HomeMy WebLinkAboutR21-102 Approving a Purchase and Sale Agreement for the Sale of Lake Creek Village Apartments DocuSign Envelope ID:35D1A267-5C09-45E3-8C65-742D1C641839
Commissioner Chandler-Henry moved adoption
of the following Resolution:
EAGLE COUNTY HOUSING AND DEVELOPMENT AUTHORITY
COUNTY OF EAGLE,STATE OF COLORADO
RESOLUTION NO.2021- 102
RESOLUTION AUTHORIZING AND APPROVING A PURCHASE AND SALE
AGREEMENT FOR THE SALE OF LAKE CREEK VILLAGE APARTMENTS,A LAND
USE REGULATORY AGREEMENT,RIGHT OF FIRST OFFER,AND RELATED
DOCUMENTS AND TRANSACTIONS IN CONNECTION WITH THE SALE OF LAKE
CREEK VILLAGE APARTMENTS BY LAKE CREEK VILLAGE LLC;AUTHORIZING
THE EAGLE COUNTY HOUSING AND DEVELOPMENT AUTHORITY TO ENTER INTO
AN AGREEMENT WITH THE PURCHASER TO EFFECTUATE A PROPERTY TAX
EXEMPTION IN ACCORDANCE WITH STATE LAW; AND AUTHORIZING ANY OF ITS
COMMISSIONERS TO EXECUTE ALL DOCUMENTS NECESSARY TO CONSUMMATE
THE CLOSING OF THE SALE OF LAKE CREEK VILLAGE APARTMENTS
WHEREAS,Eagle County Housing and Development Authority("ECHDA")is a
statutory housing authority established pursuant to C.R.S. 29-4-501 et. seq.; and
WHEREAS,ECHDA has all of the powers identified in C.R.S. 29-4-505 and those
granted to a city housing authority in C.R.S. 29-4-201 et. seq.; and
WHEREAS,the Eagle County Board of County Commissioners serves ex officio as
the board of ECHDA(the"Board"); and
WHEREAS,ECHDA is the sole member of Lake Creek Village Apartments LLC,the
owner of the 270-unit Lake Creek Village Apartments located at 4923 Lake Creek Village Drive
in Edwards, CO 81632(the"Property"); and
WHEREAS,an Eagle County Housing Needs Assessment update was completed in
2018,which indicated that 7,970 affordable housing units will be needed to keep up with the
demand for affordable housing units in Eagle County by the year 2030; and
WHEREAS,over 48%of renters in Eagle County are cost burdened and pay more than
30%of their income towards housing,making it difficult for those households to pay for other
necessities, like food,utilities, transportation,and health care; and
WHEREAS,Eagle County's real estate market is outpacing income gains, since 2007,
median household income has increased by 6%while rental rates have increased by 48%; and
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WHEREAS, ECHDA has limited funding to support the ownership and development of
additional housing units to support the Eagle County workforce and desires to increase the
availability of housing units affordable to the workforce and other individuals and families of
low income in Eagle County, Colorado by owning, constructing, and financing additional
affordable housing units; and
WHEREAS,following such sale, and in accordance with a Land Use Regulatory
Agreement,the Property shall be occupied by Eligible Households as defined in the Eagle
County Housing Guidelines:Administrative Procedures and the units will be rented at rates no
greater than those affordable to households earning no more than 75%of the Area Median
Income; and
WHEREAS, ECHDA does hereby determine that it is in the best interest of Eagle
County and its inhabitants to authorize the sale of Lake Creek Village Apartments and to utilize
the proceeds of this sale to support ECHDA's mission to serve those individuals and families of
low income in Eagle County, Colorado by investing in additional housing units throughout Eagle
County; and
WHEREAS, the Property is currently eligible for a property tax exemption under state
law, and in order to continue such eligibility, the purchaser has requested that the ECHDA join
the purchaser as a special member of an entity formed to own the Property; and
WHEREAS,there have been presented to ECHDA the proposed forms of(a)the
Purchase and Sale Contract; (b)the Land Use Regulatory Agreement; (c)a Special Limited
Partnership agreement; and(d)a Right of First Offer; and
WHEREAS,ECHDA desires to authorize any of its commissioners to execute all
documents necessary for closing on the conveyance of the Lake Creek Village Apartments.
NOW,THEREFORE,BE IT RESOLVED BY THE BOARD OF
COMMISSIONERS OF THE EAGLE COUNTY HOUSING AND DEVELOPMENT
AUTHORITY:
THAT,the ECHDA Board hereby authorizes the sale of Lake Creek Village
Apartments with the requirement that all future residents of Lake Creek Village Apartments
shall be Eligible Households as defined in the Eagle County Affordable Housing Guidelines:
Administrative Procedures, and that the maximum rent charged for units shall be no greater
than rents affordable to households earning no more than 75%of the area median income,
which shall be defined by the Colorado Housing and Finance Authority; and
THAT,the ECHDA Board hereby authorizes the ECHDA to act as a special member of
an entity formed with the purchaser in order to effectuate a real property tax exemption for the
Project on the terms set forth in a Special Limited Partnership Agreement,in a form approved
by the County Attorney's Office; and
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THAT,the ECHDA Board hereby delegates to any member of the Board the authority
to execute on its behalf all documents necessary to effectuate and consummate the closing of
the sale of Lake Creek Apartments,including,but not limited to,the Purchase and Sale
Contract, attached hereto as Exhibit A, the Land Use Regulatory Agreement,the Special
Limited Partnership agreement,the Right of First Offer, and any other necessary documents, all
subject to review and approval of the County Attorney's Office.
THAT,the ECHDA Board hereby finds, determines and declares that this Resolution is
necessary for the public health, safety and welfare of the citizens of the County of Eagle, State
of Colorado.
MOVED AND ADOPTED by the Board of Commissioners of the Eagle County
Housing and Development Authority, at its meeting held this 7th day of Dec. , 2021.
COUNTY OF EAGLE, STATE OF
y�P�pE EAG(FcoG�t COLORADO,By and Through Its
BOARD OF COUNTY COMMISSIONERS
ATTEST:
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Clerk to tl a l4€f Matt S E7B2D718E0473...
County Commissioners County Commissioners Chair
—DocuSigned by:
Cp.obst-pte. `4
Jeanne Ick`yueeney 7A
Commissioner
DocuSigned by:
autialtr-
Kathy itlafeliry
Commissioner
Commissioner McQueeney seconded adoption of the foregoing resolution. The roll
having been called,the vote was as follows:
Commissioner Scherr Aye
Commissioner McQueeney Aye
Commissioner Chandler-Henry Aye
This resolution passed by 3/0 vote of the Board of County Commissioners of
the County of Eagle, State of Colorado
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EXHIBIT A
Form of Purchase and Sale Agreement
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PURCHASE AND SALE CONTRACT
BETWEEN
LAKE CREEK VILLAGE LLC,
a Colorado limited liability company
AS SELLER
AND
TRALEE AFFORDABLE MOUNTAIN LLC,
a Colorado limited liability company
AS PURCHASER
DMFIRM#400144497 v11
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[Lake Creek Village Apartments, Edwards, Colorado]
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TABLE OF CONTENTS
Page
ARTICLE I DEFINED TERMS 1
ARTICLE II PURCHASE AND SALE, PURCHASE PRICE&DEPOSIT 1
2.1. Purchase and Sale 1
2.2. Purchase Price and Deposit 1
2.3. Escrow Provisions Regarding Deposit. 2
ARTICLE III FEASIBILITY PERIOD 3
3.1. Feasibility Period 3
3.2. Expiration of Feasibility Period 3
3.3. Conduct of Investigation 3
3.4. Purchaser Indemnification. 4
3.5. Property Materials. 4
3.6. Property Contracts 5
ARTICLE IV TITLE 6
4.1. Title Documents 6
4.2. Survey 6
4.3. Objection and Response Process 6
4.4. Permitted Exceptions 7
4.5. Assumed Encumbrances. 7
4.6. Subsequently Disclosed Exceptions 8
4.7. Purchaser Financing 8
ARTICLE V CLOSING 9
5.1. Closing Date 9
5.2. Seller Closing Deliveries 9
5.3. Purchaser Closing Deliveries 10
5.4. Closing Prorations and Adjustments. 11
5.5. Post Closing Adjustments 13
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF SELLER AND
PURCHASER 14
6.1. Seller's Representations 14
6.2. AS-IS 15
6.3. Survival of Seller's Representations 16
6.4. Definition of Seller's Knowledge 16
6.5. Representations and Warranties of Purchaser 16
ARTICLE VII OPERATION OF THE PROPERTY 17
7.1. Leases and Property Contracts 17
7.2. General Operation of Property 18
7.3. Liens 18
7.4. Purchaser Capital Expenditures 18
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ARTICLE VIII CONDITIONS PRECEDENT TO CLOSING 18
8.1. Purchaser's Conditions to Closing 18
8.2. Seller's Conditions to Closing 19
ARTICLE IX BROKERAGE 20
9.1. Indemnity 20
9.2. Broker Commission 20
ARTICLE X DEFAULTS AND REMEDIES 20
10.1. Purchaser Default 20
10.2. Seller Default 20
ARTICLE XI RISK OF LOSS OR CASUALTY 21
11.1. Major Damage 21
11.2. Minor Damage 22
11.3. Closing 22
11.4. Repairs 22
ARTICLE XII EMINENT DOMAIN 22
12.1. Eminent Domain 22
ARTICLE XIII MISCELLANEOUS 23
13.1. Binding Effect of Contract 23
13.2. Exhibits and Schedules 23
13.3. Assignability 23
13.4. Captions 23
13.5. Number and Gender of Words 23
13.6. Notices 23
13.7. Governing Law and Venue 25
13.8. Entire Agreement 25
13.9. Amendments 25
13.10. Severability 25
13.11. Multiple Counterparts/Electronic Signatures 25
13.12. Construction 25
13.13. Confidentiality 25
13.14. Time of the Essence 26
13.15. Waiver 26
13.16. Attorneys Fees 26
13.17. Time Zone/Time Periods 26
13.18. No Personal Liability of Officers,Trustees or Directors of Seller 26
13.19. Exclusive Negotiations 27
13.20. Interview of Existing Personnel 27
13.21. ADA Disclosure 27
13.22. No Recording 27
13.23. Relationship of Parties 27
13.24. Dispute Resolution 27
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13.25. Survival 28
13.26. Multiple Purchasers 28
Exhibit A-Legal Description For the Lake Creek Village Apartments A-1
Exhibit B -Form of Special Warranty Deed B-1
Exhibit C -Form of Bill of Sale C-1
Exhibit D-General Assignment and Assumption D-1
Exhibit E -Assignment and Assumption of Leases and Security Deposits E-1
Exhibit F -Notice to Vendor Regarding Termination of Contract F-1
Exhibit G -Tenant Notification G-1
Exhibit H-LURA H-1
Schedule 1 -Defined Terms Schedule 1
Schedule 1.1.16 -List of Excluded Permits Schedule 1.1.16
Schedule 1.1.21 -List of Excluded Fixtures and Tangible Personal Property Schedule 1.1.21
Schedule 3.5 -List of Materials Schedule 3.5
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PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT(this "Contract") is entered into as of the
[ J, day of December 2021 (the "Effective Date"), by and between LAKE CREEK
VILLAGE LLC, a Colorado limited liability company, having an address at 500 Broadway
Street, Eagle, Colorado 81631 ("Seller"), and TRALEE AFFORDABLE MOUNTAIN LLC,a
Colorado limited liability company, having a principal address at 7400 East Orchard Road, Suite
250 South, Greenwood Village, CO 80111 ("Purchaser").
NOW, THEREFORE, in consideration of mutual covenants set forth herein, Seller
and Purchaser hereby agree as follows:
RECITALS
A. Seller owns the real estate located in Eagle County, Colorado, as more particularly
described in Exhibit A attached hereto and made a part hereof, and the improvements thereon,
commonly known as Lake Creek Village Apartments, in Edwards, Colorado.
B. Purchaser desires to purchase, and Seller desires to sell, such land, improvements
and certain associated property, on the terms and conditions set forth below.
ARTICLE I
DEFINED TERMS
Unless otherwise defined herein, any term with its initial letter capitalized in this Contract
shall have the meaning set forth in Schedule 1 attached hereto and made a part hereof
ARTICLE II
PURCHASE AND SALE,PURCHASE PRICE &DEPOSIT
Purchase and Sale. Seller agrees to sell and convey the Property to Purchaser and
Purchaser agrees to purchase the Property from Seller, all in accordance with the terms and
conditions set forth in this Contract.
Purchase Price and Deposit. The total purchase price ("Purchase Price") for the
Property shall be an amount equal to $81,850,000.00, payable by Purchaser, as follows:
II.2.1. Within 2 Business Days following the Effective Date, Purchaser shall
deliver to Title Company of the Rockies, as agent for Chicago Title Insurance Company, 97 Main
Street, Suite W-201, Edwards, CO 81632, Attention: Laura Howe ("Escrow Agent" or "Title
Insurer") an initial deposit (the "Initial Deposit") of $750,000.00 by wire transfer of
immediately available funds ("Good Funds").
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II.2.2. Within 1 Business Day following the Feasibility Period expires, Purchaser
shall deliver to Escrow Agent an additional deposit(the"Additional Deposit") of$1,000,000.00
by wire transfer of Good Funds.
II.2.3. The balance of the Purchase Price for the Property shall be paid to and
received by Escrow Agent by wire transfer of Good Funds no later than 10:00 a.m. on the
Closing Date.
1I.3. Escrow Provisions Regarding Deposit.
11.3.1. Escrow Agent shall hold the Deposit and make delivery of the Deposit to
the party entitled thereto under the terms of this Contract. Escrow Agent shall invest the Deposit
in such short-term, high-grade securities, interest-bearing bank accounts,money market funds or
accounts, bank certificates of deposit or bank repurchase contracts as Escrow Agent, in its
discretion, deems suitable, and all interest and income thereon shall become part of the Deposit
and shall be remitted to the party entitled to the Deposit pursuant to this Contract.
II.3.2. Escrow Agent shall hold the Deposit until the earliest occurrence of(i)the
Closing Date, at which time the Deposit shall be applied against the Purchase Price, (ii) released
to Seller pursuant to Section 10.1, (iii) released to Purchaser pursuant to Section 3.2 or (iv) the
' date on which Escrow Agent shall be authorized to disburse the Deposit as set forth in Section
2.3.3. The tax identification numbers of the parties shall be furnished to Escrow Agent upon
request.
II.3.3. If prior to the Closing Date either party makes a written demand upon
Escrow Agent for payment of the Deposit, Escrow Agent shall give written notice to the other
party of such demand. If Escrow Agent does not receive a written objection from the other party
to the proposed payment within 5 Business Days after the giving of such notice, Escrow Agent is
hereby authorized to make such payment. If Escrow Agent does receive such written objection
within such 5-Business Day period, Escrow Agent shall continue to hold such amount until
otherwise directed by written instructions from the parties to this Contract or a final judgment or
arbitrator's decision. However, Escrow Agent shall have the right at any time to deliver the
Deposit and interest thereon, if any, with a court of competent jurisdiction in the state in which
the Property is located. Escrow Agent shall give written notice of such deposit to Seller and
Purchaser. Upon such deposit, Escrow Agent shall be relieved and discharged of all further
obligations and responsibilities hereunder. Any return of the Deposit to Purchaser provided for
in this Contract shall be subject to Purchaser's obligations set forth in Section 3.5.2.
