Form 8-K - CURRENT REPORT
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Under Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) December 13, 2002
SHELTER PROPERTIES III
(Exact name of registrant as specified in its charter)
South Carolina 0-10260 57-0718508
(State or other jurisdiction (Commission (I.R.S. Employer
incorporation) File Number) Identification Number)
55 Beattie Place
Post Office Box 1089
Greenville, South Carolina 29602
(Address of principal executive offices)
(Registrant's telephone number)
(864) 239-1000
Item 2. Acquisition or Disposition of Assets.
On December 13, 2002, the Registrant sold one of its investment properties,
North River Village Apartments, located in Atlanta, Georgia. North River Village
Apartments was sold to Silver Tree Associates, LLC, an unrelated party, for
$6,800,000. The sale price was determined based on the fair market value of the
investment property.
In accordance with the Amended and Restated Certificate and Agreement of Limited
Partnership of the Registrant, the Registrant's general partner is evaluating
the cash requirements of the Registrant to determine whether any portion of the
net proceeds will be distributed to the Registrant's partners.
Item 7. Financial Statements and Exhibits
(b) Pro forma financial information.
The required pro forma financial information will be provided in the
Registrant's annual report on Form 10-KSB for the year ended December 31, 2002.
10(iv) Contracts related to disposition of property
(a) Purchase and Sale Contract between Registrant and Investors Realty
Group, Inc., effective December 13, 2002.
(b) Assignment of Purchase Agreement effective December 13, 2002.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
SHELTER PROPERTIES III
By: Shelter Realty III Corporation
Its General Partner
By: /s/Patrick J. Foye
Patrick J. Foye
Executive Vice President
Date: December 27, 2002
EXHIBIT 10(iv)(a)
PURCHASE AND SALE CONTRACT
BETWEEN
NORTH RIVER VILLAGE III LIMITED PARTNERSHIP,
a South Carolina limited partnership
AS SELLER
AND
INVESTORS REALTY GROUP, INC.,
a Georgia corporation
AS PURCHASER
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT ("Purchase Contract") is entered into as
of the ____ day of October, 2002 (the "Effective Date"), by and between NORTH
RIVER VILLAGE III LIMITED PARTNERSHIP, a South Carolina limited partnership
having a principal address at c/o AIMCO, 2000 South Colorado Blvd., Tower Two,
Suite 2-1000, Denver, Colorado 80222 ( "Seller") and INVESTORS REALTY GROUP,
INC., a Georgia corporation, having a principal address at Suite 201 North, 5600
Roswell Rd., Atlanta, Georgia 30342 ("Purchaser").
NOW, THEREFORE WITNESSETH: That for and in consideration of mutual
covenants and agreements herein after set forth, Seller and Purchaser hereby
agree as follows:
RECITALS
R-1. North River Village III Limited Partnership holds legal title to that
certain tract or parcel of real estate more particularly described in Exhibit A
attached hereto and made a part hereof on which improvements have been
constructed.
R-2. Purchaser desires to purchase and Seller has agreed to sell such land and
improvements defined below individually as the "Property" on the terms and
conditions set forth below (which terms and conditions shall control in the
event of any conflict with these Recitals), such that on the Closing Date as
defined in this Purchase Contract the Property will be conveyed by limited
warranty deeds to Purchaser;
R-4. Purchaser has agreed to pay to Seller the Purchase Price for the Property,
and Seller has agreed to sell the Property to Purchaser on the terms and
conditions set forth below.
ARTICLE 1
DEFINED TERMS
1.1 Terms with initial capital letters in this Purchase Contract and not
otherwise defined herein shall have the meanings set forth in this Article l
below.
1.1.1 "AIMCO Marks" means all words, phrases, slogans, materials, software,
proprietary systems, trade secrets, proprietary information bid lists and other
intellectual property owned or used by Seller, the current manager of the
Property, or Apartment Investment and Management Company ("AIMCO") in the
marketing, operation or use of the Property.
1.1.2 "Business Day" means any day other than a Saturday or Sunday or Federal
holiday or legal holiday in the State in which the Land is located.
1.1.3"Closing" means the consummation of the purchase and sale contemplated by
this Purchase Contract in accordance with the terms and conditions of this
Purchase Contract.
1.1.4 "Closing Date" means the date on which the Closing of the conveyance of
the Property is required to be held under the terms and conditions of this
Purchase Contract.
1.1.5 "Escrow Agent" shall have the meaning set forth in Section 5.1.
1.1.6"Excluded Permits" means those Permits which, under applicable law, are
nontransferable and such other Permits as may be designated as Excluded Permits
on Exhibit 1.1.5, if any, attached hereto.
1.1.7 [INTENTIONALLY DELETED]
1.1.8 "Existing Financing" shall mean the loans made by the Lender in the
original principal amounts shown on Exhibit 1.1.7 attached hereto which are
secured by first priority and second priority liens encumbering the Property.
1.1.9 [INTENTIONALLY DELETED].
1.1.10 "Fixtures and Tangible Personal Property" means all fixtures, furniture,
furnishings, fittings, equipment, machinery, apparatus, appliances, including,
but not limited to, 133 washers and dryers which are to be transferred to
Purchaser at North River Village, and other articles of tangible personal
property now located on the Land or in the Improvements as of the Effective Date
(or hereafter acquired by Seller prior to the Closing Date) and used or usable
in connection with any present or future 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 (i) 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 (ii) property owned or leased by any
Tenant and guest, employee or other person furnishing goods or services to the
Property, or (iii) 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 (iv) the property and equipment, if
any, expressly identified as being excluded in Exhibit 1.1.9;
1.1.11 "Improvements" means all buildings and improvements located on the Land
taken "as is".
1.1.12 "Land" means all of that certain tract or tracts of land more
particularly described on Exhibit A-1 attached hereto and made a part hereof and
all rights, privileges and appurtenances pertaining thereto.
1.1.13 "Lease(s)" means the interest of Seller in and to all written leases,
subleases and other occupancy agreements, whether or not of record, which
provide for the use or occupancy of space or facilities on or relating to the
Property owned by Seller and which are in force as of the Effective Date and the
Closing Date.
1.1.14 "Lender" means Lexington Mortgage Company, its successors and assigns,
and GMAC Commercial Mortgage Corporation as servicer.
