agreement or other commercial
agreement entered into in the ordinary course of business and other than this
Agreement and Ancillary Agreements). 


(d)        No Target
Entity will be required to include any material amount in taxable income or
exclude any material item of deduction or loss from taxable income for any
taxable period (or portion thereof) beginning after the Closing Date as a
result of (i) any
installment sale or open transaction disposition made by such Target Entity
prior to the Closing, or (ii) any change in any method of accounting
elected or requested prior to the Closing (other than as a result of a change
in Law after the date hereof).


(e)        Each Target
Entity is, and has been for the past five (5) years, for U.S. federal (and,
where applicable, state and local) income Tax purposes, properly classified as
a “partnership” within the meaning of Treasury Regulations Section
301.7701-3(b)(1)(i) or as an entity “disregarded as separate from its owner”
within the meaning of Treasury Regulations Section 301.7701-3(b)(1)(ii).  


Section 4.08.    Transferred Assets.  


(a)        Each of the
Seller Parties set forth on Annex I is, or prior to the Closing will be,
the legal and beneficial holder of the Transferred Equity Interests set forth
opposite its name, free and clear of all Liens other than Permitted Liens.   


(b)        One or more Affiliates of Parent is, or prior to the
Closing will be, the legal and beneficial holder of the Transferred Debt
Interests set forth on Annex II, free and clear of all Liens other than
Permitted Liens.  


(c)        The Assigned Contracts are in full force and effect
and are enforceable against each party thereto in accordance with the express
terms thereof, except for such failures to be valid, binding or enforceable as
would not, individually or in the aggregate, be reasonably likely to have a
Business Material Adverse Effect, subject in
each case to the effect of any applicable bankruptcy, reorganization,
insolvency, moratorium, rehabilitation, liquidation, fraudulent conveyance,
preferential transfer or similar Laws now or hereafter in effect relating to or
affecting creditors’ rights and remedies generally and subject, as to enforceability,
to the effect of general equitable principles (regardless of whether
enforcement is sought in a proceeding in equity or at law).  The Virtual Data
Room contains true, correct and complete copies of each of the Assigned
Contracts.


Section 4.09.    Real Property.


(a)        Annex I identifies the common name used by Parent in its records
to identify the real property (i) owned by each Operating Partnership and/or
(ii) subject to a Ground Lease, in each case as of the date hereof.   


(b)        Except for (i) such rights as are not material in the
aggregate and (ii) the Triggered Preemptive Rights, none of Parent, any
Seller Party or Transferred Subsidiary or, to the Knowledge of Parent, any
Operating Partnership, has granted or is bound by or subject to the terms of
any 


 




20 












 





unexpired option agreements or
contractual rights of first offer, rights of first negotiation or rights of
first refusal with respect to the purchase of any Property or any portion
thereof or any other unexpired contractual rights in favor of third Persons to
purchase or otherwise acquire a Property or any portion thereof, in each case,
if such right will become exercisable prior to December 31, 2021 as a result of
the transactions contemplated by this Agreement. 


Section 4.10.    Guarantees.  True,
correct and complete copies of each (a) Fund Guarantee and (b) any other
guaranty or credit support (other than non-recourse carveout guarantees and
environmental indemnities) provided by Parent or an Affiliate with respect to
any Debt has been posted to the Virtual Data Room (together, the “Existing Guarantees”).  Neither Parent
nor any Affiliate thereof, to the Knowledge of Parent, is in material breach or
violation of, or default under any Existing Guarantee that remains uncured.  


Section 4.11.    Material Contracts.


(a)        Section
4.11(a) of the Parent Disclosure Schedule sets forth a complete list, in each
case as of the date hereof, of each Contract described in clauses (i) through
(iv) below (or the accurate description of principal terms in case of oral
Contracts), including all amendments, supplements and side letters thereto that
modify each such Contract in any material respect, to which a Seller Party or a
Transferred Subsidiary is a party or by which it
is bound or to which any of their respective assets are subject (each such contract described in this Section 4.11(a),
a “Material Contract”):


(i) all Contracts which contain restrictions
with respect to payment of dividends or any other distribution in respect of
the Transferred Assets;


(ii) all Contracts constituting indebtedness of
any Transferred Subsidiary or Operating Partnership in excess of $1,000,000,
but excluding any Existing Loans, Transferred Debt Documents or Operating
Deficit Loans;


(iii) all Contracts that contain covenants
purporting to limit, in any material respect, either the type of business in
which a Transferred Subsidiary (or, after the Closing, Acquiror or its
Affiliates) may engage in or the geographic area in which any of them may so
engage; or


(iv) all Contracts that involve the future
disposition or acquisition of any Property (or any interest therein) or any
Transferred Asset owned by a Seller Party or Transferred Subsidiary, or any
merger, consolidation or similar business combination transaction involving any
Transferred Subsidiary.


(b)        Notwithstanding the foregoing, “Material Contracts” shall
not include any Contract that is (A) a Ground Lease, (B) a Transferred Debt
Document, (C) an Existing Loan Document, (D) an Organizational Document, (E) a
Regulatory Agreement, (F) a Contract which would be a Material Contract solely
by virtue of containing terms that are recorded use restrictions affecting a
Property and any improvements thereon or (G) a Contract entered into prior to
Closing that constitutes an Intercompany Agreement and is terminated at or
before Closing at no cost or liability to Acquiror, any Transferred Subsidiary
or Operating Partnership.


(c)        Except as would not reasonably be expected to have,
individually or in the aggregate, a Business Material Adverse Effect, each
Material Contract to which a Seller Party or Subsidiary is a party or by which
any Property is bound constitutes a legal, valid and binding obligation of such
Seller Party or Subsidiary.  No Seller Party or Target Entity has delivered any
written notice of 


 




21 












 





default under a Material Contract that remains uncured and
no Seller Party, Target Entity or, to the Knowledge of Parent, any Operating
Partnership or third party is in material violation, breach of or default
under, nor, to the Knowledge of Parent, has there occurred an event or
condition that with the passage of time or the giving of notice (or both) would
constitute a material violation, breach of, or default under any Material
Contract by a Seller Party. 


Section 4.12.    Tax
Credit Matters.  With respect to each
Operating Partnership for which the Compliance Expiration Date has not yet
occurred, to the Knowledge of Parent there are no unresolved IRS Form 8823s
that are material in the aggregate.


Section 4.13.    Brokers.  Except for
CBRE Capital Advisors, Inc., no broker, finder or investment banker is entitled
to any brokerage, finder’s or other fee or commission in connection with the
consummation of the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of Parent or its Affiliates.  Acquiror shall have no responsibility for any such fee,
commission or expense payable to any broker, finder or investment banker
engaged by or on behalf of Parent or any of its Affiliates.


Section
4.14.    Organizational Documents;
Capitalization.


(a)        The Virtual Data Room contains a true, correct and complete
copy of the Partnership Agreement of each Target Entity and the Partnership
Agreement, as executed by the applicable Seller Party or Target Entity, of each
Operating Partnership.  The Partnership Agreements of each Target Entity and
Operating Partnership are in full force and effect and contain the entire
agreement between the parties thereto relating to each Target Entity or
Operating Partnership, as applicable; provided, that the foregoing
sentence shall not be deemed inaccurate by virtue of any Organizational Document
or other Contract with respect to an Operating Partnership that was not
executed by a Seller Party or Target Entity or any action taken with respect to
an Operating Partnership by Persons other than Parent, its Affiliates and the
Target Entities.  Except as set forth on Section 4.14(a) of the Parent
Disclosure Schedule, no Seller Party or Target Entity has received written
notice during the twelve (12) months prior to the date hereof from any Tax
Credit Investor or Third-Party GP of the exercise by such Tax Credit Investor
or Third-Party GP of any Transfer Rights which has not been closed.


(b)        No Person has an Equity Interest in any Target Entity or
Operating Partnership except as set forth in the Organizational Documents for
such Target Entity or, subject to the proviso contained in the second sentence
of Section 4.14(a), as set forth in the Organizational Documents for
such Operating Partnership. 


(c)        The Transferred Equity Interests are owned by Seller
Parties, and the equity interests owned by each Transferred Subsidiary in any
Operating Partnership (the “Transferred Subsidiary Owned Interests”), in
each case, as reflected in the Organizational Documents of the relevant
Transferred Subsidiary or (subject to the proviso contained in the second
sentence of Section 4.14(a)) Operating Partnership, are owned by the
applicable Seller Parties or Transferred Subsidiaries free and clear of any
Liens, other than Permitted Liens.  The Transferred Equity Interests and the
Transferred Subsidiary Owned Interests are duly authorized, validly issued,
fully paid and non-assessable and were issued free of preemptive or similar
rights (other than the Preemptive Rights and Triggered Preemptive Rights). 
Except as disclosed in the Organizational Documents but subject to the proviso
contained in the second sentence of Section 4.14(a), there are no (i)
securities convertible into or exchangeable for the equity interests or other
securities of any Transferred Subsidiary or Operating Partnership or (ii)
options, warrants or other rights to purchase or subscribe to equity interests
or other securities of any Transferred Subsidiary or Operating Partnership or
securities which are convertible into or exchangeable for equity interests or
other securities of any Transferred Subsidiary or Operating Partnership. 
Except as set forth in the 






22 












 





Organizational Documents, there are no
outstanding contractual obligations of any Transferred Subsidiary or (subject
to the proviso contained in the second sentence of Section 4.14(a)) Operating
Partnership to repurchase, redeem, exchange or otherwise acquire any interests
in a Transferred Subsidiary or Operating Partnership.  Other than the
Organizational Documents, no Seller Party or Transferred Subsidiary is a party
to any members’ agreement (or equivalent), voting trust agreement or
registration rights agreement relating to any Transferred Equity Interests or
any Transferred Subsidiary Owned Interests or any other Contract relating to
disposition, voting or distributions with respect to any interest in any
Transferred Subsidiary or (subject to the proviso contained in the second
sentence of Section 4.14(a)) Operating Partnership.


Section 4.15.    Financial Statements.   


(a)        The Virtual Data Room contains true, complete and correct
copies of: (i) with respect to each Investor Fund with a Tax Credit Investor as
of the date hereof, the audited balance sheet of such Investor Fund as of
December 31, 2019 and the related audited statement of income, changes in
equity and cash flow of such Investor Fund for the fiscal years ended December
31, 2019 and (ii) to the extent in Parent’s possession or control, the audited
balance sheet of each Operating Partnership as of December 31, 2019 and as of
December 31, 2020 and the related audited statement of income, changes in equity
and cash flow of each Operating Partnership for the fiscal years ended December
31, 2019 and December 31, 2020 (the “Audited Financial Statements”).  


(b)        The aggregate amount in the column labeled “Net SHF RoC
Balances” of Section 4.15(b) of the Parent Disclosure Schedule (the “Net SHF
RoC Balance”), materially accurately reflects the net return of capital
contributions to the Housing Funds for the Operating Partnerships listed in
Section 4.15(b) of the Parent Disclosure Schedule as of December 31, 2020.  The
unaudited balance sheet items as of December 31, 2020 with respect to Investor
Funds with a Tax Credit Investor as of December 31, 2020 set forth in Section
4.15(b) of the Parent Disclosure Schedule (the “Investor Fund Balances”),
taken as a whole, are materially accurate and correct.   


(c)        The Audited Financial Statements, Net SHF RoC Balance and
Investor Fund Balances have been relied upon by Parent and Seller Parties for
their internal and external financial reporting purposes.


Section 4.16.    Transferred Debt Interests.  Set forth on Annex II is a true, complete and
correct list of the Transferred Debt Interests as of the date hereof.  The
Virtual Data Room contains true, complete and correct copies of the Existing
Loan Documents related to the Transferred Debt Interests, to the extent in
Parent’s possession and control, and none of such Existing Loan Documents
related to the Transferred Debt Interests have been modified, subordinated,
waived, extended, cancelled or released by the Obligor or lender thereunder in
any manner except as would not reasonably be expected to affect the value of
the Transferred Debt Interests.


Section 4.17.    Prohibited Person.  Neither Parent, Seller Parties nor any of its officers, directors,
shareholders, partners, members or any direct holders of Equity Interests in
Parent or Seller Parties is or will be a Prohibited Person. Parent and Seller
Parties covenant and agree that neither Parent, Seller Parties nor any of their
officers, directors, shareholders, partners, members or direct holders of
Equity Interests in Parent or Seller Party shall (A) conduct any business,
nor engage in any transaction or dealing, with any Prohibited Person,
including, but not limited to, the making or receiving of any contribution of
funds, goods, or services, to or for the benefit of a Prohibited Person in
violation of applicable sanctions, or (B) engage in or conspire to engage
in any transaction that evades or avoids, or has the purpose of evading or
avoiding, or attempts to violate, any of the prohibitions set forth in EO13224.







23 












 





Section
4.18.    ERISA.  Neither Parent nor any Seller Party is (i) an
 “employee benefit plan” within the meaning of ERISA, (ii) a “plan” within the
meaning of Section 4975 of the Code or (iii) an entity whose underlying
assets include “plan assets” by reason of a plan’s investment in such entity
within the meaning of 29 C.F.R. § 2510.3101 of any such employee plan or
plans.  Prior to Closing, no portion of the Transferred Assets will constitute
 “plan assets” of one or more “employee benefit plans” for purposes of Title I
of ERISA or Section 4975 of the Code.  


Section 4.19.    Disclaimer.  Except
for the representations and warranties contained in this ARTICLE IV, no
other Person makes any other representation or warranty of any kind or nature whatsoever,
oral or written, express or implied, with respect to Parent, the Seller
Parties, the Transferred Subsidiaries, the GP Entities, the Investor Funds, the
Housing Funds, the Operating Partnerships, their respective Affiliates, the
Business, the Transaction Agreements or the transactions contemplated by the
Transaction Agreements, including any relating to the financial condition,
results of operations, assets or liabilities of any of the foregoing entities. 
Except for the representations and warranties contained in this ARTICLE IV,
Parent disclaims, on behalf of itself, the Seller Parties, the Transferred
Subsidiaries, the GP Entities, the Investor Funds, the Housing Funds, the
Operating Partnerships, their respective Affiliates and their respective
Representatives, any other representations or warranties and all liability and
responsibility for any other representation, warranty, opinion, projection,
forecast, advice, statement or information made, communicated or furnished
(orally or in writing) to Acquiror or its Affiliates or their respective
Representatives (including any opinion, projection, forecast, advice, statement
or information that may have been or may be provided to Acquiror or its
Affiliates or Representatives, whether by any Representative of Parent, the
Seller Parties or any of their respective Affiliates or otherwise), in connection
with the Business only.  For the avoidance of doubt, no representation or
warranty is made to Acquiror or any other Person regarding the probable success
or profitability of the Business (whether before or after the Closing).  


ARTICLE V


REPRESENTATIONS AND WARRANTIES OF ACQUIROR


Except as
set forth in the corresponding sections or subsections of the disclosure
schedule delivered to Parent by Acquiror prior to entering into this Agreement
(the “Acquiror Disclosure Schedule”) (it being understood and agreed by
the parties hereto that disclosure of any item in any section or subsection of
Acquiror Disclosure Schedule shall be deemed disclosure with respect to any
other section or subsection of Acquiror Disclosure Schedule to which the
relevance of such item is reasonably apparent), Acquiror hereby represents and
warrants to Parent as of the date hereof and (unless otherwise stated in this ARTICLE
V) as of the Closing Date as follows:


Section 5.01.    Incorporation
and Authority of Acquiror.  Acquiror is a limited liability company, duly organized,
validly existing and in good standing under the Laws of the State of Delaware. 
Acquiror or the applicable Affiliate of Acquiror (as applicable) has all
requisite corporate or other applicable organizational power to enter into,
consummate the transactions contemplated by and carry out its obligations
under, each of the Transaction Agreements to which it is a party.  The
execution and delivery by Acquiror or the applicable Affiliate of Acquiror (as
applicable) of each of the Transaction Agreements to which it is a party and
the consummation by Acquiror or the applicable Affiliate of Acquiror (as
applicable) of the transactions contemplated by each of the Transaction
Agreements to which it is a party have been or will be prior to the Closing (as
applicable) duly authorized by all requisite corporate or other similar
organizational action on the part of Acquiror or the applicable Affiliate of
Acquiror (as applicable).  Each of the Transaction Agreements to which Acquiror
or the applicable Affiliate of Acquiror (as applicable) is a party has been, or
upon execution and delivery thereof will be, duly executed and delivered by
Acquiror or the applicable Affiliate of Acquiror (as applicable).  




24 












 





Assuming due authorization, execution and delivery by the
other parties hereto or thereto, each of the Transaction Agreements to which
Acquiror or the applicable Affiliate of Acquiror (as applicable) is a party
constitutes, or upon execution and delivery thereof will constitute, the legal,
valid and binding obligation of Acquiror or the applicable Affiliate of
Acquiror (as applicable), enforceable against it in accordance with its terms,
subject in each case to the effect of any applicable bankruptcy,
reorganization, insolvency, moratorium, rehabilitation, liquidation, fraudulent
conveyance, preferential transfer or similar Laws now or hereafter in effect
relating to or affecting creditors’ rights and remedies generally and subject,
as to enforceability, to the effect of general equitable principles (regardless
of whether enforcement is sought in a proceeding in equity or at law).  


Section 5.02.    No
Conflict.  Provided that the consents,
approvals, authorizations of third parties and Governmental Authorities, as
contemplated in Section 6.05 herein, have been obtained (and subject to Section
2.12(c)), and except as otherwise provided in this ARTICLE V and
except as may result from any facts or circumstances relating to the identity
or regulatory status of Parent or its Affiliates, the execution and delivery by
Acquiror or the applicable Affiliate of Acquiror (as applicable) of, and the
consummation by Acquiror or the applicable Affiliate of Acquiror (as
applicable) of the transactions contemplated by, the Transaction Agreements to
which Acquiror or the applicable Affiliate of Acquiror (as applicable) is a
party do not and will not (a) violate or conflict with the organizational
documents of Acquiror or the applicable Affiliate of Acquiror (as applicable),
(b) subject to Governmental Approvals, conflict with or violate any Law or
other Governmental Order applicable to Acquiror or the applicable Affiliate of
Acquiror (as applicable) or by which any of them or any of their respective
properties or assets is bound or subject or (c) result in any breach of,
or constitute a default (or event which, with the giving of notice or lapse of
time or both, would constitute a default) under, or give to any Person any
rights of termination, acceleration or cancellation of or result in the
creation of any Lien (other than Permitted Liens) on any of the assets or
properties of Acquiror or any of its Affiliates pursuant to, any material
contract or any note, bond, loan or credit agreement, mortgage or indenture to
which Acquiror or any of its Affiliates is a party or by which any of them or
any of their respective properties or assets is bound or subject, except, in
the case of clauses (b) and (c) of this Section 5.02, for any such
conflicts, violations, breaches, defaults, terminations, accelerations,
cancellations or creations that, individually or in the aggregate, would not
reasonably be expected to have an Acquiror Material Adverse Effect.  


Section 5.03.    Governmental Consents and Approvals.  Except as may result from any facts or circumstances
relating to the identity or regulatory status of Parent or its Affiliates and
except in connection with consents, approvals, filings and notifications with
respect to applicable Housing Authorities (for the avoidance of doubt,
including in their capacity as lenders or as agencies having jurisdiction with
respect to Tax Credit Laws) or any antitrust or competition Law or by any
Governmental Authority with jurisdiction over enforcement of any applicable
antitrust or competition Laws, the execution and delivery by Acquiror or the
applicable Affiliate of Acquiror (as applicable) of the Transaction Agreements
to which it is a party do not, and the consummation by Acquiror or the
applicable Affiliate of Acquiror (as applicable) of the transactions
contemplated by the Transaction Agreements to which it is a party will not,
require any Governmental Approval to be obtained or made by Acquiror or the
applicable Affiliate of Acquiror (as applicable), except for any Governmental
Approvals the failure to obtain or make which, individually or in the
aggregate, would not reasonably be expected to have an Acquiror Material
Adverse Effect.  


Section 5.04.    Absence
of Litigation; Compliance and Regulatory Matters.  


(a)        There are no Actions pending or, to the Knowledge of
Acquiror, threatened in writing against Acquiror or any of its Affiliates or
any of their respective assets, properties or businesses that (i) question
the legality of the transactions contemplated by any of the Transaction
Agreements or 


 




25 












 





(ii) individually or in the aggregate would reasonably
be expected to have an Acquiror Material Adverse Effect.  


(b)        Acquiror and its Affiliates are not in violation of any
Laws or Governmental Orders or subject to any Governmental Orders applicable to
them or their respective assets, properties or businesses that, individually or
in the aggregate, would reasonably be expected to have an Acquiror Material
Adverse Effect.  


(c)        As of the date hereof, no Person from whom any such consent
is to be obtained has, to the Knowledge of Acquiror, indicated to Acquiror an
intent to (i) take any action or fail to take any action that is reasonably
likely to prohibit, materially delay or materially impair the consummation of
the transactions contemplated by this Agreement or (ii) impose any obligation
or condition in connection with such consent that, individually or in the
aggregate, would reasonably be expected to result in a material liability of
Parent or any of its Affiliates after the Closing.


Section 5.05.    Securities
Matters.  The Transferred Equity Interests
are being acquired by Acquiror for its own account and without a view to the
public distribution or sale of any of the Transferred Equity Interests or any
interest in them.  Acquiror has sufficient knowledge and experience in
financial and business matters so as to be capable of evaluating the merits and
risks of its investment in the Transferred Equity Interests, and Acquiror is
capable of bearing the economic risks of such investment, including a complete
loss of its investment in the Transferred Equity Interests.  Acquiror
understands and agrees that it may not sell, transfer, assign, pledge or
otherwise dispose of any of the Transferred Equity Interests other than
pursuant to a registered offering in compliance with, or a transaction exempt
from, the registration requirements of the Securities Act and applicable state
and foreign securities Laws.  


Section 5.06.    Financial Ability. 
Acquiror has, and will have at the Closing, (a) all funds necessary to pay
the Purchase Price and its other payment obligations under this Agreement and
to consummate the transactions contemplated by this Agreement and the other
Transaction Agreements and has furnished to
Parent written evidence thereof, and (b) not incurred any obligation,
commitment, restriction or liability of any kind, which would reasonably be
expected to have an Acquiror Material Adverse Effect.  The obligations of
Acquiror to effect the transactions contemplated by this Agreement are not
conditioned upon the availability to Acquiror or any of its Affiliates of any
debt, equity or other financing in any amount whatsoever.


Section 5.07.    Investigation.  Acquiror acknowledges and agrees, on behalf of itself
and each of its Affiliates, that (a) Acquiror has made its own inquiry and
investigation into, and has been furnished with or given adequate access to
such information as it has requested with respect to, and, based thereon, has
formed an independent judgment concerning, the Transferred Assets, the
Transferred  Subsidiaries and the Business, (b) the only representations, warranties,
covenants and agreements made by Parent, the Seller, any of their respective
Affiliates or their respective Representatives or any other Person are the
representations, warranties, covenants and agreements made in this Agreement,
(c) except as set forth in ARTICLE IV, none of Parent, the Seller, the
Transferred Subsidiaries, any of their respective Affiliates or their
respective Representatives makes any other representation or warranty of any
kind or nature whatsoever, oral or written, express or implied, including any
relating to the financial condition, results of operations, assets or liabilities
of any of the foregoing entities and (d) no other representation or warranty of
any kind or nature whatsoever, oral or written, express or implied, is made
with respect to (i) the Transferred Assets or the operation of the
Transferred Subsidiaries after the Closing in any manner or (ii) the
probable success or profitability of the Transferred Assets or the Transferred
Subsidiaries or the Business (whether before or after the Closing).  Except for
the representations and warranties contained in ARTICLE IV, Acquiror has
not relied upon any other representations 






26 












 





or warranties or any other information
made or supplied by or on behalf of Parent, the Seller, the Transferred
Subsidiaries, any of their respective Affiliates or their respective
Representatives, and Acquiror acknowledges and agrees that none of such Persons
has any liability or responsibility for any other representation, warranty,
opinion, projection, forecast, advice, statement or information made,
communicated or furnished (orally or in writing) to Acquiror or its Affiliates
or their respective Representatives (including any opinion, projection, forecast,
advice, statement or information that may have been or may be provided to
Acquiror).  Neither Acquiror nor any of its Affiliates is aware of (x) any
inaccuracy of the representations or warranties contained in ARTICLE IV
or (y) any material errors in, or material omissions from, the Parent
Disclosure Schedule.