IL3.4. The parties acknowledge that Escrow Agent is acting solely as a
stakeholder at their request and for their convenience, and that Escrow Agent shall not be
deemed to be the agent of either of the parties for any act or omission on its part unless taken or
suffered in bad faith in willful disregard of this Contract or involving gross negligence. Seller
and Purchaser jointly and severally shall indemnify and hold Escrow Agent harmless from and
against all costs, claims and expenses, including reasonable attorney's fees, incurred in
connection with the performance of Escrow Agent's duties hereunder, except with respect to
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actions or omissions taken or suffered by Escrow Agent in bad faith, in willful disregard of this
Contract or involving gross negligence on the part of the Escrow Agent.
II.3.5. The parties shall deliver to Escrow Agent an executed copy of this
Contract. Escrow Agent shall execute the signature page for Escrow Agent attached hereto
which shall confirm Escrow Agent's agreement to comply with the terms of Seller's closing
instruction letter delivered at Closing and the provisions of this Section 2.3.
II.3.6. Escrow Agent, as the person responsible for closing the transaction within
the meaning of Section 6045(e)(2)(A) of the Internal Revenue Code of 1986, as amended (the
"Code"), shall file all necessary information, reports, returns, and statements regarding the
transaction required by the Code including, but not limited to, the tax reports required pursuant
to Section 6045 of the Code. Further, Escrow Agent agrees to indemnify and hold Purchaser,
Seller, and their respective attorneys and brokers harmless from and against any Losses resulting
from Escrow Agent's failure to file the reports Escrow Agent is required to file pursuant to this
section.
ARTICLE III
FEASIBILITY PERIOD
Feasibility Period. Subject to the terms of Sections 3.3 and 3.4 and the rights of Tenants
under the Leases, from the Effective Date to and including the date that is the later of: (i)January
14, 2022, and (ii) thirty (30) days following the Effective Date (the "Feasibility Period"),
Purchaser, and its agents, contractors, engineers, surveyors, attorneys, and employees
(collectively, "Consultants") shall, at no cost or expense to Seller, have the right from time to
time to enter onto the Property to conduct and make any and all customary studies, tests,
examinations, inquiries, inspections and investigations of or concerning the Property, review the
Materials and otherwise confirm any and all matters which Purchaser may reasonably desire to
confirm with respect to the Property and Purchaser's intended use thereof (collectively, the
"Inspections").
Expiration of Feasibility Period. If any of the matters in Section 3.1 or any other title
or survey matters are unsatisfactory to Purchaser for any reason, or for no reason whatsoever, in
Purchaser's sole and absolute discretion, then Purchaser shall have the right to terminate this
Contract by giving written notice to that effect to Seller and Escrow Agent no later than 5:00
p.m. on or before the date of expiration of the Feasibility Period. If Purchaser provides such
notice, this Contract shall terminate and be of no further force and effect subject to and except
for the Survival Provisions, and Escrow Agent shall return the Initial Deposit to Purchaser. If
Purchaser fails to provide Seller with written notice of termination prior to the expiration of the
Feasibility Period, Purchaser's right to terminate under this Section 3.2 shall be permanently
waived and this Contract shall remain in full force and effect, the Deposit shall be
non-refundable, and Purchaser's obligation to purchase the Property shall be conditional only as
provided in Sections 8.1 and 10.2.
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Conduct of Investigation. Purchaser shall not permit any mechanics' or materialmen's
liens or any other liens to attach to the Property by reason of the performance of any work or the
purchase of any materials by Purchaser or any other party in connection with any Inspections
conducted by or for Purchaser. Purchaser shall give reasonable advanced notice to Seller prior to
any entry onto the Property and shall permit Seller to have a representative present during all
Inspections conducted at the Property. Purchaser shall take all reasonable actions and implement
all protections necessary to ensure that all actions taken in connection with the Inspections, and
all equipment, materials and substances generated, used or brought onto the Property pose no
material threat to the safety of persons, property or the environment.
111.4. Purchaser Indemnification.
111.4.1. Purchaser shall indemnify, hold harmless and, if requested by Seller (in
Seller's sole discretion), defend (with counsel approved by Seller) Seller, together with Seller's
affiliates (specifically, without limitation, ECHDA), successors, assigns, commissioners, board
members, employees, officers, directors, trustees, counsel, representatives, and agents
(collectively, including Seller, "Seller's Indemnified Parties"), from and against any and all
damages, mechanics' liens, materialmen's liens, liabilities, penalties, interest, losses, demands,
actions, causes of action, claims, costs and expenses (including reasonable attorneys' fees,
including the cost of in-house counsel and appeals) (collectively, "Losses") arising from or
related to Purchaser's or its Consultants' entry onto the Property, and any Inspections or other
acts by Purchaser or Purchaser's Consultants with respect to the Property during the Feasibility
Period or otherwise; provided, however, that Purchaser shall have no obligation to indemnify
Seller's Indemnified Parties with respect to Purchaser's mere discovery of pre-existing
conditions or issues.
111.4.2.Notwithstanding anything in this Contract to the contrary, Purchaser shall
not be permitted to perform any invasive tests on the Property without Seller's prior written
consent, which consent may be withheld in Seller's sole discretion. Further, Seller shall have the
right, without limitation, to disapprove any and all entries, surveys, tests (including, without
limitation, a Phase II environmental study of the Property), investigations and other matters that
in Seller's reasonable judgment could result in any injury to the Property or breach of any
contract, or expose Seller to any Losses or violation of applicable law, or otherwise adversely
affect the Property or Seller's interest therein. Purchaser shall use reasonable efforts to minimize
disruption to Tenants in connection with Purchaser's or its Consultants' activities pursuant to this
Section. No consent by Seller to any such activity shall be deemed to constitute a waiver by
Seller or assumption of liability or risk by Seller. Purchaser hereby agrees to restore, at
Purchaser's sole cost and expense, the Property to the same condition existing immediately prior
to Purchaser's exercise of its rights pursuant to this Article III. Purchaser shall maintain and
cause its third party consultants to maintain (a) casualty insurance and commercial general
liability insurance with coverages of not less than $1,000,000.00 for injury or death to any one
person and $3,000,000.00 for injury or death to more than one person and $1,000,000.00 with
respect to property damage, and (b) worker's compensation insurance for all of their respective
employees in accordance with the law of the state in which the Property is located. Purchaser
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shall deliver proof of the insurance coverage required pursuant to this Section 3.4.2 to Seller(in
the form of a certificate of insurance) prior to the earlier to occur of (i) Purchaser's or
Purchaser's Consultants' entry onto the Property, or (ii) the expiration of 5 days after the
Effective Date.
I11.5. Property Materials.
11I.5.1. Within 5 Business Days after the Effective Date, and to the extent the
same exist and are in Seller's possession or reasonable control (subject to Section 3.5.2), Seller
agrees to make the documents set forth on Schedule 3.5 (together with any other documents or
information provided by Seller or its agents to Purchaser with respect to the Property, the
"Materials") available at the Property for review and copying by Purchaser at Purchaser's sole
cost and expense. In the alternative, at Seller's option and within the foregoing time period,
Seller may deliver some or all of the Materials to Purchaser, or make the same available to
Purchaser on a secure web site (Purchaser agrees that any item to be delivered by Seller under
this Contract shall be deemed delivered to the extent available to Purchaser on such secured web
site). To the extent that Purchaser determines that any of the Materials have not been made
available or delivered to Purchaser pursuant to this Section 3.5.1, Purchaser shall notify Seller
and Seller shall use commercially reasonable efforts to deliver the same to Purchaser within 5
Business Days after such notification is received by Seller; provided, however, that under no
circumstances will the Feasibility Period be extended and Purchaser's sole remedy will be to
terminate this Contract pursuant to Section 3.2.
111.5.2. In providing the Materials to Purchaser, other than Seller's
Representations, Seller makes no representation or warranty, express, written, oral, statutory, or
implied, and all such representations and warranties are hereby expressly excluded and
disclaimed. All Materials are provided for informational purposes only and, together with all
Third-Party Reports, shall be returned by Purchaser to Seller (or the destruction thereof shall be
certified in writing by Purchaser to Seller) as a condition to return of the Deposit to Purchaser if
this Contract is terminated for any reason. Recognizing that the Materials delivered or made
available by Seller pursuant to this Contract may not be complete or constitute all of such
documents which are in Seller's possession or control, but are those that are readily and
reasonably available to Seller, Purchaser shall not in any way be entitled to rely upon the
completeness or accuracy of the Materials and will instead in all instances rely exclusively on its
own Inspections and Consultants with respect to all matters which it deems relevant to its
decision to acquire, own and operate the Property.
II1.5.3. In addition to the items set forth on Schedule 3.5, no later than 5 Business
Days after the Effective Date, Seller shall deliver to Purchaser (or otherwise make available to
Purchaser as provided under Section 3.5.1) the most recent rent roll for the Property, which rent
roll is that which Seller uses in the ordinary course of operating the Property(the"Rent Roll").
Seller makes no representations or warranties regarding the Rent Roll other than the express
representation set forth in Section 6.1.5.
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III.5.4. In addition to the items set forth on Schedule 3.5, no later than 5 Business
Days after the Effective Date, Seller shall deliver to Purchaser (or otherwise make available to
Purchaser as provided under Section 3.5.1) a list of all current Property Contracts and copies of
such Property Contracts (the "Property Contracts List"). Seller makes no representations or
warranties regarding the Property Contracts List other than the express representations set forth
in Section 6.1.6.
Property Contracts. On or before the expiration of the Feasibility Period, Purchaser
may deliver written notice to Seller (the "Property Contracts Notice") specifying any Property
Contracts which Purchaser desires to terminate at the Closing (the "Terminated Contracts");
provided that (a) the effective date of such termination on or after Closing shall be subject to the
express terms of such Terminated Contracts, (b) if any such Property Contract cannot by its
terms be terminated at Closing, it shall be assumed by Purchaser and not be a Terminated
Contract, and (c) to the extent that any such Terminated Contract requires payment of a penalty,
premium, or damages, including liquidated damages, for cancellation, Purchaser shall be solely
responsible for the payment of any such cancellation fees, penalties or damages, including
liquidated damages. If Purchaser fails to deliver the Property Contracts Notice on or before the
expiration of the Feasibility Period, there shall be no Terminated Contracts and Purchaser shall
assume all Property Contracts at the Closing. If Purchaser delivers the Property Contracts Notice
to Seller on or before the expiration of the Feasibility Period, then simultaneously therewith,
Purchaser shall deliver to Seller a vendor termination notice (in the form attached hereto as
Exhibit F) for each Terminated Contract informing the vendor(s) of the termination of such
Terminated Contract as of the Closing Date (subject to any delay in the effectiveness of such
termination pursuant to the express terms of each applicable Terminated Contract) (the "Vendor
Terminations"). Seller shall sign the Vendor Terminations prepared by Purchaser, and deliver
them to all applicable vendors. To the extent that any Property Contract to be assigned to
Purchaser requires vendor consent, then, prior to the Closing, Purchaser may attempt to obtain
from each applicable vendor a consent (each a "Required Assignment Consent") to such
assignment. Purchaser shall indemnify, hold harmless and, if requested by Seller(in Seller's sole
discretion), defend (with counsel approved by Seller) Seller's Indemnified Parties from and
against any and all Losses arising from or related to Purchaser's failure to obtain any Required
Assignment Consent.
ARTICLE IV
TITLE
Title Documents. Within 10 days after the Effective Date, Seller shall cause to be
delivered to Purchaser a standard form commitment or preliminary title report ("Title
Commitment") to provide an American Land Title Association owner's title insurance policy
for the Property, using the current policy jacket customarily provided by the Title Insurer, in an
amount equal to the Purchase Price (or the portion allocated to the real property, if applicable),
together with copies of all instruments identified as exceptions therein (together with the Title
Commitment, referred to herein as the "Title Documents"). Seller shall be responsible only for
payment of the basic premium for the Title Policy (as defined below). Purchaser shall be solely
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responsible for payment of all other costs relating to procurement of the Title Commitment, the
Title Policy, extended coverage and any requested endorsements.
Survey. Subject to Section 3.5.2, within 3 Business Days after the Effective Date, Seller
shall deliver to Purchaser or make available at the Property any existing survey of the Property
(the "Existing Survey"). Purchaser may, at its sole cost and expense, order a new or updated
survey of the Property either before or after the Effective Date (such new or updated survey,
together with the Existing Survey, is referred to herein as the"Survey").
Objection and Response Process. On or before the date which is 10 days prior to the
end of the Feasibility Period (the "Objection Deadline"), Purchaser shall give written notice (the
"Objection Notice") to the attorneys for Seller of any matter set forth in the Title Documents or
the Survey to which Purchaser objects (the "Objections"). If Purchaser fails to tender an
Objection Notice on or before the Objection Deadline, Purchaser shall be deemed to have
approved and irrevocably waived any objections to any matters covered by the Title Documents
and the Survey. On or before 5 days after the Objection Notice is given (the "Response
Deadline"), Seller may, in Seller's sole discretion, give Purchaser notice (the "Response
Notice") of those Objections which Seller is willing to cure, if any. Seller shall be entitled to
reasonable adjournments of the Closing Date to cure the Objections. If Seller fails to deliver a
Response Notice by the Response Deadline, Seller shall be deemed to have elected not to cure or
otherwise resolve any matter set forth in the Objection Notice. If Purchaser is dissatisfied with
the Response Notice or the lack of Response Notice, Purchaser may, as its exclusive remedy,
exercise its right to terminate this Contract prior to the expiration of the Feasibility Period in
accordance with the provisions of Section 3.2. If Purchaser fails to timely exercise such right,
Purchaser shall be deemed to accept the Title Documents and Survey with resolution, if any, of
the Objections set forth in the Response Notice (or if no Response Notice is tendered, without
any resolution of the Objections) and without any reduction or abatement of the Purchase Price.
Permitted Exceptions. The Deed delivered pursuant to this Contract shall be subject to
the following, all of which shall be deemed"Permitted Exceptions":
IV.4.1. All matters shown in the Title Documents and the Survey, other than (a)
those Objections, if any, which Seller has agreed to cure pursuant to the Response Notice under
Section 4.3, (b) mechanics' liens and taxes due and payable with respect to the period preceding
Closing, (c) the standard exception regarding the rights of parties in possession, which shall be
limited to those parties in possession pursuant to the Leases, and (d) the standard exception
pertaining to taxes, which shall be limited to taxes and assessments payable in the year in which
the Closing occurs and subsequent taxes and assessments;
IV.4.2. The Assumed Encumbrances;
IV.4.3. Applicable zoning and governmental regulations and ordinances; and
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IV.4.4. Any defects in or objections to title to the Property, or title exceptions or
encumbrances, arising by, through or under Purchaser.