1.1.15 "Loan Documents" means with respect to Seller the documents evidencing
and securing or relating to the repayment of the Existing Financing including,
without limitation, all amendments and modifications thereto and any mortgage or
deed of trust or equivalent security title and lien encumbering the Property as
of the date hereof.
1.1.16 "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, but only to the extent transferable, excluding, however, (i)
receivables, (ii) Property Contracts, (iii) Leases (other than leases, subleases
and other occupancy agreements that are not written), (iv) Permits, (v) Fixtures
and Tangible Personal Property, (vi) cash or other funds, whether in petty cash
or house "banks," or on deposit in bank accounts or in transit for deposit,
unless otherwise payable to Purchaser pursuant to this Purchase Contract, (vii)
escrow, reserves or other impound accounts, (viii) refunds, rebates or other
claims, or any interest thereon, for periods or events occurring prior to the
Closing Date unless Seller is obligated to apply such items for the benefit of
tenants, (ix) utility and similar deposits, (x) insurance or other prepaid
items, or (xi) Seller's proprietary books and records.
1.1.17 "Notice" shall have the meaning ascribed thereto in Section 16.6.
1.1.18 "Permits" means all licenses and permits granted by governmental
authorities having jurisdiction over the Property owned by Seller and required
in order to own and operate such Property.
1.1.19 "Permitted Exceptions" means those exceptions or conditions permitted to
encumber the title to the Property in accordance with the provisions of Section
5.2.
1.1.20 "Property" means the Land and Improvements and all rights of Seller
relating to the Land and the Improvements, including without limitation, any
rights, title and interest of Seller, if any, in and to (i) any strips and gores
adjacent to the Land and any land lying in the bed of any street, road, or
avenue opened or proposed, in front of or adjoining the Land, to the center line
thereof; (ii) any unpaid award for any taking by condemnation or any damage to
the Property by reason of a change of grade of any street or highway; (iii) all
of the easements, rights, privileges, and appurtenances belonging or in any way
appertaining to the Land and Improvements; together with all Fixtures and
Tangible Personal Property, the right, if any and only to the extent
transferable, of Seller in the Property Contracts, Leases, Permits (other than
Excluded Permits), and the Miscellaneous Property Assets owned by Seller which
are located on the Property and used in its operation.
1.1.21 "Property Contracts" means all purchase orders, maintenance, service or
utility contracts and similar contracts, excluding Leases, which relate to the
ownership, maintenance, construction or repair and/or operation of the Property,
but only to the extent transferable and which are other than the Property
management agreement.
1.1.22 "Purchase Contract" means this Purchase and Sale Contract by and between
Seller and Purchaser.
1.1.23 "Purchase Price" means the total consideration to be paid by Purchaser to
Seller for the purchase of the Property, as set forth in Section 3.1.
1.1.24 "Rent Roll" shall have the meaning ascribed thereto in Section 8.1.1.9.
1.1.25 "Survey" shall have the meaning ascribed thereto in Section 5.11.
1.1.26 "Tenant" or "Tenants" means any person or persons or entity entitled to
occupy any portion of the Property under a Lease.
1.1.27 "Title Commitment" shall have the meaning ascribed thereto in Section
5.1.
1.1.28 "Title Insurer" shall have the meaning set forth in Section 5.1.
ARTICLE 2
PURCHASE AND SALE OF PROPERTY
2.1 Seller agrees to sell and convey the Property to Purchaser and Purchaser
agrees to purchase the Property from Seller, in accordance with the terms and
conditions set forth in this Purchase Contract.
ARTICLE 3
PURCHASE PRICE, DEPOSIT AND ESCROW PROVISIONS
3.1 The purchase price ("Purchase Price") for the Property shall be Six Million
Eight Hundred Thousand and 00/100 Dollars ($6,800,000), which shall be paid by
Purchaser, as follows:
3.1.1 Upon the execution of this Purchase Contract, Purchaser shall deliver to
Escrow Agent the sum of One Hundred Thousand and 00/100 Dollars ($100,000) (the
"Deposit"), by federal wire transfer. Purchaser's failure to timely deliver the
Deposit shall terminate this Purchase Contract. Purchaser and Seller approve the
form of Escrow Agreement attached as Exhibit B.
3.1.2 The Escrow Agent shall hold the Deposit and make delivery of the Deposit
to the party entitled thereto under the terms hereof. The Escrow Agent shall
invest the Deposit as directed by Purchaser in its sole discretion and all
interest and income thereon shall become part of the Deposit and shall be
remitted to the party entitled to the Deposit, as set forth below.
3.1.3 If the sale of the Property is closed by the date fixed therefor (subject
to extension as set forth herein), monies held as the Deposit shall be applied
against the Purchase Price (and paid over to the Seller) on the Closing Date. If
the sale of the Property is not closed by the date fixed therefor (or any such
extension date) owing to failure of satisfaction of a condition precedent to
Purchaser's obligations that is not caused by or attributable to, directly or
indirectly, any act or failure to act of Purchaser, the Deposit shall be
returned and refunded to Purchaser, and neither party shall have any further
liability hereunder, subject to and except for Purchaser's liability under
Section 4.4.
3.1.4 If the sale of the Property is not closed by the date fixed therefor
(subject to any extension set forth herein) owing to failure of performance by
Seller, Purchaser shall be entitled to the remedies set forth in Article 12
hereof. If the sale of the Property is not closed by the date fixed therefor (or
any such extension date set forth herein) owing to failure of performance by
Purchaser, the Deposit shall be forfeited by Purchaser and the sum thereof shall
go to Seller as Seller's sole and exclusive remedy forthwith as liquidated
damages for the lost opportunity costs and transaction expenses incurred by
Seller, as more fully set forth in Article 12 below.
ARTICLE 4
ACCESS TO PROPERTY
4.1 Subject to the terms of Section 4.4 below, Purchaser, and its agents,
contractors, engineers, surveyors, attorneys, and employees ("Consultants")
shall have the right from time to time, during normal business hours and after
prior notice to Seller, to enter onto the Property:
4.1.1 To conduct and make any and all studies, tests, examinations and
inspections, or investigations of or concerning the Property (including, without
limitation, environmental studies, structural engineering, evaluation of
drainage and flood plain, soil tests for bearing capacity and percolation,
surveys, including topographical surveys, title and zoning law compliance).
4.1.2 To confirm any and all matters which Purchaser may desire to confirm with
respect to the Property.