Section 5.08.    No Acquiror Material Adverse Effect.  Since December 31, 2017, no event has occurred or
circumstance has arisen that, individually or in the aggregate, has had or
would reasonably be expected to have an Acquiror Material Adverse Effect.


Section 5.09.    Brokers.  No broker,
finder or investment banker is entitled to any brokerage, finder’s or other fee
or commission in connection with the consummation of the transactions contemplated
by this Agreement based upon arrangements made by or on behalf of Acquiror or
its Affiliates.  Parent and its Affiliates shall have no responsibility for any
such fee, commission or expense payable to any broker, finder or investment
banker engaged by or on behalf of Acquiror or
any of its Affiliates.


Section 5.10.    Prohibited Persons. 
Neither Acquiror nor any of its officers, directors, shareholders, partners,
members or any direct holders of Equity Interests in Acquiror is or will be an
entity or person (i) that is listed in the Annex to, or is otherwise
subject to the provisions of, Executive Order 13224 issued on September 24,
2001 (“EO13224”), (ii) whose name appears on the United States
Treasury Department’s Office of Foreign Assets Control’s (“OFAC”) most
current list of “Specially Designated National and Blocked Persons” (which list
may be published from time to time in various mediums including, but not
limited to, the OFAC website), (iii) that commits, threatens to commit or
supports “terrorism,” as that term is defined in EO13224, (iv) that is
subject to sanctions administered by OFAC or is in violation of any federal,
state, municipal or local laws, statutes, codes, ordinances, orders, decrees,
rules or regulations relating to terrorism or money laundering, including,
without limitation, EO13224 and the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001, or (v) that is otherwise affiliated with any entity or person listed
above (any and all parties or persons described in clauses (i) through (v)
above are herein referred to as a “Prohibited Person”). Acquiror
covenants and agrees that neither Acquiror nor any of its officers, directors,
shareholders, partners, members or direct holders of Equity Interests in
Acquiror shall (A) conduct any business, nor engage in any transaction or
dealing, with any Prohibited Person, including, but not limited to, the making
or receiving of any contribution of funds, goods, or services, to or for the
benefit of a Prohibited Person in violation of applicable sanctions, or
(B) engage in or conspire to engage in any transaction that evades or
avoids, or has the purpose of evading or avoiding, or attempts to violate, any
of the prohibitions set forth in EO13224. 


Section 5.11.    ERISA.  Acquiror is
not (i) an “employee benefit plan” within the meaning of Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended (“ERISA”),
(ii) a “plan” within the meaning of Section 4975 of the Code or (iii) an entity
whose underlying assets include “plan assets” by reason of a plan’s investment
in such entity within the meaning of 29 C.F.R. § 2510.3101 of any such employee
plan or plans.  After the Closing, no portion of the Transferred Assets will
constitute “plan assets” of one or more “employee benefit plans” for purposes
of Title I of ERISA or Section 4975 of the Code.







27 












 





Section 5.12.    Disclaimer.  Except for the representations and warranties contained
in this ARTICLE V made by Acquiror, no other Person makes any other
representation or warranty of any kind or nature whatsoever, oral or written,
express or implied, with respect to Acquiror, its Affiliates, their respective
businesses, the Transaction Agreements or the transactions contemplated by the
Transaction Agreements.  Except for the representations and warranties
contained in this ARTICLE V, Acquiror disclaims, on behalf of itself,
its Affiliates and their respective Representatives, (a) any other
representations or warranties, whether made by Acquiror or any of its
Affiliates or their respective Representatives or any other Person and (b) all
liability and responsibility for any other representation, warranty, opinion,
projection, forecast, advice, statement or information made, communicated or
furnished (orally or in writing) to Parent or its Affiliates or their
respective Representatives (including any opinion, projection, forecast,
advice, statement or information that may have been or may be provided to
Parent or its Affiliates or Representatives by any Representative of Acquiror
or any of its Affiliates).  Acquiror
acknowledges that a Contagion Event has had, is having and is likely to
continue to have, an impact on the Business and the Transferred Subsidiaries
and their business and, to the extent that any representation or warranty of
Parent herein is or becomes inaccurate or breached as a result of the impact of
a Contagion Event or any action or inaction by Parent, the Seller Parties or
the Transferred Subsidiaries, including any of their compliance with any
directive, order, policy, guidance or recommendation by any Governmental
Authority or any disaster plan of Parent, the Seller Parties or the Transferred
Subsidiaries or any change in applicable Laws as a result of a Contagion Event,
in each case, to the extent reasonably in response to the Contagion Event, then
such representation or warranty shall not be deemed breached for any purpose
under this Agreement, including ARTICLE IV and Section 8.01 and Section
8.02 and the Parent Disclosure Schedule shall be deemed automatically
updated accordingly.


ARTICLE VI


ADDITIONAL AGREEMENTS


Notwithstanding
anything to the contrary contained in this ARTICLE VI, to the extent any
covenant below relates to any Property or Person that is not controlled,
directly or indirectly, by Parent and/or an Affiliate thereof, then Parent, the
Seller Parties and the Target Entities shall each be deemed to have satisfied
such covenant if it has used commercially reasonable efforts to cause the
Person that controls such Person or Property to comply with the applicable
covenant, including the enforcement of all of its rights pursuant to the terms
of any applicable Contract or agreement relating to such Property or Person; provided,
however, that the use of such commercially reasonable efforts shall not
require Parent to, in a manner inconsistent with the Ordinary Course of
Business, delay, condition or withhold any consent sought by Third-Party GPs or
to commence any legal action. 


Section 6.01.    Conduct of Business Prior to the Closing.  


(a)        Subject to any applicable Laws, during the period from the
date hereof through the Closing, except (i) as otherwise contemplated by or
permitted by the Transaction Agreements, (ii) for matters identified in
Section 6.01(a) of the Parent Disclosure Schedule, (iii) as may otherwise
be required by applicable fiduciary duties (in Parent’s good faith
determination), contractual obligations in Contracts made available to Acquiror
in the Virtual Data Room prior to the date hereof (including pursuant to the
Organizational Documents of any Investor Fund, Housing Fund or Operating
Partnership) and contractual obligations to Tax Credit Investors, (iv) as
otherwise consented to by Acquiror (which consent shall not be unreasonably
withheld, delayed or conditioned), (v) in response to any Contagion Event
or any change in Law or policy as a result of or related to any Contagion
Event; provided  that (A) any such action or inaction shall be reasonably
in response to the Contagion Event, and (B) prior to any such action by Parent,
the Seller Parties or the Target Entities, Parent shall consult with Acquiror
in good faith to the extent practicable under the circumstances or (vi) as
may be required in connection with the valid exercise 


 




28 












 





of a Preemptive Right as
contemplated by, and in accordance with, Section 2.12(a), Parent shall
cause the Seller Parties, the Target Entities and each Operating Partnership
(other than a Third-Party Operating Partnership) to conduct the Business
(including with respect to their direct and indirect rights and obligations
with respect to the Operating Partnerships and the Properties) in the Ordinary
Course of Business, which shall include holding or operating, as applicable,
the Transferred Equity Interests, Ancillary Transferred Assets, Assigned
Contracts and the Transferred Subsidiaries in the Ordinary Course of Business; provided 
that no action by Parent, the Seller Parties or the Target Entities with
respect to matters specifically addressed by any provision of Section
6.01(b) shall be deemed a breach of this sentence unless such action would
constitute a breach of such other provision.  


(b)        Subject to
any applicable Laws, during the period from the date hereof through the
Closing, except (i) as otherwise contemplated by or permitted by the
Transaction Agreements, including Annex V, (ii) for matters
identified in Section 6.01(b) of the Parent Disclosure Schedule, (iii) as
may otherwise be required by contractual obligations in Contracts made
available to Acquiror in the Virtual Data Room prior to the date hereof
(including pursuant to the Organizational Documents of any Investor Fund,
Housing Fund or Operating Partnership) or contractual obligations to Tax Credit
Investors or (iv) as otherwise consented to by Acquiror (which consent
shall not be unreasonably withheld, delayed or conditioned), Parent and Seller
Parties shall not initiate or approve of any Acquiror Approval Matter.  For
purposes hereof, a decision to do any of the following is an “Acquiror Approval Matter”: 


(i)         Sale of Property.  Sell any Property (or
any direct or indirect equity interest therein), exercise any Transfer Right or
enter into any agreement or understanding with respect to the foregoing, other
than (x) as may be required in connection with the exercise of a Preemptive
Right as contemplated by, and in accordance with, Section 2.12(a), (y)
sales of the Properties (or any direct or indirect interest therein) identified
on Section 6.01(b)(i)(y) of the Parent
Disclosure Schedule (each, a “Scheduled Pipeline Property”), which sales
may be contracted for and consummated in accordance with the terms of, and
subject to the Purchase Price adjustments set forth on, Annex V, or (z)
sales of Properties (or 100% of the direct or indirect equity interest held
directly or indirectly by the Seller Parties therein) other than the Scheduled
Pipeline Properties, which sales may be contracted for and consummated in
accordance with the terms of, and subject to the Purchase Price adjustments set
forth on, Annex V; 


(ii)        Indebtedness.  Consent to or cause any
Operating Partnership or any Transferred Subsidiary to incur or guaranty any
indebtedness or encumber any Property, Transferred Equity Interest in any
Transferred Subsidiary as security for any indebtedness other than the Existing
Loans or Transferred Debt Interests (including any Additional Transferred Debt
Interests), other than (x) refinancings of the Properties set forth on Section
6.01(b)(ii) of the Parent Disclosure Schedule (the “Scheduled Refinancing Properties”), which refinancings may
be consummated in accordance with the terms set forth on Annex V, or (y)
refinancings of Properties other than the Scheduled Refinancing Properties,
which refinancings may be consummated in accordance with the terms set forth on
Annex V; 


(iii)       Acquisitions. 
Consent to any acquisition by any Transferred Subsidiary or Operating
Partnership of any real property or any securities, capital stock, bonds,
debentures, notes, limited liability company interests, limited partnership
interests or other ownership interests of any Person, or any intellectual
property or material personal property, or acquire or permit any Affiliate of
Parent to acquire, directly or indirectly, any interest in any Target Entity or
any Property, other than (x) acquisitions set forth on Section 6.01(b)(iii) of
the Parent Disclosure Schedule or (y) in
connection with a Permitted OP Substitution;


 




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(iv)       New Securities.  Cause any Transferred
Subsidiary or Operating Partnership to do any
of the following: (A) authorize for issuance, issue or sell or agree to commit
to issue or sell any securities, capital stock, bonds, debentures, notes,
limited liability company interests, limited partnership interests or other
ownership or equity interest (including any phantom or participation interest)
of any Transferred Subsidiary or Operating Partnership (other than the
Transferred Equity Interests pursuant hereto), other than in connection with a
Permitted OP Substitution, or grant any options, warrants or other rights
entitling any person or entity to require the issuance or delivery of any such
security, (B) repurchase, redeem or otherwise acquire any securities or
securities equivalents, other than in connection with a Permitted OP
Substitution, (C) reclassify, combine, split or subdivide any Transferred
Equity Interests or any interests in any Transferred Subsidiaries, (D)
transfer, assign or convey or grant any options or rights with respect to any
Transferred Equity Interests or any interests in any Transferred Subsidiaries
or enter into any agreement with respect to the foregoing or (E) enter into any
voting agreement with respect to the Transferred Equity Interests or any
interests in any Transferred Subsidiaries.


(v)        Other
Matters. Consent, approve or cause any of the following with respect to a
Transferred Subsidiary or Operating Partnership: (A) any capital contributions
under any Organizational Documents other than in the Ordinary Course of
Business; (B)(i) any loans or advance to or by a Transferred Subsidiary or
Operating Partnership or (ii) any investment in, capital contribution to
or extension of any credit to or by a Transferred Subsidiary or Operating
Partnership, in each case other than (x) advances and capital contributions
under the Organizational Documents in the Ordinary Course of Business and (y)
Operating Deficit Loans by Third-Party GPs representing indebtedness not in
excess of $1,000,000; (C)(i) amend, modify, terminate, waive or extend any
Material Contract (including any Assigned Contract, but excluding any contracts
of sale addressed in Section 6.01(b)(i)), Ground Lease, Regulatory
Agreements, or PILOT Arrangements, (ii) amend, modify, terminate, waive or
permit an assignment of or admit a new member or partner under or pursuant to
Organizational Documents other than in connection with a Permitted OP
Substitution, or (iii) enter into any new Contract that would constitute a
Material Contract (excluding any contracts of sale addressed in Section
6.01(b)(i)), Ground Lease, Regulatory Agreement, Organizational Document or
PILOT Arrangements if such Contract was in existence as of the date hereof, to
the extent such Contract will be binding on Acquiror, any Transferred
Subsidiary or any Operating Partnership after the Closing; (D) enter into any
Contract between Parent or any of its Affiliates, on the one hand, and any
Transferred Subsidiary or Operating Partnership, on the other hand, to the
extent such Contract will be binding on Acquiror, any Transferred Subsidiary or
any Operating Partnership after the Closing; or (E) make, change or revoke any
tax classification of a Target Entity as a partnership or disregarded entity,
or any other material tax election (other than an election to be an electing real
estate trade or business under Section 163(j)(B)(7) of the Code) that would
result in any adverse effect to Acquiror and its Affiliates after the Closing. 
Notwithstanding anything to the contrary in this Section 6.01(b)(v),
actions specifically addressed by any other provision of this Section
6.01(b) shall not be deemed a breach of this Section 6.01(b)(v)
unless such action would constitute a breach of such other provision.


Section 6.02.    Access to Information.   


(a)        From the date hereof until the Closing Date, subject to any
applicable Law and to any applicable privileges (including the attorney-client
privilege) and contractual confidentiality obligations, without limitation of
the Acquiror’s obligations under Section 3.01, Parent shall, and shall
cause each of the Transferred Subsidiaries and each such Person’s respective
Representatives to, and shall use commercially reasonable efforts to cause the
Operating Partnerships to, upon reasonable prior notice 


 




30 












 





(i) afford the Representatives of Acquiror reasonable
access, during normal business hours, to the offices, properties, books and
records of the Seller Parties (to the extent related to the Business) and Transferred
Subsidiaries, (ii) furnish to the Representatives of Acquiror such
additional financial data and other information in Parent’s possession or
control regarding the Business, the Transferred Assets and the Target Entities
as Acquiror may from time to time reasonably request and (iii) make
available to the Representatives of Acquiror the employees of Parent and its
Affiliates in respect of the Business, the Transferred Assets, and the
Transferred Subsidiaries and the businesses conducted by them whose assistance
and expertise is necessary to assist Acquiror in connection with Acquiror’s
preparation to integrate the Business, the Transferred Assets and the Target
Entities into Acquiror’s organization following the Closing; provided, however,
that such investigation shall not unreasonably interfere with any of the
businesses or operations of Parent, the Seller, the Business, the Target
Entities or any of their respective Affiliates; provided, further,
that the auditors and independent accountants of Parent, the Business, the
Transferred Subsidiaries or any of their respective Affiliates shall not be
obligated to make any work papers available to any Person unless and until such
Person has signed a customary confidentiality and hold harmless agreement
relating to such access to work papers in form and substance reasonably
acceptable to such auditors or independent accountants; and provided, further,
that, notwithstanding anything to the contrary contained herein, neither Parent
nor any of its Affiliates shall be required to disclose to Acquiror or any
Representative of Acquiror any consolidated, combined, affiliated or unitary
Tax Return which includes Parent or any of its Affiliates or any Tax-related
work papers, except, in each case, for materials or portions thereof that
relate solely to the Business or any Transferred Subsidiaries.  If so
reasonably requested by Parent, Acquiror shall enter into a customary joint
defense agreement with any one or more of Parent, the Seller Parties and the
Transferred Subsidiaries with respect to any information to be provided to
Acquiror pursuant to this Section 6.02(a).   Acquiror shall indemnify and hold harmless Parent, the
Seller and their respective Affiliates from and against any Losses that may be
incurred by any of them arising out of or related to Acquiror’s and its
Representatives’ use, storage or handling of (A) any personally
identifiable information relating to employees or customers of the Business or
any Target Entities and (B) any other information that is protected by
applicable Law (including privacy Laws) or Contract and to which Acquiror or
any of its Affiliates or Representatives is afforded access pursuant to the
terms of this Agreement.  Acquiror’s obligations
under this Section 6.02(a) shall survive any termination of this
Agreement and shall survive the Closing.


(b)        In addition
to the provisions of Section 6.03, from and after the Closing Date, in
connection with any reasonable business purpose related to time periods prior
to the Closing Date, including (x) in response to the request or at the
direction of a Governmental Authority, (y) the preparation of Tax Returns or
other documents related to Tax matters and (z) the determination of any matter
relating to the rights or obligations of Parent, the Seller and their
respective Affiliates under any of the Transaction Agreements, subject to any
applicable Law and any applicable privileges (including the attorney-client
privilege) and contractual confidentiality obligations, and specifically excluding
Acquiror and its Affiliate’s income Tax returns and associated working papers,
internal memoranda, reports or assessments of Acquiror or any of its
Affiliates, including with respect to the Business and including any valuations
or the Business, the Transferred Assets, or any Transferred Subsidiaries or
Operating Partnerships, upon reasonable prior notice, Acquiror shall, shall
cause the Transferred Subsidiaries and their respective Affiliates and
Representatives to, and shall use commercially reasonable efforts to cause the
Operating Partnerships to, (i) afford Parent, the Seller and their
respective Affiliates and their respective Representatives reasonable access,
during normal business hours, to the offices, properties, books, data, files,
information and records of Acquiror and its Affiliates in respect of the
Transferred Assets, the Business, and/or Transferred Subsidiaries and the
businesses conducted by them prior to the Closing Date (including, for the
avoidance of doubt, Tax Returns and other information and documents relating to
Tax matters relating to periods prior to the Closing Date), and
(ii) furnish to Parent, the Seller and their respective Affiliates and
their respective Representatives such additional financial data and other information
in Acquiror’s control regarding the Transferred Assets, the Business, and/or
the Transferred 


 




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Subsidiaries and the businesses conducted by them prior to
the Closing Date as Parent, the Seller and their respective Affiliates or their
respective Representatives may from time to time reasonably request (including,
for the avoidance of doubt, Tax Returns and other information and documents
relating to Tax matters for periods prior to the Closing Date); provided,
however, that such investigation shall not unreasonably interfere with
the business or operations of Acquiror, any Transferred Subsidiary or any of
their respective Affiliates; and provided, further, that the
auditors and independent accountants of Acquiror or its Affiliates shall not be
obligated to make any work papers available to any Person to the extent they
relate to any period after the Closing Date, and with respect to work papers
relating to periods prior to the Closing Date, only until such Person has
signed a customary confidentiality and hold harmless agreement relating to such
access to work papers in form and substance reasonably acceptable to such
auditors or independent accountants.  If so reasonably requested by Acquiror,
Parent shall, and shall cause the Seller or their respective Affiliates (as
applicable) to, enter into a customary joint defense agreement with any one or
more of Acquiror and its Affiliates with respect to any information to be
provided to Parent or its Affiliates or their respective Representatives
pursuant to this Section 6.02(b).  Parent shall indemnify and hold harmless Acquiror and
their respective Affiliates from and against any Losses that may be incurred by
any of them arising out of or related to Parent and its Affiliates’ and
Representatives’ use, storage or handling of (A) any personally
identifiable information relating to employees or customers of the Business or
any of the Transferred Subsidiaries and (B) any other information that is
protected by applicable Law (including privacy Laws) or contract and to which
Parent or its Representatives is afforded access pursuant to the terms of this
Agreement after Closing.  Parent’s obligations under this Section 6.02(b)
shall survive the Closing.


(c)        Notwithstanding
anything to the contrary contained herein, Parent shall not be required prior
to the Closing to disclose, or cause its Affiliates or its or its Affiliates’
respective Representatives prior to the Closing to disclose, to Acquiror or any
of its Affiliates or any of their respective Representatives (or provide access
to any offices, properties, books or records of Parent or any of its Affiliates
that could result in the disclosure to such Persons or others of) any
information that is subject to a confidentiality agreement or obligation
prohibiting its disclosure or that is privileged, nor shall Parent be required
to permit, cause its Affiliates or its or its Affiliates’ respective
Representatives to permit, or cause others to permit Acquiror or any of its
Affiliates, or any of their respective Representatives, to have access to or to
copy or remove from the offices or properties of Parent or Acquiror, as
applicable, or any of its Affiliates, any documents or other materials that
might reveal any such information that is subject to a confidentiality
agreement or obligation prohibiting its disclosure.  Notwithstanding anything to the contrary contained
herein, neither party shall be required after the Closing to disclose, or cause
its Affiliates or its or its Affiliates’ respective Representatives after to
the Closing to disclose, to the other party or any of its Affiliates or any of
their respective Representatives (or provide access to any offices, properties,
books or records of such party or any of its Affiliates that could result in
the disclosure to such Persons or others of) any information that is subject to
a confidentiality agreement or obligation prohibiting its disclosure or that is
privileged, nor shall either party be required to permit, cause its Affiliates
or its or its Affiliates’ respective Representatives to permit, or cause others
to permit the other party or any of its Affiliates, or any of their respective
Representatives, to have access to or to copy or remove from the offices or
properties of Acquiror or any of its Affiliates any documents or other
materials that might reveal any such information that is subject to a
confidentiality agreement or obligation prohibiting its disclosure; provided 
that Parent or Acquiror, as applicable, shall give notice to the other party of
the fact it is withholding such information or documents and thereafter Parent
or Acquiror, as applicable, shall use commercially reasonable efforts and shall
cause its Affiliates or its or its Affiliates’ respective Representatives to
use their respective commercially reasonable efforts to allow the disclosure of
such information in a manner and to the greatest extent possible that would not
violate the foregoing.  



  

 






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Section 6.03.    Books and Records.   


(a)        Subject to Section 6.04(b),  Parent, the Seller and their respective Affiliates shall
have the right to retain copies of all books, data, files, information and
records in any media (including, for the avoidance of doubt, Tax Returns and
other information and documents relating to Tax matters) related to any of the
Transferred Assets or any Target Entity for periods ending on or prior to the
Closing Date.  With respect to all original books, data, files, information and
records of the Business and the Target Entities existing as of the Closing
Date, Acquiror shall, and shall cause each of the Target Entities to (and shall
use commercially reasonable efforts to cause each Operating Partnership to),
(i) comply in all material respects with all applicable Laws, including
the Code, relating to the preservation and retention of records,
(ii) apply preservation and retention policies that are no less stringent
than those generally applied by Acquiror and its Affiliates and (iii) for at
least six (6) years after the Closing Date or until notice is received from
Parent of the expiration of the applicable statute of limitations for Tax
purposes, whichever is later, preserve and retain all such original books,
data, files, information and records and thereafter dispose of such original
books, data, files, information and records only after it shall have given
Parent ninety (90) days’ prior written notice of such disposition and the
opportunity (at Parent’s expense) to remove and retain such information.  


(b)        Notwithstanding
anything to the contrary contained herein or any other Transaction Agreement,
to the extent that Parent or any of its Affiliates has retained books, records,
files, tapes, software, data, documents, hardware, storage devices or other
information, materials or equipment that are not used in the operation of the
Business or any of the Transferred Subsidiaries or required by any of the
Transferred Subsidiaries for regulatory purposes (“Archived Files”)
pursuant to a Litigation Hold or otherwise, Acquiror acknowledges and agrees
that the Archived Files are solely the property of Parent.  Parent agrees that
it will retain the Archived Files that relate to the Business and the
Transferred Subsidiaries for no less than three (3) months post-Closing, after
which Parent may recycle or discard such Archived Files.   


Section 6.04.    Confidentiality.   