Assumed Encumbrances. Purchaser acknowledges and agrees that, in connection with
and as a condition of the sale and conveyance of the Property, Purchaser will assume and the
Property shall be subject to the following, all of which shall be deemed "Assumed
Encumbrances":
IV.5.1. A trail easement within the boundaries of the area identified as "bicycle
path easement" on the Final Plat of Cottonwood Filing No. 1, recorded at Reception No. 510957
in the real property records of Eagle County, Colorado, in a form to be mutually approved by the
Purchaser and Seller during the Feasibility Period (the "Trail Easement");
IV.5.2. A land use regulatory agreement for the benefit of the Eagle County
Housing and Development Authority("ECHDA"), restricting use and occupancy of the Property
solely to rental to eligible local workforce households at rent levels of 75% of the area median
household income for Eagle County, Colorado, in the form attached as Exhibit H(the "LURA");
IV.5.3. A right of first offer for the benefit of ECHDA, its successors and assigns,
to acquire the Property at such time that the Purchaser desires to sell the Property or receives a
bona fide third party offer than Purchaser wishes to consider, in a form to be mutually approved
by the Purchaser and Seller during the Feasibility Period(the"ROFO"); and
IV.5.4. A restatement of the existing commercial lease by ECG of the upper floor
of the Property clubhouse, together with one classroom, to be documented in a form to be
mutually approved by the Purchaser and Seller during the Feasibility Period (the "Commercial
Lease") including: (a) the permitted use and permitted subleasing for community supportive
services, include Early Headstart education, food bank, and other local community service
partners, (b) temporary license of other parts of the Property clubhouse for special events
associated with community supportive services, such as sponsored dinners, on terms and
conditions reasonably approved the landlord, from time to time, (c) initial 10-year term, (d)
initial rent of $15,000, increased annually by CPI, (e) gross rent, including taxes, utilities,
landlord's insurance, and 8 assigned parking spaces with unassigned space available visitor
parking; and(f) security deposit of$1,250.
Subsequently Disclosed Exceptions. If at any time after the expiration of the Feasibility
Period, any update to the Title Commitment discloses any additional item that materially
adversely affects title to the Property which was not disclosed on any version of or update to the
Title Commitment delivered to Purchaser (the "New Exception"), Purchaser shall have a period
of 5 days from the date of its receipt of such update (the "New Exception Review Period") to
review and notify Seller in writing of Purchaser's approval or disapproval of the New Exception.
If Purchaser disapproves of the New Exception, Seller may, in Seller's sole discretion, notify
Purchaser as to whether it is willing to cure the New Exception. If Seller elects to cure the New
Exception, Seller shall be entitled to reasonable adjournments of the Closing Date to cure the
New Exception (but in any event for not more than 30 days following the New Exception
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Review Period). If Seller fails to deliver a notice to Purchaser within 3 days after the expiration
of the New Exception Review Period, Seller shall be deemed to have elected not to cure the New
Exception. If Purchaser is dissatisfied with Seller's response, or lack thereof,Purchaser may, as
its exclusive remedy elect either: (i) to terminate this Contract, in which event the Deposit shall
be promptly returned to Purchaser or (ii) to waive the New Exception and proceed with the
transactions contemplated by this Contract, in which event Purchaser shall be deemed to have
approved the New Exception. If Purchaser fails to notify Seller of its election to terminate this
Contract in accordance with the foregoing sentence within 6 days after the expiration of the New
Exception Review Period, Purchaser shall be deemed to have elected to approve and irrevocably
waive any objections to the New Exception.
Purchaser Financing. Purchaser assumes full responsibility to obtain the funds required
for settlement, and Purchaser's acquisition of such funds shall not be a contingency to the
Closing. Purchaser does not intend to seek third-party lender financing for the acquisition.
ARTICLE V
CLOSING
Closing Date. The Closing shall occur on the date that is the later of: (i) January 28,
2022, and (ii) fifteen (15) days following the expiration of the Feasibility Period (the "Closing
Date"), through an escrow with Escrow Agent, whereby the Seller, Purchaser and their attorneys
need not be physically present at the Closing and may deliver documents by overnight air courier
or other means. The Closing Date may be extended without penalty at the option of Purchaser to
a date not later than 10 Business Days following the Closing Date specified in the first sentence
of this paragraph above(the "Initial Closing Date"), subject to the condition that Purchaser both
(a) delivers written notice to Seller and Escrow Agent no later than 1 Business Day prior to the
Initial Closing Date, stating the new Closing Date; and (b) concurrently with such notice,
delivers to Escrow Agent an additional deposit of$1,200,000 (the "Extension Deposit") by wire
transfer in Good Fund. The Extension Deposit, together with any interest accrued thereon, shall
become part of the Deposit to be held by Escrow Agent in accordance with this Contract.
Seller Closing Deliveries. No later than 1 Business Day prior to the Closing Date, Seller
shall deliver to Escrow Agent, each of the following items:
V.2.1. Special Warranty Deed (the "Deed") in the form attached as Exhibit B to
Purchaser, subject to the Permitted Exceptions.
V.2.2. A Bill of Sale in the form attached as Exhibit C.
V.2.3. A General Assignment in the form attached as Exhibit D (the "General
Assignment").
V.2.4. An Assignment of Leases and Security Deposits in the form attached as
Exhibit E(the "Leases Assignment").
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V.2.5. Counterparts of Seller, ECHDA, and ECG, as applicable, for the Trail
Easement, LURA,ROFO, Commercial Lease and SLP Addendum.
V.2.6. Seller's closing statement.
V.2.7. A title affidavit or an indemnity form reasonably acceptable to Seller,
which is sufficient to enable Title Insurer to issue the Title Policy pursuant to the Title
Commitment.
V.2.8. A certification of Seller's non-foreign status pursuant to Section 1445 of
the Internal Revenue Code of 1986, as amended.
V.2.9. Any declaration or other statements which may be required to be
submitted to the State Treasurer, including an information regarding conveyance(DR-1083).
V.2.10.Resolutions, certificates of good standing, and such other organizational
documents as Title Insurer shall reasonably require evidencing Seller's authority to consummate
this transaction.
V.2.11.An updated Rent Roll effective as of a date no more than 3 Business Days
prior to the Closing Date; provided, however, that the content of such updated Rent Roll shall in
no event expand or modify the conditions to Purchaser's obligation to close as specified under
Section 8.1.
I.1.1. An updated Property Contracts List effective as of a date no more than 3
Business Days prior to the Closing Date; provided, however, that the content of such updated
Property Contracts List shall in no event expand or modify the conditions to Purchaser's
obligation to close as specified under Section 8.1, and in no event include any new Property
Contracts were not approved by Purchaser pursuant to Section 7.1.
Purchaser Closing Deliveries. No later than 1 Business Day prior to the Closing Date
(except for the balance of the Purchase Price which is to be delivered at the time specified in
Section 2.2.5), Purchaser shall deliver to the Escrow Agent (for disbursement to Seller upon the
Closing)the following items:
V.3.1. The full Purchase Price (with credit for the Deposit), plus or minus the
adjustments or prorations required by this Contract.
V.3.2. A title affidavit or an indemnity form (pertaining to Purchaser's activity on
the Property prior to Closing), reasonably acceptable to Purchaser, which is sufficient to enable
Title Insurer to delete the standard pre-printed exceptions to the title insurance policy to be
issued pursuant to the Title Commitment, along with any other requested endorsements.
V.3.3. Any declaration or other statements which may be required to be
submitted to the County assessor, including a real property transfer declaration (TD-1000).
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V.3.4. Purchaser's closing statement.
V.3.5. A countersigned counterpart of the General Assignment.
V.3.6. A countersigned counterpart of the Leases Assignment.
V.3.7. Countersigned and acknowledged counterparts to the LURA, ROFO,
Commercial Lease and SLP Addendum.
V.3.8. Notification letters to all Tenants prepared and executed by Purchaser in
the form attached hereto as Exhibit G, which shall be delivered to all Tenants by Purchaser
immediately after Closing.
V.3.9. Any cancellation fees or penalties due to any vendor under any
Terminated Contract as a result of the termination thereof.
V.3.10.Evidence that $1,300,000 has, or will concurrently with Closing, been
deposited into a segregated reserve account (the "CapEx Reserve") for the capital expenditures
to be made by the Purchaser after the Closing pursuant to Section 7.4 hereof.
V.3.11.Resolutions, certificates of good standing, and such other organizational
documents as Title Insurer shall reasonably require evidencing Purchaser's authority to
consummate this transaction.
V.4. Closing Prorations and Adjustments.
V.4.1. General. All normal and customarily proratable items, including,without
limitation, collected rents, operating expenses, personal property taxes, other operating expenses
and fees, shall be prorated as of the Closing Date, Seller being charged or credited, as
appropriate, for all of same attributable to the period up to the Closing Date (and credited for any
amounts paid by Seller attributable to the period on or after the Closing Date, if assumed by
Purchaser) and Purchaser being responsible for, and credited or charged, as the case may be, for
all of the same attributable to the period on and after the Closing Date. Seller shall prepare a
proration schedule (the "Proration Schedule") of the adjustments described in this Section 5.4
prior to Closing.
V.4.2. Operating Expenses. All of the operating, maintenance, taxes (other than
real estate taxes), and other expenses incurred in operating the Property that Seller customarily
pays, and any other costs incurred in the ordinary course of business for the management and
operation of the Property, shall be prorated on an accrual basis. Seller shall pay all such
expenses that accrue prior to the Closing Date and Purchaser shall pay all such expenses that
accrue from and after the Closing Date.
V.4.3. Utilities. The final readings and final billings for utilities will be made if
possible as of the Closing Date, in which case Seller shall pay all such bills as of the Closing
Date and no proration shall be made at the Closing with respect to utility bills. Otherwise, a
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proration shall be made based upon the parties' reasonable good faith estimate. Seller shall be
entitled to the return of any deposit(s) posted by it with any utility company, and Seller shall
notify each utility company serving the Property to terminate Seller's account, effective as of
noon on the Closing Date.
V.4.4. Real Estate Taxes. The Property is currently not subject to real estate ad
valorem or similar taxes for the Property. Purchase shall assume at Closing all future
assessments and levies of real estate ad valorem or similar taxes for the Property. If necessary,
Purchaser shall be responsible for filing all applications for creation of tax parcels for the
Property with the Eagle County Assessor and Treasurer's Offices.Notwithstanding the forgoing,
the parties acknowledge and agree that Purchaser desires, as a condition of Closing, ECHDA to
act as a special limited member of Purchaser so that the Property continues to qualify for County
property tax exemption. As special limited member, ECHDA will have certain additional rights
and benefits, including a leasing preference for ECHDA or a community partner designated by
ECHDA to lease up to 16 residential units in the Property that become available while ECHDA
remains a special limited member. Accordingly, within five (5) days following the Effective
Date, the Parties shall circulate one or more proposed forms of addendum to Purchaser's
operating agreement. The final form of addendum (the "SLP Addendum") shall be negotiated
and mutually approved by Purchaser and Seller during the Feasibility Period.
V.4.5. Property Contracts. Purchaser shall assume at Closing the obligations
under the Property Contracts assumed by Purchaser; however, operating expenses shall be
prorated under Section 5.4.2.
V.4.6. Leases.
V.4.6.1 All collected rent (whether fixed monthly rentals, additional
rentals, escalation rentals, retroactive rentals, operating cost pass-throughs or other sums and
charges payable by Tenants under the Leases), income and expenses from any portion of the
Property shall be prorated as of the Closing Date. Purchaser shall receive all collected rent and
income attributable to dates from and after the Closing Date. Seller shall receive all collected
rent and income attributable to dates prior to the Closing Date. Notwithstanding the foregoing,
no prorations shall be made in relation to either (a) non-delinquent rents which have not been
collected as of the Closing Date, or (b) delinquent rents existing, if any, as of the Closing Date
(the foregoing (a) and (b) referred to herein as the "Uncollected Rents"). In adjusting for
Uncollected Rents, no adjustments shall be made in Seller's favor for rents which have accrued
and are unpaid as of the Closing, but Purchaser shall pay Seller such accrued Uncollected Rents
as and when collected by Purchaser. Purchaser agrees to bill Tenants of the Property for all
Uncollected Rents. Notwithstanding the foregoing, Purchaser's obligation to collect Uncollected
Rents shall be limited to Uncollected Rents of not more than 90 days past due, and Purchaser's
collection of rents shall be applied, first, towards current rent due and owing under the Leases,
second towards any past due rent owing to Purchaser under the Leases, and third to Uncollected
Rents. After the Closing, Seller shall continue to have the right, but not the obligation, in its own
name, to: (i) apply for and collect from any governmental and non-governmental sources of
relief from rent payments during the period of Uncollected Rents, including disaster relief and
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emergency rental assistance programs; and (ii) demand payment of and to collect Uncollected
Rents owed to Seller by any Tenant, but specifically excluding the right to continue or
commence legal actions or proceedings against any Tenant and the delivery of the Leases
Assignment shall not constitute a waiver by Seller of such right. Purchaser agrees to cooperate
with Seller in connection with all efforts by Seller to collect such Uncollected Rents and to take
reasonable steps, whether before or after the Closing Date, as may be necessary to carry out the
intention of the foregoing, including, without limitation, the delivery to Seller, within 7 days
after a written request, of any relevant books and records (including, without limitation, rent
statements, receipted bills and copies of tenant checks used in payment of such rent), the
execution of any and all consents or other documents, and the undertaking of any act reasonably
necessary for the collection of such Uncollected Rents by Seller; provided, however, that
Purchaser's obligation to cooperate with Seller pursuant to this sentence shall not obligate
Purchaser to terminate any Tenant lease with an existing Tenant or evict any existing Tenant
from the Property.
V.4.6.2 At Closing, Purchaser shall receive a credit against the Purchase
Price in an amount equal to the received and unapplied balance of all cash (or cash equivalent)
Tenant Deposits, including, but not limited to, security, damage, pet or other refundable deposits
paid by any of the Tenants to secure their respective obligations under the Leases, together, in all
cases, with any interest payable to the Tenants thereunder as may be required by their respective
Tenant Lease or state law (the "Tenant Security Deposit Balance"). Any cash (or cash
equivalents) held by Seller which constitutes the Tenant Security Deposit Balance shall be
retained by Seller in exchange for the foregoing credit against the Purchase Price and shall not be
transferred by Seller pursuant to this Contract(or any of the documents delivered at Closing), but
the obligation with respect to the Tenant Security Deposit Balance nonetheless shall be assumed
by Purchaser. The Tenant Security Deposit Balance shall not include any non-refundable
deposits or fees paid by Tenants to Seller, either pursuant to the Leases or otherwise.
V.4.7. Insurance. No proration shall be made in relation to insurance premiums
and insurance policies will not be assigned to Purchaser. Seller shall have the risk of loss of the
Property until 11:59 p.m. the day prior to the Closing Date, after which time the risk of loss shall
pass to Purchaser and Purchaser shall be responsible for obtaining its own insurance thereafter.
V.4.8. Closing Costs. Purchaser shall pay any transfer, sales, use, gross receipts
or similar taxes, the recording costs for the recording of the Deed, any premiums or fees required
to be paid by Purchaser with respect to the Title Policy pursuant to Section 4.1, and one-half of
the customary closing costs of the Escrow Agent. Seller shall pay the base premium for the Title
Policy to the extent required by Section 4.1, the documentary fees, recording fees for the LURA,
Trail Easement, and ROFO, and one-half of the customary closing costs of the Escrow Agent.
V.4.9. Utility Contracts. Seller has entered into agreements for the purchase of
electricity, gas and, water/sewer service for the Property (a "Utility Contract") that Purchaser
will transfer and assume as of the Closing Date, and utility costs shall be prorated under
Section 5.4.2.
