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Home My WebLink AboutC09-076 Riverview ApartmentsAMENDED OPTION AGREEMENT THIS AMENDED OPTION AGREEMENT (this "Amended Agreement") made and entered into as of March 3, 2009, by and between Eagle Riverview Affordable Housing Corporation, a Colorado non-profit corporation ("Seller"), and Riverview Apartments Preservation LP, a Colorado limited partnership ("Purchaser"). RECITALS A. Seller is the owner of the real property located at 38969 Highway 6, Avon Colorado, 81620, as more particularly described in Exhibit A attached hereto and incorporated herein by reference (the "Land") and the buildings and improvements situated thereon (the "Improvements"}. The Land and the Improvements are referred to collectively herein as the "Property". B. Seller has issued its Multifamily Housing Project Revenue Bonds, Series 1999A, Series 1999B and Series 1999C (the "Bonds") pursuant to a Trust Indenture dated as of July 1, 1999 (as may be amended or supplemented, the "Indenture") between the Seller and American National Bank (successor in interest to The Bank of Cherry Creek, N.A.), as trustee. Seller's obligations under the Indenture are secured by a lien of the Property. C. Purchaser desires to procure, and Seller desires to grant, an option to purchase the Property upon the terms and provisions as hereinafter set forth. NOW, THEREFORE, in consideration of the mutual agreements contained herein, the parties hereto agree as follows: AGREEMENT 1. Grant of Option. For One Dollar ($1.00) and other good and valuable consideration, receipt of which is hereby acknowledged, Seller does hereby grant to Purchaser the exclusive right and option (the "Option") to purchase the Property upon the terms and conditions herein. 2. Exercise of Option. Purchaser may exercise its Option at any time during the period commencing on July 1, 2009 and expiring on August 30, 2010 (the "Option Term"), by giving written notice thereof to Seller; provided that the Option may not be exercised until such time as all of the Bonds issued and outstanding under the Indenture are defeased in accordance with the terms of the Indenture. In the event the Purchaser does not exercise its Option during the Option Term, this Amended Agreement shall become null and void and- neither party hereto shall have any other liability, obligation or duty hereunder. 3. Purchase of Property. In the event that the Purchaser exercises its Option as provided for in the preceding paragraph, both parties agree to the following material terms and conditions: Amended Option Agreement 1 Option Agreement (a) Purchase Price. The purchase price for the Property shall be Six Million Five Hundred Thousand and No(Dollars ($6,500,000.00). (b) Closing Date. The closing date shall be on any date during the Option Term as may be selected by Purchaser. (c) Closing Costs. The Purchaser and Seller shall each pay their respective costs of closing the purchase. (d) Representations and Encumberances. Purchaser shall purchase the Property in an "as-is" condition, subject only to non-monetary encumberances, in each case unless otherwise agreed to by the parties. 4. General Provisions. (a) Governing Law. This Amended Agreement shall be governed by, and construed in accordance with, the law of the State of Colorado. (b) Assi nabilitX. Seller hereby agrees that Purchaser shall have the right to assign this Amended Agreement or any interest or right hereunder or to nominate another party to take title to the Property without the prior written consent of Seller. (c) Entire Agreement. This Amended Agreement contains the entire agreement between the parties, and supersedes all prior negotiations, drafts, and other understandings which the parties may have had concerning the subject matter hereof, including but not limited to, the Option Agreement dated February 2, 2009 between Seller and Purchaser regarding purchase of the Property. Said Option Agreement shall be hereby rendered void. (d) Time. Time is of the essence of this Amended Agreement. (e) Successors. The provisions of this Amended Agreement shall inure to the benefit of, and shall be binding upon, the heirs, successors, executors, administrators and assigns of the parties hereto. (f) Amendments. This Amended Agreement may not be amended or modified except by written documents signed by all parties hereto. (g) Severability. Whenever possible, each provision of this Amended Agreement shall be interpreted so as to be effective and valid under applicable law. If any provision of this Amended Agreement is held to be prohibited by, or invalid under, applicable law, the remainder of this Amended Agreement and any other application of such provision shall not be affected thereby. (h) Notice. Any notice, demand, request, consent or other communication which either party desires or is required to give to any other party shall be in writing and shall be deemed to have been given when either: (a) delivered in person or by facsimile transfer, or (b) sent by overnight courier or first-class registered or certified mail, postage pre-paid, return receipt requested, addressed to such party at the address set forth following each party's Amended Option Agreement 2 Option Agreement signature to this Amended Agreement. Either party may designate another address for itself at any time upon written notice to the other party. (i) Headings. The titles and headings of the various sections of this Amended Agreement have been inserted only for convenience of reference. They are not part of this Amended Agreement and may not be used to construe or interpret any of the terms hereof. (j) Counterparts. This Amended Agreement may be executed in any number of counterparts, and each such counterpart shall be deemed to be an original instrument. All such counterparts together shall constitute one and the same Amended Agreement. [Remainder of Page Intentionally Left Blank] Amended Option Agreement 3 Option Agreement IN WITNESS WHEREOF, the parties have executed this Amended Agreement as of the date first set forth above. SELLER: EAGLE RIVERVIEW AFFORDABLE HOUSING CORPORATION, a Colorado non-profit corporation ~ .~ J h~i Lewis Di~ctor Eagle Riverview Affordable Housing Corporation BUYER: RIVERVIEW APARTMENTS PRESERVATION LP, a Colorado limited partnership By: RIVERVIEW APARTMENTS PRESERVATION LLC, a Colorado limited liability company, as general partner By: EAGLE COUNTY HOUSING AND DEVELOPMENT AUTHORITY, a body corporate and politic, by and through its Board of Commissioners, as sole member 1 By: Sara J. Fisher Chairman Eagle County Housing and Development Authority Amended Option Agreement Option Agreement EXHIBIT A LEGAL DESCRIPTION PARCEL 1: LOT 1, BLOCK 2, EAGLE-NAIL SUBDIVISION FILING NO. 2, ACCORDING TO THE PLAT RECORDED JANUARY 7, 1974 IN BOOK 232 AT PAGE 782, COUNTY OF EAGLE, STATE OF COLORADO. PARCEL 2: THAT CERTAIN EASEMENT AND RIGHT OF WAY CREATED BY CONVEYANCE OF EASEMENT DATED SEPTEMBER 26, 1978, AND RECORDED ON OCTOBER 2, 1978, IN BOOK 276 AT PAGES 45, FOR THE PURPOSE OF CONSTRUCTING, MAINTAINING, REPAIRING, ENLARGING, AND RECONSTRUCTING VEHICULAR PARKING AND PARKING STRUCTURES, WHEN EASEMENT AFFECTS THE FOLLOWING PARCEL: TRACT A, AMENDED FINAL PLAT, LOT lA, BLOCK 2, EAGLE NAIL FILING N0.2, ACCORDING TO THE PLAT RECORDED 3UNE 13, 1978 IN BOOK 271 AT PAGE 85, COUNTY OF EAGLE, STATE OF COLORADO. G:~HOUSING~RIVERVIEW APARTMENTS~Riverview 2009 LIHTC Application\,Amended Option Agreement.DOC Exhibit A Option Agreement