(a)        Except to
the extent (i) required or permitted pursuant to the terms of this Agreement,
including in connection with obtaining third-party consents or Governmental
Approvals, (ii) as modified by Section 6.04(c), the terms of the
confidentiality agreement, dated December 2, 2020 (the “Confidentiality
Agreement”), between Parent and Blackstone Real Estate Services L.L.C. are
incorporated into this Agreement by reference and shall continue in full force
and effect until the Closing, at which time the confidentiality obligations
under the Confidentiality Agreement shall terminate.  If, for any reason, the
transactions contemplated by this Agreement are not consummated, the
Confidentiality Agreement shall nonetheless continue in full force and effect
in accordance with its terms.   


(b)        From and
after the Closing, Parent, on the one hand, and Acquiror, on the other hand,
shall, and shall cause their respective Affiliates and Representatives to,
maintain in confidence any written, oral or other information relating to the
other party or its Affiliates, except that the foregoing requirements of this Section
6.04 shall not apply to the extent that (i) any such information is or
becomes generally available to the public other than (A) in the case of
Acquiror, as a result of disclosure by Parent or its Affiliates or any of their
respective Representatives and (B) in the case of Parent, as a result of
disclosure by Acquiror or any Transferred Subsidiary (after the Closing Date)
or any of their respective Affiliates or any of their respective
Representatives, (ii) any such information (including any report,
statement, testimony or other submission to a Governmental Authority) is
required by applicable Law, Governmental Order or such Governmental Authority
to be disclosed, after prior notice has been given to the other party to the
extent such notice is permitted by applicable Law, provided  that no such
notice is required if prohibited by applicable Law, (iii) any such information
is reasonably necessary to be 


 




33 












 





disclosed in connection with any Action or in any dispute
with respect to the Transaction Agreements (including in response to any
summons, subpoena or other legal process or formal or informal investigative
demand issued to the disclosing party in the course of any litigation,
arbitration, mediation, investigation or administrative proceeding),
(iv) any such information was or becomes available to such party on a
non-confidential basis and from a source (other than a party hereto or any
Affiliate or Representative of such party) that is not bound by a
confidentiality agreement with respect to such information or (v) after the
Closing, any such information becomes known or
available pursuant to or as a result of the carrying out of the provisions of
an Ancillary Agreement (which information shall be governed by the
confidentiality provisions set forth in such Ancillary Agreement).  Each of the parties hereto shall instruct its Affiliates
and Representatives having access to such information of such obligation of
confidentiality.   


(c)        Notwithstanding anything to the contrary contained herein,
the parties hereto acknowledge and agree that (i) Parent, the Seller and their
respective Affiliates may, without notifying Acquiror or any other Person,
share any information relating to or obtained from Acquiror or its Affiliates
with (A) any Governmental Authority then having jurisdiction over Parent or its
Affiliates or (B) the IRS or any other Tax Authority, in each case as Parent or
the Seller deems necessary or advisable in their good faith judgment; and (ii)
Acquiror and its respective Affiliates may, without notifying Parent or any
other Person, share any information relating to or obtained from Parent or its
Affiliates with (A) any Governmental Authority then having jurisdiction over
Acquiror or its Affiliates or (B) the IRS or any other Tax Authority, in each
case as required by applicable Law.


(d)        To the fullest extent permitted by applicable Laws, the
provisions of Section 6.04(b) shall not restrict or limit the use of or
disclosure by Parent or any of its Affiliates of any customer information
(including such information relating to the Business and the Transferred
Subsidiaries) if such information was in the possession or control of Parent or
its Affiliates prior to the Closing Date and it relates to the ordinary course
of Parent’s businesses other than the Business.  For the avoidance of doubt,
the foregoing shall apply regardless of whether such information (i) was
also possessed or controlled by any of the Transferred Subsidiaries on or prior
to the Closing Date and/or (ii) was originated by any other Person.


Section 6.05.    Governmental Approvals and Third-Party Consents.   


(a)        Acquiror shall use commercially reasonable efforts to
obtain as promptly as practicable all authorizations, consents, orders and
approvals of all Governmental Authorities (including any Housing Authority) and
any third party (including any lender under an Existing Loan, any Third-Party
GP, any Tax Credit Investor or other direct or indirect beneficial owner in an
Operating Partnership) that may be or may become necessary, proper or advisable
to consummate or make effective the transactions contemplated by the
Transaction Agreements, and each of Acquiror and Parent shall take all
commercially reasonable actions as may be requested by any such Governmental
Authorities or third parties to obtain such authorizations, consents, orders
and approvals.  Acquiror, Parent and the Seller Parties shall reasonably
cooperate in connection with Acquiror’s obtaining as promptly as practicable
all such authorizations, consents, orders and approvals, and Parent shall use
commercially reasonable efforts to submit, or to cause to be submitted, any
filings, requests or applications for such authorizations, consents, orders and
approvals that are required to be made by Parent, a Seller Party, a Target
Entity or an Operating Partnership.  Neither Parent nor Acquiror shall take or
cause to be taken any action that they are aware or should reasonably be aware
would have the effect of delaying, impairing or impeding the receipt of any
such required authorizations, consents, orders or approvals.  The parties hereto agree that any payments to obtain the
authorizations, consents, orders and approvals contemplated by this Section
6.05(a) shall be borne by Acquiror; provided  that (i) Acquiror may
elect not to obtain the same and instead make the applicable Transferred Asset
subject to Section 2.12(c), (ii) neither Parent nor any of its 


 




34 












 





Affiliates shall charge an “assumption,” “transfer,”
 “review” or similar fee with respect to any Existing Loan Consents (but without
limitation of any such fees required to be paid to any third-party Existing
Lender or third-party servicer under any Existing Loan) and (iii) without the
prior consent of Acquiror, neither Parent nor any of its Affiliates shall make
any payments (unless borne solely by Parent in accordance with Section
6.05(f) below), cause any Transferred Subsidiary or Operating Partnership
to incur any liability or otherwise encumber any of the Transferred Assets,
Transferred Subsidiaries or Operating Partnerships in connection with obtaining
any of the authorizations, consents, orders and approvals contemplated
by this Section 6.05(a). 


(b)        Without limiting the generality of Section 6.05(a),
the parties hereto shall as promptly as reasonably practicable (which shall in
no event be later than thirty (30) days after the date hereof) make or cause
their respective Affiliates, where applicable, to make all filings and
notifications with all Governmental Authorities (excluding Housing Authorities
and any lender which is a Governmental Authority and any filing that may be
required under any antitrust or competition Law or by any Governmental
Authority with jurisdiction over enforcement of any applicable antitrust or
competition Laws, which, if required, shall be made as soon as reasonably
practicable, but in any event prior to September 30, 2021) that may be or may
become reasonably necessary, proper or advisable under the Transaction
Agreements and applicable Laws to consummate and make effective the
transactions contemplated by the Transaction Agreements.  Parent and Acquiror
each shall supply promptly any additional information and documentary material
that may be reasonably requested pursuant to applicable Laws; provided 
no party shall be required to furnish any information if based on the advice of
such party’s counsel, or such party’s reasonable determination, the furnishing
of such information will violate applicable Law.


(c)        Subject to
the terms and conditions set forth in this Agreement, without limiting the
generality of the other undertakings pursuant to this Section 6.05, each
of Parent and Acquiror shall take or cause to be taken the following actions:
(i) the prompt provision to a Governmental Authority of non-privileged
information, documents or testimony requested by such Governmental Authority
that are necessary, proper or advisable to permit consummation of the
transactions contemplated by the Transaction Agreements, provided  no
party shall be required to furnish any information if based on the advice of
such party’s counsel, or such party’s reasonable determination, the furnishing
of such information will violate applicable Law; (ii) the prompt use of
commercially reasonable efforts to avoid the entry of, or to effect the
dissolution of, any permanent, preliminary or temporary injunction or other
order, decree, decision, determination or judgment that would delay, restrain,
prevent, enjoin or otherwise prohibit the Closing; and (iii) the prompt
use of commercially reasonable efforts to take, in the event that any
permanent, preliminary or temporary injunction, decision, order, judgment,
determination or decree is entered or issued or becomes reasonably foreseeable
to be entered or issued, in any proceeding or inquiry of any kind that would
make consummation of the transactions contemplated by the Transaction
Agreements in accordance with the terms of the Transaction Agreements unlawful
or that would delay, restrain, prevent, enjoin or otherwise prohibit
consummation of the transactions contemplated by the Transaction Agreements,
any and all commercially reasonable steps (including the appeal thereof and the
posting of a bond) necessary to resist, vacate, modify, reverse, suspend,
prevent, eliminate or remove such actual, anticipated or threatened injunction,
decision, order, judgment, determination or decree so as to permit such
consummation on a schedule as close as possible to that contemplated by the
Transaction Agreements, including cooperating with each other to determine any
applicable Transferred Assets that can be deemed Excluded Assets, provided 
that the consideration payable with respect to such Excluded Assets, in the aggregate,
is de minimis in comparison to the Purchase Price.  Notwithstanding anything in
this Agreement to the contrary, nothing in this Section 6.05 or
elsewhere shall require the Acquiror or any of its Affiliates to take any
action with respect to itself, any of its Affiliates, the Transferred Assets,
the Transferred Subsidiaries or their Affiliates including but not limited to
(x) selling or otherwise disposing of, or holding separate, any business,
assets or properties, (y) terminating or creating any relationships, 


 




35 












 





contractual rights, obligations or other arrangement, or
(z) effecting any other change or restructuring, of Acquiror or its Affiliates,
the Transferred Assets, or the Transferred Subsidiaries (each, a “Divestiture
or Burden”).   Parent and Seller Parties
shall not and shall not permit any Target Entity, Transferred Subsidiary or any
Affiliate of the foregoing or any Person under the authority of any Parent or
Seller Parties to request, cause or approve any Seller Party or any Transferred
Subsidiary to agree to any Divestiture or Burden without the prior written
consent of Acquiror.  Each party shall have sole responsibility for its
respective filing fees associated with filings with Governmental Authorities
(and if applicable Law does not stipulate the party responsible for such filing
fee, the fee shall be shared equally by Seller and Acquiror).


(d)        Subject to
applicable Laws relating to the sharing of information, (i) each of Parent and
Acquiror shall promptly notify one another of any communication it receives
from any Governmental Authority and permit the other party to review in advance
any proposed communication by such party to any Governmental Authority and
shall provide each other with copies of all correspondence, filings or
communications between such party or any of its Representatives, on the one
hand, and any Governmental Authority or members of the staff of any
Governmental Authority, on the other hand, in each case to the extent relating
to the matters that are the subject of this Agreement, subject to the terms of Section
6.04 (with such redactions as such party deems reasonable to make relating
to information it deems confidential or proprietary) and (ii) neither party
shall agree to participate in any meeting or discussion with any Governmental
Authority relating to the matters that are the subject of this Agreement unless
it consults with the other party in advance and, to the extent permitted by
such Governmental Authority, allows the other party to participate in such
meeting or discussion; provided, that the foregoing clauses (i) and (ii)
shall not apply with respect to routine communications with Housing Authorities
regarding requests for consent of such Housing Authorities to the consummation
of the transactions contemplated by this Agreement except to the extent
requested by Parent.  Subject to the Confidentiality Agreement and to Section
6.02(c), Parent and Acquiror shall coordinate and cooperate fully with each
other in exchanging such information and providing such assistance as the other
party may reasonably request in connection with the foregoing; provided,
however, that the foregoing shall not require either party or their
respective Affiliates (i) to disclose any information that in the
reasonable judgment of such party or any of their respective Affiliates (as the
case may be) is proprietary or would result in the disclosure of any trade
secrets of third parties or violate any of its obligations with respect to
confidentiality or (ii) to disclose any privileged information or confidential
competitive information of such party or any of their respective Affiliates;
and provided, further, that notification obligations with respect
to communications received from a Tax Authority, as well as the rights and
obligations of the parties hereto with respect to any Tax audit or
administrative or court proceeding related to Taxes, shall be governed solely
by Section 7.02.  Neither party hereto shall be required to comply with
any provision of this Section 6.05(d) to the extent that such compliance
would be prohibited by applicable Law.   


(e)        Acquiror (with Parent’s cooperation) shall (i) as promptly
as reasonably practicable after the date hereof, file all notices and
applications with any Housing Authorities, lenders or third parties (excluding
filings subject to Section 6.05(b)) for any known consents required to
consummate the transactions contemplated by this Agreement; and (ii) promptly
and timely deliver all documents, certifications, information, representations,
agreements and other materials reasonably required to obtain such consents.  


(f)        Parent shall not be required to compensate any third party,
commence or participate in litigation, incur any liability or offer or grant
any accommodation (financial or otherwise) to any third party to obtain any
consent or approval required to complete the transactions contemplated by this
Agreement (each, a “Transaction Accommodation”) and Parent shall not
grant any such Transaction Accommodation without Acquiror’s prior written
consent unless the Transaction Accommodation would not (i) result in Acquiror
or any Transferred Subsidiary or Operating Partnership incurring any liability,



 




36 












 





(ii) adversely affect the ownership, operation or value of
any Transferred Asset or Property, (iii) adversely affect any rights, or result
in a waiver of any rights, that a Transferred Subsidiary may have pursuant to
applicable Law or Contract (including any Organizational Documents) or (iv)
encumber any Property or any direct or indirect interest therein.


(g)        From time to time, the applicable Operating Partnerships,
Housing Funds or Investor Funds, or Parent and its Affiliates and their
respective Representatives, may (or if reasonably requested by Acquiror in
accordance with and subject to the provisions of this Section 6.05(g),
shall) sign certifications, notices or other documents, make filings with
Governmental Authorities, or take other action in connection with obtaining
approvals of a Housing Authority, Existing Lender or other third party or
otherwise in connection with the transactions contemplated by this Agreement
(collectively, the “Parent Statements”); provided, Acquiror shall
have the right to review and reasonably approve in advance any Parent
Statements being made by or at the request of Parent or its Affiliates and
proposed to be delivered by Parent to a third party that has notice, consent or
approval rights with respect to the transactions contemplated hereby.  Except
to the extent that statements or representations made in Parent Statements are
a breach of Parent’s representations and warranties expressly set forth in this
Agreement, Acquiror hereby agrees to indemnify, defend and hold harmless the
Parent Indemnified Persons from and against any and all Losses which in any way
relate to or arise out of a Parent Statement made to a Governmental Authority
or other third party that has filing, notice, consent or approval rights or
requirements with respect to the transactions contemplated hereby, except to
the extent such Losses are caused by Parent’s or Parent’s Representatives’
intentional misconduct or fraud.  The indemnity set forth in this Section
6.05(g) shall survive any termination of this Agreement and shall survive
the Closing.


Section 6.06.    Insurance.  From and after the Closing Date, neither the Parent nor any
of its Affiliates shall be under any obligation to maintain, extend or take any
other action with respect to blanket insurance policies, self-insurance
programs or other insurance policies covering the Business, any Target Entity,
or any Property or Transferred Asset.  The Seller Parties shall cause to be
terminated and canceled, with effect on the Closing Date, the coverage of
certain Properties under a group insurance policy maintained by the Parent or
its Affiliates, and Acquiror shall thereafter be responsible for obtaining
replacement insurance coverage with respect to such Properties.


Section 6.07.    Intellectual
Property; Trade Names and Trademarks.


(a)        Acquiror, for itself and its Affiliates, acknowledges and
agrees that Acquiror is not purchasing, acquiring or otherwise obtaining any
right, title or interest in, to or under any Intellectual Property owned by or
licensed to Parent or its Affiliates and the Trademarks “SunAmerica,” “AIG,”
 “American International Group, Inc.” or “AI,” or any Trademarks or any other
name or source identifiers related thereto or employing the wording “AIG” or
any “AI” formative marks, “American International” formative marks or any
derivation or variation of any of the foregoing (for example, among others, AI,
AI RISK, AIA, AIU, as well as American International, American International
Group, American International Underwriters, American International Assurance)
or any confusingly similar trade, corporate or business name, Trademark or
other name or source identifier (including any registrations and applications
relating thereto) (collectively, the “Parent Names and Marks”), and neither Acquiror nor any of its Affiliates shall have any
rights in or to any of Parent Names and Marks and neither Acquiror nor any of
its Affiliates shall (i) seek to register in any jurisdiction any trade,
corporate or business name, Trademark, or other name or source identifier that
is a derivation, translation, adaptation, combination or variation of Parent
Names and Marks or that is confusingly similar thereto or (ii) contest the use,
ownership, validity or enforceability of any rights of Parent or any of its
Affiliates in or to any of Parent Names and Marks.   


(b)        Certain
Actions Following the Closing Date.


 




37 












 





(i)         Following
the Closing Date, Acquiror shall, and shall cause its Affiliates (for the
avoidance of doubt, including all Target Entities and all Operating
Partnerships other than the Third-Party Operating Partnerships) to, and shall
use commercially reasonable efforts to cause the Third-Party Operating
Partnerships to, as promptly as possible cease and discontinue any and all uses
of the Intellectual Property owned or licensed by Parent or its Affiliates,
including Parent Names and Marks, whether or not in combination with other
words, symbols or other distinctive or non-distinctive elements and all trade,
corporate or business names, Trademarks and other name or source identifiers similar
to any of the foregoing or embodying any of the foregoing whether or not in
combination with other words, symbols or other distinctive or non-distinctive
elements.  


(ii)        As promptly as
practicable after the Closing Date, and in no event later than ninety (90) days
after the Closing Date, Acquiror shall, and shall cause its Affiliates to,
destroy, exhaust or return to the Seller all materials bearing Parent Names and
Marks, including signage, advertising, promotional materials, packaging,
inventory, electronic materials, collateral goods, web sites, forms, product,
training and service literature and materials, and other materials
(collectively, the “Materials”), and, if required by Law, shall within
thirty (30) days of the Closing Date make all filings with any Governmental
Authority to effect the elimination of any use of Parent Names and Marks from
the businesses of the Business and the Target Entities, so as to bring Acquiror
and its Affiliates into compliance with this Section 6.07 and shall
deliver a certificate to Parent confirming such filings.  Except as otherwise
provided in this Section 6.07, the Business and the Target Entities
shall during such period of up to ninety (90) days after the Closing Date have
the right to use such existing Materials in connection with their existing
businesses as conducted as of the Closing to the extent such use cannot
commercially reasonably be avoided.  From and after the Closing, Acquiror shall
not, and shall cause its applicable Affiliates not to, directly or indirectly
modify the Materials in any respect, and all goodwill arising from the use of
Parent Names and Marks by the Acquiror or its Affiliates will inure to the sole
benefit of Parent and its Affiliates.  Notwithstanding the foregoing, Acquiror
shall, and shall cause its applicable Affiliates to, commence the removal of
Parent Names and Marks from all such Materials as promptly as possible
following the Closing Date and Acquiror shall, and shall cause its applicable
Affiliates to, (i) immediately upon the Closing Date cease all use of
Parent Names and Marks on all electronic media, stationery, business cards,
purchase orders, invoices, receipts and similar correspondence and
(ii) within thirty (30) days of the Closing Date destroy all such items
enumerated in this Section 6.07(b)(ii) and, upon request, shall send a
written statement to Parent confirming that all such items have been
destroyed.  With respect to all other Materials covered by this Section 6.07,
upon request by Parent after the date that is ninety (90) days after the
Closing Date, Acquiror shall send a written statement to Parent verifying that
it has destroyed, exhausted or returned to the Seller all such Materials and
shall send Parent representative samples of how Acquiror uses advertising and
promotional materials that do not include Parent Names and Marks.  Acquiror,
for itself and its Affiliates, agrees that use of Parent Names and Marks during
the ninety (90)-day period authorized by this Section 6.07 shall be only
with respect to goods and services existing in inventory at the Closing, shall
not be for any new policies, goods or services (including any new marketing or
advertising materials or product, training or service literature), and shall be
of a level of quality equal to or greater than the quality of goods and
services with respect to which the Target Entities used Parent Names and Marks
immediately prior to the Closing.  In
addition to any and all other remedies available to Parent and its Affiliates,
Acquiror, for itself and its Affiliates, shall indemnify and hold harmless
Parent Indemnified Persons from and against any liabilities, obligations,
losses or damages arising from or relating to the use of Parent Names and Marks
by the Target Entities.  Acquiror, for itself and its Affiliates, agrees that,
after the Closing Date, Acquiror and its Affiliates shall not expressly, or by
implication, do business as or represent themselves as Parent or its Affiliates
(or the personnel 


 




38 












 





of Parent or its Affiliates) and shall use all reasonable
efforts to ensure that there is no confusion that the Business and the Target
Entities are no longer affiliated with Parent or its Affiliates.   


(iii)       No later than the
date that is ninety (90) days after the Closing Date, Acquiror shall execute,
or shall cause the execution of, amendments to the organizational documents
with respect to the applicable Target Entities to effect a change in their
respective names to a name not containing any of Parent Names and Marks or any
derivation, translation, adaptation, combination or variation thereof. 
Immediately after the Closing, Acquiror shall cause the applicable Target
Entities to file such amended organizational documents with the applicable
Governmental Authority and take all other necessary action to fulfill its
obligations set forth in this Section 6.07 as soon as reasonably
practicable.  Notwithstanding the foregoing, to the extent such amendments or
changes to the applicable organizational documents require the consent of any
third party or Governmental Authority, the obligations under this Section
6.07 shall not apply until such consent is received; provided  that
Acquiror will use its commercially reasonable efforts to secure the consent of
any third party or Governmental Authority prior to the expiration of the ninety
(90) day period.


(iv)       To the extent that
any of the Target Entities owns any rights in or to any Parent Names and Marks,
including any registrations or applications for registrations thereof in any
jurisdiction, Acquiror shall cause each of such Target Entities to immediately,
after the Closing Date, cease all use thereof (except as otherwise expressly
permitted by this Section 6.07), and as soon as practicable after the
Closing Date (but in no event more than ninety (90) days thereafter), abandon
all rights in and to such Parent Names and Marks, including abandoning any such
registrations and applications for registrations.  As soon as practicable after
the Closing Date (but in no event more than ninety (90) days thereafter),
Acquiror shall cause each of the applicable Target Entities to submit to the
applicable Governmental Authorities all necessary filings to abandon all its
and their rights, registrations and applications for registrations for any and
all Parent Names and Marks. 
Notwithstanding the foregoing, should Acquiror or any of its Affiliates,
following the Closing Date, become aware of any domain name registration by any
Target Entity that includes or incorporates any Parent Names and Marks,
Acquiror shall promptly notify Parent of the existence of such domain name
registration and, upon Parent’s request, shall, or shall cause the applicable
Target Entity to, assign and transfer, and hereby does assign and transfer, all
right, title and interest in or to such domain name registration to Parent or
an Affiliate of Parent.  Acquiror shall pay any and all renewal fees that are
due to the applicable domain name registrar for the period of up to one (1)
month after each such domain name registration is transferred.


(v)        Any failure by
Acquiror to cause a Third-Party Operating Partnership to comply with this Section
6.07(b) shall not be deemed to be a breach of Acquiror’s covenants
hereunder if and to the extent that such failure is attributable to actions or
omissions of a Third-Party GP, so long as Acquiror shall have (1) used its
commercially reasonable efforts to cause the Third-Party GP and the Third-Party
Operating Partnership to comply with this Section 6.07(b) and (2)
notified Parent promptly upon becoming aware of any such noncompliance.


(c)        Acquiror, on behalf of itself and its Affiliates, agrees
that irreparable damage would occur if this Section 6.07 were not performed in
accordance with its specific terms or were otherwise breached.  It is
accordingly agreed that, in addition to any and all other remedies available to
Parent and its Affiliates, without the necessity of posting bond or other undertaking,
Parent or any of its Affiliates (or their respective successors or assigns)
shall be entitled to proceed against Acquiror and its Affiliates in law and in
equity for such damages or other relief as a court may deem appropriate and
shall be entitled to seek a temporary restraining order and preliminary and
final injunctive or other equitable 


 




39 












 





relief, including specific performance, to prevent breaches
of this Section 6.07 and, in addition to any other remedy to which they
are entitled at law or in equity, to enforce specifically the terms and
provisions of this Section 6.07.  In the event that any Action is brought in equity to
enforce the provisions of this Section 6.07, no party hereto shall
allege, and each party hereto hereby waives the defense or counterclaim, that
there is an adequate remedy at law.