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V.4.10. I. Possession of the Property, subject to the Leases, Property
Contracts, other than Terminated Contracts, and Permitted Exceptions, shall be delivered to
Purchaser at the Closing upon release from escrow of all items to be delivered by Purchaser
pursuant to Section 5.3. To the extent reasonably available to Seller, originals or copies of the
Leases and Property Contracts, lease files, warranties, guaranties, operating manuals, keys to the
property, and Seller's books and records (other than proprietary information) (collectively,
"Seller's Property-Related Files and Records") regarding the Property shall be made available
to Purchaser at the Property after the Closing. Purchaser agrees, for a period of not less than
three (3) years after the Closing (the "Records Hold Period"), to (a) provide and allow Seller
reasonable access to Seller's Property-Related Files and Records for purposes of inspection and
copying thereof, and (b) reasonably maintain and preserve Seller's Property-Related Files and
Records. If at any time after the Records Hold Period, Purchaser desires to dispose of Seller's
Property-Related Files and Records, Purchaser must first provide Seller prior written notice (the
"Records Disposal Notice"). Seller shall have a period of 30 days after receipt of the Records
Disposal Notice to enter the Property (or such other location where such records are then stored)
and remove or copy those of Seller's Property-Related Files and Records that Seller desires to
retain.
Post Closing Adjustments. Purchaser or Seller may request that Purchaser and Seller
undertake to re-adjust any item on the Proration Schedule (or any item omitted therefrom), in
accordance with the provisions of Section 5.4 of this Contract; provided, however, that neither
party shall have any obligation to re-adjust any items (a) after the expiration of 90 days after
Closing, or (b) subject to such 90-day period, unless such items exceed $5,000.00 in magnitude
(either individually or in the aggregate).
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER
Seller's Representations. Except, in all cases, for any fact, information or condition
disclosed in the Title Documents, the Permitted Exceptions, the Property Contracts, or the
Materials, or which is otherwise known by Purchaser prior to the Closing, Seller represents and
warrants to Purchaser the following (collectively, the "Seller's Representations") as of the
Effective Date and as of the Closing Date; provided that Purchaser's remedies if any of such
Seller's Representations are untrue as of the Closing Date are limited to those set forth in Section
8.1:
V1.1.1. Seller is validly existing and in good standing under the laws of the State
of Colorado; and has or at the Closing shall have the power and authority to sell and convey the
Property and to execute the documents to be executed by Seller and prior to the Closing will
have taken as applicable, all actions required for the execution and delivery of this Contract, and
the consummation of the transactions contemplated by this Contract. The compliance with or
fulfillment of the terms and conditions hereof will not conflict with, or result in a breach of, the
terms, conditions or provisions of, or constitute a default under, any contract to which Seller is a
party or by which Seller is otherwise bound, which conflict, breach or default would have a
material adverse effect on Seller's ability to consummate the transaction contemplated by this
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Contract or on the Property. Subject to Section 8.2.4, this Contract is a valid and binding
agreement against Seller in accordance with its terms;
VI.1.2. Seller is not a "foreign person," as that term is used and defined in the
Internal Revenue Code, Section 1445, as amended;
VI.1.3.Except for (a) any actions by Seller to evict Tenants under the Leases, or
(b) any matter covered by Seller's current insurance policy(ies),to Seller's knowledge, there are
no material actions, proceedings, litigation or governmental investigations, condemnation
actions, or notices of alleged violations or defaults, either pending or threatened in writing,
against the Property that adversely affect Seller's ability to convey the Property or that would
materially adversely affect the use or operation of the Property; including without limitation, any
alleged violations of any zoning, building, health, safety or other laws, statutes, ordinances,
orders, codes or regulations with respect to the Property or any part thereof which have not been
heretofore corrected;
VI.1.4.To Seller's knowledge, there are no material defaults by Seller under any
of the Leases or Property Contracts that will not be terminated on the Closing Date;
VI.1.5.To Seller's knowledge, the Rent Roll (as updated pursuant to
Section 5.2.9) is accurate in all material respects;
VI.1.6.To Seller's knowledge,the Property Contracts List(as updated pursuant to
Section 5.2.10) is accurate in all material respects;
VI.1.7.To Seller's knowledge, and except as disclosed in any Materials provided
to Purchaser: (i) the Property has not been used for the storage, disposal or generation of any
hazardous substances or materials on, under, or about the Property, including but not limited to
soil and groundwater, in violation of any federal, state, or local law, ordinance, or regulation, and
(ii) there is no written notice from any governmental authority claiming the Property has any
environmental, health, or safety hazards on, under, or about the Property, including but not
limited to mold, asbestos, soil, and groundwater conditions.
AS-IS. Except for Seller's Representations and the obligations of Seller set forth in
Article XI below or in Deed, Bill of Sale, General Assignment or Lease Assignment executed by
Seller at Closing (collectively the "Seller Closing Documents"), the Property is expressly
purchased and sold "AS IS," "WHERE IS," and "WITH ALL FAULTS." The Purchase Price
and the terms and conditions set forth herein are the result of arm's-length bargaining between
entities familiar with transactions of this kind, and said price, terms and conditions reflect the
fact that Purchaser shall have the benefit of, but is not relying upon, any information provided by
Seller or Broker or statements, representations or warranties, express or implied, made by or
enforceable directly against Seller or Broker, including, without limitation, any relating to the
value of the Property, the physical or environmental condition of the Property, any state, federal,
county or local law, ordinance, order or permit; or the suitability, compliance or lack of
compliance of the Property with any regulation, or any other attribute or matter of or relating to
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the Property (other than any covenants of title contained in the Deed conveying the Property, the
Seller's Representations and the Seller Closing Documents). Purchaser agrees that Seller shall
not be responsible or liable to Purchaser for any defects, errors or omissions, or on account of
any conditions affecting the Property (other than for breaches of Seller's Representations or the
covenants of Seller set forth in Article XI below or Seller's obligations in the Seller Closing
Documents). Purchaser represents and warrants that, as of the date hereof and as of the Closing
Date, it has and shall have reviewed and conducted such independent analyses, studies
(including, without limitation, environmental studies and analyses concerning the presence of
lead, asbestos, water intrusion and/or fungal growth and any resulting damage, PCBs and radon
in and about the Property), reports, investigations and inspections as it deems appropriate in
connection with the Property. If Seller provides or has provided any documents, summaries,
opinions or work product of consultants, surveyors, architects, engineers, title companies,
governmental authorities or any other person or entity with respect to the Property, including,
without limitation, the offering prepared by Broker, Purchaser and Seller agree that Seller has
done so or shall do so only for the convenience of both parties, Purchaser shall not rely thereon
and the reliance by Purchaser upon any such documents, summaries, opinions or work product
shall not create or give rise to any liability of or against Seller's Indemnified Parties, except for
Seller's Representations and the Seller Closing Documents. Purchaser acknowledges and agrees
that no representation has been made and no responsibility is assumed by Seller with respect to
current and future applicable zoning or building code requirements or the compliance of the
Property with any other laws, rules, ordinances or regulations, the financial earning capacity or
expense history of the Property, the continuation of contracts, continued occupancy levels of the
Property, or any part thereof, or the continued occupancy by tenants of any Leases or, without
limiting any of the foregoing, occupancy at Closing. Prior to Closing and except as expressly
contained in this Contract, Seller shall have the right, but not the obligation, to enforce its rights
against any and all Property occupants, guests or tenants. Purchaser agrees that the departure or
removal, prior to Closing, of any of such guests, occupants or tenants shall not be the basis for,
nor shall it give rise to, any claim on the part of Purchaser, nor shall it affect the obligations of
Purchaser under this Contract in any manner whatsoever, except as set forth in Section 8.1.4
below; and Purchaser shall close title and accept delivery of the Deed with or without such
tenants in possession and without any allowance or reduction in the Purchase Price under this
Contract. Purchaser, its successors and assigns, and anyone claiming by, through or under
Purchaser, hereby fully releases Seller's Indemnified Parties from, and irrevocably waives its
right to maintain, any and all claims and causes of action that it or they may now have or
hereafter acquire against Seller's Indemnified Parties with respect to: (i) any and all Losses
arising from or related to any defects, errors, omissions or other conditions affecting the Property
(other than Losses arising from a breach of Seller's Representations or the covenants of Seller set
forth in Article XI below); and (ii) any and all Losses relating to the matters set forth in this
Section 6.2 in existence as of the Closing Date (other than any Losses arising from a breach of
Seller's Representations or from third party tort claims arising in connection with the use or
operation of the Property prior to the Closing Date). The Parties acknowledge and agree that this
Section 6.2 is not intended to limit the rights, responsibilities or remedies of the Parties or their
affiliates under the LURA, ROFO, Commercial Lease or SLP Addendum.
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Survival of Seller's Representations. Seller and Purchaser agree that Seller's
Representations shall survive Closing for a period of 6 months (the "Survival Period"). Seller
shall have no liability after the Survival Period with respect to Seller's Representations contained
herein except to the extent that Purchaser has notified Seller during the Survival Period of
Seller's breach of any of Seller's Representations. Under no circumstances shall Seller be liable
to Purchaser for more than $750,000.00 in any individual instance or in the aggregate for all
breaches of Seller's Representations, nor shall Purchaser be entitled to bring any claim for a
breach of Seller's Representations unless the claim for damages (either in the aggregate or as to
any individual claim) by Purchaser exceeds $5,000. In the event that Seller breaches any
representation contained in Section 6.1 and Purchaser had knowledge of such breach prior to the
Closing Date, and elected to close regardless, Purchaser shall be deemed to have waived any
right of recovery for such breach, and Seller shall not have any liability in connection therewith.
Definition of Seller's Knowledge. Any representations and warranties made "to the
knowledge of Seller" shall not be deemed to imply any duty of inquiry. For purposes of this
Contract, the term Seller's "knowledge" shall mean and refer only to actual knowledge of the
Executive Director and Portfolio Manager of Seller's affiliate, ECHDA, and shall not be
construed to refer to the knowledge of any other partner, commissioner, board member, officer,
director, trustee, counsel, agent, employee or representative of Seller, or any affiliate of Seller, or
to impose upon such individual any duty to investigate the matter to which such actual
knowledge or the absence thereof pertains, or to impose upon such persons any individual
personal liability.
Representations and Warranties of Purchaser. For the purpose of inducing Seller to
enter into this Contract and to consummate the sale and purchase of the Property in accordance
herewith, Purchaser represents and warrants to Seller the following as of the Effective Date and
as of the Closing Date:
VI.5.1.Purchaser is a limited liability company duly organized, validly existing
and in good standing under the laws of the State of Colorado.
VI.5.2.Purchaser, acting through any of its or their duly empowered and
authorized officers or members, has all necessary entity power and authority to own and use its
properties and to transact the business in which it is engaged, and has full power and authority to
enter into this Contract, to execute and deliver the documents and instruments required of
Purchaser herein, and to perform its obligations hereunder; and no consent of any of Purchaser's
partners, directors, officers or members are required to so empower or authorize Purchaser. The
compliance with or fulfillment of the terms and conditions hereof will not conflict with, or result
in a breach of, the terms, conditions or provisions of, or constitute a default under, any contract
to which Purchaser is a party or by which Purchaser is otherwise bound, which conflict, breach
or default would have a material adverse affect on Purchaser's ability to consummate the
transaction contemplated by this Contract. This Contract is a valid, binding and enforceable
agreement against Purchaser in accordance with its terms.
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VI.5.3.No pending or, to the knowledge of Purchaser, threatened litigation exists
which if determined adversely would restrain the consummation of the transactions contemplated
by this Contract or would declare illegal, invalid or non-binding any of Purchaser's obligations
or covenants to Seller.
VI.5.4.Other than Seller's Representations, Purchaser has not relied on any
representation or warranty made by Seller or any representative of Seller (including, without
limitation, Broker) in connection with this Contract and the acquisition of the Property.
VI.5.5.The Broker and its affiliates do not, and will not at the Closing, have any
direct or indirect legal, beneficial, economic or voting interest in Purchaser(or in an assignee of
Purchaser, which pursuant to Section 13.3, acquires the Property at the Closing), nor has
Purchaser or any affiliate of Purchaser granted (as of the Effective Date or the Closing Date)the
Broker or any of its affiliates any right or option to acquire any direct or indirect legal, beneficial,
economic or voting interest in Purchaser.
VI.5.6.Purchaser is not a Prohibited Person.
VI.5.7.To Purchaser's knowledge, none of its investors, affiliates or brokers or
other agents (if any), acting or benefiting in any capacity in connection with this Contract is a
Prohibited Person.
VI.5.8.The funds or other assets Purchaser will transfer to Seller under this
Contract are not the property of, or beneficially owned, directly or indirectly, by a Prohibited
Person.
VI.5.9.The funds or other assets Purchaser will transfer to Seller under this
Contract are not the proceeds of specified unlawful activity as defined by 18 U.S.C.
§ 1956(c)(7).
ARTICLE VII
OPERATION OF THE PROPERTY
Leases and Property Contracts. During the period of time from the Effective Date to
the Closing Date, in the ordinary course of business Seller may enter into new Property
Contracts, new Leases, renew existing Leases or modify, terminate or accept the surrender or
forfeiture of any of the Leases, modify any Property Contracts, or institute and prosecute any
available remedies for default under any Lease or Property Contract without first obtaining the
written consent of Purchaser; provided, however, Seller agrees that any such new or renewed
Leases shall not have a term in excess of 1 year without the prior written consent of Purchaser
and any such new/modified Property Contracts shall not have a term beyond the Closing Date,
without the prior written consent of Purchaser.
General Operation of Property. Except as specifically set forth in this Article VII,
Seller shall operate the Property after the Effective Date in the ordinary course of business, and
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except as necessary in Seller's sole discretion to address (a) any life or safety issue at the
Property or (b) any other matter which in Seller's reasonable discretion materially adversely
affects the use, operation or value of the Property, Seller will not make any material alterations to
the Property or remove any material Fixtures and Tangible Personal Property without the prior
written consent of Purchaser which consent shall not be unreasonably withheld, denied or
delayed.
Liens. Other than utility easements and temporary construction easements granted by
Seller in the ordinary course of business, Seller covenants that it will not voluntarily create or
cause any lien or encumbrance to attach to the Property between the Effective Date and the
Closing Date (other than Leases and Property Contracts as provided in Section 7.1) unless
Purchaser approves such lien or encumbrance, which approval shall not be unreasonably
withheld, conditioned or delayed. If Purchaser approves any such subsequent lien or
encumbrance, the same shall be deemed a Permitted Encumbrance for all purposes hereunder.
Purchaser Capital Expenditures. During the 18-month period after the Closing Date,
Purchaser will use its commercially reasonable efforts to use all funds in the CapEx Reserve for
improvements, repairs, replacements and other capital expenditures that benefit the Land,
Improvements, Fixtures and Tangible Personal Property.
ARTICLE VIII
CONDITIONS PRECEDENT TO CLOSING
Purchaser's Conditions to Closing. In addition to other conditions or obligations of
Seller contained in this Contract, Purchaser's obligation to close under this Contract, shall be
subject to and conditioned upon the fulfillment of the following conditions precedent:
VIII.1.1. Upon payment of the amount due to Seller as shown on the closing
statement, Seller will cause the Title Company to deliver to Purchaser an irrevocable
commitment of the Title Company to issue its policy of title insurance in accordance with the
requirements of the Commitment subject only to the Permitted Exceptions(the "Title Policy");
VIII.1.2. All of the documents required to be delivered by Seller to
Purchaser at the Closing pursuant to the terms and conditions hereof shall have been delivered;
VIII.1.3. Each of Seller's Representations shall be true in all material
respects as of the Closing Date, as reflected in a written reaffirmation;
VIII.1.4. All vacant units within the Property are rent ready at least 72 hours
prior to Closing, as confirmed during a walk-through of the Property by Seller and Purchaser, or
Seller provides to Purchaser a credit on the Closing settlement statement of$500 per unit that
does not comply with the forgoing requirement;
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VIII.1.5. The Eagle County Assessor has issued written confirmation that
the Property continues to qualify for exemption of Eagle County real estate ad valorem or similar
taxes by virtue of ECHDA executing the SLP Addendum; and
VIII.1.6. Seller shall have complied with, fulfilled and performed in all
material respects each of the covenants, terms and conditions to be complied with, fulfilled or
performed by Seller hereunder.