4.1.3 To review and copy (at Purchaser's expense) the materials referenced in
Section 4.3 (other than Seller's proprietary information).
4.2 Notwithstanding any provision in this Contract to the contrary, Purchaser
acknowledges that it is not the intention of Article 4, that Purchaser be given
any "free look" or right to terminate on account of the unsuitability of the
Property. Purchaser's obligation to purchase the Property shall be
non-contingent and unconditional except only for satisfaction of the conditions
expressly stated in Article 9 or the performance by Seller of its obligations
under this Purchase Contract.
4.3 No later than five (5) Business Days after the Effective Date, with respect
to the Property, Seller shall deliver (solely to the extent in Seller's
possession or control) to the Purchaser copies of existing (i) Property
Contracts, (ii) Leases (in effect as of the Effective Date), (iii) soil and
environmental reports and studies, (iv) reports and studies relating to the
physical condition of the Property, (v) a list of Fixtures and Tangible Personal
Property, (vi) monthly operating statements and annual operating statements for
the twelve (12) month period prior to the Effective Date, (vii) a rent roll, a
list of all accounts receivable and a delinquency report, (viii) copies of
termination notices relating to the Leases received by Seller which would be
effective after the Closing Date, (ix) copies of any notices received from local
and state governmental authorities. In addition, no later than five (5) Business
Days following the Effective Date, Seller shall make available to Purchaser at
the Property (in each case, solely to the extent in Seller's possession or
control) the following with respect to the Property: (x) architectural and
engineering plans, (xi) tenant correspondence files with respect to the Leases,
(xii) service and repair requests and work orders relating to the Property, and
(xiii) copies of governmental permits, alarm registrations and other permits and
licenses necessary for the operation of the Property.
4.4 Purchaser shall indemnify, defend (with attorneys selected by Seller in its
reasonable discretion) and hold Seller harmless for any actions taken by
Purchaser and its Consultants and any and all claims, damages, costs and
liability which may arise due to such entries, surveys, tests, investigation and
the like on the Property in connection with the performance of Purchaser's
access to the Property under this Purchase Contract; provided, however, that
notwithstanding anything herein to the contrary, Purchaser shall not be liable
for any damages incurred by Seller resulting from the mere discovery by
Purchaser of a condition at or with regard to the Property, Purchaser hereby
acknowledging, however, that Seller shall have no obligation to Purchaser in
connection with such condition or otherwise to remedy such condition. Seller
shall have the right, without limitation, to disapprove of any and all entries,
surveys, tests, investigations and the like other than Phase I environmental
investigations that in its reasonable judgment could result in any injury to the
Property or breach of any agreement, or expose Seller to any liability, costs,
liens or violations of applicable law, or otherwise adversely affect the
Property or Seller's interest therein. 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 the Property to the same
condition existing immediately prior to Purchaser's exercise of its rights
pursuant to this Article 4, at Purchaser's sole cost and expense, to the extent
the damage to the Property or the change in condition thereof is attributable to
the access hereunder by Purchaser or its Consultants. Purchaser shall maintain
comprehensive public liability insurance with broad form contractual and
personal injury liability endorsements with respect to Property and Purchaser's
activities carried on therein, in amounts (including deductible amounts) and
with such insurance carriers as shall be approved by Seller and naming Seller
and its affiliates as additional insureds, with endorsements acceptable to
Seller, including a waiver of defenses of the insurer based on the actions or
inaction of Purchaser. Such liability insurance shall provide coverages of not
less than $1,000,000 (per occurrence and in the aggregate) for death or injury
to persons and for property damage. The provisions of this Section shall survive
the Closing or termination of this Purchase Contract.
4.5 Purchaser shall not permit any mechanic's or materialman'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 studies or tests conducted by or for Purchaser. Purchaser shall give
notice to Seller within a reasonable time prior to entry onto the Property and
shall permit Seller to have a representative present during all investigations
and inspections conducted with respect to the Property. Purchaser shall take all
reasonable actions and implement all protections necessary to ensure that all
actions taken in connection with the investigations and inspections of the
Property, and all equipment, materials and substances generated, used or brought
onto the Property, pose no material threat to the safety of persons or the
environment and cause no damage to the Property or other property of Seller or
other persons.
ARTICLE 5
TITLE
5.1 Purchaser shall have obtained commitments for title insurance for the
Property (collectively, the "Title Commitment") from Chicago Title Insurance
Company, Gregory D. Hughes, c/o Hughes and White, 2110 Powers Ferry Road, Suite
440, Atlanta, Georgia 30339 ((770) 955-9055) ("Escrow Agent or "Title Insurer")
for owner's title insurance policies (1992 ALTA), and shall have delivered the
Title Commitment together with copies of all instruments identified as
exceptions therein to Seller within five (5) calendar days following the
Effective Date. Purchaser agrees that it shall be solely responsible for payment
of all costs relating to procurement of the Title Commitment, the owner's title
policies and any requested endorsements.
5.2 Purchaser agrees to accept title to the Land and Improvements in accordance
with the terms of this Purchase Contract, so long as with respect to the
Property (i) the title is good and marketable, and (ii) any conveyance by
limited warranty deed pursuant to this Purchase Contract shall be subject to the
following, all of which shall be deemed "Permitted Exceptions" and Purchaser
agrees to accept the deed and title subject thereto:
5.2.1 All exceptions shown in the Title Commitment to which Purchaser shall not
have objected within the above ten (10) day period (a "title objection") (other
than mechanics' liens and taxes due and payable with respect to the period
preceding Closing and the standard exceptions which shall be omitted [except
that the standard exception for parties in possession shall be modified to read
"rights of tenants as tenants only under unrecorded leases"]);
5.2.2 All Leases described on Seller's Rent Roll;
5.2.3 Real estate and property taxes to the extent not due and payable;
5.2.4 Such exceptions and matters as the Title Insurer shall be willing to omit
as exceptions to coverage; and
5.2.5 All the Property Contracts which are not identified for termination by
Purchaser. Notwithstanding the foregoing, all Property Contracts which (i) are
not cancelable upon 30 days or less notice or (ii) require the payment of a
penalty or premium for cancellation shall be assumed by Purchaser or cancelled
with Purchaser being solely responsible for the payment of any penalty or
cancellation fees or penalties.