Section 6.08.    Mutual Release. 


(a)        Effective as of the Closing, Parent, for itself and on
behalf of its Subsidiaries and Affiliates, and each of their respective
partners, members, trustees, directors, officers, employees, representatives,
property managers, asset managers, agents, and their successors, heirs and
executors (each, a “Parent Releasor”), hereby irrevocably, knowingly and
voluntarily releases, discharges and forever waives and relinquishes all
claims, demands, obligations, liabilities, defenses, affirmative defenses,
setoffs, counterclaims, actions and causes of action of whatever kind or
nature, whether known or unknown, which any Parent Releasor has, may have or
might have or may assert now or in the future, against (i) the Transferred
Subsidiaries and their respective successors, assigns, heirs, executors,
officers, directors, partners and employees and (ii) Acquiror, and each of
Acquiror’s Affiliates and their respective successors, assigns, heirs,
executors, officers, directors, partners and employees (each, an “Acquiror
Releasee”), arising out of, based upon or resulting from the Business,
including with respect to the Properties, the Operating Partnerships, any
Contract, any Transferred Assets, any transaction, event, circumstance, action,
failure to act or occurrence of any sort or type, whether known or unknown, and
which occurred, existed, was taken, permitted or begun prior to the Closing
Date in connection with the foregoing; provided, however, that
nothing contained in this Section 6.08(a) shall release, discharge,
waive or otherwise affect the rights or obligations of any party to the extent
related to or arising out of any (i) Insurance Agreement, (ii) any Transaction
Agreement or (iii) any claim alleging fraud or intentional misconduct. 
Parent shall, and shall cause each Parent Releasor to, refrain from, directly
or indirectly, asserting any claim or demand or commencing, instituting or
causing to be commenced, any legal proceeding of any kind against any Acquiror
Releasee based upon any matter released pursuant to this Section 6.08(a). 
The parties hereto hereby acknowledge and agree that the execution of this
Agreement shall not constitute an acknowledgment of or an admission by any
Parent Releasor or Acquiror Releasee of the existence of any such claims or of
liability for any matter or precedent upon which any liability may be asserted.   


(b)        Effective
as of the Closing, Acquiror, for itself and on behalf of its Affiliates
(including, for the avoidance of doubt, the Target Entities) and each of their
respective partners, members, trustees, directors, officers, employees,
representatives, property managers, asset managers, agents, and each of their
successors, heirs and executors (each, an “Acquiror Releasor”), hereby
irrevocably, knowingly and voluntarily releases, discharges and forever waives
and relinquishes all claims, demands, obligations, liabilities, defenses,
affirmative defenses, setoffs, counterclaims, actions and causes of action of
whatever kind or nature, whether known or unknown, which any Acquiror Releasor
has, may have or might have or may assert now or in the future, against any of
Parent, any Seller Party and their respective Affiliates and their respective
successors, assigns, heirs, executors, officers, directors, partners and
employees (in each case in their capacity as such) (each, a “Parent Releasee”),
arising out of, based upon or resulting from the Business, including with
respect to the Properties, the Operating Partnerships, any Contract, transaction,
event, circumstance, action, failure to act or occurrence of any sort or type,
whether known or unknown, and which occurred, existed, was taken, permitted or
begun prior to the Closing Date in connection with the foregoing; provided,
however, that nothing contained in this Section 6.08(b) shall
release, discharge, waive or otherwise affect the rights or obligations of any
party to the extent related to or arising out of (i) any Insurance Agreement,
(ii) any claim arising under the terms of any Transaction Agreement or (iii)
any claim alleging fraud or intentional misconduct.  Acquiror shall, and shall
cause each Acquiror Releasor to, refrain from, directly or indirectly,
asserting any claim or demand or 


 




40 












 





commencing, instituting or causing to be commenced, any
legal proceeding of any kind against any Parent Releasee based upon any matter
released pursuant to this Section 6.08(b).  The parties hereto hereby
acknowledge and agree that the execution of this Agreement shall not constitute
an acknowledgment of or an admission by any Acquiror Releasor or Parent Releasee
of the existence of any such claims or of liability for any matter or precedent
upon which any liability may be asserted.


Section 6.09.    Distributions. 
Subject to the adjustments to the Purchase Price as provided in Section 2.06,
nothing in this Agreement shall be deemed to prohibit or limit in any manner
(a) Parent or any Affiliate thereof, or any Investor Fund, Housing Fund,
Operating Partnership or GP Entity, from declaring, setting aside and/or paying
any dividend or distribution in respect of any capital stock, partnership
interests, limited liability company or membership interests or other
securities or Equity Interests, or (b) the operation of Parent’s and its
Affiliates’ cash sweep program (it being understood that such program applies
to accounts of the Seller and certain Subsidiaries thereof).  


Section 6.10.    Intentionally Omitted.


Section 6.11.    Tax Credits.  


(a)        Tax
Credits and Affordability Requirements. 
Acquiror hereby acknowledges that (i) the Operating Partnerships have acquired,
developed, owned and operated the Properties as projects intended to qualify
for tax credits (“Tax Credits”), including, without limitation,
low-income housing tax credits under Section 42 of the Code and the Treasury
Regulations promulgated thereunder (collectively, “Section 42”), (ii)
the Properties are subject to regulatory and other agreements relating to
income, rent or other affordable housing restrictions (collectively referred to
as the “Regulatory Agreements”), (iii) in order to maintain and preserve
the Tax Credits, and otherwise comply with the Tax Credit Laws and other
obligations under the Regulatory Agreements, the Properties must be operated in
compliance with the Regulatory Agreements and all applicable rules, procedures,
regulations, guidelines and other requirements under Section 42 and all other
applicable federal, state or local affordable housing laws, regulations and
other requirements relating to the Properties (collectively, the “Tax Credit
Laws”), and (iv) the failure to operate the Properties in compliance with
the Regulatory Agreements and Tax Credit Laws may cause the recapture (and/or
related liability) of all or a portion of such Tax Credits and/or result in
other significant damages and economic loss related to the Tax Credits.


(b)        Covenants.  Acquiror
hereby covenants to Parent and the Seller Parties, on behalf of itself and its
Affiliates (including, following the Closing, the Transferred Subsidiaries),
that, from and after the Closing:


(i)         Acquiror,
at its sole cost and expense and for the duration of all applicable time
periods, shall and shall cause each such Operating Partnership to (or shall use
best efforts to cause an Operating Partnership to, in the case of any
Third-Party Operating Partnership) (x) assume, undertake and cause to be
performed all of the obligations under the Regulatory Agreements and the Tax
Credit Laws applicable to the Properties, including, without limitation, all
ownership and operating restrictions and all resident qualification and rent
restrictions applicable to the Properties, and (y) make timely, accurate and
complete submissions of all reports to governmental agencies and any other
reports reasonably required to be delivered with respect to the Properties
pursuant to the Tax Credit Laws, the Regulatory Agreements and any other
documents or regulations related to the Tax Credits (including, without
limitation, any applicable Housing Authority monitoring requirements);


(ii)        for all periods
through the Compliance Expiration Date, Acquiror shall and shall cause each
Operating Partnership to (or shall use its commercially reasonable efforts to 






41 












 





cause an Operating Partnership to, in the case of any Third-Party
Operating Partnership) prepare and deliver to Parent the following
documentation (it being acknowledged and agreed that all appropriate filings
are required to be made for periods ending on or before the Compliance
Expiration Date, even though such filings may be due after the Compliance
Expiration Date):


(A)       within
ten (10) days after it receives notification of the occurrence of any event
that a management agent or owner experienced in the Section 42 tax credit
program would reasonably expect may result in the recapture of any Tax Credits
with respect to a Property or the violation of any Regulatory Agreement, a
report regarding such event, any reasonable documentation relating thereto, and
the expected resolution of such event, including, without limitation:


(1)        upon the occurrence of any
natural disaster and/or widespread property damage having an adverse impact on
the physical condition of a Property, a report of the extent of the damage to a
Property, any expected delay in construction or rehabilitation, and the effect
such damage might have on the operations or leasing activity of a Property;


(2)        upon learning of any
violation of any health, safety or building code, or other statute or
regulation which could reasonably be expected to affect the availability of any
unit included in a Property for rental, a detailed statement describing such
matters along with any written notices thereof received by Acquiror or an
Operating Partnership, from any federal, state, or local government entity; and


(3)        a notice of any default
received by Acquiror or an Operating Partnership, with respect to any loan
secured by a Property and/or any interest therein;


(B)       within five (5)
Business Days after receipt by Acquiror or an Operating Partnership:


(1)        copies of all
notices of noncompliance or IRS Form 8823 issued by the Housing Authority or
notice of any IRS proceeding involving Acquiror and/or an Operating
Partnership; and


(2)        copies of all
reports, legal proceedings or notices of alleged violations, and notices of all
actions taken, or proposed to be taken, affecting Acquiror, an Operating
Partnership or a Property by any governmental or quasi-governmental agency or
other person or entity that, individually or collectively, would or, with
notice or passage of time or both, may result in the recapture of any Tax
Credits or the violation of any Regulatory Agreement;


(C)       within thirty (30)
days after receipt by Acquiror or an Operating Partnership, copies of any
reports issued by the Housing Authority, or its agent, with respect to a
Property; and


(D)       contemporaneously
with their submission to any Housing Authority, copies of all reports and
information required by such agency or its agents with respect to a Property owned
by an Operating Partnership, including, without limitation, IRS Form 8703 and
any Housing Authority annual compliance certification; and


 




42 












 





(iii)       upon
Parent’s reasonable request, Acquiror shall deliver to Parent copies of any
back-up or supporting documentation in Acquiror’s or an Operating Partnership’s
possession or control relating to any obligation of Acquiror under this Section
6.11. 


(c)        Indemnification.  As a material inducement for Parent to enter into this
Agreement, at the Closing, Acquiror and Parent shall enter into the Hold
Harmless Agreement, pursuant to, and subject to the terms and provisions of
which, the indemnifying party shall indemnify, defend and hold harmless Parent
Indemnified Persons from and against (i) Losses arising out of or relating to
any recapture of the Tax Credits; (ii) Losses arising out of or relating to any
penalties, interest or other claims by the IRS or any other Governmental
Authority in connection with any Tax Credits; and (iii) any and all Losses,
which Losses, in any way, relate to, arise out of, are occasioned by or are
connected with (A) the breach of any of the covenants in this Section 6.11;
(B) the violation of any Regulatory Agreement; (C) any failure to maintain
ownership, use and operation of a Property in accordance with the Tax Credit
Laws; and (D) any Fund Guarantee with respect to Tax Credit recapture or
compliance with Tax Credit Laws or Regulatory Agreements; provided, however,
that the indemnity set forth in this Section 6.11(c) shall not include
any Losses arising out of or relating to any Prior Noncompliance, to the extent
set forth in Section 6.11(e), or any Excluded Liability.  If and to the
extent requested by a Tax Credit Investor in connection with the transactions
contemplated hereby, Acquiror shall cause a creditworthy Affiliate to guarantee
the obligations owed to such Tax Credit Investor under a Fund Guarantee.


(d)        Further Covenants.  Acquiror,
on behalf of itself and the Operating Partnerships from and after the Closing,
hereby further covenants and agrees that, prior to the Compliance Expiration
Date applicable to any particular Property, Acquiror shall not and shall cause
the Operating Partnership (or shall use its commercially reasonable efforts to
cause an Operating Partnership to, in the case of any Third-Party Operating
Partnership) that owns such Property not to, directly or indirectly, sell,
transfer or otherwise convey such Property or, in the aggregate, fifty percent
(50%) or more of the equity (or any other Controlling interest) in such
Property or the applicable Operating Partnership, unless the prospective buyer
expressly assumes all obligations of Acquiror and such Operating Partnership
under this Section 6.11 with respect to the Property subject to such
transfer or owned by such Operating Partnership subject to such transfer,
including, without limitation, Acquiror’s indemnity obligations set forth in Section
6.11(c) of this Agreement.  Notwithstanding anything to the contrary
contained herein, following any sale, transfer or other conveyance of any or
all of the interests in any Property owned by an Operating Partnership or such
applicable Operating Partnership, directly or indirectly (whether occurring
before or after the applicable Compliance Expiration Date), Acquiror shall
remain directly liable to Parent Indemnified Persons and shall not be released
from any obligations to Parent Indemnified Persons under this Section 6.11,
whether accruing before or after the date of such sale, transfer or other
conveyance.


(e)        Prior
Noncompliance.  Notwithstanding anything to the contrary herein, including Section
6.11(c), as between Acquiror and its Affiliates, on the one hand, and the
Parent Indemnified Persons, on the other hand, neither Acquiror nor any of its
Affiliates shall have any liability to Parent Indemnified Persons or any Tax
Credit Investor or any other Person, whether under any Fund Guarantee or
otherwise, including, as between Parent Indemnified Persons, on the one hand,
and Acquiror (or its applicable Affiliate), in its capacity as general partner
of an Investor Fund, on the other hand, with respect to any noncompliance with
any Regulatory Agreement or Tax Credit Laws that occurred prior to the Closing
(“Prior Noncompliance”).  Notwithstanding anything to the contrary
contained herein, Acquiror agrees to reasonably cooperate and/or jointly
undertake with Parent any corrective action Parent determines is necessary to
remedy the Prior Noncompliance or to mitigate any of the Seller Parties’
liability with respect thereto, including, without limitation, (i) allowing
Parent, the Seller Parties and their respective Representatives to have
reasonable access to the applicable Property and any related books and records
with respect to periods prior to Closing, (ii) with Acquiror’s approval,
communicate directly with the residents and other appropriate persons as to any
such matters, (iii) enforcing any Tax Credit-related 




43 












 





indemnification
rights or other applicable remedies against Third-Party GPs (and any guarantors
of the obligations of a Third-Party GP), to the extent available with respect
to any Prior Noncompliance and (iv) upon a Housing Fund’s receipt of
proceeds received from any Third-Party Operating Partnership or Third-Party GP
(or a guarantor of the obligations of a Third-Party GP) due to Prior
Noncompliance, remitting to Parent such proceeds, less any amounts that
Acquiror or its Affiliates have actually paid to Tax Credit Investors due to
such Prior Noncompliance (except to the extent that Parent has previously
reimbursed such amounts to Acquiror). 


(f)        Covenant
Regarding Change of Status.  Acquiror
hereby covenants that it shall not, prior to the Closing, contact any federal,
state or local governmental or quasi-governmental authority, resident, resident
association, resident’s rights group, or similar person or organization
regarding the feasibility or possibility of changing the status of a Property
from an affordable housing project as currently operated, or modifying any
Regulatory Agreement, whether any such change would occur prior to or after the
Compliance Expiration Date, or in any way indicate the intention to do the
same.  


(g)        Survival.  The
provisions of this Section 6.11 shall survive the Closing.


Section 6.12.    Casualty and Condemnation.   


(a)        If, prior to the Closing Date, Parent obtains Knowledge
that any Property has suffered material damage by fire or other casualty (a “Casualty”) or obtains Knowledge of a condemnation proceeding
relating to any Property (a “Condemnation”), Parent shall notify
Acquiror of such event; provided, that in no event shall any delay in
the provision of such notice give rise to any liability on the part of Parent
or be deemed a material breach of this Agreement.  


(b)        Insurance and Condemnation Proceeds. With respect to any Casualty or Condemnation affecting a
Property after the date of this Agreement, Seller Parties will allow (and will
use commercially reasonable efforts to cause the Third-Party Operating
Partnerships to allow) Acquiror to participate in the  negotiations regarding
the settlement of any such claim for insurance and condemnation proceeds in
excess of an amount equal to ten percent (10%) of the Allocated Value for the
applicable Property and will not settle or compromise any such claims related
to the damage, destruction or condemnation under the relevant insurance
policies or against a Governmental Authority effecting the Condemnation without
Acquiror’s consent (provided Parent or its Affiliates have such consent rights
under the applicable Operating Partnership’s Partnership Agreement).  Parent
will provide to Acquiror copies of any material correspondence relating to any
such claims and will advise Acquiror of all material developments concerning
such claims.  Any insurance proceeds or condemnation awards actually received
by Parent or any of its Affiliates related to any Casualty or Condemnation
occurring after January 1, 2021 shall be treated as Pre-Closing Cash Flow for
purposes of calculating the Purchase Price in Section 2.06. 


(c)        Restoration Plans.
Subject to Parent’s or its Affiliate’s rights under the applicable Operating
Partnership’s Partnership Agreement, Parent will obtain the Acquiror’s
approval, which will not be unreasonably withheld, delayed or conditioned,
concerning any restoration, repair or re-construction plans for any Property
affected by a Casualty or Condemnation, the cost of which (as reasonably
estimated by Acquiror) will exceed ten percent (10%) of the Allocated Value of
the applicable Property.  Parent shall conduct (or use commercially reasonable
efforts to cause the Third-Party Operating Partnership to conduct) all such
restoration, repair and reconstruction substantially in accordance with such
restoration, repair and reconstruction plans approved by Acquiror and in accordance
with applicable Law.  Notwithstanding the foregoing, the Seller Parties will be
permitted to incur or enter into an agreement to incur any amount reasonably
necessary to effect emergency or necessary repairs 






44 












 





related to preservation of the Properties
or health and safety matters or which are required by the terms of any Lease or
other agreement to which any Seller Party or Transferred Subsidiary is a party.


(d)        The foregoing shall not be deemed breached as a result of
any action (i) that a Third-Party GP takes or causes to be taken or that an
Existing Lender requires or requests to be taken in accordance with the
Existing Loan Documents (except to the extent Parent’s consent is required or
requested, then subject to Parent’s fiduciary duties to an Investor Fund or
Operating Partnership, Parent shall seek consent of Acquiror if otherwise
required above), or (ii) subject to Section 6.01, any action determined to be necessary by Parent, in its
reasonable discretion, in order to preserve Tax Credits or otherwise comply
with Tax Credit Laws or Regulatory Agreements.  Notwithstanding anything to the
contrary contained herein, Parent and its Affiliates shall be permitted to
incur or enter into an agreement to incur any amount reasonably necessary to
effect emergency or necessary repairs related to the preservation of the
Properties or health and safety matters or which are required by the terms of
any Lease or other agreement to which an Operating Partnership is a party. 


Section 6.13.    Further
Action.  Parent and Acquiror (a) shall
execute and deliver, or shall cause to be executed and delivered, such
documents and other instruments and shall take, or shall cause to be taken,
such further actions as may be reasonably required to carry out the provisions
of the Transaction Agreements and give effect to the transactions contemplated
by the Transaction Agreements, (b) shall refrain from taking any actions that
could reasonably be expected to impair, delay or impede the Closing, and (c)
not in limitation of any other provision of this Agreement, shall use their
respective reasonable best efforts to cause all the conditions to the
obligations of the other party hereto to consummate the transactions
contemplated by this Agreement to be met as soon as reasonably practicable.


ARTICLE VII


TAX MATTERS


Section 7.01.    Tax Returns.  


(a)        Parent
shall timely file, and shall otherwise use commercially reasonable efforts to
cause to be timely filed, when due (taking into account all extensions properly
obtained) all Tax Returns that are required to be filed by or with respect to
any Target Entity for Pre-Closing Taxable Periods (but only with respect to Tax
Returns required to be filed by or with respect to any such entity on a
combined, consolidated or unitary basis with Parent or any Retained Affiliate
thereof and not Tax Returns required to be filed separately by such entity) or
due on or before the Closing Date (with respect to other Tax Returns and where
Parent controls such actions), and in each case Parent shall remit or cause to
be remitted any Taxes due in respect of such Tax Returns.  Acquiror shall
timely file (where Acquiror controls such actions), and shall otherwise use
commercially reasonable efforts to cause to be timely filed, when due (taking
into account all extensions properly obtained) all other Tax Returns that are
required to be filed by or with respect to each Target Entity and Acquiror
shall remit or cause to be remitted any Taxes due in respect of such Tax
Returns.  With respect to Tax Returns to be filed by Acquiror pursuant to the
immediately preceding sentence that relate to Pre-Closing Taxable Periods or
Straddle Periods, (x) such Tax Returns shall be prepared and filed (A)
unless otherwise required by applicable Law, or as a result of a determination
by a “Big Four” accounting firm engaged by Acquiror that such position is not
supported at a “more likely than not” level of comfort (in which case Acquiror
shall provide Parent, together with the delivery of such Tax Return in
accordance with clause (y) or (z), as applicable, with written explanation from
such accounting firm (which shall include the authority and basis for such
determination)), in a manner consistent with past practice and no position
shall be taken, election made or method adopted that is inconsistent with
positions taken, elections made or methods used in prior periods 






45 












 





in filing such Tax Returns (including
positions which would have the effect of accelerating income to periods for
which Parent is liable or deferring deductions to periods for which Acquiror is
liable but other than, to the extent not already in effect, an election under
Section 754 of the Code) and (B) where relevant, giving effect to the purchase
and sale transaction contemplated in this Agreement as of immediately before
the beginning of the Closing Date for purposes of Section 706 of the Code and
Treasury Regulations thereunder (and applicable state and local income Tax
Law), (y) Acquiror shall furnish, or cause to be furnished, an estimated IRS Schedule K-1, and applicable estimated
state and local apportionment information, by July 15 after the end of the
relevant taxable year for review and approval by Parent, which approval may not
be unreasonably withheld, but may in all cases be withheld if such Tax Returns
were not prepared in accordance with clause (x) of this sentence, and a
final K-1 and final state and local apportionment information (in each case as
approved by Parent) by September 1 after the end of the relevant taxable year,
and (z) any other Tax Returns not described in clause (y) of this sentence
shall be submitted to Parent not later than ninety (90) days prior to the due
date for filing such Tax Returns (or, if such due date is within ninety (90)
days following the Closing Date, as promptly as practicable following the
Closing Date) for review and approval by Parent, which approval may not be
unreasonably withheld, but may in all cases be withheld if such Tax Returns
were not prepared in accordance with clause (x) of this sentence.  With respect
to any Tax Returns described in clause (y) or (z) of the foregoing sentence,
Acquiror further agrees that it shall use good faith in considering and
incorporating, as is reasonable, comments received from Parent in respect of
any item which might affect the Tax liabilities for which Parent or any of its
Affiliates may be liable.


(b)        None of Acquiror or any Affiliate of Acquiror shall, or
shall cause or permit any of the Target Entities to, (i) amend, re-file or
otherwise modify (or grant an extension of any statute of limitations with
respect to) any Tax Return relating in whole or in part to any Target Entity
with respect to any Pre-Closing Taxable Periods that could reasonably be
expected to have an adverse effect on Parent, or (ii) make any Tax election
with respect to any of the Target Entities or Transferred Assets that has
retroactive effect to a Pre-Closing Taxable Period without the prior written
consent of Parent, which consent may be withheld in the sole discretion of
Parent.   


(c)        Acquiror
shall, as soon as reasonably practicable, but in no event later than the later
of (i) July 15 after the end of the relevant tax year and (ii) ninety (90) days
following Parent’s request therefor, cause each Target
Entity over which it has authority to do so to
prepare and provide, and use commercially reasonable efforts to cause the
Third-Party Operating Partnerships to prepare and provide, to Parent a package
of Tax information materials (including schedules and work papers) required and
reasonably requested by Parent to enable Parent to prepare and file all Tax
Returns required to be prepared and filed by it (the “Tax Package”).  The Tax Package shall be completed in accordance with
past practice (to the extent provided by Parent), including past practice as to
providing such information and as to the method of computation of separate
taxable income or other relevant measure of income of each Target Entity. 