8.1.7 There shall not be pending or, to the knowledge of either Purchaser or
Seller, any litigation or threatened litigation which, if determined adversely, would restrain the
consummation of any of the transactions contemplated by this Contract or declare illegal, invalid
or nonbinding any of the covenants or obligations of Seller.
If any condition set forth in Sections 8.1 is not met, Purchaser may (a) waive any of the
foregoing conditions and proceed to Closing on the Closing Date with no offset or deduction
from the Purchase Price, or (b) terminate this Contract, and, if such failure constitutes a default
by Seller, exercise any of its remedies under Section 10.2. If the condition set forth in Section
8.1.3 is not met because of litigation described in Section 8.2.5 below, Seller shall not be in
default pursuant to Section 10.2, and Purchaser may, as its sole and exclusive remedy, (i)notify
Seller of Purchaser's election to terminate this Contract and receive a return of the Deposit from
the Escrow Agent, or (ii) waive such condition and proceed to Closing on the Closing Date with
no offset or deduction from the Purchase Price.
Seller's Conditions to Closing. Without limiting any of the rights of Seller elsewhere
provided for in this Contract, and n addition to other conditions or obligations of Purchaser
contained in this Contract, Seller's obligation to close with respect to conveyance of the Property
under this Contract shall be subject to and conditioned upon the fulfillment of the following
conditions precedent:
VIII.2.1. All of the documents and funds required to be delivered by
Purchaser to Seller at the Closing pursuant to the terms and conditions hereof shall have been
delivered;
VIII.2.2. Each of the representations, warranties and covenants of Purchaser
contained herein shall be true in all material respects as of the Closing Date;
VIII.2.3. Purchaser shall have complied with, fulfilled and performed in all
material respects each of the covenants, terms and conditions to be complied with, fulfilled or
performed by Purchaser hereunder;
I.1.2. Seller shall have received all consents, documentation and approvals
necessary to consummate and facilitate the transactions contemplated hereby, including(a) from
Seller's directors to the extent required by Seller's organizational documents, and(b) as required
by law;
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I.1.3. There shall not be pending or, to the knowledge of either Purchaser or
Seller, any litigation or threatened litigation which, if determined adversely, would restrain the
consummation of any of the transactions contemplated by this Contract or declare illegal, invalid
or nonbinding any of the covenants or obligations of the Purchaser; and
I.1.4. Seller shall have received written consent from the Colorado Department
of Local Affairs, Division of Housing to the transfer of and written agreement of the Purchaser to
the assumption of the HAP Contract.
If any of the foregoing conditions to Seller's obligation to close with respect to
conveyance of the Property under this Contract are not met, Seller may (a) waive any of the
foregoing conditions and proceed to Closing on the Closing Date, or(b)terminate this Contract,
and, if such failure constitutes a default by Purchaser, exercise any of its remedies under Section
10.1. If the condition set forth in Section 8.2.6 is not met on the Initial Closing Date, either
Seller or Purchaser may, without penalty, extend the Initial Closing Date to a date not later than
10 Business Days following the Initial Closing Date.
ARTICLE IX
BROKERAGE
indemnity. Seller represents and warrants to Purchaser that it has dealt only with
Colliers International ("Broker") in connection with this Contract. Seller and Purchaser each
represents and warrants to the other that, other than Broker, it has not dealt with or utilized the
services of any other real estate broker, sales person or finder in connection with this Contract,
and each party agrees to indemnify, hold harmless, and, if requested in the sole and absolute
discretion of the indemnitee, defend (with counsel approved by the indemnitee) the other party
from and against all Losses relating to brokerage commissions and finder's fees arising from or
attributable to the acts or omissions of the indemnifying party.
Broker Commission. If the Closing occurs, Seller agrees to pay Broker a commission
according to the terms of a separate contract. Broker shall not be deemed a party or third party
beneficiary of this Contract. As a condition to Seller's obligation to pay the commission, Broker
shall execute the signature page for Broker attached hereto solely for purposes of confirming the
matters set forth therein.
ARTICLE X
DEFAULTS AND REMEDIES
Purchaser Default. If Purchaser defaults on its obligation to close on the purchase of the
Property on the Closing Date pursuant to the terms of this Agreement(and the same is not due to
a Seller default hereunder), and Purchaser fails to cure such default within five (5) days
following receipt of written notice from Seller, Purchaser shall forfeit the Deposit, and the
Escrow Agent shall deliver the Deposit to Seller, and neither party shall be obligated to proceed
with the purchase and sale of the Property. The Deposit is liquidated damages and recourse to
the Deposit is, except for Purchaser's indemnity and confidentiality obligations hereunder,
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Seller's sole and exclusive remedy for Purchaser's failure to perform its obligation to purchase
the Property or breach of a representation or warranty. Seller expressly waives the remedies of
specific performance and additional damages for such default by Purchaser. SELLER AND
PURCHASER ACKNOWLEDGE THAT SELLER'S DAMAGES WOULD BE DIFFICULT
TO DETERMINE, AND THAT THE DEPOSIT IS A REASONABLE ESTIMATE OF
SELLER'S DAMAGES RESULTING FROM A DEFAULT BY PURCHASER IN ITS
OBLIGATION TO PURCHASE THE PROPERTY. SELLER AND PURCHASER FURTHER
AGREE THAT THIS SECTION 10.1 IS INTENDED TO AND DOES LIQUIDATE THE
AMOUNT OF DAMAGES DUE SELLER, AND SHALL BE SELLER'S EXCLUSIVE
REMEDY AGAINST PURCHASER, BOTH AT LAW AND IN EQUITY, ARISING FROM OR
RELATED TO A BREACH BY PURCHASER OF ITS OBLIGATION TO CONSUMMATE
THE TRANSACTIONS CONTEMPLATED BY THIS CONTRACT, OTHER THAN WITH
RESPECT TO PURCHASER'S INDEMNITY AND CONFIDENTIALITY OBLIGATIONS
HEREUNDER.
Seller Default. If Seller, prior to the Closing, defaults in its covenants, or obligations
under this Contract, including to sell the Property as required by this Contract and such default
continues for more than 10 days after written notice from Purchaser, then, at Purchaser's election
and as Purchaser's sole and exclusive remedy, either (a) terminate this Contract, and all
payments and things of value, including the Deposit, provided by Purchaser hereunder shall be
returned to Purchaser and Purchaser may recover, as its sole recoverable damages (but without
limiting its right to receive a refund of the Deposit), its direct and actual out-of-pocket expenses
and costs (documented by paid invoices to third parties) in connection with this transaction,
which damages shall not exceed $100,000 in aggregate, or (b) subject to the conditions below,
Purchaser may seek specific performance of Seller's obligation to deliver the Deed pursuant to
this Contract (but not damages). Purchaser may seek specific performance of Seller's obligation
to deliver the Deed pursuant to this Contract only if, as a condition precedent to initiating such
litigation for specific performance, Purchaser first shall (i) deliver all Purchaser Closing
documents to Escrow Agent in accordance with the requirements of this Contract, including,
without limitation, Sections 2.2.3 and 5.3 (with the exception of Section 5.3.1); (ii) not otherwise
be in material default under this Contract; and (iii) file suit therefor with the court on or before
the 90th day after the Closing Date; if Purchaser fails to file an action for specific performance
within 90 days after the Closing Date, then Purchaser shall be deemed to have elected to
terminate the Contract in accordance with subsection (a) above. Purchaser agrees that it shall
promptly deliver to Seller an assignment of all of Purchaser's right, title and interest in and to
(together with possession of) all plans, studies, surveys, reports, and other materials paid for with
the out-of-pocket expenses reimbursed by Seller pursuant to the foregoing sentence. SELLER
AND PURCHASER FURTHER AGREE THAT THIS SECTION 10.2 IS INTENDED TO AND
DOES LIMIT THE AMOUNT OF DAMAGES DUE PURCHASER AND THE REMEDIES
AVAILABLE TO PURCHASER, AND SHALL BE PURCHASER'S EXCLUSIVE REMEDY
AGAINST SELLER, BOTH AT LAW AND IN EQUITY ARISING FROM OR RELATED TO
A BREACH BY SELLER OF ITS COVENANTS OR ITS OBLIGATION TO CONSUMMATE
THE TRANSACTIONS CONTEMPLATED BY THIS CONTRACT. UNDER NO
CIRCUMSTANCES MAY PURCHASER SEEK OR BE ENTITLED TO RECOVER ANY
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SPECIAL, CONSEQUENTIAL, PUNITIVE, SPECULATIVE OR INDIRECT DAMAGES
(OTHER THAN ATTORNEYS' FEES AS PERMITTED UNDER THIS CONTRACT AND/OR
IN THE EVENT SELLER TAKES ANY AFFIRMATIVE ACTION THAT IMPEDES
PURCHASER'S RIGHT TO SEEK AND OBTAIN THE SPECIFIC PERFORMANCE
REMEDY), ALL OF WHICH PURCHASER SPECIFICALLY WAIVES, FROM SELLER FOR
ANY BREACH BY SELLER, OF ITS COVENANTS OR ITS OBLIGATIONS UNDER THIS
CONTRACT. PURCHASER SPECIFICALLY WAIVES THE RIGHT TO FILE ANY LIS
PENDENS OR ANY LIEN AGAINST THE PROPERTY UNLESS AND UNTIL IT HAS
IRREVOCABLY ELECTED TO SEEK SPECIFIC PERFORMANCE OF THIS CONTRACT
AND HAS FILED AND IS DILIGENTLY PURSUING AN ACTION SEEKING SUCH
REMEDY.
ARTICLE XI
RISK OF LOSS OR CASUALTY
Major Damage. In the event that the Property is damaged or destroyed by fire or other
casualty prior to Closing, and the cost for demolition, site cleaning, restoration, replacement, or
other repairs (collectively, the "Repairs"), is more than $1,000,000.00,then Seller shall have no
obligation to make such Repairs and shall notify Purchaser in writing of such damage or
destruction (the "Damage Notice"). Within 10 days after Purchaser's receipt of the Damage
Notice, Purchaser may elect at its option to terminate this Contract by delivering written notice to
Seller in which event the Deposit shall be refunded to Purchaser. In the event Purchaser fails to
terminate this Contract within the foregoing 10-day period, this transaction shall be closed in
accordance with Section 11.3 below; provided, however: (a) Purchaser shall receive a credit
against the Purchase Price otherwise due hereunder equal to the amount of any insurance
proceeds actually collected by Seller prior to the Closing as a result of any such damage or
destruction, plus the amount of any insurance deductible or any uninsured amount or retention,
and(b) Seller will include Purchaser in all discussions and negotiations with the insurance carrier
and no settlement may occur no settlement may occur or contracts for Repair let without
Purchaser's prior written approval.
Minor Damage. In the event that the Property is damaged or destroyed by fire or other
casualty prior to the Closing, and the cost of Repairs is equal to or less than $1,000,000.00,then
this transaction shall be closed in accordance with Section 11.3; provided, however: (a)
Purchaser shall receive a credit against the Purchase Price otherwise due hereunder equal to the
amount of any insurance proceeds actually collected by Seller prior to the Closing as a result of
any such damage or destruction, plus the amount of any insurance deductible or any uninsured
amount or retention, and (b) Seller will include Purchaser in all discussions and negotiations with
the insurance carrier and no settlement may occur or contracts for Repair let without Purchaser's
prior written approval. In such event, Seller may at its election endeavor to make such Repairs
to the extent of any recovery from insurance carried on the Property, if such Repairs can be
reasonably effected before the Closing and such Repairs are reasonably acceptable to Purchaser.
Regardless of Seller's election to commence such Repairs, or Seller's ability to complete such
Repairs prior to Closing, this transaction shall be closed in accordance with Section 11.3 below.
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Closing. In the event Purchaser fails to terminate this Contract following a casualty as
set forth in Section 11.1, or in the event of a casualty as set forth in Section 11.2, then this
transaction shall be closed in accordance with the terms of the Contract, in which case Seller
shall, at Closing, execute and deliver an assignment and assumption (in a form reasonably
approved by Purchaser) of Seller's rights and obligations with respect to the insurance claim
related to such casualty, and thereafter Purchaser shall receive all insurance proceeds pertaining
to such claim, less any amounts which may already have been spent by Seller for Repairs
approved by Purchaser(plus a credit against the Purchase Price at Closing in the amount set forth
in Sections 11.1 or 11.2 above, as the case may be).
Repairs. To the extent that Seller elects to commence any Repairs prior to Closing,then
Seller shall be entitled to receive and apply available insurance proceeds to any portion of such
Repairs completed or installed prior to Closing, to the extent approved by Purchaser, with
Purchaser being responsible for completion of such Repairs after Closing. To the extent that any
Repairs (as approved by Purchaser) have been commenced prior to Closing, then the Property
Contracts shall include, and Purchaser shall assume at Closing, all construction and other
contracts entered into by Seller(and approved by Purchaser) in connection with such Repairs.
ARTICLE XII
EMINENT DOMAIN
Eminent Domain. In the event that, at the time of Closing, any material part of the
Property is (or previously has been) acquired, or is about to be acquired, by any governmental
agency by the powers of eminent domain or transfer in lieu thereof(or in the event that at such
time there is any notice of any such acquisition or intent to acquire by any such governmental
agency), Purchaser shall have the right, at Purchaser's option, to terminate this Contract by
giving written notice within 10 days after Purchaser's receipt from Seller of notice of the
occurrence of such event, and if Purchaser so terminates this Contract, Purchaser shall recover
the Deposit hereunder. If Purchaser fails to terminate this Contract within such 10-day period,
this transaction shall be closed in accordance with the terms of this Contract for the full Purchase
Price and Purchaser shall receive the full benefit of any condemnation award. It is expressly
agreed between the parties hereto that this section shall in no way apply to customary dedications
for public purposes which may be necessary for the development of the Property.
ARTICLE XIII
MISCELLANEOUS
$inding Effect of Contract. This Contract shall not be binding on either party until
executed by both Purchaser and Seller. Neither the Escrow Agent's nor the Broker's execution
of this Contract shall be a prerequisite to its effectiveness. Subject to Section 13.3,this Contract
shall be binding upon and inure to the benefit of Seller and Purchaser, and their respective
successors and permitted assigns.
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Exhibits and Schedules. All Exhibits and Schedules,whether or not annexed hereto, are
a part of this Contract for all purposes.
Assignability. This Contract is not assignable by Purchaser without first obtaining the
prior written approval of Seller. Notwithstanding the foregoing, Purchaser may assign this
Contract, without first obtaining the prior written approval of Seller, to one or more entities so
long as (a) Purchaser is an affiliate of the purchasing entity(ies), (b) Purchaser is not released
from its liability hereunder, and (c) Purchaser provides written notice to Seller of any proposed
assignment no later than 10 days prior to the Closing Date. As used herein, an affiliate is a
person or entity controlled by, under common control with, or controlling another person or
entity.
Captions. The captions, headings, and arrangements used in this Contract are for
convenience only and do not in any way affect, limit, amplify, or modify the terms and
provisions hereof.