5.3 With respect to Property, the existence of the Loan Documents, liens, or
encumbrances shall not be objections to title, provided that properly executed
instruments in recordable form necessary to satisfy and remove the same of
record are delivered to Purchaser at Closing or, in the alternative, payoff
letters from the Lender or any holder of any Loan Documents shall have been
delivered to and accepted by the Title Insurer (sufficient to remove the same
from the policy issued at Closing), together in either case, with recording
and/or filing fees and pay-off funds.
5.4 Unpaid liens for taxes, charges, and assessments shall not be objections to
title, but the amount thereof plus interest and penalties thereon shall be
deducted from the Purchase Price to be paid for the Property hereunder and
allowed to Purchaser, subject to the provisions for apportionment of taxes and
charges contained herein.
5.5 Unpaid franchise or business corporation taxes of any corporations in the
chain of title shall not be an objection to title, provided that the Title
Insurer agrees to insure against collection out of the Property or otherwise
against Purchaser or its affiliates, and provided further that the Title Insurer
agrees to omit such taxes as exceptions to coverage with respect to any lender's
title insurance policy with respect to the Property.
5.6 If on the Closing Date there shall be conditional bills of sale or Uniform
Commercial Code Financing Statements applicable to the Property that exceed the
period of time mandated under the law of the state where the Property is located
that a Uniform Commercial Code Financing Statement is perfected without the
filing of UCC-3 continuation statements and such Financing Statements have not
been extended by the filing of UCC-3 continuation statements within the
applicable time period mandated by the applicable state law, such Financing
Statements shall not be deemed an objection to title.
5.7 If on the Closing Date, the state of title is other than in accordance with
the requirements set forth in this Purchase Contract or if any condition to be
fulfilled by Seller shall not be satisfied, Purchaser shall provide Seller with
written Notice thereof at such time, or such title objection or unfulfilled
condition shall be deemed waived by Purchaser in which case Purchaser and Seller
shall proceed to consummate the Closing on the Closing Date. If Purchaser timely
gives Seller such Notice, Seller, at its sole option and within ten (10)
calendar days following receipt of such Notice, may elect to cure such objection
or unfulfilled condition for up to thirty (30) calendar days. Should Seller be
able to cure such title objection or condition, or should Seller be able to
cause title insurance over the same by the Closing Date or any postponed Closing
Date, or should Purchaser waive such objection or condition within such period
for cure, then the Closing shall take place on or before fifteen (15) calendar
days after such cure or waiver.
5.8 Subject to Seller's obligation to cure under Section 5.9, if during the
period of cure Seller is unable or unwilling, in its sole discretion or opinion,
to eliminate such title objection or cause a title insurance company to insure
over such matter or satisfy such unfulfilled condition, Seller shall gives
Purchaser written Notice thereof, and if Purchaser does not waive such objection
by written Notice delivered to Seller and the Title Insurer on or before seven
(7) calendar days following the date Seller give such Notice, then this Purchase
Contract shall automatically terminate, the Deposit shall be returned to
Purchaser by the Escrow Agent less the sum of One Hundred and 00/100 ($100)
Dollars paid to Seller as consideration for taking the Property off of the
market and the parties hereto shall have no further obligations to each other.
5.9 Seller covenants that it will not voluntarily create or cause any lien or
encumbrance (other than Leases and Property Contracts permitted by this Purchase
Contract) to attach to the Property between the Effective Date and the Closing
Date. Any monetary lien or encumbrance so attaching by voluntary act of Seller
shall be discharged by Seller at or prior to Closing, on the Closing Date or any
postponed Closing Date. Except as expressly provided above, Seller shall be
required to undertake efforts to remove any other lien, encumbrance, security
interest, exception, objection or other matter, to make any expenditure of money
or institute litigation or any other judicial or administrative proceeding and
Seller may elect not to discharge the same.
5.10 Anything to the contrary notwithstanding, Purchaser shall not have any
right to terminate this Purchase Contract or object to any lien, encumbrance,
exception or other matter that is a Permitted Exception, that has been waived or
that has been deemed to have been waived by Purchaser.
5.11 Buyer will cause an updated survey to be prepared for the Property (the
"Survey"). An original counterpart of the Survey has been or will be delivered
to Purchaser no later than five (5) Business Days after the Effective Date. In
the event that the perimeter legal description of the Property contained in such
Survey differs from that contained in the deed or deeds by which a Seller took
title to the Property, the latter description shall be used in the limited
warranty deed delivered to Purchaser at Closing, and the Survey legal shall be
used in a quitclaim deed to the applicable Property which also shall be
delivered to Purchaser at Closing. Should the Survey disclose conditions that
give rise to a title exception other than a Permitted Exception, Purchaser shall
have the right to object thereto within ten (10) days following Seller's
delivery to Purchaser of such updated Survey. Seller agrees to pay the cost of
the update to the Survey provided that such cost does not exceed $5,000. Seller
shall cause a termite inspection to be performed with respect to the Property.
ARTICLE 6
FINANCING
6.1 Purchaser assumes full responsibility to expeditiously and diligently
initiate and pursue all steps necessary to obtain the funds required for
settlement, and Purchaser's acquisition of such funds shall not be a contingency
to Closing. It is specifically agreed that Seller shall not be obligated to
prepay the Existing Financing until the Closing Date, and then only from the
proceeds of the Purchase Price.
ARTICLE 7
CLOSING
7.1 Dates, Places Of Closing, Prorations, And Delinquent Rent.
7.1.1 The Closing shall take place forty-five (45) days after the Effective
Date. The parties may mutually agree to an earlier Closing Date. Purchaser and
Seller shall conduct the Closing through an escrow with the Title Insurer,
whereby Seller, Purchaser and their attorneys need not be physically present at
the Closing and each may deliver documents by overnight air courier or other
means to the Escrow Agent.
7.1.2 The Closing may be extended without penalty at the option of Purchaser to
the earlier of (i) December 13, 2002, or (ii) a date not later than thirty (30)
days following the Closing Date specified in Section 7.1.1, upon the deposit by
Purchaser of an additional Fifty Thousand and No/100 Dollars ($50,000.00) in
Earnest Money paid to Escrow Agent.