Section 7.02.    Contest Provisions.  Acquiror shall notify Parent,
as soon as reasonably practicable, in writing upon receipt by Acquiror, any of
its Affiliates, or any Target Entity of notice of any pending or threatened
federal, state, local or foreign Tax audits, examinations or assessments which
might affect the Tax liabilities for which Parent or any of its Affiliates may
be liable.  Parent or its designee shall have the sole right to represent the
interests of any Target Entity in any Tax audit or administrative or court
proceeding relating to taxable periods ending before the Closing Date or
otherwise relating to Taxes for which Parent or any of its Affiliates may be
liable, to settle such matters, and to employ counsel of its choice at its
expense; provided  that none of Parent, its designee, or its Affiliates
may concede, settle or compromise any Tax claim for any Taxes for which
Acquiror, any of its Affiliates, or any Target Entity may be liable, without
the prior written consent of Acquiror (such consent not to be unreasonably
withheld), and Acquiror or its designee shall be entitled to participate at its
expense in any such Tax audit 




46 












 





or administrative or
court proceeding.  In the case of a Straddle
Period, Parent or its designee shall be entitled to participate at its expense
in any Tax audit or administrative or court proceeding relating (in whole or in
part) to Taxes attributable to the portion of such Straddle Period ending
before the Closing Date and for which Parent or any of its Affiliates may be
liable, and with the written consent of Acquiror (such consent not to be
unreasonably withheld) and at Parent’s or its designee’s sole expense, Parent
or its designee may assume the entire control of such audit or proceeding,
subject to the rights of Acquiror in the prior sentence.  None of Acquiror, any
of its Affiliates or any Target Entities (and, where relevant, a “partnership
representative” of any such entity) may concede, settle or compromise any Tax
claim for any Taxes for which Parent or any of its Affiliates may be liable,
without the prior written consent of Parent (such consent not to be unreasonably withheld). 
Nothing in this Agreement shall prevent Acquiror, in the event of any
 “partnership” audit, examination or assessment relating to any Tax matters of
any Target Entity, from causing the applicable “partnership representative” to
make the “push-out” election under Section 6226 of the Code (to the extent
permitted under applicable law) in its sole discretion, and Acquiror shall
cause such election to be made if Parent so requests with respect to any audit,
examination or assessment which might affect the Tax liabilities for which
Parent or any of its Affiliates may be liable.  In the event of any conflict between ARTICLE X and this Section
7.02, this Section 7.02 shall control.


Section 7.03.    Assistance
and Cooperation.  After the Closing Date,
each of Parent and Acquiror shall, and shall cause their respective Affiliates
to:


(a)        assist the other party in preparing any Tax Returns which
such other party is responsible for preparing and filing in accordance with Section
7.01; 


(b)        cooperate fully in preparing for any audits of, or disputes
with any Tax Authority regarding, any Tax Returns of a Target Entity;


(c)        make available to the other and to any Tax Authority as
reasonably requested all information, records and documents relating to Taxes
of any Target Entity;


(d)        provide timely notice to the other in writing of any
pending or threatened Tax audits or assessments of any Target Entity for
taxable periods for which the other may have a liability;


(e)        furnish the other with copies of all correspondence
received from any Tax Authority in connection with any Tax audit or information
request with respect to any taxable period for which the other may have a
liability;


(f)        timely sign and deliver such certificates or forms as may
be necessary or appropriate to establish an exemption from (or otherwise
reduce), or file Tax Returns or other reports with respect to, Transfer Taxes;
and


(g)        timely provide to the other powers of attorney or similar
authorizations necessary to carry out the purposes of this ARTICLE VII; 


provided, that neither
Parent nor any of its Affiliates (nor their respective Representatives) shall
be required to disclose to Acquiror or any of its Representatives any
consolidated, combined, affiliated or unitary Tax Return which includes Parent
or any of its Affiliates or any Tax-related work papers, except, in each case,
for materials or portions thereof that relate solely to the Business or Target
Entities.  If reasonably requested by Parent, Acquiror shall enter into a
customary joint defense agreement with Parent or any Affiliate of Parent with
respect to any information to be provided to Acquiror pursuant to this Section
7.03.   In the event of any conflict
between ARTICLE X and this Section 7.03, this Section 7.03
shall control.


 




47 












 





ARTICLE VIII


CONDITIONS TO CLOSING


Section 8.01.    Conditions to Obligations of Each Party.  The respective obligations of each party hereto to
consummate the transactions contemplated by this Agreement shall be subject to
the fulfillment or waiver by Parent and Acquiror, at or prior to the Closing,
of each of the following conditions:


(a)        No Governmental Order. 
There shall be no Law or Governmental Order in existence that prohibits the
consummation of the transactions contemplated by this Agreement taken as a
whole.  


Section 8.02.    Conditions to Obligations of Parent.  The
obligation of Parent to consummate the transactions contemplated by this
Agreement shall be subject to the fulfillment or waiver, at or prior to the
Closing, of each of the following conditions:


(a)        Representations
and Warranties; Covenants.  (i) The
Acquiror Specified Representations shall be true and correct in all respects as
of the Closing, as if made on the Closing Date (other than the representations
and warranties made as of another stated date, which representations and
warranties shall have been true and correct as of such date); (ii) the
representations and warranties of Acquiror contained in this Agreement (other
than the Acquiror Specified Representations) shall be true and correct as of
the Closing, as if made on the Closing Date (other than the representations and
warranties made as of another stated date, which representations and warranties
shall have been true and correct as of such date) (in either case without
giving effect to (x) any limitations as to materiality or “Acquiror Material
Adverse Effect” set forth therein and (y) any language in the first paragraph
of ARTICLE V regarding the dates the representations and warranties are
made), except to the extent that any breaches of such representations and
warranties, individually or in the aggregate, have not had, or would not
reasonably be expected to have, an Acquiror Material Adverse Effect; (iii) the
covenants contained in this Agreement that are to be complied with by Acquiror
on or prior to the Closing shall have been complied with in all material
respects; and (iv) Parent shall have received a certificate dated the Closing
Date of Acquiror signed by a duly authorized executive officer of Acquiror
stating that the conditions specified in clauses (i), (ii) and (iii) of this Section
8.02(a) have been waived or satisfied.   


(b)        Ancillary Agreements. 
Acquiror shall have executed and delivered each of the Ancillary Agreements to
which it is a party and shall have caused each applicable Affiliate of Acquiror
to execute and deliver each of the Ancillary Agreements to which such Affiliate
of Acquiror is a party.


Section 8.03.    Conditions
to Obligations of Acquiror.  The obligations of Acquiror to consummate the
transactions contemplated by this Agreement shall be subject to the fulfillment
or waiver, at or prior to the Closing, of each of the conditions set forth in
this Section 8.03.  For the avoidance of doubt, the obligation of Acquiror
to consummate the transactions contemplated by the Transaction Agreements shall
not, except as set forth in this Section 8.03 or as otherwise provided
in this ARTICLE VIII, be subject to any contingency or condition based
on financing, due diligence, the receipt of any Person’s consent or approval or
otherwise.


(a)        Representations
and Warranties; Covenants.  (i) The Parent
Specified Representations shall be true and correct in all material respects as
of the Closing, as if made on the Closing Date (other than the representations
and warranties made as of another stated date, which representations and
warranties shall have been true and correct in all material respects as of such
date) (in either case without giving effect to (x) any limitations as to
materiality or “Business Material Adverse 






48 












 





Effect” set forth therein and (y) any
language in the first paragraph of ARTICLE IV regarding the dates the
representations and warranties are made); (ii) the other representations and
warranties of Parent contained in this Agreement (other than the Parent
Specified Representations) shall be true and correct as of the Closing, as if
made on the Closing Date (other than the representations and warranties made as
of another stated date, which representations and warranties shall have been
true and correct as of such date) (in either case without giving effect to (x)
any limitations as to materiality or “Business Material Adverse Effect” set
forth therein and (y) any language in the first paragraph of ARTICLE IV
regarding the dates the representations and warranties are made), except to the
extent that any breaches of such representations and warranties, individually
or in the aggregate, have not had, or would not reasonably be expected to have,
a Business Material Adverse Effect; (iii) the covenants contained in this
Agreement that are to be complied with by Parent on or before the Closing shall
have been complied with in all material respects; and (iv) Acquiror shall have
received a certificate dated as of the Closing Date of Parent signed by a duly
authorized executive officer of Parent stating that the conditions specified in
clauses (i), (ii) and (iii) of this Section 8.03(a) have been waived or
satisfied.   


(b)        Ancillary Agreements. 
Parent shall have executed and delivered each of the Ancillary Agreements to
which it is a party and shall have caused each applicable Affiliate of Parent
to execute and deliver each of the Ancillary Agreements to which such Affiliate
of Parent is a party.  


ARTICLE IX


TERMINATION


Section 9.01.    Termination.  This
Agreement may be terminated prior to the Closing only as follows:


(a)        by the mutual written consent of Parent and Acquiror;


(b)        by either Parent or Acquiror if the Closing has not
occurred on or before December 31, 2021 (the “Outside Date”); provided,
however, that the right to terminate this
Agreement under this Section 9.01(b) shall not be available to any party
hereto whose failure to take any action required to fulfill any of such party’s
obligations under this Agreement has been the primary cause or has primarily
resulted in the failure of the Closing to occur prior to such date;


(c)        by either Parent or Acquiror in the event of the issuance
of a final, non-appealable Governmental Order restraining or prohibiting the
consummation of the transactions contemplated by this Agreement; 


(d)        by Acquiror (but only so long as Acquiror is not in
material breach of its obligations under this Agreement) if there has been a
material breach of any representation, warranty, covenant or agreement of
Parent such that one or more of the conditions to Closing set forth in Section
8.01 and Section 8.03 are not capable of being fulfilled as of the
Outside Date, and in any such case such breach shall be incapable of being
cured or, if capable of being cured, shall not have been cured prior to the
earlier of (i) twenty (20) days after providing written notice of such breach
to the other party and (ii) the Outside Date; 


(e)        by Parent (but only so long as Parent or any Seller Party
is not in material breach of its obligations under this Agreement) if there has
been a material breach of any representation, warranty, covenant or agreement
of Acquiror such that one or more of the conditions to Closing set forth in Section
8.01 and Section 8.02 are not capable of being fulfilled as of the
Outside Date, and in any such case such breach shall be incapable of being
cured or, if capable of being cured, shall not have been cured 






49 












 





prior to the earlier of (i) twenty (20) days
after providing written notice of such breach to the other party and (ii) the
Outside Date; 


(f)        by Acquiror, if and to the extent that the Title
Exception Adjustment Amount(s) exceed, individually or in the aggregate, the
threshold set forth in Section 3.04(c)(ii), by delivery of
a notice in accordance with the terms of Section 3.04(c)(ii); or


(g)        by Parent,
if there is any breach of the covenant in Section 6.11(f) by Acquiror,
whether occurring before or after the date hereof, unless promptly following,
and in any event within ten (10) Business Days of, Acquiror’s receipt of notice
from Parent of such breach or otherwise obtaining Acquiror’s Knowledge of such
breach, Acquiror has (i) used commercially reasonable efforts to mitigate the
effects of such breach (including taking any necessary measures to retract any
communications made in breach of such covenant, amending or supplementing any
such communications in consultation with Parent, and modifying Acquiror’s
relevant practices and procedures with respect to third-party communications to
the extent necessary to avoid the recurrence of such breach) and (ii) paid or cause
to be paid to Parent an amount in cash equal to $1,000,000, as liquidated
damages and not as penalty.


Section 9.02.    Notice of Termination. 
Any party hereto desiring to terminate this Agreement pursuant to Section
9.01 shall give written notice of such termination to the other party
hereto.  


Section 9.03.    Effect of
Termination.  In the event of the
termination of this Agreement as provided in Section 9.01, this
Agreement shall forthwith become void and there shall be no liability on the
part of any party hereto, except as otherwise expressly set forth in Section
3.01 through 3.03, Section 6.02(a), Section 6.04, Section
6.05(g), this ARTICLE IX, Section 10.06 and ARTICLE XI,
or any other provision that expressly survives a termination of this Agreement.


ARTICLE X


INDEMNIFICATION


Section 10.01.  Survival.  The representations,
warranties, covenants and agreements of the parties hereto contained in or made
pursuant to this Agreement shall survive in full force and effect until the
date that is twelve (12) months after the Closing Date, at which time they
shall terminate (and no claims shall be made for indemnification under Section
10.02 or Section 10.03 thereafter), except: (i) Parent Specified
Representations and Acquiror Specified Representations shall survive the
Closing indefinitely; (ii) the covenants and agreements that by their terms
apply or are to be performed in whole or in part after the Closing (“Post-Closing
Covenants”) shall survive for the period provided in such covenants and
agreements, if any, or until fully performed; and (iii) the covenants and
agreements that by their terms apply or are to be performed in their entirety
on or prior to the Closing (“Pre‐Closing Covenants”) shall
terminate at the Closing.  


Section 10.02.  Indemnification by Parent.  


(a)        After the Closing and subject to this ARTICLE X,
Parent shall indemnify, defend and hold harmless Acquiror, its Affiliates and
their respective Representatives (collectively, the “Acquiror Indemnified
Parties”) against, and reimburse any Acquiror Indemnified Party for, all
Losses that such Acquiror Indemnified Party may at any time suffer or incur, or
become subject to:


(i)         as a result of or in
connection with the inaccuracy or breach of any representation or warranty made
by Parent in this Agreement;  







50 












 





(ii)        as a result of or in connection with any breach
or failure by Parent to perform any of its covenants or obligations contained
in this Agreement; or


(iii)       to
the extent relating to or arising out of any Excluded Liabilities.


(b)        Notwithstanding anything to the contrary contained herein,
Parent shall not be required to indemnify, defend or hold harmless any Acquiror
Indemnified Party against, or reimburse any Acquiror Indemnified Party for, any
Losses pursuant to Section 10.02(a)(i) (other than Losses arising out of
the inaccuracy or breach of any Parent Specified Representations, which shall
not be subject to or count against the De Minimis Threshold, Deductible or Cap)
(i) with respect to any claim (or series of related claims arising from the
same underlying facts, events or circumstances) unless such claim (or series of
related claims arising from the same underlying facts, events or circumstances)
involves Losses in excess of $250,000 (the “De Minimis Threshold”) (nor
shall any such claim or series of related claims that does not exceed the De
Minimis Threshold be applied to or considered for purposes of calculating the
aggregate amount of Acquiror Indemnified Parties’ Losses for which Parent has
responsibility under clause (ii) of this Section 10.02(b) below);
(ii) until the aggregate amount of Acquiror Indemnified Parties’ Losses
for which Acquiror Indemnified Parties are finally determined to be otherwise
entitled to indemnification under Section 10.02(a)(i) exceeds two
percent (2%) of the Purchase Price (the “Deductible”), after which
Parent shall be obligated for all Acquiror Indemnified Parties’ Losses for
which Acquiror Indemnified Parties are finally determined to be otherwise
entitled to indemnification under Section 10.02(a)(i) that are in excess
of two percent (2%) of the Purchase Price, but only if such excess Losses arise
with respect to any claim (or series of related claims arising from the same
underlying facts, events or circumstances) that involves Losses in excess of
the De Minimis Threshold; and (iii) in a cumulative aggregate amount,
together with the Excess Title Exception Amount (if any), exceeding five
percent (5%) of the Purchase Price (the “Cap”).   Notwithstanding anything to the contrary contained herein,
Parent shall not be required to indemnify, defend or hold harmless any Acquiror
Indemnified Party against, or reimburse any Acquiror Indemnified Party for, any
Losses pursuant to Section 10.02(a)(i) (including, for this purpose, in
respect of the inaccuracy or breach of any Parent Specified Representations) in
a cumulative aggregate amount exceeding the Purchase Price.  Notwithstanding
anything to the contrary contained herein, Parent shall not be required to
indemnify, defend or hold harmless any Acquiror Indemnified Party against, or
reimburse any Acquiror Indemnified Party for, (i) any Losses relating to a
title exception, it being understood that the adjustments referred to in Section
3.04(c) shall be the sole and exclusive remedy of Acquiror with respect to
such matters or (ii) any Losses pursuant to Section 10.02(a)(i) in
respect of the inaccuracy or breach of the representation and warranty
contained in Section 4.07(e) to the extent such Losses arise in a
taxable period or portion thereof beginning on or after the Closing Date.


Section 10.03.  Indemnification by Acquiror.   


(a)        After the Closing and subject to this ARTICLE X,
Acquiror shall indemnify, defend and hold harmless Parent, the Seller and their
respective Affiliates and their respective Representatives (collectively, the “Parent
Indemnified Persons”) against, and reimburse any Parent Indemnified Party
for, all Losses that such Parent Indemnified Party may at any time suffer or
incur, or become subject to:


(i)         as a result of or in connection with the
inaccuracy or breach of any representation or warranty made by Acquiror in this
Agreement;  


(ii)        as a result of or
in connection with any breach or failure by Acquiror to perform any of its
covenants or obligations contained in this Agreement including, without
limitation, Section 6.11;  







51 












 





(iii)       to the extent
relating to, arising out of or in connection with any of the Business, the
Transferred Subsidiaries or any of their respective post-Closing Affiliates
(including any predecessor of any thereof), or any business, property, asset,
liability, operation, activity or Transferred Subsidiary of any of the
foregoing, whether heretofore, currently or hereafter owned or conducted (as
the case may be (including any Losses to the extent relating to, arising out of
or in connection with Parent Indemnified Persons seeking indemnification
hereunder)) except to the extent such Losses constitute Losses for which Parent
is required to indemnify any Acquiror Indemnified Party pursuant to Section
10.02(a); or


(iv)       to the extent
relating to or arising out of any Assumed Liabilities.


(b)        Notwithstanding
anything to the contrary contained herein, Acquiror shall not be required to
indemnify, defend or hold harmless any Parent Indemnified Party against, or
reimburse any Parent Indemnified Party for, any Losses pursuant to Section
10.03(a)(i) (other than Losses arising out of the inaccuracy or breach of
any Acquiror Specified Representations which shall not be subject to or count
against the De Minimis Threshold, Deductible or the Cap) (i) with respect to
any claim (or series of related claims arising from the same underlying facts,
events or circumstances) unless such claim (or series of related claims arising
from the same underlying facts, events or circumstances) involves Losses in
excess of the De Minimis Threshold (nor shall any such claim or series of related
claims that does not meet the De Minimis Threshold be applied to or considered
for purposes of calculating the aggregate amount of Parent Indemnified Persons’
Losses for which Acquiror has responsibility under clause (ii) of this Section
10.03(b) below); (ii) until the aggregate amount of Parent Indemnified
Persons’ Losses for which Parent Indemnified Persons are finally determined to
be otherwise entitled to indemnification under Section 10.03(a)(i)
exceeds two percent (2%) of the Purchase Price, after which Acquiror shall be
obligated for all Parent Indemnified Persons’ Losses for which Parent
Indemnified Persons are finally determined to be otherwise entitled to
indemnification under Section 10.03(a)(i) and not only Losses that are
in excess of the Deductible, but only if such excess Losses arise with respect
to any claim (or series of related claims arising from the same underlying
facts, events or circumstances) that involves Losses in excess of the De
Minimis Threshold; and (iii) in a cumulative aggregate amount exceeding the Cap.
  For purposes of determining whether the threshold set forth in clause (iii) of
this Section 10.03(b) has been met or exceeded, any amount paid by
Acquiror for Losses pursuant to Section 10.03(a)(i), other than any
Losses in respect of the inaccuracy or breach of any Acquiror Specified
Representations, shall be taken into account.  Notwithstanding anything to the
contrary contained herein, Acquiror shall not be required to indemnify, defend
or hold harmless any Parent Indemnified Party against, or reimburse any Parent
Indemnified Party for, any Losses pursuant to Section 10.03(a)(i)
(including, for this purpose, in respect of the inaccuracy or breach of any
Acquiror Specified Representations) in a cumulative aggregate amount exceeding
the Purchase Price.   


Section 10.04.  Notification
of Claims.  


(a)        A Person
that may be entitled to be indemnified under this Agreement (the “Indemnified
Party”) shall promptly notify the party or parties liable for such
indemnification (the “Indemnifying Party”) in writing of any claim in
respect of which indemnity may be sought under this ARTICLE X, including
any pending or threatened claim or demand by a third party that the Indemnified
Party has determined has given or could reasonably give rise to a right of
indemnification under this Agreement (including a pending or threatened claim
or demand asserted by a third party against the Indemnified Party) (each, a “Third-Party
Claim”), describing in reasonable detail the facts and circumstances with
respect to the subject matter of such claim or demand; provided, however,
that the failure to provide such notice shall not release the Indemnifying
Party from any of its obligations under this ARTICLE X except to the
extent that the Indemnifying Party is prejudiced by such failure.  The parties
agree that (i) in this ARTICLE X they intend to shorten (in the
case of the limited survival periods 






52 












 





specified in Section 10.01) and
lengthen (in the case of the indefinite survival periods specified in Section
10.01) (as the case may be) the applicable statute of limitations period
with respect to certain claims; (ii) notices for claims in respect of a
breach of a representation, warranty, covenant or agreement (other than a
Post-Closing Covenant) must be delivered prior to the expiration of any
applicable survival period specified in Section 10.01 for such
representation, warranty, covenant or agreement; (iii) notices for claims
in respect of a breach of a Post-Closing Covenant must be delivered prior to
the date that is six (6) months after the last day of the effective period of
such Post-Closing Covenant; and (iv) any claims for indemnification for
which notice is not timely delivered in accordance with this Section
10.04(a) shall be expressly barred and are hereby waived; provided, further,
that if, prior to such applicable date, a party hereto shall have notified the
other party hereto in accordance with the requirements of this Section
10.04(a) of a claim for indemnification under this ARTICLE X
(whether or not formal legal action shall have been commenced based upon such
claim), such claim shall continue to be subject to indemnification in
accordance with this ARTICLE X notwithstanding the passing of such
applicable date.   


(b)        Upon receipt of a notice of a claim for indemnity from an
Indemnified Party pursuant to Section 10.04(a) in respect of a
Third-Party Claim, the Indemnifying Party may, by notice to the Indemnified
Party delivered within twenty (20) Business Days of the receipt of notice of such
Third-Party Claim, assume the defense and control of any Third-Party Claim,
with its own counsel and at its own expense, but shall allow the Indemnified
Party a reasonable opportunity to participate in the defense of such
Third-Party Claim with its own counsel and at its own expense.  The Indemnified
Party may take any actions reasonably necessary to defend such Third-Party
Claim prior to the time that it receives a notice from the Indemnifying Party
as contemplated by the immediately preceding sentence.  Parent or Acquiror (as
the case may be) shall, and shall cause each of its Affiliates and
Representatives to, cooperate in all commercially reasonable respects with the
Indemnifying Party in the defense of any Third-Party Claim, provided,
nothing herein shall require any party to disclose or otherwise waive
privilege.  The Indemnifying Party shall not, without the prior written consent
of the Indemnified Party (which shall not be unreasonably withheld), consent to
a settlement, compromise or discharge of, or the entry of any judgment arising
from, any Third-Party Claim, unless such settlement, compromise, discharge or
entry of any judgment does not involve any finding or admission of any
violation of Law or admission of any wrongdoing by the Indemnified Party, and
the Indemnifying Party shall (i) pay or cause to be paid all amounts arising
out of such settlement or judgment concurrently with the effectiveness of such
settlement or judgment (unless otherwise provided in such judgment), (ii) not
encumber any of the material assets of any Indemnified Party or agree to any
restriction or condition that would apply to or materially adversely affect any
Indemnified Party or the conduct of any Indemnified Party’s business and (iii)
obtain, as a condition of any settlement, compromise, discharge, entry of
judgment (if applicable) or other resolution, a complete and unconditional
release of each Indemnified Party from any and all liabilities in respect of
such Third-Party Claim.  So long as the Indemnifying Party is reasonably
contesting the Third-Party Claim in good faith, the Indemnified Party shall not
settle, compromise or consent to the entry of any judgment with respect to any
Third-Party Claim that the Indemnifying Party has assumed the defense of in
accordance with this Section 10.04(b) without the prior written consent
of the Indemnifying Party.