Number and Gender of Words. Whenever herein the singular number is used, the same
shall include the plural where appropriate, and words of any gender shall include each other
gender where appropriate.
Notices. All notices, demands, requests and other communications required or permitted
hereunder shall be in writing, and shall be (a) personally delivered with a written receipt of
delivery; (b) sent by a nationally-recognized overnight delivery service requiring a written
acknowledgement of receipt or providing a certification of delivery or attempted delivery; (c)
sent by certified or registered mail, return receipt requested; or (d) sent by e-mail (in *.pdf or
similar format) or by other confirmed electronic delivery, in each case with an original copy
thereof transmitted to the recipient by one of the means described in subsections (a)through(c)
no later than 3 Business Days thereafter. All notices shall be deemed effective when actually
delivered as documented in a delivery receipt; provided, however, that if the notice was sent by
overnight courier or mail as aforesaid and is affirmatively refused or cannot be delivered during
customary business hours by reason of the absence of a signatory to acknowledge receipt, or by
reason of a change of address with respect to which the addressor did not have either knowledge
or written notice delivered in accordance with this paragraph, then the first attempted delivery
shall be deemed to constitute delivery. Each party shall be entitled to change its address for
notices from time to time by delivering to the other party notice thereof in the manner herein
provided for the delivery of notices. All notices shall be sent to the addressee at its address set
forth following its name below:
To Purchaser:
Tralee Affordable Mountain LLC
7400 East Orchard Road, Suite 250 South
Greenwood Village, CO 80111
Attn: Mike Kelly
Phone: (770) 330-0917
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Email: mkelly@traleecapital.com
with a copy to:
Hoffman Nies Dave&Meyer LLP
5350 South Roslyn St., Suite 100
Greenwood Village, CO 80111
Attn: Nicole Nies
Phone: (720) 974-9422
Email: nnies@hn-colaw.com
To Seller:
Lake Creek Village LLC
c/o Eagle County Housing and Development Authority
500 Broadway Street, P.O. Box 850
Eagle, Colorado 81631
Attention: Kim Bell Williams
Email: kim.williams@eaglecounty.us
with a copy to:
Eagle County Attorney Office
500 Broadway Street,P.O. Box 850
Eagle, Colorado 81631
Attention: Beth Oliver
Email: beth.oliver@eaglecounty.us
and a copy to:
Ballard Spahr LLP
1225 17th Street, Suite 2300
Denver, Colorado 80202
Attention: Chris Payne
Email: payne@ballardspahr.com
Any notice required hereunder to be delivered to the Escrow Agent shall be delivered in
accordance with above provisions as follows:
Title Company of the Rockies
97 Main Street, Suite W-201
Edwards, CO 81632
Attention: Katie Johnson
Email: kjohnson@titlecorockies.com
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Unless specifically required to be delivered to the Escrow Agent pursuant to the terms of
this Contract, no notice hereunder must be delivered to the Escrow Agent in order to be effective
so long as it is delivered to the other party in accordance with the above provisions.
Governing Law and Venue. The laws of the State of Colorado shall govern the validity,
construction, enforcement, and interpretation of this Contract, unless otherwise specified herein
except for the conflict of laws provisions thereof. Subject to Section 13.24, all claims, disputes
and other matters in question arising out of or relating to this Contract, or the breach thereof,
shall be decided by proceedings instituted and litigated in a court of competent jurisdiction in the
state in which the Property is situated, and the parties hereto expressly consent to the venue and
jurisdiction of such court.
Entire Agreement. This Contract embodies the entire Contract between the parties
hereto concerning the subject matter hereof and supersedes all prior conversations, proposals,
negotiations, understandings and contracts, whether written or oral.
Amendments. This Contract shall not be amended, altered, changed, modified,
supplemented or rescinded in any manner except by a written contract executed by all of the
parties; provided, however, that, (a)the signature of the Escrow Agent shall not be required as to
any amendment of this Contract other than an amendment of Section 2.3, and(b)the signature of
the Broker shall not be required as to any amendment of this Contract.
Severabilit'. In the event that any part of this Contract shall be held to be invalid or
unenforceable by a court of competent jurisdiction, such provision shall be reformed, and
enforced to the maximum extent permitted by law. If such provision cannot be reformed, it shall
be severed from this Contract and the remaining portions of this Contract shall be valid and
enforceable.
Multiple Counterparts/Electronic Signatures. This Contract may be executed in a
number of identical counterparts. This Contract may be executed by electronic delivery of
signatures (in *.pdf or similar format) which shall be binding on the parties hereto,with original
signatures to be delivered as soon as reasonably practical thereafter.
Construction. No provision of this Contract shall be construed in favor of, or against,
any particular party by reason of any presumption with respect to the drafting of this Contract;
both parties, being represented by counsel, having fully participated in the negotiation of this
instrument.
Confidentiality. Purchaser shall not disclose the terms and conditions contained in this
Contract and shall keep the same confidential, provided that Purchaser may disclose the terms
and conditions of this Contract (a) as required by law, (b) to consummate the terms of this
Contract, or any financing relating thereto (including to any investors or potential investors in
Purchaser), or (c) to Purchaser's or Seller's lenders, attorneys and accountants. Any information
obtained by Purchaser in the course of its inspection of the Property, and any Materials provided
by Seller to Purchaser hereunder, shall be confidential and Purchaser shall be prohibited from
27
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making such information public to any other person or entity other than its Consultants,without
Seller's prior written authorization, which may be granted or denied in Seller's sole discretion.
In addition, Purchaser shall use its reasonable efforts to prevent its Consultants from divulging
any such confidential information to any unrelated third parties except as reasonably necessary to
third parties engaged by Purchaser for the limited purpose of analyzing and investigating such
information for the purpose of consummating the transaction contemplated by this Contract.
Unless and until the Closing occurs, Purchaser shall not market the Property (or any portion
thereof) to any prospective purchaser or lessee without the prior written consent of Seller, which
consent may be withheld in Seller's sole discretion. Notwithstanding the provisions of Section
13.8, Purchaser agrees that the covenants, restrictions and agreements of Purchaser contained in
any confidentiality agreement executed by Purchaser prior to the Effective Date shall survive the
execution of this Contract and shall not be superseded hereby, but shall survive only until the
Closing Date and delivery of the Deed to Purchaser. In the event Closing occurs, the terms and
obligations of this Section 13.13 shall not survive Closing.
Time of the Essence. It is expressly agreed by the parties hereto that time is of the
essence with respect to this Contract and any aspect thereof.
Waiver. No delay or omission to exercise any right or power accruing upon any default,
omission, or failure of performance hereunder shall impair any right or power or shall be
construed to be a waiver thereof, but any such right and power may be exercised from time to
time and as often as may be deemed expedient. No waiver, amendment, release, or modification
of this Contract shall be established by conduct, custom, or course of dealing and all waivers
must be in writing and signed by the waiving party.
Attorneys Fees. In the event either party hereto commences litigation or arbitration
against the other to enforce its rights hereunder, the substantially prevailing party in such
litigation shall be awarded from the other party its reasonable attorneys' fees and expenses
incidental to such litigation and arbitration, including the cost of in-house counsel and any
appeals.
Time Zone/Time Periods. Any reference in this Contract to a specific time shall refer to
Mountain Time (either Daylight Savings Time or Standard Time, as applicable). Should the last
day of a time period fall on a weekend or legal holiday,the next Business Day thereafter shall be
considered the end of the time period.
No Personal Liability of Officers. Trustees or Directors of Seller. Purchaser
acknowledges that this Contract is entered into by Seller which is solely owned by a County
Housing Authority created under the Colorado Housing Authorities Laws, and Purchaser agrees
that none of Seller's Indemnified Parties shall have any personal liability under this Contract or
any document executed in connection with the transactions contemplated by this Contract.
Nothing in this Contract shall be construed as an express or implied waiver by the Seller of its
governmental immunity, as an express or implied acceptance by the Seller or Seller's affiliates of
liabilities arising as a result of actions which lie in tort or could lie in tort in excess of the
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liabilities allowable under the Colorado Governmental Immunity Act, C.R.S. § 24-10-101, et
seq.
Exclusive Negotiations. From and after the Effective Date and prior to the expiration of
the Feasibility Period, Seller shall negotiate exclusivity with Purchaser, shall cease negotiations
with prospective purchasers of the Property and shall not, directly or indirectly through Seller's
agents or representatives, solicit or enter into binding contracts for the sale of the Property;
provided, however, that this section shall not prohibit Seller's receipt of unsolicited third-party
offers to purchase the Property.
Interview of Existing Personnel. To facilitate the hiring of existing personnel, Seller
shall provide Purchaser with a reasonable opportunity to interview the on-site property
management employees after the Feasibility Period and prior to the Closing Date. In no event,
however, will Purchaser be permitted to contact existing personnel of Seller or its affiliates
(including ECHDA), directly or indirectly, concerning future employment without the express
written permission of Seller.
ADA Disclosure. Purchaser acknowledges that the Property may be subject to the
federal Americans With Disabilities Act (the "ADA") and the federal Fair Housing Act (the
"FHA"). The ADA requires, among other matters, that tenants and/or owners of "public
accommodations" remove barriers in order to make the Property accessible to disabled persons
and provide auxiliary aids and services for hearing, vision or speech impaired persons. Seller
makes no warranty, representation or guarantee of any type or kind with respect to the Property's
compliance with the ADA or the FHA (or any similar state or local law), and Seller expressly
disclaims any such representations.
No Recording. Purchaser shall not cause or allow this Contract or any contract or other
document related hereto, nor any memorandum or other evidence hereof, to be recorded or
become a public record without Seller's prior written consent, which consent may be withheld at
Seller's sole discretion. If Purchaser records this Contract or any other memorandum or
evidence thereof, Purchaser shall be in default of its obligations under this Contract. Purchaser
hereby appoints Seller as Purchaser's attorney-in-fact to prepare and record any documents
necessary to effect the nullification and release of the Contract or other memorandum or
evidence thereof from the public records. This appointment shall be coupled with an interest and
irrevocable.
Relationship of Parties. Purchaser and Seller acknowledge and agree that the
relationship established between the parties pursuant to this Contract is only that of a seller and a
purchaser of property. Neither Purchaser nor Seller is, nor shall either hold itself out to be, the
agent, employee,joint venturer or partner of the other party.
Dispute Resolution. Any controversy, dispute, or claim of any nature arising out of, in
connection with, or in relation to the interpretation, performance, enforcement or breach of this
Contract (or any Seller Closing Document), including any claim based on contract, tort or
statute, shall be resolved at the written request of any party to this Contract by binding
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arbitration. The arbitration shall be administered in accordance with the then current
Commercial Arbitration Rules of the American Arbitration Association. Any matter to be settled
by arbitration shall be submitted to the American Arbitration Association in the state in which
the Property is located. The parties shall attempt to designate one arbitrator from the American
Arbitration Association. If they are unable to do so within 30 days after written demand therefor,
then the American Arbitration Association shall designate an arbitrator. The arbitration shall be
final and binding, and enforceable in any court of competent jurisdiction. The arbitrator shall
award attorneys' fees (including those of in-house counsel) and costs to the prevailing party and
charge the cost of arbitration to the party which is not the prevailing party. Notwithstanding
anything herein to the contrary, this Section 13.24 shall not prevent Purchaser or Seller from
seeking and obtaining equitable relief on a temporary or permanent basis, including, without
limitation, a temporary restraining order, a preliminary or permanent injunction or similar
equitable relief, from a court of competent jurisdiction located in the state in which the Property
is located (to which all parties hereto consent to venue and jurisdiction) by instituting a legal
action or other court proceeding in order to protect or enforce the rights of such party under this
Contract or to prevent irreparable harm and injury. The court's jurisdiction over any such
equitable matter, however, shall be expressly limited only to the temporary, preliminary, or
permanent equitable relief sought; all other claims initiated under this Contract between the
parties hereto shall be determined through final and binding arbitration in accordance with this
Section 13.24.
,Survival. Except for (a) all of the provisions of this Article XIII (other than Sections
13.13 and 13.19); (b) Sections 2.3, 3.3, 3.4, 3.5, 5.4, 5.5, 6.2, 6.5, 7.4, 9.1, 9.2, and 11.4; (c) any
other provisions in this Contract, that by their express terms survive the termination or Closing;
(c) any obligation of the Escrow Agent to pay the Deposit after a termination of this Contract;
and (e) any payment obligation of Purchaser under this Contract (the foregoing (a), (b), (c), (d)
and (e) referred to herein as the"Survival Provisions"), none of the terms and provisions of this
Contract shall survive the termination of this Contract, and if the Contract is not so terminated,
all of the terms and provisions of this Contract (other than the Survival Provisions, which shall
survive the Closing) shall be merged into the Closing documents and shall not survive Closing.
Multiple Purchasers. As used in this Contract,the term "Purchaser"means all entities
acquiring any interest in the Property at the Closing, including, without limitation, any
assignee(s) of the original Purchaser pursuant to Section 13.3 of this Contract. In the event that
"Purchaser" has any obligations or makes any covenants, representations or warranties under
this Contract, the same shall be made jointly and severally by all entities being a Purchaser
hereunder.
[Remainder of Page Intentionally Left Blank]
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NOW, THEREFORE, the parties hereto have executed this Contract as of the date first
set forth above.
Seller:
LAKE CREEK VILLAGE LLC, a Colorado
limited liability company
By:
Name:
Title:
Purchaser:
TRALEE AFFORDABLE MOUNTAIN LLC,
a Colorado limited liability company
By:
Name:
Title:
Purchaser's Tax Identification Number:
31
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ESCROW AGENT SIGNATURE PAGE
The undersigned executes the Contract to which this signature page is attached for the
purpose of agreeing to the provisions of Section 2.3 of the Contract, and hereby establishes
, 20_ as the date of opening of escrow and designates
as the escrow number assigned to this escrow.
ESCROW AGENT:
TITLE COMPANY OF THE ROCKIES, as
agent for Chicago Title Insurance Company
By:
Name:
Title:
DocuSign Envelope ID:35D1A267-5C09-45E3-8C65-742D1C641839
BROKER SIGNATURE PAGE
The undersigned Broker hereby executes this Broker Signature Page solely to confirm the
following: (a) Broker represents only the Seller in the transaction described in the Contract to
which this signature page is attached, (b) Broker acknowledges that the only compensation due
to Broker in connection with the Closing of the transaction described in the Contract to which
this signature page is attached is as set forth in a separate agreement between Seller and Broker,
and (c) Broker represents and warrants to Seller that Broker and its affiliates has not and will not
receive any compensation (cash or otherwise) from or on behalf of Purchaser or any affiliate
thereof in connection with the transaction, and do not, and will not at the Closing, have any
direct or indirect legal, beneficial, economic or voting interest in Purchaser(or in an assignee of
Purchaser, which pursuant to Section 13.3 of the Contract, acquires the Property at the Closing)
nor has Purchaser granted (as of the Effective Date or the Closing Date)the Broker or any of its
affiliates any right or option to acquire any direct or indirect legal, beneficial, economic or voting
interest in Purchaser.
BROKER:
COLLIERS INTERNATIONAL
By:
Name:
Title:
DocuSign Envelope ID:35D1A267-5C09-45E3-8C65-742D1C641839
EXHIBIT A
LEGAL DESCRIPTION FOR THE REAL ESTATE
Eagle County,Colorado
Parcel 1:
Tracts X-1 and X-2, Final Plat, Cottonwood Filing No. 1, according to the plat recorded
July 23, 1993 in Book 614 at Page 882 as Reception No. 510957, County of Eagle, State of
Colorado.