7.1.3 All normal and customarily proratable items, including, without
limitation, Rents (as defined below), operating expenses, personal and real
property taxes, and fees shall be prorated as of the Closing Date, Seller being
charged and credited 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) and Purchaser being responsible for, and
credited or charged, as the case may be, for all of same attributable to the
period on and after the Closing Date. At Closing, Purchaser shall receive a
credit for the sum of any rent concessions given to a Tenant which extends
beyond the Closing Date; provided, however, that the foregoing shall not apply
to any rent concessions given to managers, leasing agents or maintenance
personnel at the Property. All unapplied security deposits under Leases, if any,
shall be transferred by Seller to Purchaser at the Closing. Purchaser shall
assume at Closing the obligation to pay such security deposits to Tenants, if
required under the Leases, to the extent that such security deposits are
transferred to Purchaser at Closing. Any real estate ad valorem or similar taxes
for the Property, or any installment of assessments payable in installments
which installment is payable in the year of Closing, shall be prorated to the
date of Closing, based upon actual days involved. The proration of real property
taxes or installments of assessments shall be based upon the assessed valuation
and tax rate figures for the year in which the Closing occurs to the extent the
same are available; provided, that in the event that actual figures (whether for
the assessed value of the Property or for the tax rate) for the year of Closing
are not available at the Closing Date, the proration shall be made using figures
from the preceding year and a re-proration of real estate taxes shall
subsequently be performed based upon the assessed value and tax rate for the
year in which the Closing occurs at the time that such information becomes
available. The proration shall be final and unadjustable except-as provided in
the following paragraph. For purposes of this Section 7.1.3 and Sections 7.1.4
and 7.1.5 the terms "Rent" and "Rents" shall include, without limitation, base
rents, additional rents, and any other charges under the Leases. The provisions
of this Section 7.1.3 shall apply during the Proration Period (as defined
below).
7.1.4 If any of the items subject to proration hereunder cannot be prorated at
the Closing because the information necessary to compute such proration is
unavailable, or if any errors or omissions in computing prorations at the
Closing are discovered subsequent to the Closing, then such item shall be
reapportioned and such errors and omissions corrected promptly after the date of
such availability or discovery and the proper party reimbursed, which obligation
shall survive the Closing for a period (the "Proration Period") from the Closing
Date until one (l) year after the Closing Date. No party hereto shall have the
right to require a recomputation of a Closing proration or a correction of an
error or omission in a Closing proration unless within the Proration Period one
of the parties hereto (i) has obtained the previously unavailable information or
has discovered the error or omission, and (ii) has given Notice thereof to the
other party together with a copy of its good faith recomputation of the
proration and copies of all substantiating information used in such
recomputation. The failure of a party to obtain any previously unavailable
information or discover an error or omission with respect to an item subject to
proration hereunder and to give Notice thereof as provided above within the
Proration Period shall be deemed a waiver of its right to cause a recomputation
or a correction of an error or omission with respect to such item after the
Closing Date.
7.1.5 With respect to unpaid Rent not more than thirty (30) days delinquent,
Purchaser shall use reasonable efforts to collect the same for Seller's benefit
after the Closing in the usual course of the operation of the Property (but
Purchaser shall not be required to incur any expense in such collection effort)
and such collection, if any shall be remitted to Seller (less costs and expenses
of collection, if any) promptly upon receipt by Purchaser; provided Purchaser's
obligation to remit such delinquent rental payments to Seller shall terminate
sixty (60) days after the Closing Date. Nothing contained herein shall operate
to require Purchaser to institute any lawsuit or other collection procedure to
collect such delinquent rentals. Seller and Purchaser agree that any sums
received by Purchaser from any tenant owing delinquent rentals shall first be
applied to rentals and any other amounts owed to Purchaser and then to
delinquent rentals with respect to the period before Closing. This provision
shall survive the Closing for a period not to exceed ninety (90) days.
7.1.6 Fuel, water and sewer service charges, and charges for gas, electricity,
telephone and all other public utilities shall be adjusted as of midnight of the
day immediately preceding the Closing Date. If there are meters on the Property
measuring the consumption of water, gas or electric current, Seller shall, not
more than one (1) Business Day prior to the Closing Date, cause such meters (for
utilities for which Seller, and not Tenants, is responsible) to be read and
shall pay promptly all utility bills for which Seller is liable upon receipt of
statements therefor. Purchaser shall be liable for and shall pay all utility
bills for services rendered after such meter readings.
7.1.7 If any security deposit for a corporate apartment unit is in the form of a
letter of credit, then the Seller shall cause a replacement letter of credit to
be issued and delivered to Purchaser on the Closing Date upon the same terms and
conditions as the original letter of credit. If replacement letters of credit
cannot be issued and delivered to Purchaser on the Closing Date, then Seller
shall deposit with Purchaser on the Closing Date cash equal to the amount of the
letters of credit not replaced, to be held by Purchaser as tenant security
deposits until replacement letters of credit are delivered to Purchaser.
7.1.8 All apartment units must be in a "rent ready" condition. Rent ready means
Seller's routine and customary preparation of units for rental in Seller's
ordinary course of business.
7.2 To Be Delivered Prior To Or At Closing.
7.2.1 Seller. At Closing, Seller shall deliver to Purchaser, each of the
following items, as applicable:
7.2.1.1 Limited warranty deed in the form attached as Exhibit 7.2.1.1 to
Purchaser. The acceptance of the deeds at Closing, shall be deemed to be full
performance of, and discharge of, every agreement and obligation on Seller's
part to be performed under this Purchase Contract, except for those that this
Purchase Contract specifically provides shall survive Closing.
7.2.1.2 A Bill of Sale, without recourse or warranty, in the form attached as
Exhibit 7.2.1.2 covering all Property Contracts, Permits (other than Excluded
Permits), and Fixtures and Tangible Personal Property required to be transferred
to Purchaser with respect to Property. Purchaser shall countersign the same so
as to effect an assumption by Purchaser, including, without limitation, of
Seller's obligations thereunder.
7.2.1.3 A General Assignment (to the extent assignable and in effect), without
recourse or warranty, in the form attached hereto as Exhibit 7.2.1.3 of Seller's
right, title and interest in and to the Miscellaneous Property Assets, subject
to required consents. Purchaser shall countersign the same so as to effect an
assumption by Purchaser, including, without limitation, Seller's obligations
thereunder.