(c)        Notwithstanding anything to the contrary contained in this ARTICLE
X (including Section 10.02 and Section 10.03), unless the
Indemnifying Party fails to take control of the defense of such Third-Party
Claim or the Indemnifying Party elects to undertake the defense thereof but
thereafter fails to defend the Third-Party Claim or fails to defend such
Third-Party Claim in good faith, in which case the Indemnified Party shall have
the right to contest, settle or compromise the claim but shall not thereby
waive any right to indemnity therefor pursuant to this Agreement, no
Indemnifying Party shall have any liability under this ARTICLE X for any
Losses arising out of or in connection with any Third-Party Claim that is
settled or compromised by an Indemnified Party without the consent of such
Indemnifying Party.  


 




53 












 





(d)        In the event any Indemnifying Party receives a notice of a
claim for indemnity from an Indemnified Party pursuant to Section 10.04(a)
that does not involve a Third-Party Claim, the Indemnifying Party shall notify
the Indemnified Party within twenty (20) Business Days following its
receipt of such notice whether the Indemnifying Party disputes its liability to
the Indemnified Party under this ARTICLE X.  The Indemnified Party shall
reasonably cooperate with and assist the Indemnifying Party in determining the
validity of any such claim for indemnity by the Indemnified Party.  


Section 10.05.  Payment.  In the event a claim or any Action for indemnification
under this ARTICLE X has been finally determined, the amount of such
final determination shall be paid (a) if the Indemnified Party is an
Acquiror Indemnified Party, by Parent to the Indemnified Party and (b) if
the Indemnified Party is a Parent Indemnified Party, by Acquiror to the
Indemnified Party, in each case on demand in immediately available funds.  A
claim or an Action, and the liability for and amount of damages therefor, shall
be deemed to be “finally determined” for purposes of this ARTICLE X
when the parties hereto have so determined by mutual agreement or, if disputed,
when a final non-appealable Governmental Order has been entered into with
respect to such claim or Action.  


Section 10.06.  Exclusive
Remedies.  


(a)        Each party hereto acknowledges and agrees that (i) prior to
the Closing, the sole and exclusive remedy of Acquiror for any breach or
inaccuracy of any representation or warranty contained in this Agreement or any
certificate or instrument delivered hereunder shall be, in the event that each
of the conditions set forth in ARTICLE VIII has not been satisfied or
waived, refusal to close the purchase and sale of the Transferred Assets
hereunder and recover the Deposit, subject to and in accordance with Section
2.08; (ii) prior to the Closing, the sole and exclusive remedy of Parent
for any breach or inaccuracy of any representation or warranty contained in
this Agreement or any certificate or instrument delivered hereunder shall be,
in the event that each of the conditions set forth in ARTICLE VIII has
not been satisfied or waived, refusal to close the purchase and sale of the
Transferred Assets hereunder and recover the Deposit, as liquidated damages and
not as a penalty, subject to and in accordance with Section 2.08, in
satisfaction of claims against Acquiror with respect to such breach or
inaccuracy; (iii) following the Closing, (A) the indemnification
provisions of this ARTICLE X shall be the sole and exclusive remedies of
the parties hereto for any breach of the representations or warranties and
covenants and agreements contained in this Agreement and (B) notwithstanding anything to the contrary
contained herein, no breach of any representation, warranty, covenant or
agreement contained herein shall give rise to any right on the part of any
party hereto to rescind this Agreement or any of the transactions contemplated
by this Agreement; and (iv) following the Closing, subject to the last
sentence of Section 6.02(a), the indemnification provisions of this ARTICLE
X shall be the sole and exclusive monetary remedies of the parties hereto
for any breach of any Pre-Closing Covenant or any Post-Closing Covenant.  


(b)        THE PARTIES ACKNOWLEDGE AND AGREE THAT PARENT SHALL BE
ENTITLED TO RECEIVE THE ENTIRE DEPOSIT IN CERTAIN CIRCUMSTANCES SET FORTH IN SECTION
2.08(b).  IN SUCH EVENT, THE ESCROW AGENT SHALL DISBURSE THE DEPOSIT TO
PARENT PURSUANT TO AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION 2.08(b) 
AND THE ESCROW AGREEMENT AND PARENT SHALL HAVE NO FURTHER OBLIGATIONS UNDER
THIS AGREEMENT, EXCEPT THOSE WHICH EXPRESSLY SURVIVE SUCH TERMINATION. 
ACQUIROR AND PARENT HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL
AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY
PARENT AS A RESULT OF SUCH TERMINATION, AND AGREE THAT THE DEPOSIT IS A
REASONABLE APPROXIMATION THEREOF.  THE DEPOSIT SHALL CONSTITUTE AND BE DEEMED
TO BE THE AGREED AND LIQUIDATED DAMAGES OF PARENT IN SUCH EVENT, AND SHALL BE
PAID BY THE 






54 












 





ESCROW AGENT TO PARENT AS PARENT’S SOLE
AND EXCLUSIVE REMEDY HEREUNDER.  THE PAYMENT OF THE DEPOSIT AS LIQUIDATED
DAMAGES IS NOT INTENDED TO BE A FORFEITURE OR PENALTY, BUT IS INTENDED TO
CONSTITUTE LIQUIDATED DAMAGES.  ACQUIROR AND PARENT FURTHER HEREBY ACKNOWLEDGE
AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR
ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY PARENT AS A RESULT OF A BREACH OF THE
COVENANTS SET FORTH IN SECTION 9.01(G), AND AGREE THAT THE AMOUNT
REFERRED TO IN SECTION 9.01(G) IS A REASONABLE APPROXIMATION THEREOF AND
SHALL CONSTITUTE AND BE DEEMED TO BE THE AGREED AND LIQUIDATED DAMAGES OF
PARENT IN SUCH EVENT.  THE PAYMENT OF SUCH AMOUNT AS LIQUIDATED DAMAGES IS NOT
INTENDED TO BE A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE
LIQUIDATED DAMAGES.


(c)        Notwithstanding the foregoing, this Section 10.06
shall not operate to limit the rights of Acquiror to seek equitable remedies
(including specific performance or injunctive relief) as permitted under Section
11.13, and the parties acknowledge and agree that Acquiror may sue for
specific performance of Parent’s obligations under this Agreement in lieu of
terminating this Agreement.


Section 10.07.  Additional
Indemnification Provisions.  


(a)        Parent and Acquiror agree, for themselves and on behalf of
their respective Affiliates and Representatives, that with respect to each
indemnification obligation set forth in this ARTICLE X, any Transaction
Agreement or any other document executed or delivered in connection with the
Closing:  (i) all Losses shall be net of any Eligible Insurance Proceeds; (ii)
in no event shall an Indemnifying Party have any liability to an Indemnified
Party (other than in connection with Section 10.03(a)(iii)) for: (A) any
Losses to the extent arising from special circumstances of the Indemnified
Party that were not communicated prior to the date hereof by the Indemnified
Party to the Indemnifying Party, (B) any punitive or special damages other than
punitive or special damages recovered by third parties in connection with a
Third-Party Claim, (C) any Losses to the extent not the probable and reasonably
foreseeable result of any breach by the Indemnifying Party of a representation
and warranty or covenant contained in this Agreement (provided  that this
clause (C) shall not apply to any Losses that are recovered by third parties in
connection with a Third-Party Claim), (D) any damages solely attributable to
diminution of value or lost profits to the extent constituting damages in
excess of the difference between the value of what the Indemnified Party
received in the transaction contemplated by this Agreement and the value of
what the Indemnified Party should have received in the transaction contemplated
by the Agreement if there had been no breach of the representation and warranty
or covenant by the Indemnifying Party for which breach the Indemnified Party is
seeking indemnification and (E) any Losses to the extent incurred in
connection with a party’s assertion, enforcement, dispute or resolution of its
indemnification or other rights under this Agreement or the collection of any
amounts payable to a party hereto under this Agreement; and (iii) in no event
shall Parent have any liability for any Losses due from a Third-Party GP (or
any guarantor of the obligations of a Third-Party GP).  


(b)        Any amount payable by an Indemnifying Party pursuant to
this ARTICLE X shall be paid promptly and payment shall not be delayed
pending any determination of Eligible Insurance Proceeds.  In any case where an
Indemnified Party recovers from a third Person any Eligible Insurance Proceeds
or any other amount in respect of any Loss for which an Indemnifying Party has
actually reimbursed it pursuant to this ARTICLE X, such Indemnified
Party shall promptly pay over to the Indemnifying Party the amount of such
Eligible Insurance Proceeds, but not in excess of the sum of (i) any
amount previously paid by the Indemnifying Party to or on behalf of the
Indemnified Party in respect of such claim and (ii) any amount expended by
the Indemnifying Party in pursuing or defending any claim arising out of such
matter.  







55 












 





(c)        The parties hereto shall treat any indemnification payment
made under this Agreement as an adjustment to the Purchase Price for all applicable tax purposes.   


(d)        If any
portion of Losses to be reimbursed by the Indemnifying Party may be covered, in
whole or in part, by third-party insurance coverage, the Indemnified Party
shall promptly give notice thereof to the Indemnifying Party (a “Notice of
Insurance”).  If the Indemnifying Party so requests within one hundred
eighty (180) days after receipt of a Notice of Insurance, the Indemnified Party
shall use its commercially reasonable efforts to collect the maximum amount of
insurance proceeds thereunder, in which event all such proceeds actually
received, net of costs reasonably incurred by the Indemnified Party in seeking
such collection, shall be considered “Eligible Insurance Proceeds. ”


Section 10.08.  Copies to
Parent and Acquiror.  If any notification
is made under this ARTICLE X to an Affiliate of Parent or Acquiror, a
copy of such notification shall also be sent to Parent or Acquiror,
respectively.


Section 10.09.  Mitigation.  Each of the parties hereto agrees to take all
commercially reasonable steps to mitigate its respective Losses upon and after
becoming aware of any event or condition that would reasonably be expected to
give rise to any Losses that are indemnifiable hereunder.  


ARTICLE XI


GENERAL PROVISIONS


Section 11.01.  Expenses.  


(a)        Except as may be otherwise specified in this Agreement and
the other Transaction Agreements, all costs and expenses, including fees and
disbursements of counsel, financial advisers and accountants, incurred in
connection with this Agreement and the other Transaction Agreements and the
transactions contemplated by this Agreement and the other Transaction
Agreements shall be paid by the Person incurring such costs and expenses,
whether or not the Closing shall have occurred.  


(b)        Parent and Acquiror agree to comply with all real estate
Transfer Tax laws applicable to transactions contemplated by this Agreement and
to cooperate in the preparation and filing of all necessary transfer tax and
other documentary recording tax forms and related documents as are required by
Law in connection with the payment of all Transfer Taxes.  Acquiror shall be
responsible for (i) subject to the terms of Section 6.05(a), any
costs, fees or expenses (excluding Parent’s and its Affiliates’ attorneys’
fees) incurred in order to (A) obtain consents from any Governmental Authority
or any third party as contemplated by this Agreement, including the Existing
Loan Consents and any consents from Tax Credit
Investors or Third-Party GPs (provided 
Acquiror shall not reimburse Parent for any such costs, fees and expenses
unless Acquiror provided Parent with its consent prior to incurring such costs,
fees or expenses), (B) effect a buyout of any Tax
Credit Investor’s interest in an Investor Fund
or any Third-Party GP’s interest in an Operating Partnership (provided 
that such buyout is agreed to after the date hereof and with Acquiror’s prior
written consent), (ii) any costs, fees or expenses incurred in order to obtain any Title Commitment (including reimbursing Parent or its Affiliates for any
amounts advanced by Parent or an Affiliate thereof), (iii) any title insurance premium for any owner’s insurance
policy, (iv) recording or filing charges payable in connection with the
recording of any transfer or conveyance instruments delivered in connection
with the transactions contemplated by this Agreement, (v) all costs, fees
or expenses incurred by Acquiror in connection with Acquiror’s due diligence
review hereunder, (vi) all Transfer Taxes, and (vii) all costs, fees or
expenses allocated to Acquiror pursuant to the other provisions of this
Agreement.  To the extent that Parent or its Affiliates incur any out of pocket
expenses 






56 












 





of a type described in this Section
11.01(b) or otherwise with Acquiror’s prior written consent, Acquiror shall
reimburse Parent for such amount at Closing.


(c)        The provisions of this Section 11.01 shall survive
the Closing or a termination of this Agreement.


Section 11.02.  Notices.  All notices,
requests, claims, demands and other communications under this Agreement shall
be in writing and shall be given or made (and shall be deemed to have been duly
given or made upon receipt) by delivery in person, by overnight courier
service, by facsimile with receipt confirmed (followed by delivery of an
original via overnight courier service) or by registered or certified mail
(postage prepaid, return receipt requested) to the respective parties hereto at
the respective addresses (or at such other address for a party hereto as shall
be specified in a notice given in accordance with this Section 11.02) as
set forth on Section 11.02 of the Parent Disclosure Schedule.


Section 11.03.  Public Announcements. 
No party hereto or any Affiliate or Representative of such party shall issue or
cause the publication of any press release or public announcement or otherwise
communicate with any news media in respect of this Agreement or the
transactions contemplated by this Agreement without the prior written consent
of the other party hereto (which consent shall not be unreasonably withheld,
conditioned or delayed), except as may be required by Law or applicable
securities exchange rules, in which case the party hereto required to publish
such press release or public announcement shall allow the other party hereto a
reasonable opportunity to comment on such press release or public announcement
in advance of such publication.  Prior to the Closing, neither of the parties
hereto, nor any of their respective Affiliates or Representatives, shall, other
than in connection with the ordinary course operation of the Business or as
provided for under this Agreement, make any disclosure concerning plans or
intentions relating to the customers, agents or employees of, or other Persons
with significant business relationships with, any of the Transferred
Subsidiaries without first obtaining the prior written approval of the other
party hereto, which approval shall not be unreasonably withheld, conditioned or
delayed.  


Section 11.04.  Severability.  If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced under any Law, all other
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions
contemplated by this Agreement is not affected in any manner materially adverse
to any party hereto.  Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties hereto as closely as possible in a mutually acceptable
manner in order that the transactions contemplated by this Agreement be
consummated as originally contemplated to the greatest extent possible.  


Section 11.05.  Entire
Agreement.  Except as otherwise expressly
provided in the Transaction Agreements, this Agreement and the other
Transaction Agreements constitute the entire agreement of the parties hereto
with respect to the subject matter of the Transaction Agreements and supersede
all prior agreements and undertakings, both written and oral, other than the
Confidentiality Agreement to the extent not in conflict with this Agreement,
between or on behalf of Parent and/or its Affiliates, on the one hand, and
Acquiror and/or its Affiliates, on the other hand, with respect to the subject
matter of the Transaction Agreements.  


Section 11.06.  Assignment. 
This Agreement shall not be assigned, in whole or in part, by operation of law
or otherwise without the prior written consent of the parties hereto.  Any
attempted assignment in violation of this Section 11.06 shall be void.  This
Agreement shall be binding upon, shall inure to the benefit of, and shall be
enforceable by the parties hereto and their successors and 






57 












 





permitted assigns.  Notwithstanding the foregoing, (i) Parent
shall have the right to assign, in whole or in part, by operation of law or
otherwise, any of its rights, interests or obligations under this Agreement to
any Affiliate of Parent (provided, that (x) Parent shall not be released
from its indemnification obligations under ARTICLE X, (y) Parent cannot assign
any of its obligations under any guarantees of the Economic Transfer Agreement,
unless it is to L&R Entity or another creditworthy entity reasonably
approved by Acquiror, and (z) Parent shall assign its obligation to cause the
transfer of a Transferred Asset (or entry into an Economic Transfer Agreement
with respect to a Transferred Asset) to an Affiliate solely to the extent that
such Affiliate directly or indirectly owns or controls, or otherwise has the
authority to cause the fulfillment of Parent’s obligations under the
Transaction Agreements with respect to, such Transferred Asset), and (ii)
Acquiror shall be permitted to designate one or more Affiliates of Acquiror
that shall, subject to the Closing, take title to any Transferred Equity
Interests or Transferred Debt Interests or accept the assignment of any
Assigned Contracts and/or the other Transferred Assets (and assume the Assumed
Liabilities in respect thereof) in lieu of Acquiror (an “Acquiror Designee”);
provided  that any such designation shall be permitted solely if (i) a
schedule setting forth all such designations, including the name of the
designated Acquiror Designees and the applicable Transferred Equity Interests, Transferred
Debt Interests and/or Assigned Contract with respect to each Acquiror Designee,
is delivered to Parent at least ten (10) days prior to the Closing; provided 
that such designation shall not be permitted if it would reasonably be expected
to increase the unreimbursed costs or liabilities borne by Parent and its
Affiliates in connection with such transactions or cause any material
impairment on or delay in the ability of any Person to perform its respective
obligations under any Transaction Agreement or to consummate the transactions
contemplated thereby; (ii) Acquiror promptly provides to Parent such customary due
diligence information regarding the Acquiror Designees as Parent may reasonably
request for the purposes of meeting legal or
regulatory compliance; and (iii) any representations and warranties given with
respect to Acquiror, as set forth in ARTICLE V, shall be deemed given
with respect to each Acquiror Designee, as applicable; and provided, further,
that in no event shall any such designation relieve Acquiror of any obligation
under any Transaction Agreement; and provided, further, that all
disclaimers, waivers, releases, indemnities and other protections afforded to
Parent and its Affiliates by this Agreement shall apply to and be binding on
the Acquiror Designees. 


 


Section 11.07.  No Third-Party Beneficiaries.  Except as provided in Section 6.08 with respect
to Acquiror Releasees and Parent Releasees and in ARTICLE X with respect
to Parent Indemnified Persons and Acquiror Indemnified Parties, and, subject to
the last two sentences of this Section 11.07, this Agreement is for the
sole benefit of the parties hereto and their successors and permitted assigns
(including Acquiror Designees), and nothing in this Agreement, express or
implied, is intended to or shall confer upon any other Person any legal or
equitable right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.  The Seller shall be an express third-party beneficiary
under this Agreement and, as such, this Agreement may be enforced by the Seller
as if it were a party hereto.  Any Parent Entity who, immediately prior to the
Closing, was an Affiliate of Parent, shall be an express third-party
beneficiary under Section 11.01(b) and, as such, this Agreement may be
enforced by any such Parent Entity as if it were a party hereto.


Section 11.08.  No Recording.  The
provisions of this Agreement will not constitute a Lien on any Property and
neither this Agreement nor any notice or memorandum of this Agreement will be
recorded by Acquiror.


Section 11.09.  Amendment; Waiver.  No
provision of this Agreement or any other Transaction Agreements may be amended,
supplemented or modified except by a written instrument signed by all of the
parties thereto.  No provision of this Agreement or any other Transaction
Agreements may be waived except by a written instrument signed by the party
against whom the waiver is to be effective.  No failure or delay by any party
hereto in exercising any right, power or privilege hereunder shall operate as a
waiver thereof nor shall any single or partial exercise thereof preclude any
other or 






58 












 





further exercise thereof or the exercise
of any other right, power or privilege.  The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by Law.  


Section 11.10.  Disclosure
Schedules.  


(a)        Matters reflected in any Section of this Agreement,
including any section or subsection of the Parent Disclosure Schedule or
Acquiror Disclosure Schedule, are not necessarily limited to matters required
by this Agreement to be so reflected.  Such additional matters are set forth
for informational purposes and do not necessarily include other matters of a
similar nature.  No reference to or disclosure of any item or other matter in any
Section of this Agreement, including any section or subsection of the Parent
Disclosure Schedule or Acquiror Disclosure Schedule, shall be construed as an
admission or indication that such item or other matter is material or that such
item or other matter is required to be referred to or disclosed in this
Agreement, the Parent Disclosure Schedule or the Acquiror Disclosure Schedule. 
Without limiting the foregoing, no such reference to or disclosure of a
possible breach or violation of any contract, Law or Governmental Order shall
be construed as an admission or indication that any such breach or violation
exists or has actually occurred.


(b)        Parent and Acquiror shall have the right, from time to time
prior to the Closing, to supplement or amend the Parent Disclosure Schedule and
the Acquiror Disclosure Schedule, as the case may be, with respect to any
matter hereafter arising (other than as a result of a breach of this Agreement
by the party seeking to make such supplementation or amendment, as the case may
be) that, if existing or known at the date of this Agreement, would have been
required to be set forth or described in such Parent Disclosure Schedule or
Acquiror Disclosure Schedule, as the case may be.  Any such supplemental or
amended disclosure shall be deemed to have cured any breach of any
representation or warranty made in this Agreement for purposes of ARTICLE X,
but not for purposes of determining whether or not the conditions set forth in ARTICLE
VIII have been satisfied.


Section 11.11.  Governing
Law; Submission to Jurisdiction; Waiver of Jury Trial.   


(a)        This Agreement, all Ancillary Agreements, all transactions
contemplated by this Agreement or any Ancillary Agreement, and all claims and
defenses arising out of or relating to any such transaction or agreement or the
formation, breach, termination or validity of any such agreement, shall in all
respects be governed by, and construed in accordance with, the Laws of the
State of New York without giving effect to any conflicts of Law principles of
such state that would apply the Laws of another jurisdiction.  


(b)        Each of Parent and Acquiror irrevocably and
unconditionally:


(i)         submits for
itself and its property to the exclusive jurisdiction of the Delaware Court of
Chancery, or if the Delaware Court of Chancery lacks jurisdiction of the
subject matter, the United States District Court for the District of Delaware,
or if both the Delaware Court of Chancery and the United States District Court
for the District of Delaware lack jurisdiction of the subject matter, any court
of competent jurisdiction sitting in the State of Delaware, in any Action
directly or indirectly arising out of or relating to this Agreement, the
transactions contemplated by the Transaction Agreement, or the formation,
breach, termination or validity of this Agreement and agrees that all
claims in respect of any such Action shall be heard and determined solely in
such court;


(ii)        consents that any
such Action may and shall be brought in such courts and waives any objection
that it may now or hereafter have to the venue or jurisdiction of any 






59 












 





such Action in such court or that such court is an inconvenient
forum for the Action and agrees not to assert, plead or claim the same;


(iii)       agrees that the
final judgment of such court shall be enforceable in any court having
jurisdiction over the relevant party or any of its assets;


(iv)       irrevocably waives
any right to remove any such Action from the Delaware Court of Chancery to any
federal court;


(v)        agrees that
service of process in any such Action may be effected by mailing a copy of such
process by registered or certified mail (or any substantially similar form of
mail), postage prepaid, to such party at its address as provided in Section
11.02; and


(vi)       agrees that
nothing in this Agreement shall affect the right to effect service of process
in any other manner permitted by the applicable rules of procedure.  


(c)        EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY THAT MAY ARISE UNDER ANY OF THE TRANSACTION AGREEMENTS IS LIKELY TO
INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, THE OTHER TRANSACTION AGREEMENTS OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT OR THE OTHER TRANSACTION AGREEMENTS OR THE
FORMATION, BREACH, TERMINATION OR VALIDITY OF THIS AGREEMENT OR ANY OTHER
TRANSACTION AGREEMENT.  EACH OF PARENT AND ACQUIROR CERTIFIES AND ACKNOWLEDGES
THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OR ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH OF PARENT
AND ACQUIROR UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER,
(III) EACH OF PARENT AND ACQUIROR MAKES THIS WAIVER VOLUNTARILY AND (IV) EACH
OF PARENT AND ACQUIROR HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS OF THIS SECTION 11.11. 
EITHER PARENT OR ACQUIROR MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES TO
THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.  