Parcel 2:
Tract X-3, Brett Ranch PUD, according to the plat recorded May 20, 1998 at Reception
No. 657151, County of Eagle, State of Colorado.
Also known as (for informational purposes only): 4923 Lake Creek Village Drive, Edwards,
Colorado 81631.
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EXHIBIT B
FORM OF SPECIAL WARRANTY DEED
AFTER RECORDING RETURN TO:
Attention:
SPECIAL WARRANTY DEED
LAKE CREEK VILLAGE LLC, a Colorado limited liability company ("Grantor"), for
and in consideration of the sum of Ten and No/100 Dollars($10.00) and other good and valuable
consideration in hand paid to Grantor by TRALEE AFFORDABLE MOUNTAIN LLC, a
Colorado limited liability company ("Grantee"), whose mailing address is 7400 East Orchard
Road, Suite 250 South, Greenwood Village, CO 80111, Attention: Mike Kelly, the receipt and
sufficiency of such consideration being hereby acknowledged, hereby GRANTS, BARGAINS,
SELLS AND CONVEYS unto Grantee that certain real property being more particularly
described in Exhibit A attached hereto and made a part hereof for all purposes, together with all
improvements thereon, and together with all and singular the hereditaments and appurtenances
thereunto belonging, or in anywise appertaining, the reversions, remainders, rents, issues and
profits thereof, and all the estate, right, title, interest, claim and demand whatsoever of the
Grantor, either in law or equity, of, in and to the above bargained premises, with the
hereditaments and appurtenances (collectively, the "Property"); subject, however, to statutory
exceptions.
TO HAVE AND TO HOLD the Property unto Grantee, its successors and assigns forever,
and Grantor does hereby bind itself and its successors to WARRANT AND FOREVER
DEFEND the Property, subject to statutory exceptions and the permitted exceptions set forth on
the attached Exhibit B, unto Grantee, its successors and assigns, against every person
whomsoever lawfully claiming, or claim the same, or any part thereof, by, through, or under
Grantor.
[SEE SIGNATURE ON THE FOLLOWING PAGE]
B-1
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IN WITNESS WHEREOF, this Deed has been executed as of the date of
acknowledgment by Grantor to be effective as of the day of , 2021.
GRANTOR:
LAKE CREEK VILLAGE LLC, a Colorado
limited liability company
By:
Name:
Title: '
THE STATE OF COLORADO )
)
COUNTY OF )
The forgoing instrument was acknowledged before me this or ,
2021, by as the of LAKE CREEK VILLAGE
LLC, a Colorado limited liability company.
WITNESS my hand and official seal.
(SEAL)
Notary Public
My Commission Expires:
B-2
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EXHIBIT A
LEGAL DESCRIPTION
Parcel 1:
Tracts X-1 and X-2, Final Plat, Cottonwood Filing No. 1, according to the plat recorded
July 23, 1993 in Book 614 at Page 882 as Reception No. 510957, County of Eagle, State of
Colorado.
Parcel 2:
Tract X-3, Brett Ranch PUD, according to the plat recorded May 20, 1998 at Reception
No. 657151, County of Eagle, State of Colorado.
Also known as (for informational purposes only): 4923 Lake Creek Village Drive, Edwards,
Colorado 81631.
For information purposes: tax assessor's APN: R040721 and R048483.
B-3
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EXHIBIT C
FORM OF BILL OF SALE
THIS BILL OF SALE ("Bill of Sale") is made this day of , 2021
by LAKE CREEK VILLAGE LLC, a Colorado limited liability company ("Seller"), in favor
of TRALEE AFFORDABLE MOUNTAIN LLC, a Colorado limited liability company
("Purchaser").
WITNES SETH:
WHEREAS, Seller and Purchaser entered into that certain Purchase and Sale Contract
dated as of , 2021 (the"Contract") with respect to the sale of certain Property
identified therein. (Any capitalized term used, but not otherwise defined herein, shall have the
meaning set forth in the Contract.)
NOW, THEREFORE, for good and valuable consideration,the receipt and sufficiency of
which are hereby acknowledged, Seller does hereby absolutely and unconditionally give, grant,
bargain, sell, transfer, set over, assign, convey, release, confirm and deliver to Purchaser all of the
Fixtures and Tangible Personal Property, free and clear of all liens and encumbrances, but
otherwise without representation or warranty of any kind whatsoever except as set forth in and
subject to the terms of the Contract.
WITH RESPECT TO ALL MATTERS TRANSFERRED, WHETHER TANGIBLE OR
INTANGIBLE, PERSONAL OR REAL, SELLER EXPRESSLY DISCLAIMS A WARRANTY
OF MERCHANTABILITY AND WARRANTY FOR FITNESS FOR A PARTICULAR USE
OR ANY OTHER WARRANTY EXPRESSED OR IMPLIED THAT MAY ARISE BY
OPERATION OF LAW OR UNDER THE UNIFORM COMMERCIAL CODE FOR THE
STATE IN WHICH THE PROPERTY IS LOCATED(OR ANY OTHER STATE).
This Bill of Sale shall be binding upon and inure to the benefit of the successors and
permitted assigns of Purchaser and Seller.
This Bill of Sale shall be governed by, interpreted under, and construed and enforceable
in accordance with, the laws of the State of Colorado.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the undersigned has executed this Bill of Sale as of the day
and year first written above.
Seller:
LAKE CREEK VILLAGE LLC, a Colorado
limited liability company
By:
Name:
Title:
C-2
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EXHIBIT D
GENERAL ASSIGNMENT AND ASSUMPTION
This General Assignment and Assumption (this "Assignment") is executed by LAKE
CREEK VILLAGE LLC, a Colorado limited liability company ("Seller"), in favor of
TRALEE AFFORDABLE MOUNTAIN LLC, a Colorado limited liability company
("Purchaser")as of , 20_(the"Effective Date").
WHEREAS, Seller and Purchaser entered into that certain Purchase and Sale Contract
dated as of , 2021 (the"Contract") with respect to the sale of certain Property
identified therein. (Any capitalized term used, but not otherwise defined herein, shall have the
meaning set forth in the Contract.)
WHEREAS, pursuant to the Contract, Seller has agreed to assign, without recourse or
warranty, to Purchaser all of Seller's right, title and interest, if any, in and to the Miscellaneous
Property Assets, the Permits (other than the Excluded Permits), and those services contracts as
listed on the attached Exhibit A("Property Contracts").
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Seller and Purchaser agree as follows:
1. Assignment. As of the Effective Date, Seller hereby assigns, sells and transfers,
without recourse or warranty, to Purchaser all of Seller's right,title and interest, if any, in and to
the Miscellaneous Property Assets, the Permits (other than the Excluded Permits), and the
Property Contracts.
2. Assumption. As of the Effective Date, Purchaser expressly agrees to assume and
hereby assumes all liabilities and obligations of the Seller in connection with the Miscellaneous
Property Assets, the Permits (other than the Excluded Permits), and the Property Contracts;
subject, however, to any liabilities retained by Seller and any limitations on Purchaser's
assumption of liabilities as set forth in the Contract.
3. Counterparts. This Assignment may be executed in a number of identical
counterparts. Signatures may be delivered by facsimile or electronic delivery, and such
signatures shall be binding on the parties hereto, with original signatures to be delivered as soon
as reasonably practical thereafter.
4. Attorneys' Fees. If any action or proceeding is commenced by either party to
enforce its rights under this Assignment, the prevailing party in such action or proceeding shall
be awarded all reasonable costs and expenses incurred in such action or proceeding, including
reasonable attorneys' fees and costs (including the cost of in-house counsel and appeals), in
addition to any other relief awarded by the court.
5. Applicable Law. This Assignment shall be governed by and interpreted in
accordance with the laws of the State of Colorado.
D-1
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6. Binding Effect. This Assignment shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns.
WITH RESPECT TO ALL MATTERS TRANSFERRED, WHETHER TANGIBLE OR
INTANGIBLE, PERSONAL OR REAL, SELLER EXPRESSLY DISCLAIMS A WARRANTY
OF MERCHANTABILITY AND WARRANTY FOR FITNESS FOR A PARTICULAR USE
OR ANY OTHER WARRANTY EXPRESSED OR IMPLIED THAT MAY ARISE BY
OPERATION OF LAW OR UNDER THE UNIFORM COMMERCIAL CODE FOR THE
STATE IN WHICH THE PROPERTY IS LOCATED(OR ANY OTHER STATE).
[Remainder of page intentionally left blank.]
D-2
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IN WITNESS WHEREOF, the undersigned has executed this General Assignment and
Assumption as of the day and year first written above.
Seller:
LAKE CREEK VILLAGE LLC, a Colorado
limited liability company
By:
Name:
Title:
[Purchaser's Signature Page Follows]
D-3
DocuSign Envelope ID:35D1A267-5C09-45E3-8C65-742D1C641839
Purchaser:
TRALEE AFFORDABLE MOUNTAIN LLC,
a Colorado limited liability company
By:
Name:
Title:
D-4
DocuSign Envelope ID:35D1A267-5C09-45E3-8C65-742D1C641839
EXHIBIT E
ASSIGNMENT AND ASSUMPTION OF LEASES AND SECURITY DEPOSITS
This Assignment and Assumption of Leases and Security Deposits (this "Assignment")
is executed by LAKE CREEK VILLAGE LLC, a Colorado limited liability company
("Seller"), in favor of TRALEE AFFORDABLE MOUNTAIN LLC, a Colorado limited
liability company("Purchaser") as of , 20_(the "Effective Date").
WHEREAS, Seller and Purchaser entered into that certain Purchase and Sale Contract
dated as of , 2021 (the "Contract")with respect to the sale of certain Property
more particularly described on Exhibit A attached hereto. (Any capitalized term used, but not
otherwise defined herein, shall have the meaning set forth in the Contract.)
WHEREAS, Seller, as landlord, has entered into certain leases for the use of the Property
by tenants (collectively, together with all amendments, modifications, supplements, restatements
and guarantees thereof,the"Leases").
WHEREAS,the Contract requires Seller and Purchaser to execute this Assignment.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Seller and Purchaser hereby agree as follows:
1. Assignment and Assumption. As of the Effective Date, Seller hereby irrevocably
assigns, sets over, transfers and conveys to Purchaser all of Seller's right,title and interest in and
to (a) the Leases and (b) the Tenant Security Deposit Balance. Purchaser hereby accepts this
Assignment and the rights granted herein, and Purchaser hereby expressly assumes, for itself and
its successors, assigns and legal representatives, the Leases and the Tenant Security Deposit
Balance and all of the obligations and liabilities, fixed and contingent, of Seller thereunder
accruing from and after the date hereof with respect to the Leases and the Tenant Security
Deposit Balance and agrees to (i) be fully bound by all of the terms, covenants, agreements,
provisions, conditions, obligations and liability of Seller thereunder,which accrue from and after
the date hereof, and (ii) keep, perform and observe all of the covenants and conditions contained
therein on the part of Seller to be kept, performed and observed, from and after the date hereof.
2. Indemnification. Purchaser shall indemnify, protect, defend and hold harmless
Seller from and against any and all claims incurred by Seller with respect to the Security
Deposits assigned herein.
3. General Provisions.
a. Successors. This Assignment shall inure to the benefit of, and be binding
upon,the parties hereto and their respective successors and assigns.
b. Counterparts. This Assignment may be executed in a number of identical
counterparts. Signatures may be delivered by facsimile or electronic delivery, and such
E-1
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signatures shall be binding on the parties hereto, with original signatures to be delivered as soon
as reasonably practical thereafter.
c. Governing Law. This Assignment and the legal relations between the
parties hereto shall be governed by and construed and enforced in accordance with the laws of
the State of Colorado, without reference to the conflict of law provisions thereof.
d. Attorneys' Fees. If any action or proceeding is commenced by either
party to enforce its rights under this Assignment, the prevailing party in such action or
proceeding shall be awarded all reasonable costs and expenses incurred in such action or
proceeding, including reasonable attorneys' fees and costs (including the cost of in-house
counsel and appeals), in addition to any other relief awarded by the court.
[Remainder of page intentionally left blank.]
E-2
DocuSign Envelope ID:35D1A267-5C09-45E3-8C65-742D1C641839
IN WITNESS WHEREOF, the undersigned has executed this Assignment and
Assumption of Leases and Security Deposits as of the day and year first written above.
Seller:
LAKE CREEK VILLAGE LLC, a Colorado
limited liability company
By:
Name:
Title:
[Purchaser's Signature Page Follows]
E-3
DocuSign Envelope ID:35D1A267-5C09-45E3-8C65-742D1C641839
Purchaser:
TRALEE AFFORDABLE MOUNTAIN LLC, a
Colorado limited liability company
By:
Name:
Title:
E-4
DocuSign Envelope ID:35D1A267-5C09-45E3-8C65-742D1C641839
EXHIBIT A
LEGAL DESCRIPTION FOR THE REAL PROPERTY
Eagle County,Colorado
Parcel 1:
Tracts X-1 and X-2, Final Plat, Cottonwood Filing No. 1, according to the plat recorded
July 23, 1993 in Book 614 at Page 882 as Reception No. 510957, County of Eagle, State of
Colorado.
Parcel 2:
Tract X-3, Brett Ranch PUD, according to the plat recorded May 20, 1998 at Reception
No. 657151, County of Eagle, State of Colorado.
Also known as (for informational purposes only): 4923 Lake Creek Village Drive, Edwards,
Colorado 81631.
E-5
DocuSign Envelope ID:35D1A267-5C09-45E3-8C65-742D1C641839
EXHIBIT F
NOTICE TO VENDOR REGARDING TERMINATION OF CONTRACT
LAKE CREEK VILLAGE APARTMENTS
[DATE]
To: [INSERT VENDOR INFORMATION]
Re: Termination of[Insert Name and Date of Contract] (the "Contract")
Dear [Insert Name]:
LAKE CREEK VILLAGE LLC, a Colorado limited liability company ("Seller"),
intends to sell the property located at [INSERT ADDRESS] (the "Property") to TRALEE
AFFORDABLE MOUNTAIN LLC, a Colorado limited liability company ("Purchaser") on [
], 20[ ] (the "Closing Date"). In connection with such purchase and sale, Seller hereby
terminates the Contract as provided below; provided however, if Purchaser has not acquired the
Property by the Closing Date (as the same may be extended), Seller shall have the right to
rescind its termination of the Contract by providing written notice to you of the same, in which
event, the Contract shall continue in full force and effect. Accordingly, this letter shall serve as
notice that the Contract is terminated as of[ ], 20[ ] [INSERT DATE OF CLOSING,
OR LATER DATE IF REQUIRED BY TERMINATED CONTRACT] (the "Termination
Date").
To the extent that the Contract requires payment of any penalty or premium as a result of
the termination of the Contract, [TBD] shall be solely responsible for the payment of any such
cancellation fees or penalties. Also, to the extent that the Termination Date is after the Closing
Date, Purchaser shall be deemed to have assumed all of Seller's obligations under the Contract as
of the Closing Date.
Any and all future notices and inquiries that you may have regarding the termination of
the Contract should be forwarded to Purchaser at the following address:
TRALEE AFFORDABLE MOUNTAIN LLC
7400 East Orchard Road, Suite 250 South
Greenwood Village, CO 80111
Attention: Property Manager
F-1
DocuSign Envelope ID:35D1A267-5C09-45E3-8C65-742D1C641839
Very truly yours,
Seller:
LAKE CREEK VILLAGE LLC, a Colorado
limited liability company
By:
Name:
Title:
F-2
DocuSign Envelope ID:35D1A267-5C09-45E3-8C65-742D1C641839
EXHIBIT G
TENANT NOTIFICATION
(Date)
To Tenants of Lake Creek Village Apartments;
Ladies and Gentlemen:
This is to advise you that, effective this date, Lake Creek Village Apartments has been
sold Tralee Affordable Mountain LLC ("Purchaser").