7.2.1.4 A closing statement executed by Seller.
7.2.1.5 A Seller's Affidavit, as applicable, in the customary form reasonably
acceptable to Seller and Title Insurer to enable Title Insurer to delete the
standard exceptions, (other than matters constituting any Permitted Exceptions
to the title insurance policies set forth in this Purchase Contract to be issued
pursuant to the Title Commitment); provided that such affidavit does not subject
Seller to any greater liability, or impose any additional obligations, other
than as set forth in this Purchase Contract.
7.2.1.6 A certification of Seller's non-foreign status pursuant to Section 1445
of the Internal Revenue Code of 1986, as amended, in the form attached as
Exhibit 7.2.1.6.
7.2.1.7 A letter duly executed by Seller advising the tenants under the Leases
of the change in ownership of the Property, if requested by Purchaser.
7.2.1.8 An Assignment of Leases and Security Deposits in the form attached as
Exhibit 7.2.1.8 covering all Leases and Security Deposits. Purchaser shall
countersign the same so as to effect an assumption by Purchaser, including,
without limitation, of Seller's obligations thereunder.
7.2.1.9 The most current rent roll together with a Certification by the Seller
that such Rent Roll is in all material respects a true, correct and complete
list of all the Leases currently in effect.
7.2.1.10 Notices of termination (effective as of the Closing Date) to service
providers whose Property Contracts will not be assumed by Purchaser at the
Closing, the identification of such providers being provided by Purchaser to
Seller.
7.2.1.11 Original tenant leases, modifications and amendments to the extent in
Seller's possession or control.
7.2.1.12 All certificates of occupancy with respect to the Property that are in
Seller's possession.
7.2.1.13 A complete set of architectural, structural, mechanical and electrical
plans and specifications for the Property, to the extent in Seller's possession
or control.
7.2.1.14 Copies of all existing books, records, papers, agreements, including
bookkeeping and accounting records (other than Seller's proprietary
information), which are in Seller's possession or control relating to the
Property.
7.2.1.15 All keys to the Property which are in Seller's possession.
7.2.1.16 Proof that the property management agreement has been terminated and is
of no further force and effect, if cancelable.
7.2.1.17 Resolutions, certificates of good standing, and such other
organizational documents of Seller as the Title Insurer may reasonably require
evidencing Seller's authority to consummate the transaction.
7.2.1.18 An affidavit of Seller complying with the provisions of O.C.G.A.
Section 48-7-128.
7.2.1.19 Such other instruments, documents or certificates as are required to be
delivered or made available by Seller to Purchaser in accordance with any of the
other provisions of this Purchase Contract, including, without limitation,
Section 4.3 hereof, which have not already been provided to Purchaser.
7.3 Purchaser. At Closing, Purchaser shall deliver to Title Insurer (for
disbursement to Seller upon Closing) the following items with respect to the
Property being conveyed at such Closing:
7.3.1 The full Purchase Price as required by Article 3 hereof minus the Deposit
and the Nonrefundable Deposit applied to the Purchase Price, plus or minus the
adjustments or prorations required by this Purchase Contract. If at Closing
there are any liens or encumbrances on the Property that Seller is obligated or
elects to pay and discharge, Seller may use any portion of the Purchase Price
for the Property to satisfy the same, provided that Seller shall have delivered
to Title Insurer on such Closing instruments in recordable form sufficient to
satisfy such liens and encumbrances of record (or as to any mortgages, deeds to
secure debt or deeds of trust, appropriate payoff letters, acceptable to the
Title Insurer), together with the cost of recording or filing such instruments.
The existence of any such liens or encumbrances shall not be deemed objections
to title if Seller shall comply with the foregoing requirements.
7.3.2 A closing statement executed by Purchaser.
7.3.3 A countersigned counterpart of the Bill of Sale in the form attached as
Exhibit 7.2.1.2.
7.3.4 A countersigned counterpart of the General Assignment in the form attached
as Exhibit 7.2.1.3.
7.3.5 A countersigned counterpart of the Assignment of Leases and Security
Deposits in the form attached as Exhibit 7.2.1.8.
7.3.6 Such other instruments, documents or certificates as are required to be
delivered by Purchaser to Seller in accordance with any of the other provisions
of this Purchase Contract.
7.4 Closing Costs. Except as otherwise provided in this Purchase Contract each
party shall pay its own costs to close the purchase and sale of the Property and
Seller and Purchaser shall each pay one-half the expenses of the Escrow Agent.
Each party shall pay the fees and costs of its own attorneys and agents.
Purchaser shall pay all recording costs, the cost of all title insurance
commitments and policies and all costs related to its financing and the cost of
an updated survey. Seller shall pay all transfer or similar taxes payable in
connection with the transfer of real property in the jurisdiction where the
Property is located, and prepayment or yield maintenance penalties related to
the pay-off of the Existing Loan and the cost of the termite report.
ARTICLE 8
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER
8.1 Representations And Warranties Of Seller.
8.1.1 For the purpose of inducing Purchaser to enter into this Purchase Contract
and to consummate the sale and purchase of the Property in accordance herewith,
Seller represents and warrants to Purchaser the following as of the Effective
Date and as of the Closing Date:
8.1.1.1 Seller is a limited partnership, lawfully and duly organized, validly
existing and in good standing under the laws of the state of its formation set
forth in the initial paragraph of this Purchase Contract; and shall at the
Closing have the power and authority to sell and convey the Property and to
execute the documents to be executed by Seller and prior to Closing will have
taken, as applicable, all corporate, partnership, limited liability company or
equivalent entity actions required for the execution and delivery of this
Purchase Contract, and the consummation of the transactions contemplated by this
Purchase 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 purchase
contract to which Seller is a party or by which Seller is otherwise bound.
8.1.1.2 To Seller's knowledge, no pending or threatened litigation exists which
if determined adversely would restrain the consummation of the transactions
contemplated by this Purchase Contract or would declare illegal, invalid or
non-binding Seller's obligations or covenants to Purchaser.
8.1.1.3 Seller holds title to the Property, including all real property
contained therein required to be sold to Purchaser, subject only to the
Permitted Exceptions applicable to the Property, Purchaser hereby agrees that
the foregoing representation and warranty shall not survive the Closing but
shall merge into the limited warranty or equivalent deed as delivered to
Purchaser by Seller.
8.1.1.4 There are no adverse or other parties in possession of the Property,
except for occupants, guests and tenants under the Leases or otherwise as set
forth in the Rent Roll for Property.