Section 11.12.  Rules of
Construction.  Interpretation of this
Agreement and the other Transaction Agreements (except as specifically provided
in any such other Transaction Agreements, in which case such specified rules of
construction shall govern with respect to such other Transaction Agreements)
shall be governed by the following rules of construction:  (a) words in
the singular shall be held to include the plural and vice versa, and words of
one gender shall be held to include the other gender as the context requires;
(b) references to the terms Preamble, Recitals, Article, Section, paragraph,
Annexes and Exhibit are references to the Preamble, Recitals, Articles,
Sections, paragraphs, Annexes and Exhibits to this Agreement unless otherwise
specified; (c) references to “$” shall mean United States dollars; (d) the
word “including” and words of similar import shall mean “including without
limitation,” unless otherwise specified; (e) the word “or” shall not be
exclusive; (f) the words “herein,” “hereof,” “hereunder” and “hereby” and
similar terms are to be deemed to refer to this Agreement as a whole and not to
any specific Section; (g) the headings are for reference purposes only and
shall not affect in any way the meaning or interpretation of the Transaction
Agreements; (h) the Transaction Agreements shall 




60 












 





be
construed without regard to any presumption or rule requiring construction or
interpretation against the party drafting or causing any instrument to be
drafted; (i) if a word or phrase is defined, the other grammatical forms of
such word or phrase have a corresponding meaning; (j) references to any
statute, listing rule, rule, standard, regulation or other law include a
reference to (A) the corresponding rules and regulations and (B) each
of them as amended, modified, supplemented, consolidated, replaced or rewritten
from time to time; (k) references to any section of any statute, listing
rule, rule, standard, regulation or other law include any successor to such
section, but shall not include any changes to such statute as a result of or in
connection with a Contagion Event; (l) references to any Person’s “commercially
reasonable efforts,” “best efforts” or other efforts standards shall not be
deemed to include causing any action to be taken (or not to be taken) that is
beyond such Person’s authority under the governing documents of any Operating
Partnership in which an unaffiliated third party serves as the general partner
or managing member and (m) the words “made available” mean that the subject
documents or other materials were included in and available in the Virtual Data
Room prior to the Virtual Data Room Cut-Off Date.  


Section 11.13.  Specific Performance. 
Subject to Section 10.06, (a) the parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached, (b) it is accordingly agreed that, without the
necessity of posting bond or other undertaking, the parties hereto shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this Agreement in
accordance with this Agreement, and (c) in the event that any Action is
brought in equity to enforce the provisions of this Agreement, no party hereto
shall allege, and each party hereto hereby waives the defense or counterclaim
that there is an adequate remedy at law.  Notwithstanding the foregoing, or any
other provision of this Agreement to the contrary, the parties agree that
neither Parent nor any of its Affiliates shall be entitled to an injunction or
injunctions to enforce specifically the Closing of any of the transactions
contemplated hereby and that the sole and exclusive remedy of Parent and its
Affiliates relating to the failure of Acquiror to consummate any of the
transactions contemplated hereby shall be the remedies set forth in Section
10.06(b). 


Section 11.14.  Counterparts.  This
Agreement and each of the other Transaction Agreements may be executed in one
or more counterparts, and by the different parties to each such agreement in
separate counterparts, each of which when executed shall be deemed to be an
original but all of which taken together shall constitute one and the same
agreement.  Delivery of an executed counterpart of a signature page to any
Transaction Agreement by facsimile or other means of electronic transmission
shall be as effective as delivery of a manually executed counterpart of any
such Agreement.


[Signature
pages follow.] 





  



  





  







61 












 





IN WITNESS WHEREOF, the parties
hereto have caused this Agreement to be executed on the date first written
above by their respective duly authorized officers.  


 


	
   

  	
  AMERICAN INTERNATIONAL
  GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark
  Lyons

  
	
   

  	
   

  	
  Name:

  	
  Mark Lyons

  
	
   

  	
   

  	
  Title:

  	
  Chief
  Financial Officer and Executive

  Vice
  President

  






 


	
   

  	
  AZTEC HOLDCO
  LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jacob
  Werner

  
	
   

  	
   

  	
  Name:

  	
  Jacob Werner

  
	
   

  	
   

  	
  Title:

  	
  Senior
  Managing Director and Vice

  President

  


















 












 





Exhibit A          DEFINITIONS


“Access”
shall have the meaning set forth in Section 3.03. 


“Acquiror”
shall have the meaning set forth in the Preamble hereto.  


“Acquiror
Approval Matter” shall have the meaning in Section 6.01(b). 


“Acquiror
Designee” shall have the meaning set forth in Section 11.06. 


“Acquiror
Disclosure Schedule” shall have the meaning set forth in the first
paragraph of ARTICLE V.   


“Acquiror
Indemnified Parties” shall have the meaning set forth in Section
10.02(a).   


“Acquiror
Material Adverse Effect” means any effect, event, development or change
that, individually or in the aggregate with all other effects, events,
developments or changes, would reasonably be expected to be materially adverse
to the ability of Acquiror to consummate the transactions contemplated by the
Transaction Agreements by the Outside Date.  


“Acquiror
Releasee” shall have the meaning set forth in Section 6.08(a). 


“Acquiror
Releasor” shall have the meaning set forth in Section 6.08(b).   


“Acquiror Specified Representations” means the
representations and warranties made in Section 5.01, Section 5.05,
and Section 5.09.   


“Acquiror’s Title Notice” shall have the meaning set forth in Section
3.04(c)(ii).


“Action”
means any claim, action, suit, arbitration or proceeding by or before any
Governmental Authority or arbitral body.  


“Additional
Transferred Debt Interests” shall have the meaning set forth in Section
2.06(b)(iv). 


“Affiliate”
means, with respect to any specified Person, any other Person that, at the time
of determination, directly or indirectly through one or more intermediaries,
Controls, is Controlled by or is under common Control with such specified
Person; provided, however, that for the purposes of this
definition, Parent shall not be deemed to be an Affiliate of Acquiror. 
Notwithstanding anything to the contrary contained herein, unless otherwise
expressly specified in this Agreement, (i) “Affiliates” of Parent or any Seller
Party shall not be deemed to include (A) any Investor Fund in which the
limited partner is a Tax Credit Investor or any Housing Fund in which such an
Investor Fund invests, directly or indirectly, (B) any Operating Partnership or
(C) any Participant Vehicle; and (ii) the Transferred Subsidiaries shall be
deemed “Affiliates” of Parent (and not Acquiror) prior to the Closing and shall
be deemed “Affiliates” of Acquiror (and not Parent) from and after the Closing.


 “Agreement”
means this Purchase Agreement, dated as of the date hereof, between Parent and
Acquiror, including the Annexes and Exhibits hereto, the Parent Disclosure
Schedule, the Acquiror Disclosure Schedule and all amendments to such agreement
made in accordance with Section 11.09.   


“Allocated
Value” shall have the meaning set forth in Section 2.05. 


“Allocation
Schedule” shall have the meaning set forth in Section 2.05. 






A-1 












 





“Ancillary Agreements” means:


(i)         the Hold Harmless
Agreement; 


(ii)        any Economic
Transfer Agreements; and


(iii)       any Business
Transfer Documents to be entered into between the parties as contemplated by Section
2.07(c) but which are not specifically enumerated herein as Ancillary
Agreements.


“Ancillary
Transferred Assets” shall have the meaning set forth in the Recitals.


“Archived
Files” shall have the meaning set forth in Section 6.03(b). 


“Assigned
Contracts” means all Contracts identified as such in Annex III. 


“Assumed
Liabilities” shall have the meaning set forth in Section 2.02(a).  


“Audited
Financial Statements” shall have the meaning set forth in Section
4.15(a). 


“Bankruptcy
Event” means any of the following events:  (a) the passage of a resolution
for the dissolution of Parent or the Seller; (b) Parent or the Seller becoming
the subject of (i) the entry of an order for relief by a Governmental
Authority having jurisdiction in the premises judging either or both of Parent
and the Seller bankrupt or insolvent under any applicable Bankruptcy Law,
(ii) the appointment of a receiver, liquidator, rehabilitator, conservator,
assignee, trustee, sequestrator or examiner (or other similar official) of
either or both of Parent and the Seller or of any substantial part of the
property of either of them pursuant to any Bankruptcy Law, (iii) an order
to wind up or liquidate either of their affairs or (iv) an involuntary
bankruptcy, insolvency, reorganization, liquidation, rehabilitation,
conservation, examination or other similar proceeding with respect to either or
both of Parent and the Seller that is unstayed or undismissed for a period of
thirty (30) consecutive days; or (c) any of (i) the commencement by either
or both of Parent and the Seller of a proceeding to be adjudicated a bankrupt
or insolvent, (ii) the consent by either or both of Parent and the Seller to
the institution of bankruptcy, insolvency or examination proceedings against
it, (iii) the filing or consent to the filing by either or both of Parent
and the Seller of a petition or answer or consent seeking reorganization or
relief under any Bankruptcy Law, (iv) the consent or application by either
or both of Parent and the Seller to the appointment of a receiver, liquidator,
rehabilitator, conservator, assignee, trustee, sequestrator or examiner (or
other similar official) of Parent or the Seller (as applicable) or of any
substantial part of Parent’s or the Seller’s property pursuant to any
Bankruptcy Law or (v) the making by either or both of Parent and the Seller of
an assignment for the benefit of creditors.


 “Bankruptcy
Law” means any applicable bankruptcy, insolvency, reorganization, liquidation,
rehabilitation, conservation, examination or other similar Law.


“Base
Purchase Price” shall have the meaning set forth in Section 2.04. 


“Business”
means the business conducted by Parent, the Seller, the other Seller Parties
and the Transferred Subsidiaries, as relates to the Properties, the Operating
Partnerships and, with respect to the Operating Partnerships and Properties
owned by them only, any Person holding an Equity Interest in any Operating
Partnership (for the avoidance of doubt, including the ownership of the
Transferred Equity Interests and Transferred Debt Interests).  






A-2 












 





“Business Day” means any day that is not a Saturday,
a Sunday or other day on which commercial banks in the City of New York, New
York are required or authorized by Law to remain closed.  


“Business Material Adverse Effect” means (a) any
effect, event, development or change (any such item, an “Effect”) that,
individually or in the aggregate, together with all other Effects, is or would
reasonably be expected to have a material adverse effect on the financial
condition, assets, liabilities, business or results of operations of the
Business and the Transferred Subsidiaries, taken as a whole; provided, however,
that none of the following shall constitute or be deemed to contribute to a
Business Material Adverse Effect, or shall otherwise be taken into account in
determining whether a Business Material Adverse Effect has occurred or would be
reasonably likely to occur:  any Effect arising out of, resulting from or attributable
to (i) (A) the United States or global economy generally or capital or
financial markets generally, including changes in interest or exchange rates,
(B) political, social or global health conditions, including any Contagion
Event, any declaration of martial law, quarantine or similar directive, policy
or guidance or other action by any Governmental Authority, generally of the
United States or (C) changes that are the result of factors generally affecting
any of the industries generally in which the Business operates or in which
products or services of the Business are used or distributed; (ii) the
negotiation, execution, announcement or consummation of the transactions
contemplated by, or the performance of obligations under, this Agreement or the
other Transaction Agreements (provided  that this clause (ii) shall not
apply to the use of Business Material Adverse Effect in Section 4.03);
(iii) the identity of, or the effects of any facts or circumstances relating
to, Acquiror or its Affiliates (provided  that this clause (iii) shall
not apply to the use of Business Material Adverse Effect in Section 4.03);
(iv) any changes or prospective changes in applicable Law, GAAP or SAP or the
enforcement or interpretation thereof; (v) actions expressly required to be
taken pursuant to this Agreement or otherwise taken with Acquiror’s written
consent; (vi) the effect of any action taken by Acquiror or its Affiliates
with respect to the transactions contemplated by this Agreement; (vii) any
hostilities, act of war, sabotage, terrorism or military actions, or any
escalation or worsening of any such hostilities, act of war, sabotage,
terrorism or military actions, or any pandemic, epidemic, hurricane, flood,
tornado, earthquake or other natural disaster, in each case in jurisdictions in
which the Business or the Transferred Subsidiaries operate; (viii) any of the
investment assets of the Business and any failure by the Business to
achieve any earnings, premiums written or other financial projections or
forecasts (it being understood that the facts or occurrences giving rise to
such change or failure may be taken into account in determining whether there
has been or will be, a Business Material Adverse Effect); and (ix) any effect
that is cured by Parent prior to the Closing, except in the case of the
foregoing clauses (a)(i), (a)(iv) and (a)(vi) to the extent such Effect is
materially disproportionately adverse with respect to the Business as compared
to Persons other than the Seller Parties engaged in the industries in which the
Business is conducted and (b) an Effect that, individually or in the aggregate
with all other Effects, would reasonably be expected to be materially adverse
to the ability of Parent, Seller Party or any Affiliate of Parent to consummate
the transactions contemplated by the Transaction Agreements by the Outside
Date.  For the avoidance of doubt, neither (1) any change or development
in the business, financial condition, results of operations or credit,
financial strength or other ratings of Parent or any of its Affiliates (other
than the Transferred Subsidiaries and the Business) or (2) any Bankruptcy
Event involving Parent or any of its Affiliates (other than any of the
Transferred Subsidiaries) (any of the events referred to in the foregoing
clauses (1) and (2), a “Parent Event”) shall be deemed, in and of
itself, to constitute a Business Material Adverse Effect, nor shall any such
Parent Event be taken into account in determining whether a Business Material
Adverse Effect has occurred or is reasonably likely to occur, except to the
extent that such Parent Event (or the underlying cause of such Parent Event)
adversely affects (i) the financial condition or results of operations of the
Business, taken as a whole or (ii) the ability of Parent, Seller Party or any
Affiliate of Parent to consummate the transactions contemplated by the
Transaction Agreements by the Outside Date.






A-3 












 





“Business
Transfer Documents” shall have the meaning set forth in Section 2.07(c). 


“Cap”
shall have the meaning set forth in Section 10.02(b). 


“Cash
Flow Cut-Off Date” means a date between the date hereof and a date that is
at least twenty  (20) calendar days prior to the Closing Date, selected by
Parent in its discretion.


“Casualty”
shall have the meaning set forth in Section 6.12. 


“CERCLA”
shall have the meaning set forth in Section 3.02(c). 


“CIM”
means the confidential information memorandum for Project Aztec prepared by
CBRE Capital Advisors, Inc.


“Closing”
shall have the meaning set forth in Section 2.03.   


“Closing
Date” shall have the meaning set forth in Section 2.03.   


“Closing
Statement” shall have the meaning set forth in Section 2.06(a). 


“Code”
means the United States Internal Revenue Code of 1986.  


“Compliance
Expiration Date” means, with respect to each Property, the date on which
the Compliance Period, as defined in § 42(i)(1) of the Code, ends.


“Condemnation”
shall have the meaning set forth in Section 6.12. 


“Confidentiality
Agreement” shall have the meaning set forth in Section 6.04(a). 


“Contagion
Event” means the outbreak of contagious disease, epidemic or pandemic
(including COVID-19 or any mutation or variant thereof).


“Contract”
means any contract, agreement, undertaking, indenture, commitment, loan,
consent, note or other legally binding obligation, whether written or oral.


“Control”
or “control” means, as to any Person, the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.  The terms
 “Controlled by,” “under common Control with” and “Controlling” shall have
correlative meanings.  Notwithstanding anything to the contrary contained
herein, for the purposes of this Agreement, (i) Parent shall be deemed not
to be Controlled by any Person and (ii) neither Parent nor any Seller Party
shall be deemed to Control (A) any Investor Fund in which the limited
partner is a Tax Credit Investor or any Housing Fund or Operating Partnership
in which such an Investor Fund invests, directly or indirectly, (B) any
Third-Party Operating Partnership or (C) any Participant Vehicle.  


“De
Minimis Threshold” shall have the meaning set forth in Section 10.02(b). 


“Debt”
means all Existing Loans and Transferred Debt Interests and any other financing
relating to the Properties and/or the Business.  


“Debt
Allocated Value” shall have the meaning set forth in Section 2.05. 



  

 






A-4 












 





“Deductible” shall have the meaning set forth in Section
10.02(b). 


“Deferred
Closing Asset” shall have the meaning set forth in Section 2.12(c) of the
Parent Disclosure Schedule.


“Deposit”
shall have the meaning set forth in Section 2.08(a). 


“Dispute
Notice” shall have the meaning set forth in Section 2.06(d). 


“Divestiture
or Burden” shall have the meaning set forth in Section 6.05(f). 


“Economic
Transfer Agreement” shall have the meaning set forth in Section 2.12(c) of
the Parent Disclosure Schedule.  


“Effect”
means any effect, event, development or
change.


“Eligible
Insurance Proceeds” shall have the meaning set forth in Section 10.07(d). 
  


“EO13224”
shall have the meaning set forth in Section 5.10. 


“Equity
Interests” means capital stock or other type of equity interest in (as
applicable) a Person.  


“ERISA”
shall have the meaning set forth in Section 5.11. 


“Escrow
Agent” shall have the meaning set forth in Section 2.08(a). 


“Escrow
Agreement” means that certain escrow agreement between and among Parent,
Acquiror and the Escrow Agent entered into contemporaneously with the execution
of this Agreement.


“Excess
Title Exception Amount” shall have the meaning set forth in Section
3.04(c)(ii)(A). 


“Excluded
Assets” shall have the meaning set forth in Section 2.01(b). 


“Excluded
Debt Interests” shall have the meaning set forth in Section 2.06(b)(iv). 


“Excluded
Liabilities” shall have the meaning set forth in Section 2.02(b)(iv). 


“Excluded
Property” shall have the meaning set forth in Section 2.06(b)(i). 


“Excluded
Property Assets” shall have the meaning set forth in Section 2.12(b)(i). 


“Existing
Guarantee” shall have the meaning set forth in Section 4.10. 


“Existing
Lenders” shall have the meaning set forth in Section 3.01. 


“Existing
Loan” means (i) any loans in existence as of the date hereof encumbering
the Properties and (ii) as of the Closing Date, the loans referred to in the
foregoing clause (i), as modified by any refinancings, reissuance, refunding or
amendment of such Existing Loans done in accordance with this Agreement, but
excluding in each case (x) the Operating Deficit Loans and (y) any
Transferred Debt Interests other than those secured by first lien mortgages
encumbering any Property.






A-5 












 





“Existing Loan Consents” means all consents and
approvals required in connection with Acquiror’s or its applicable Affiliates’
direct or indirect assumption, from and after the Closing, of any Existing
Loans that will continue to encumber any Property, Transferred Equity Interest
or other Transferred Asset following the Closing, or such consents and approvals
required by the Existing Loan Documents in connection with the transactions
contemplated hereby, it being understood that any such assumption shall include
either (i) a release of Parent and each of its applicable Affiliates from any
Existing Loan Liability or (ii) an indemnity, in accordance with the terms of
the Hold Harmless Agreement, from Acquiror or a creditworthy Affiliate of
Acquiror reasonably acceptable to Parent for any Existing Loan Liability.


“Existing
Loan Documents” means all trust indentures, loan agreements, series
documents, notes, mortgages, guaranties, indemnities and other documents
evidencing the Existing Loans or Seller Parties’ interest therein (together
with any amendments, modifications or supplements thereto).


“Existing
Loan Liability” means all Liabilities pursuant to any recourse obligations,
guarantees, indemnification agreements, letters of credit posted by Parent or
its applicable Affiliates as security or other similar obligations in
connection with any Existing Loan.


“Existing
Policy” shall have the meaning set forth in Section 3.04(a). 


“Existing
Survey” shall have the meaning set forth in Section 3.04(a). 


“finally
determined” shall have the meaning set forth in Section 10.05.   


“Financial
Statements” shall have the meaning set forth in Section 4.15. 


“Fund
Guarantees” shall have the meaning set forth in Section 2.02(b)(iii). 


“GAAP”
means United States generally accepted accounting principles.  


“Governmental
Approval” shall have the meaning set forth in Section 4.04.   


“Governmental
Authority” means any domestic or foreign governmental, legislative,
judicial, administrative or regulatory authority, agency, commission, body,
court, association or entity.  


“Governmental
Order” means any order, writ, judgment, injunction, decree or award entered
by or with any Governmental Authority. 


“GP
Entities” means, collectively, any Affiliates of Parent that serve as the
general partner or managing member of any Investor Fund, Housing Fund or
Operating Partnership (in each case, in their capacity as such).


“Ground
Lease” means a lease by which an Operating Partnership currently leases a
Property and assignments thereof, any amendments or modifications thereto, and
any guaranty or other agreements related thereto. 


“Hazardous
Materials” shall have the meaning set forth in Section 3.02(e). 


“Hold
Harmless Agreement” shall have the meaning set forth in the Recitals.  






A-6 












 





“Housing Authority” means the relevant tax credit
allocation agency, the issuer of any multifamily bonds issued for the benefit
of a Property, and any other federal, state or local agency with jurisdiction
or other rights or authority over a Property or the Tax Credits related
thereto.


“Housing
Fund” shall have the meaning set forth in the Recitals.


“HUD”
means the United States Department of Housing and Urban Development. 


“Indemnified
Party” shall have the meaning set forth in Section 10.04(a).  


“Indemnifying
Party” shall have the meaning set forth in Section 10.04(a). 


“Independent
Account Firm” shall have the meaning set forth in Section 2.06(d). 


“Insurance
Agreement” means (a) any insurance policies purchased or obtained for a
Target Entity or Subsidiary thereof from Parent or any of its Affiliates (other
than any Target Entity or Subsidiary thereof), which policy solely provides
coverage to any Target Entity or Subsidiary thereof (or any Property) and (b)
any other Contracts entered into in connection with any Contract or policy
contemplated by clause (a) of this definition.  


“Intellectual
Property” means all intellectual property rights in and to the following: 
(a) patents and patent applications;
(b) trademarks, service marks, trade dress, logos, Internet domain names,
and registrations and applications for registration thereof, all rights therein
provided by international treaties or conventions and all reissues, extensions
and renewals of any of the foregoing, and all goodwill associated with the
foregoing (“Trademarks”); (c) copyrights and
registrations and applications for registration thereof, and all rights
therein provided by international treaties or conventions; and (d) trade
secrets and other confidential processes and know-how.  


“Intercompany
Agreements” means contracts, agreements, notes, leases, licenses and other
instruments between any Transferred Subsidiary, on the one hand, and Parent or
any Affiliate of Parent (other than the Transferred Subsidiaries), on the other
hand.  


“Interest
Rate” means an interest rate per annum equal to the average of the prime
rate as published in the Wall Street Journal with respect to each day during
the period for which interest is to be paid.  


“Investor
Fund” shall have the meaning set forth in the Recitals. 


“Investor
Fund Balances” shall have the meaning set forth in Section 4.15(b). 


“IRS”
means the United States Internal Revenue Service.  


“Knowledge”
of a Person means:  (a) in the case of Parent, the actual knowledge of any
Person listed in Section 1.01(a) of the Parent Disclosure Schedule, subject to
the subject matter limitations set forth in such section of the Parent
Disclosure Schedule, but shall not include the knowledge, actual or implied, of
any direct or indirect partner, principal, affiliate, independent contractor,
consultant, property manager, asset manager or agent of Parent or any Affiliate
of Parent, or any employee of any thereof (i.e., Acquiror acknowledges
and agrees that the knowledge of any of the foregoing parties, including,
without limitation, property managers, shall not be imputed to Parent), or
(b) in the case of Acquiror, the actual knowledge of any Person listed in
Section 1.01(a) of the Acquiror Disclosure Schedule, subject to the subject
matter limitations set forth in such section of the Acquiror Disclosure
Schedule but shall not 




A-7 












 





include the knowledge, actual
or implied, of any other direct or indirect partner, principal, affiliate,
independent contractor, consultant, property manager, asset manager or agent of
Acquiror or any Affiliate of Acquiror, or any employee of any thereof (i.e.,
Parent acknowledges and agrees that the knowledge of any of the foregoing
parties, shall not be imputed to Acquiror).  Notwithstanding anything to the
contrary contained herein, the individuals listed in Sections 1.01(a) of
the Parent Disclosure Schedule and of the Acquiror Disclosure Schedule shall
not have any personal liability with respect to any matters set forth in this
Agreement or any of Parent’s or Acquiror’s respective representations and
warranties herein being or becoming untrue, inaccurate or incomplete.


“L&R
Entity” means SAFG Retirement Services, Inc., a Delaware corporation (“L&R
Parent”), or, if applicable, a newly formed holding company which will be
the direct or indirect parent of L&R Parent and will own, directly or
indirectly, all of the life and retirement insurance business of American
International Group, Inc. and its Subsidiaries (the “L&R Business”)
(such holding company, the “IPO Corporation”) effective as of the
separation of the L&R Business from Parent or the initial public offering
of shares of common stock of L&R Parent or the IPO Corporation. 
 “Subsidiary” for purposes of this definition only shall mean with respect to
any Person at the time in question, another Person more than 50% of the total
combined voting power of all classes of capital stock or other voting interests
of which, or more than 50% of the equity securities of which, is at such time
owned directly or indirectly by such first Person.