Effective immediately, please make all rent checks payable to and
make all rental payments to . Any security deposit you made at the time of
signing your lease has also been transferred to Purchaser, and Purchaser is solely responsible for
returning any security deposit to which you are entitled at the termination of your lease.
Additionally, effective immediately, Eagle County Housing and Development Authority,
is no longer the manager of Lake Creek Village Apartments. The new manager of Lake Creek
Village Apartments is
Please contact at if you have any questions
regarding this transfer.
Very truly yours,
TRALEE AFFORDABLE MOUNTAIN LLC,
a Colorado limited liability company
By:
Name:
Title:
G-1
DocuSign Envelope ID:35D1A267-5C09-45E3-8C65-742D1C641839
EXHIBIT It
LURA
Schedule 1
DocuSign Envelope ID:35D1A267-5C09-45E3-8C65-742D1C641839
SCHEDULE 1
DEFINED TERMS
1.1. "ADA"shall have the meaning set forth in Section 13.21.
1.2. "Additional Deposit" shall have the meaning set forth in Section 2.2.2.
1.3. "Broker" shall have the meaning set forth in Section 9.1.
1.4. "Business Day" means any day other than a Saturday or Sunday or Federal
holiday or legal holiday in the States of Colorado.
1.5. "CapEx Reserve"shall have the meaning set forth in Section 5.3.10.
1.6. "Closing" means the consummation of the purchase and sale and related
transactions contemplated by this Contract in accordance with the terms and conditions of this
Contract.
1.7. "Closing Date" means the date on which date the Closing of the conveyance of
the Property is required to be held pursuant to Section 5.1.
1.8. "Code" shall have the meaning set forth in Section 2.3.6.
1.9. "Consultants" shall have the meaning set forth in Section 3.1.
1.10. "Damage Notice" shall have the meaning set forth in Section 11.1.
1.11. "Deed" shall have the meaning set forth in Section 5.2.1.
1.12. "Deposit" means, to the extent actually deposited by Purchaser with Escrow
Agent, the Initial Deposit, the Additional Deposit, and, if applicable, the Extension Deposit.
1.13. "ECG" means Eagle County, Colorado, together with its departments, agencies,
districts, authorities, quasi-governmental entities, and affiliates.
1.14. "ECHDA" means the Eagle County Housing and Development Authority, a
public body, corporate and politic, of the State of Colorado
1.15. "Escrow Agent" shall have the meaning set forth in Section 2.2.1.
1.16. "Excluded Permits" means those Permits which, under applicable law, are
nontransferable and such other Permits, if any, as may be designated as Excluded Permits on
Schedule 1.1.16.
1.17. "Extension Deposit" shall have the meaning set forth in Section 5.1.
Schedule 1
DocuSign Envelope ID:35D1A267-5C09-45E3-8C65-742D1C641839
1.18. "Existing Survey" shall have the meaning set forth in Section 4.2.
1.19. "Feasibility Period"shall have the meaning set forth in Section 3.1.
1.20. "FHA" shall have the meaning set forth in Section 13.21.
1.21. "Fixtures and Tangible Personal Property" means all fixtures, furniture,
furnishings, fittings, equipment, machinery, apparatus, appliances and other articles of tangible
personal property located on the Land or in the Improvements as of the Effective Date and used
or usable in connection with the occupation or operation of all or any part of the Property, but
only to the extent transferable. The term "Fixtures and Tangible Personal Property"does not
include (a)equipment leased by Seller and the interest of Seller in any equipment provided to the
Property for use, but not owned or leased by Seller, or (b) property owned or leased by any
Tenant or guest, employee or other person furnishing goods or services to the Property, or
(c) property and equipment owned by Seller, which in the ordinary course of business of the
Property is not used exclusively for the business, operation or management of the Property, or(d)
the property and equipment, if any, expressly identified in Schedule 1.1.21. During the
Feasibility Period, Purchaser and Seller will cooperate in good faith to prepare a list of the
material Fixtures and Tangible Personal Property to be transferred to Purchaser at the Closing.
1.22. "General Assignment" shall have the meaning set forth in Section 5.2.3.
1.23. "Good Funds" shall have the meaning set forth in Section 2.2.1.
1.24. "HAP Contract" means that certain PBV Housing Assistance Payments Contract
— Existing Housing, dated effective as of August 1, 2016, between Seller and the State of
Colorado Department of Local Affairs, Division of Housing.
1.25. "Improvements" means all buildings and improvements located on the Land
taken"as is."
•
1.26. "Initial Deposit"shall have the meaning set forth in Section 2.2.1.
1.27. "Inspections" shall have the meaning set forth in Section 3.1.
1.28. "Land" means all of those certain tracts of land located in the State of Colorado
described on Exhibit A, and all rights, privileges and appurtenances pertaining thereto, as more
particularly described in the Deed.
1.29. "Lease(s)" means the interest of Seller in and to all leases, subleases and other
occupancy contracts, whether or not of record, which provide for the use or occupancy of space
or facilities on or relating to the Property and which are in force as of the Closing Date for the
Property.
1.30. "Leases Assignment"shall have the meaning set forth in Section 5.2.4.
Schedule 1
DocuSign Envelope ID:35D1A267-5C09-45E3-8C65-742D1C641839
1.31. "Losses"shall have the meaning set forth in Section 3.4.1.
1.32. "Materials" shall have the meaning set forth in Section 3.5.
1.33. "Miscellaneous Property Assets" means all contract rights, leases, concessions,
warranties, plans, drawings and other items of intangible personal property relating to the
ownership or operation of the Property and owned by Seller, excluding, however, (a) receivables,
(b) Property Contracts, (c) Leases, (d) Permits, (e) cash or other funds, whether in petty cash or
house "banks," or on deposit in bank accounts or in transit for deposit, (f) refunds, rebates or
other claims, or any interest thereon, for periods or events occurring prior to the Closing Date,
(g) utility and similar deposits, (h) insurance or other prepaid items, or (i) Seller's proprietary
books and records. The term "Miscellaneous Property Assets"also shall include all of Seller's
rights, if any, in and to the name "Lake Creek Village Apartments" as it relates solely to use in
connection with the Property (and not with respect to any other property owned or managed by
Seller, Property Manager, or their respective affiliates).
1.34. "New Exception" shall have the meaning set forth in Section 4.6.
1.35. "New Exception Review Period" shall have the meaning set forth in Section 4.6.
1.36. "Objection Deadline" shall have the meaning set forth in Section 4.3.
1.37. "Objection Notice" shall have the meaning set forth in Section 4.3.
1.38. "Objections" shall have the meaning set forth in Section 4.3.
1.39. "Permits" means all licenses and permits granted by any governmental authority
having jurisdiction over the Property owned by Seller and required in order to own and operate
the Property.
1.40. "Permitted Exceptions" shall have the meaning set forth in Section 4.4.
1.41. "Prohibited Person" means any of the following: (a) a person or entity that is
listed in the Annex to, or is otherwise subject to the provisions of, Executive Order No. 13224 on
Terrorist Financing (effective September 24, 2001) (the "Executive Order"); (b) a person or
entity owned or controlled by, or acting for or on behalf of any person or entity that is listed in
the Annex to, or is otherwise subject to the provisions of, the Executive Order; (c) a person or
entity that is named as a"specially designated national" or"blocked person"on the most current
list published by the U.S. Treasury Department's Office of Foreign Assets Control ("OFAC")at
its official website, http://www.treas.gov/offices/enforcement/ofac; (d) a person or entity that is
otherwise the target of any economic sanctions program currently administered by OFAC; or(e)
a person or entity that is affiliated with any person or entity identified in clause (a), (b), (c)
and/or(d) above.
1.42. "Property" means (a) the Land and Improvements and all rights of Seller, if any,
in and to all of the easements, rights, privileges, and appurtenances belonging or in any way
appertaining to the Land and Improvements, (b) the Property Contracts, Leases, Permits (other
Schedule 1
DocuSign Envelope ID:35D1A267-5C09-45E3-8C65-742D1C641839
than Excluded Permits), and the right, if any, of Seller in and to the Fixtures and Tangible
Personal Property, and (c) the Miscellaneous Property Assets owned by Seller which are located
on the Property and used in its operation.
1.43. "Property Contracts" means all contracts, agreements, equipment leases,
purchase orders, maintenance, service, and similar contracts, excluding Leases, regardless of
whether entered into by Seller, Property Manager, or an affiliate of either, which relate to the
ownership, maintenance, construction or repair and/or operation of the Property, whether or not
assignable by their terms, but not including (a) any national contracts entered into by Seller or
Property Manager with respect to the Property (i)which terminate automatically upon transfer of
the Property by Seller, or (ii) which Seller, in Seller's sole discretion, elects to terminate with
respect to the Property effective as of the Closing Date, or(b) any property management contract
for the Property. Property Contracts shall not include forward or similar long-term contracts to
purchase electricity, natural gas, or water/sewer, which contracts shall be "Utility Contracts"
governed by the provisions of Section 5.4.9.
1.44. "Property Contracts List" shall have the meaning set forth in Section 3.5.4.
1.45. "Property Contracts Notice" shall have the meaning set forth in Section 3.6.
1.46. "Property Manager"means the current property manager of the Property.
1.47. "Proration Schedule"shall have the meaning set forth in Section 5.4.1.
1.48. "Purchase Price" means the consideration to be paid by Purchaser to Seller for
the purchase of the Property pursuant to Section 2.2.
1.49. "Purchaser" shall have the meaning set forth in Section 13.26.
1.50. "Records Disposal Notice"shall have the meaning set forth in Section 5.4.12.
1.51. "Records Hold Period" shall have the meaning set forth in Section 5.4.12.
1.52. "Rent Roll" shall have the meaning set forth in Section 3.5.3.
1.53. "Repairs" shall have the meaning set forth in Section 11.1.
1.54. "Report" shall have the meaning set forth in Section 14.2.
1.55. "Response Deadline" shall have the meaning set forth in Section 4.3.
1.56. "Response Notice" shall have the meaning set forth in Section 4.3.
1.57. "Seller's Indemnified Parties" shall have the meaning set forth in Section 3.4.1
1.58. "Seller's Property-Related Files and Records" shall have the meaning set forth
in Section 5.4.12.
Schedule 1
DocuSign Envelope ID:35D1A267-5C09-45E3-8C65-742D1C641839
1.59. "Seller's Representations" shall have the meaning set forth in Section 6.1.
1.60. "Survey" shall have the meaning ascribed thereto in Section 4.2.
1.61. "Survival Period" shall have the meaning set forth in Section 6.3.
1.62. "Survival Provisions" shall have the meaning set forth in Section 13.25.
1.63. "Tenant" means any person or entity entitled to occupy any portion of the
Property under a Lease.
1.64. "Tenant Deposits" means all security deposits, prepaid rentals, cleaning fees and
other refundable deposits and fees collected from Tenants, plus any interest accrued thereon, paid
by Tenants to Seller pursuant to the Leases. Tenant Deposits shall not include any
non-refundable deposits or fees paid by Tenants to Seller, either pursuant to the Leases or
otherwise.
1.65. "Tenant Security Deposit Balance" shall have the meaning set forth in Section
5.4.6.2.
1.66. "Terminated Contracts" shall have the meaning set forth in Section 3.6.
1.67. "Third-Party Reports" means any reports, studies or other information prepared
or compiled for Purchaser by any Consultant or other third-party in connection with Purchaser's
investigation of the Property.
1.68. "Title Commitment" shall have the meaning set forth in Section 4.1.
1.69. "Title Documents" shall have the meaning set forth in Section 4.1.
1.70. "Title Insurer" shall have the meaning set forth in Section 2.2.1.
1.71. "Title Policy" shall have the meaning set forth in Section 4.1.
1.72. "Uncollected Rents" shall have the meaning set forth in Section 5.4.6.1.
1.73. "Utility Contract" shall have the meaning set forth in Section 5.4.9.
1.74. "Vendor Terminations" shall have the meaning set forth in Section 3.6.
Schedule 1
DocuSign Envelope ID:35D1A267-5C09-45E3-8C65-742D1C641839
SCHEDULE 1.1.16
LIST OF EXCLUDED PERMITS
Building Permit, COMM-020535-2021, issued by Eagle County, regarding Trash
and Recycling Collection Project,Lake Creek Village
Schedule 1.1.16
DocuSign Envelope ID:35D1A267-5C09-45E3-8C65-742D1C641839
SCHEDULE 1.1.21
LIST OF EXCLUDED FIXTURES AND TANGIBLE PERSONAL PROPERTY
1. Any on-site Property Manager computers, including software;
2. 2003 Ford Van(VIN 1FTNE24L03HB10026); and
3. All of the items set forth in Sub-sections(a)through)of the definition of"Fixtures and
Tangible Personal Property" in Schedule 1 of the Contract.
Schedule 1.1.21
DocuSign Envelope ID:35D1A267-5C09-45E3-8C65-742D1C641839
SCHEDULE 3.5
LIST OF MATERIALS
IN ALL INSTANCES, THE FOLLOWING MATERIALS WILL BE DELIVERED ONLY TO
THE EXTENT THE SAME EXIST AND ARE IN SELLER'S POSSESSION OR
REASONABLE CONTROL. ALL DELIVERIES ARE MADE SUBJECT TO THE
PROVISIONS OF SECTION 3.5.2 OF THE CONTRACT
(a) Seller's form of residential lease agreement used at the Property
(b) All Property Contracts and any equipment leases, including any pest control service
contracts
(c) Any property locator or similar agreements (other than agreements with the Property
Manager), if any, pertaining to the marketing and advertisement of the Property for
leasing (and payment of commissions in connection therewith), but only to the extent the
same will remain in effect after the Closing
(d) All engineering studies, environmental reports (including any existing Phase I
Environmental Site Assessments), pest inspections or reports, to the extent available and
in Seller's possession (subject to Section 3.5.2), which relate to the Property and were
prepared for Seller by third parties
(e) Current operating statements for the Property, and to the extent available and in Seller's
possession (subject to Section 3.5.2), for the three years prior to the year in which the
Effective Date occurs
(f) A summary of pending insurance claims and pending litigation, if any, provided that such
summary shall be prepared to Seller's knowledge (as defined in Section 6.4 of the
Contract) and Seller makes no representations or warranties regarding the outcome of
such claims or litigation
(g) To the extent available and in Seller's possession(subject to Section 3.5.2), guaranties or
warranties with respect to the roof of the Property, if any, and roof replacement list
(h) Copies of any certificates of occupancy and/or other Permits, to the extent available and
in Seller's possession(subject to Section 3.5.2)
(i) Copies of current tenant Leases and tenant files (available for on-site review only)
(j) Current aged receivable/delinquency reports
(k) 3 months bank statements—to tie in deposits and deposit registry
(1) Insurance bill(s) for the property plus a three(3)year loss run.
(m) The utility bills for the Property for the past six calendar months
(n) Schedule of all utility accounts that will be transferred and what each account is for
(o) List of capital expenses for the previous two(2)years for the Property
(p) Existing as-built(ALTA or other) surveys for the Property
Schedule 3.5