8.1.1.5 The joinder of no person or entity other than Seller is necessary to
convey the Property, fully and completely to Purchaser at Closing, or to fulfill
Seller's obligations, and Seller has all necessary right and authority to convey
and assign to Purchaser all contract rights and warranties required to be
conveyed and assigned to Purchaser hereunder with respect to the Property.
8.1.1.6 Purchaser has no duty to collect withholding taxes for Seller pursuant
to the Foreign Investors Real Property Tax Act of 1980, as amended.
8.1.1.7 To Seller's knowledge, there are no actions, proceedings, litigation or
governmental investigations or condemnation actions pending or threatened
against the Property, to the transactions hereby or against Seller relating to
the Property as applicable, except as set forth in Exhibit 8.1.1.7.
8.1.1.8 Seller has no knowledge of any claims for labor performed, materials
furnished or services rendered in connection with constructing, improving or
repairing the Property, caused by Seller and which remain unpaid beyond the date
for which payment was due and in respect of which liens may or could be filed
against the Property, except for repairs, materials or services furnished in the
ordinary course of business. Purchaser hereby agrees that the foregoing
representation and warranty shall not survive the Closing but shall merge into
the limited warranty or equivalent deed and the "Seller's Affidavit" executed by
Seller and delivered to the Title Insurer.
8.1.1.9 To the best of Seller's knowledge, there are no leases, license
agreements, occupancy agreements or tenancies for any space in the Property
other than those Leases set forth on the rent roll for the Property (the "Rent
Roll") and those Leases listed on Exhibit 8.1.1.9 attached hereto, if any. To
the best of Seller's knowledge, there are no oral agreements relating to the use
or occupancy of the Property or any oral leases which will be binding upon any
portion of the Property or Purchaser and the Leases delivered to Purchaser by
Seller are true and correct copies of all such Leases.
8.1.1.10 To the best of Seller's knowledge, Seller has not received any notice
of any violation or alleged violation of any laws, regulations, or other
requirements of any governmental agency or authority having jurisdiction over or
affecting the Property, to include, without limitation, notice of the violation
or alleged violation of any environmental protection laws or regulations.
8.1.1.11 To the best of Seller's knowledge, with respect to the Property all
commissions due on Leases or renewals of Leases have been paid in full as of the
Effective Date and all tenant buildout and other obligations due to tenants
under the Leases have been paid in full or otherwise have been satisfied.
8.1.1.12 Seller will not reduce the rental rates for the Property below the
schedule of rents described in Exhibit 8.1.1.12 attached hereto.
8.1.1.13 Except for the representations and warranties expressly set forth above
in Section 8.1, or as otherwise set forth in this Purchase Contract, 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, and is relying upon, no information
provided by Seller and no statements, representations or warranties, express or
implied, made by or enforceable directly against Seller, including, without
limitation, any relating to the value of the Property, the physical or
environmental condition of the Property, the state, federal, county or local
law, ordinance, order, permit or suitability, compliance or lack of compliance
of the Property with any regulation, or any other attribute or matter of or
relating to the Property (other than any covenants of title contained in the
deed or other conveyance instruments conveying Property and the warranties or
representations set forth in this Purchase Contract). Purchaser represents and
warrants that as of the Closing Date, it shall have reviewed and conducted such
independent analyses, studies, reports, investigations and inspections as it
deems appropriate in connection with the Property. If Seller provide or have
provided any documents, opinions or work product of consultants, surveyors,
architects, engineers, title companies, governmental authorities or any other
person or entity with respect to the Property, Purchaser and Seller agree that
Seller has done so or shall do so only for the convenience of the parties and
any reliance by Purchaser upon any such documents, opinions or work product
shall not create or give rise to any liability of or against Seller, Seller's
partners or affiliates or any of its respective partners, officers, directors,
participants, employees, contractors, attorneys, consultants, representatives,
agents, successors, assigns or predecessors-in-interest. Purchaser shall rely
only upon any title insurance obtained by Purchaser with respect to title to
Property and the warranties in the limited warranty or equivalent deed for the
Property. Purchaser acknowledges and agrees that no representation has been made
and no responsibility is assumed by Seller with respect to and future applicable
zoning or building code requirements or the compliance of the Property with any
other future 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. Purchaser hereby releases Seller from any and
all claims and liabilities relating to the foregoing matters, except as provided
in Subsection 8.1.1.13.
8.1.1.14 Unless otherwise set forth in Section 8.1, Seller and Purchaser agree
that those representations contained in Section 8.1 shall survive Closing for a
period of six (6) months after the Closing Date (that is, any proceeding based
on the breach of a representation contained in Section 8.1 that survives Closing
must be commenced within six (6) months subsequent to the Closing Date).
8.1.1.15 Any statement contained in the representations and warranties in this
Section 8.1 and made to the knowledge of a Seller shall mean ONLY the actual
knowledge of Seller based upon the information communicated to Seller with
respect to the Property by the individuals listed on Exhibit 8.1.1.15 attached
hereto; and otherwise any reference to the "knowledge" of Seller shall not be
deemed to imply any duty of investigation or inquiry by Seller, and shall not be
construed to include the knowledge of any member, partner, officer, director,
agent, employee or representative of Seller or any affiliate of Seller, imputed
to Seller or constructively attributed to Seller, other than as set forth in
this Section 8.1.1.15, Seller hereby warrants and represents to Purchaser that
the persons identified in this Section 8.1.1.15 are the persons who have the
most definitive knowledge with respect to Seller and the Property.
8.2 Representations And Warranties Of Purchaser
8.2.1 For the purpose of inducing Seller to enter into this Purchase 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:
8.2.1.1 With respect to Purchaser and its business, Purchaser represents and
warrants, in particular, that:
8.2.1.2 Purchaser is a corporation duly organized, validly existing and in good
standing under the laws of State of Georgia. Purchaser is sophisticated and
experienced in the acquisition, ownership and operation of multi-family housing
projects similar to the Property, and has full knowledge of all applicable
federal, state and local laws, rules, regulations and ordinances in connection
therewith.
8.2.1.3 Purchaser, acting through any of its or their duly empowered and
authorized officers, joint venturers, partners or members, has all necessary
power and authority to own and use the Property and to transact the business in
which it is engaged, and has full power and authority to enter into this
Purchase Contract, to execute and deliver the documents and instruments required
of Purchaser herein, and to perform its obligations hereunder; and no consent of
any Purchaser's officers, joint venturers, partners, managers or members is
required to so empower Purchaser.