“Law”
means any federal, state, local or foreign law, statute or ordinance, or any
rule, regulation, judgment, order, writ, injunction, ruling, decree or agency
requirement of any Governmental Authority.  


“Leased
Real Properties” means real properties leased, subleased, licensed or
occupied, directly or indirectly, in whole or in part, by Parent or any
Affiliate thereof in connection with the Business or by any Target Entity,
including pursuant to any Ground Lease. 


“Leases”
means all leases and other occupancy agreements of a Property or any portion
thereof and amendments thereto and guaranties thereof where an Operating
Partnership holds the landlord’s interest, including leases which may be
entered into by the applicable Operating Partnership after the date hereof and
prior to the Closing as permitted by this Agreement.


“Liabilities”
means all debts, liabilities or obligations, including all costs and expenses
relating thereto.


“Lien”
means any mortgage, deed of trust, pledge, hypothecation, security interest,
encumbrance, conditional or installment sales agreement, Transfer Right,
restriction on transfer, claims against title, easement, lien or charge of any
kind, whether voluntarily incurred or arising by operation of law.  


“Litigation
Hold” means the scope of documents and records whose preservation is
mandated by a document retention notice issued in connection with any
litigation, arbitration, mediation (or other form of dispute resolution),
third-party subpoena or regulatory inquiry.  


“Losses”
means any and all losses, damages, reasonable costs, reasonable expenses,
liabilities, settlement payments, awards, judgments, fines, obligations, claims
and deficiencies.  


“Material
Contract” shall have the meaning set forth in Section 4.11(a). 


“Material
Title Exceptions” shall have the meaning set forth in Section 3.04(c)(i).
  


“Materials”
shall have the meaning set forth in Section 6.07(b)(ii).  






A-8 












 





“Net SHF RoC Balances” shall have the meaning set
forth in Section 4.15(b). 


“No
Consent Asset” shall have the meaning set forth in Section 2.12(c) of the
Parent Disclosure Schedule.


“No
Consent Asset Sale Start Date” shall have the meaning set forth in Section
2.12(c) of the Parent Disclosure Schedule.


“Notice
of Insurance” shall have the meaning set forth in Section 10.07(d). 


“Obligor”
means, with respect to any Transferred Debt Interest, the applicable borrower,
mortgagor, grantor under a deed of trust, guarantor or indemnitor or other
person who owes payments or provides security under such Transferred Debt
Interest.


“OFAC”
shall have the meaning set forth in Section 5.10. 


“Operating
Deficit Loan” means, with respect to any Property, a cash advance or loan
extended by Parent, an Affiliate thereof or a Third-Party GP, directly or
indirectly, to an Operating Partnership, excluding Transferred Debt Interests
or Additional Transferred Debt Interests.  


“Operating
Partnership” shall have the meaning set forth in the Recitals.


“Option
Holders” shall have the meaning set forth in Section 2.12(a)(i). 


“Option
Waivers” shall have the meaning set forth in Section 2.12(a)(ii). 


“Ordinary
Course of Business” with respect to a Person means the ordinary course of
business of such Person, consistent with past practice, subject to such changes
by such Person and/or its Affiliates as are reasonably necessary in light of
the then current operating conditions and developments with respect to such Person
and/or its Affiliates.  


“Organizational
Documents” means, as to any Person, as applicable, the (i) certificate or
articles of incorporation, organization or formation or certificate of limited
partnership; (ii) by-laws; (iii) limited partnership agreement or limited
liability company agreement or operating agreement or other similar governing
corporate documents (including all amendments, modifications, supplements and
assignments thereto) but solely, in the case of Organizational Documents of
Operating Partnerships, to the extent entered into by or with Seller Party,
Target Entity or Housing Fund); (iv) side letters or similar agreements, to the
extent relating directly to the terms of the foregoing, entered into by or with
any Seller Party, Transferred Subsidiary or Housing Fund (in each case, as
amended from time to time).


“Outside
Consent Date” shall have the meaning set forth in Section 2.12(c) of the
Parent Disclosure Schedule.


“Outside
Date” shall have the meaning set forth in Section 9.01(b). 


“Parent”
shall have the meaning set forth in the Preamble hereto.


“Parent
Disclosure Schedule” shall have the meaning set forth in the first
paragraph of ARTICLE IV.   


“Parent
Entity” means Parent or any of its Affiliates. 






A-9 












 





“Parent Event” shall have the meaning set forth in
the definition of Business Material Adverse Effect. 


“Parent
Indemnified Persons” shall have the meaning set forth in Section
10.03(a). 


“Parent
Names and Marks” shall have the meaning set forth in Section 6.07(a). 


“Parent
Releasee” shall have the meaning set forth in Section 6.08(b).   


“Parent
Releasor” shall have the meaning set forth in Section 6.08(a).   


“Parent Specified Representations” means the
representations and warranties made in Section 4.01, Section 4.08(a),
Section 4.08(b) and Section 4.13.  


“Parent Statements” shall have the meaning set forth
in Section 6.05(g). 


“Participant
Vehicle” means any limited partnership, limited liability company or other
entity in which the beneficial owners are Participants.


“Participants” means former employees of the
Business (or related persons, Affiliates or permitted assigns or successors
thereof).


“Partnership
Agreements” means the Organizational Documents of each of the Investor
Funds, Housing Funds or Operating Partnerships, as amended from time to time. 


“Permitted
Deductions from Pre-Closing Cash Flow” means, collectively, (A) any
payments of proceeds to Seller Parties with respect to the Transferred Debt
Interests, (B) proceeds derived from Excluded Properties (subject to Annex V),
(C) proceeds of refinancings or refundings completed on or prior to May 1,
2021, (D) payments or distributions which represent repayment of advances
previously made by Seller Parties for (i) good faith deposits and actual out of
pocket costs in connection with contemplated refinancings or (ii) restoration
expenses relating to the Properties that are subject to reimbursement from
insurance claims or government fundings and (E) repayment of advances made on
or after January 1, 2021 by Seller Parties on account of shortfall deficits of
an Operating Partnership, repairs, capital expenditures or maintenance for a
Property; provided, that the advances referenced in the foregoing clause
(D) shall be limited to those set forth on Section 2.06(f) of the Parent
Disclosure Schedule and any such advances made after the date of this Agreement
and prior to the Closing.  


“Permitted
Encumbrances” means the following items:


(i)         all unpaid
personal property, real estate and any excise Taxes related thereto, and all
water, sewer, utility, trash and other similar charges, in each case that are
(A) not yet due and payable as of the Closing Date but are or may become or
give rise to a Lien on all or any portion of such Property, or (B) being
contested in good faith by the owner of such Property and have been paid in
full (it being understood that such items may be subject to apportionment or
adjustment at Closing as provided herein);


(ii)        liens of
supplemental Taxes for the Closing and events occurring from and after the
Closing;


(iii)       any state of
facts which may be disclosed by an accurate survey of the Properties; 


 




A-10 












 





(iv)       any
state of facts or matters that would be revealed by an inspection of a
Property, provided  such state of facts does not render title to such
Property unmarketable;


(v)        undetermined or
inchoate liens, rights of distress and charges incidental to construction,
maintenance or current operations that have not at such time been filed or
exercised or that relate to obligations not due or payable;


(vi)       the
rights of residents as residents only without any purchase options, rights of
first offer or rights of refusal pursuant to Leases or otherwise relating to
the premises leased by a resident, now in effect or which may be in effect on
the applicable Closing Date;


(vii)       the terms and
conditions of the Ground Leases and any matter affecting the fee estate of
lessor under a Ground Lease only and such matter does not encumber the
leasehold estate;


(viii)     any Material Title
Exceptions deemed waived by Acquiror in accordance with this Agreement;


(ix)       all easements,
rights of way, encumbrances, covenants, conditions or restrictions that appear
of record, provided  that no such matter materially impairs the current
use or value of such Property or the operation of the business conducted
thereon in any material manner;


(x)        all matters
created or caused by or on behalf of, or with the written consent of, Acquiror
or any Affiliate thereof;


(xi)       all Laws, including
all environmental, building and zoning restrictions affecting such Property or
the ownership, use or operation thereof adopted by any Governmental Authority
having jurisdiction over such Property or the ownership, use or operation
thereof, and all amendments or additions thereto now in effect or which may be
in force and effect after the date hereof with respect to such Property, except
to the extent that a Property is not in material compliance with any Laws
relating to zoning; the parties hereby acknowledge and agree that the failure
of any Property to have any required certificate of occupancy or other permit
or license (other than on account of a failure of such Property to be in
material compliance with a Law relating to zoning) shall not be treated as a
title or survey matter and shall be deemed to be a Permitted Encumbrance;


(xii)      any
Liens of mechanics, material or materialmen, contractors, consultants, or other
workmen or suppliers for labor and/or material provided to or for the benefit
of a Property for or on behalf of any Resident, to the extent such Liens
encumber such Resident’s leasehold interest only, and are Liens for which a
Resident has an obligation to remove under a Lease;


(xiii)     any rights of
licensees or other third parties, as service providers only, without any
purchase rights or options, under any contracts related to the operation,
ownership or management of a Property, including maintenance, service,
construction, supply and equipment rental contracts, if any, but not including
Leases, not assumed by Acquiror as of the Closing;


(xiv)     with respect to
Properties secured by any of the Transferred Debt Interests, the terms and
conditions set forth in any of the Transferred Debt Interests, including any
intercreditor agreements, subordination agreements, participation 


 




A-11 












 





agreements, cross-collateralization agreements and similar
agreements related thereto, and the rights of the Obligors set forth therein;


(xv)      Liens securing
Existing Loans relating to such Property; 


(xvi)     any other
imperfections of title or non-monetary encumbrances which do not have a
material and adverse effect on the value or use of, or access to, a Property;
and


(xvii)    any state of facts
or matters revealed in any Existing Policy, Existing Survey, Existing Loan
Documents, Organizational Documents, Regulatory Agreements, Material Contracts
or Ground Leases posted to the Virtual Data Room prior to the Virtual Data Room
Cut-Off Date.


 “Permitted
Liens” means the following Liens:  (a) Liens that secure debt that is
reflected on the Existing Loans; (b) Liens for Taxes that are not yet due or
payable or that are being contested in good faith by appropriate proceedings
(in the case of contested matters, for which appropriate reserves in the
determination of the Operating Partnership have been set aside);
(c) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen, repairmen and other Liens imposed by Law arising or
incurred in the Ordinary Course of Business that relate to amounts not yet due;
(d) Liens incurred or deposits made to a Governmental Authority in the Ordinary
Course of Business in connection with a governmental authorization,
registration, filing, license, permit or approval; (e) Liens incurred or
deposits made in the Ordinary Course of Business in connection with workers’
compensation, unemployment insurance or other types of social security; (f)
defects of title, easements, rights‐of‐way, covenants, restrictions
and other similar charges or encumbrances not materially interfering with the
ordinary conduct of business or which are shown by a current title report or
other similar report or listing previously provided or made available to
Acquiror; (g) Liens not created by any of the Transferred Subsidiaries that
affect the underlying fee interest of any Leased Real Property;
(h) non-monetary Liens incurred in the Ordinary Course of Business
securing obligations or liabilities that are not individually or in the
aggregate material to the relevant asset or property, respectively; (i) gaps in
the chain of title of any Property evident from the records of the relevant
Governmental Authority maintaining such records; (j) all agreements,
settlements, consents and other arrangements entered into in the Ordinary
Course of Business, to the extent posted to the Virtual Data Room prior to the
Virtual Data Room Cut-Off Date; (k) zoning, building and other generally
applicable land use restrictions; (l) Liens not created by any of the
Transferred Subsidiaries that have been placed by a third party on the fee
title of the real property constituting the Leased Real Property or real
property over which any of the Transferred Subsidiaries has easement rights;
(m) Liens created, caused to be created or consented to in writing by Acquiror
or its Affiliates; (n) any set of facts an accurate up-to-date survey would
show; provided, however, such facts do not materially interfere
with the present use of the relevant Property by the Transferred Subsidiaries,
respectively; (o) leases or similar agreements affecting the Properties, provided 
that such leases and agreements have been provided or made available to
Acquiror; (p) provided  Parent causes such Liens to be removed at
Closing, Liens or other restrictions on transfer imposed by applicable
insurance Laws; (q) with respect to the Transferred Debt Interests prior
to Closing, Liens granted under securities lending and borrowing agreements,
repurchase and reverse repurchase agreements and derivatives entered into in
the Ordinary Course of Business; (r) provided  Parent causes such
Liens to be removed at Closing, clearing and settlement Liens on securities and
other investment properties incurred in the ordinary course of clearing and
settlement transactions in such securities and other investment properties and
holding of legal title or other interests in securities or other investment
properties by custodians or depositories in the Ordinary Course of Business;
(s) restrictions on transfer under federal and state securities Laws; (t)
contractual restrictions on transfer contained in the Partnership Agreements;
and (u) restrictions on transfer imposed by HUD or applicable Housing
Authorities. 






A-12 












 





“Permitted OP Substitution” means (x) the
substitution of an Affiliate of Parent for any third party in such third
party’s capacity as a partner in an Operating Partnership, including by causing
a Target Entity to exercise a replacement right under the Partnership Agreement
of an Operating Partnership; provided, that (i) following any such
substitution, the Transferred Assets shall include 100% of the Equity Interests
in the Affiliate of Parent that acquired such third party’s interest in the
Operating Partnership, (ii) except for the obligations of the general partner
under the Partnership Agreement of the Operating Partnership as a result of
becoming the general partner, such substitution shall not result in the
creation of any new or expanded incurrence of liability, encumbrance or other
post-Closing obligations on behalf of any Transferred Subsidiary or Operating
Partnership (including by way of the payment of any fees, promote or other
economic interests, or any indemnity or post-buyout obligations, other than the
general partner’s indemnification or similar rights already existing under the
applicable Partnership Agreement), (iii) no adjustment to the Purchase Price
shall be made in connection with such buyout or substitution unless expressly
agreed to by the parties, and (iv) Parent shall use commercially reasonable
efforts to give Acquiror prior notice and reasonably consult with Acquiror
prior to any such buyout or substitution, and (y) the substitution of a
non-profit general partner with another non-profit general partner with the
consent of Acquiror, not to be unreasonably withheld, conditioned or delayed.


 “Person”
means any natural person, general or limited partnership, corporation, limited
liability company, limited liability partnership, firm, association or
organization or other legal entity.  


“Personal
Property” means the mechanical systems, fixtures, furniture, appliances,
tools, supplies, inventories, furnishings, equipment and other items of
tangible personal property placed or installed on or about any Property and
which are owned by an Operating Partnership and used as a part of or in connection
with a Property, including, without limitation, all heating, ventilation and
air conditioning compressors, engines, systems and equipment; any and all
elevators, electrical fixtures, systems and equipment; all plumbing fixtures,
systems and equipment; and all keys.  “Personal Property” shall exclude
personal property that is owned by the Residents, former residents or the
management company, or which is leased pursuant to a Service Contract or
Permitted Encumbrance.


“PILOT
Arrangement” means the “payment in lieu of taxes’ arrangements affecting
any Properties.


“Post-Closing
Covenants” shall have the meaning set forth in Section 10.01.  


“Pre-Closing
Covenants” shall have the meaning set forth in Section 10.01.  


“Pre-Closing
Cash Flow” shall mean the aggregate cash proceeds that were actually received
by the Target Entities from any Operating Partnership (or, if applicable, fees
paid directly to a Seller Party from any Operating Partnership), in each case,
after January 1, 2021 and prior to the Cash Flow Cut-Off Date and, if received
by the Target Entities, that were subsequently distributed or paid to the
Seller Parties during such period, to the extent attributable to the Seller
Parties’ ownership of the Transferred Equity Interests, Ancillary Transferred
Assets and Assigned Contracts and the operation and management of the
Properties, including, for the avoidance of doubt, any proceeds actually
received by the Seller Parties in respect of refinancings or refundings
completed after May 1, 2021.


 “Pre-Closing
Taxable Period” means, collectively, all taxable periods ending before the
Closing Date.  


“Preemptive
Right” shall have the meaning set forth in Section 2.12(a)(i). 


“Prior
Noncompliance” shall have the meaning set forth in Section 6.11(e). 






A-13 












 





“Prohibited Person” shall have the meaning set forth
in Section 5.10. 


“Properties”
means, collectively, the real estate properties owned by the Operating
Partnerships (or Subsidiaries of Operating Partnerships).  With respect to any
particular Target Entity or Operating Partnership, a “Property” means a real
estate property in which such Person owns an interest, directly or indirectly.


“Purchase
Price” shall have the meaning set forth in Section 2.04.   


“Regulatory
Agreements” shall have the meaning set forth in Section 6.11(a). 


“Representative”
of a Person means the directors, officers, employees, advisers, agents,
consultants, accountants, investment bankers or other representatives of such
Person and of such Person’s Affiliates.  


“Reserve
Amount” shall have the meaning set forth in Section 2.06(b)(iii). 


“Residents”
means the residents of the Properties as of the Closing.


“Retained
Affiliate” means any Affiliate of Parent other than the Transferred
Subsidiaries.  


“SAP”
means, as to any insurance or reinsurance company, the statutory accounting
practices prescribed or permitted by applicable insurance Laws and the
insurance regulatory authorities, in each case, of the jurisdiction in which
such company is domiciled.


“Scheduled
Pipeline Property” shall have the meaning set forth in Section
6.01(b)(i). 


“Scheduled
Refinancing Properties” shall have the meaning set forth in Section
6.01(b)(ii). 


“SEC”
means the United States Securities and Exchange Commission.


“Section
42” shall have the meaning set forth in Section 6.11(a). 


“Securities
Act” means the Securities Act of 1933.


“Seller”
shall have the meaning set forth in the Recitals.


“Seller
Parties” means (i) with respect to the
Transferred Equity Interests, the Seller and each Affiliate thereof
identified as such on Annex I, and (ii) with
respect to any other Transferred Assets, the Seller and the applicable
Affiliate thereof that owns such Transferred Asset immediately prior to the
Closing. 


“Service
Contracts” means maintenance, service, construction, supply and equipment
rental contracts, if any, but not including Leases.


“SLP
Entities” means, collectively, any Affiliates of Parent that hold a special
limited partner interest in an Operating Partnership.


“Straddle
Period” means a taxable period beginning before and ending on or after the
Closing Date.  






A-14 












 





“Subsidiary” of any Person means any corporation,
general or limited partnership, joint venture, limited liability company,
limited liability partnership or other Person that is a legal entity, trust or
estate of which (or in which) (a) the issued and outstanding Equity
Interests having ordinary voting power to elect a majority of the board of
directors (or a majority of another body performing similar functions) of such
corporation or other Person (irrespective of whether at the time Equity Interests
of any other class or classes of such corporation or other Person shall or
might have voting power upon the occurrence of any contingency), (b) more than
50% of the interest in the capital or profits of such partnership, joint
venture or limited liability company or (c) more than 50% of the
beneficial interest in such trust or estate, is at the time of determination
directly or indirectly beneficially owned or Controlled by such Person. 
Notwithstanding anything to the contrary contained herein, unless otherwise
expressly specified in this Agreement, (i) “Subsidiaries” of Parent or any
Seller Party shall not be deemed to include (A) any Investor Fund in which
the limited partner is a Tax Credit Investor or any Housing Fund or Operating
Partnership in which such an Investor Fund invests, directly or indirectly, (B)
any Operating Partnership or (C) any Participant Vehicle; and (ii) the
Transferred Subsidiaries shall be deemed “Subsidiaries” of Parent (and not
Acquiror) prior to the Closing and shall be deemed “Subsidiaries” of Acquiror
(and not Parent) from and after the Closing.


“Target
Entities” shall have the meaning set forth in the Recitals.  


“Tax”
or “Taxes”  means all taxes, charges,
fees, imposts, levies or other assessments, including income, excise, gross
receipts, premium, ad valorem, sales, use,
employment, franchise, profits, gains, property, transfer, payroll, stamp taxes or other charges in the nature of taxes (whether payable
directly or by withholding) imposed by any Tax Authority, together with any
interest and any penalties thereon or additional amounts with respect thereto.  


“Tax
Authority”  means any Governmental
Authority having jurisdiction over the assessment, determination, collection or
imposition of any Tax.  


“Tax
Credit Investor” shall have the meaning set forth in the Recitals.


“Tax
Credit Laws” shall have the meaning set forth in Section 6.11(a). 


“Tax
Credits” shall have the meaning set forth in Section 6.11(a). 


“Tax
Package” shall have the meaning set forth in Section 7.01(c).   


“Tax
Returns” means all returns and reports (including elections, declarations,
disclosures, schedules, estimates and information returns) required to be
supplied to a Tax Authority relating to Taxes.


“Third-Party
Claim” shall have the meaning set forth in Section 10.04(a). 


“Third-Party
GP” shall have the meaning set forth in the Recitals.


“Third-Party
Operating Partnership” means any Operating Partnership in which a
Third-Party GP is a general partner or managing member.


“Title
Commitments” shall have the meaning set forth in Section 3.04(b). 


“Title Exception Adjustment Amount” shall have the meaning set forth in Section
3.04(c)(ii)(A).


“Trademarks”
shall have the meaning set forth in the definition of “Intellectual Property.” 







A-15 












 





“Transaction Accommodation” shall have the meaning
set forth in Section 6.05(f). 


“Transaction
Agreements” means, collectively, this Agreement and the Ancillary
Agreements.


“Transfer
Rights” means, as applicable, any Preemptive Right and any other put
option, call option, option to purchase, a marketing right, a forced sale, tag
or drag right or a right of first offer, right of first refusal or right that
is similar to any of the foregoing (including any right of first refusal
provided under Section 42(i)(7 of the Code), whether arising under any
Organizational Documents of a Person or pursuant to any other Contract.


“Transfer
Taxes” means all sales, use, documentary, stamp, stock transfer, or real
property transfer or gains Taxes or similar Taxes payable or arising as a
result of the consummation of the transactions contemplated by this Agreement.


“Transferred
Assets” shall have the meaning set forth in Section 2.01(a). 


“Transferred
Cash Flow” means cash proceeds actually received by Target Entities or
Seller Parties from any Operating Partnership after the Cash Flow Cut-Off Date,
but solely to the extent that such cash proceeds would otherwise be within the
definition of “Pre-Closing Cash Flow” but for the fact that they are received
after the Cash Flow Cut-Off Date. 


“Transferred
Debt Documents” means all loan agreements, notes, mortgages, guarantees,
indemnities and other loan documents evidencing the Transferred Debt Interests
(together with any amendments, modifications or supplements thereto).


“Transferred
Debt Interests” shall have the meaning set forth in the Recitals.


“Transferred
Equity Interests” shall have the meaning set forth in the Recitals.


“Transferred
Reserves” means all cash reserves or deposits (a) held or controlled by a Seller Party (x) on
behalf of an Operating Partnership or an Investor Fund (but with respect to
Investor Funds, solely to the extent held for the benefit of a Tax Credit
Investor that owns a direct or indirect equity interest in such Investor Fund)  or (b)
held or controlled by a Seller Party as the holder of the Transferred Debt
Interests or (c) held by a third-party
servicer with respect to the Transferred Debt Interests.


“Transferred
Subsidiaries” means any Target Entity and any Person that is either wholly
owned or controlled, directly or indirectly, by a Target Entity, but excluding
any Operating Partnerships or Subsidiaries thereof.  


“Transferred
Subsidiary Owned Interests” shall have the meaning set forth in Section
4.14. 


“Triggered
Preemptive Right” shall have the meaning set forth in Section
2.12(a)(ii). 


“Uninsured
Exception” shall have the meaning set forth in Section 3.04(c)(ii)(A). 


“Virtual
Data Room” means the virtual data rooms maintained by SmartRoom for
 “Project Aztec.”


“Virtual
Data Room Cut-Off Date” shall mean the date that is
three (3) Business Days prior to the date hereof; except that with respect to
the documents identified on Annex VI, the Virtual Data Room Cut-Off Date
shall mean the date that is one (1) day prior to the date hereof.








A-16