8.2.1.4 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 Purchase Contract or would declare illegal,
invalid or non-binding any of Purchaser's obligations or covenants to Seller.
8.2.1.5 Purchaser is duly authorized to execute and deliver, acting through its
duly empowered and authorized officers, joint venturers, partners, managers and
members, respectively, and perform this Purchase Contract and all documents and
instruments and transactions contemplated hereby or incidental hereto, and such
execution, delivery and performance by Purchaser does not (i) violate any of the
provisions of their respective articles of incorporation or organization,
operating agreements, partnership agreements or bylaws, (ii) violate any
provision of any law, governmental rule or regulation currently in effect, (iii)
violate any judgment, decree, writ, injunction, award, determination or order
currently in effect that names or is specifically directed at Purchaser or the
Property, and (iv) require the consent, approval, order or authorization of, or
any filing with or notice to, any court or other governmental authority.
8.2.1.6 The joinder of no person or entity other than Purchaser is necessary to
consummate the transactions to be performed by Purchaser and Purchaser has all
necessary right and authority to perform such acts as are required and
contemplated by this Purchase Contract.
8.2.1.7 Purchaser will cooperate with Seller in obtaining the consent of the its
Lender to the prepayment of the Existing Financing, if required.
ARTICLE 9
CONDITIONS PRECEDENT TO CLOSING
9.1 Purchaser's obligation to close under this Purchase Contract, shall be
subject to and conditioned upon the fulfillment of each and all of the following
conditions precedent; provided, however, that Purchaser shall be entitled to
waive any condition to Closing:
9.1.1 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 and shall be in form and substance reasonably satisfactory to
Purchaser.
9.1.2 Each of the representations and warranties of Seller contained herein
shall be true in all material respects as of the Closing Date.
9.1.3 Seller shall have complied with, fulfilled and performed each of the
covenants, terms and conditions to be complied with, fulfilled or performed by
Seller hereunder;
9.1.4 On the Closing Date, the Property shall have a physical occupancy of not
less than 85%. Notwithstanding anything to the contrary contained in this
Purchase Contract, such leases may be month to month. A copy of any such lease
executed after the Effective Date shall be provided to Purchaser within five (5)
Business Days of execution of the same.
9.1.5 Seller shall have received all consents and approvals to the consummation
of the transactions contemplated hereby (a) of Seller's partners (to the extent
required by the organizational or governing documents) or (b) that are required
by law.
9.1.6 Notwithstanding anything to the contrary, there are no other conditions on
Purchaser's obligation to Close except as expressly set forth above.
9.1.7 On the Closing Date, the Title Insurer shall be prepared, subject to the
payment of the applicable title insurance premium and other related charges and
Purchaser's performance of its obligations hereunder, to issue to Purchaser a
full coverage owner's title insurance policy, with all standard exceptions
deleted (except that the standard exception for parties in possession shall be
modified to read "rights of tenants as tenants only under unrecorded leases"),
for the Property in compliance with the Title Commitment in the form as required
by Purchaser, such required form being confirmed in writing by Purchaser to
Seller, with a copy of the required Title Commitment and endorsements attached),
(including endorsements as Purchaser has required), together with such
reinsurance and/or coinsurance and direct access agreements as may be required
by Purchaser.
9.1.8 On the Closing Date, no action or proceeding shall have been instituted
before any court or governmental authority which would have a material adverse
effect on the Property or the use or occupancy thereof.
9.1.9 As of the Closing Date, Seller shall not have pending a voluntary case,
nor shall there have been commenced against Seller an involuntary case, nor
shall Seller have consented to the appointment of a Custodian of it or for all
or any substantial part of the Property, nor shall a court of competent
jurisdiction have entered an order or decree under any Bankruptcy Law that is
for relief against any Seller in an involuntary case or appoint a Custodian of
Seller for all or any substantial part of the Property. The term "Bankruptcy
Law" means Title 11, U.S. Code, or any similar state law for the relief of
debtors. The term "Custodian" means any receiver, trustee, assignee, liquidator
or similar official under any Bankruptcy Law.
9.2 Without limiting any of the rights of Seller elsewhere provided for in this
Purchase Contract, Seller' obligation to close with respect to conveyance of the
Property under this Purchase Contract shall be subject to and conditioned upon
the fulfillment of each and all of the following conditions precedent:
9.2.1 Each of the representations and warranties of Purchaser contained herein
shall be true in all material respects as of the Closing Date.
9.2.2 Purchaser shall have fully performed and complied with all covenants,
conditions, and other obligations in this Purchase Contract to be performed or
complied with by it at or prior to Closing including, without limitation,
payment in full of the Purchase Price.
9.2.3 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
Purchase Contract or declare illegal, invalid or non-binding any of the
covenants or obligations of the Purchaser.
9.2.4 Seller shall have received all consents and approvals to the consummation
of the transactions contemplated hereby (a) of Seller's partners (to the extent
required by the organizational or governing documents) or (b) that are required
by law.
9.2.5 All consents required for the prepayment of the Existing Financing, which
may be required, shall have been obtained all on conditions reasonably
acceptable to Seller.
ARTICLE 10
BROKERAGE
10.1 Seller represents and warrants to Purchaser that they have dealt only with
Mr. Bill Shippen of Apartment Realty Advisors, 3495 Piedmont Road, Building 11,
Suite 905, Atlanta, Georgia 30305 (telephone: (404) 495-7300; facsimile: (404)
495-7301) ("Broker") in connection with this Purchase Contract. Seller and
Purchaser each represent and warrant to the other that other than Broker, they
have not dealt with or utilized the services of any other real estate broker,
sales person or finder in connection with this Purchase Contract, and each party
agrees to indemnify the other party from and against all claims for brokerage
commissions and finder's fees arising from or attributable to the acts of
omissions of the indemnifying party, except that Purchaser shall not indemnify
Seller for any liability arising pursuant to the commission due to Broker. The
provisions of this section shall survive the Closing or termination of the
Purchase Contract.
10.2 Seller agree to pay Broker a commission according to the terms of a
separate agreement. Broker shall not be deemed a party or third party
beneficiary of this Purchase Contract.
10.3 Broker assumes no responsibility for the condition of the Property or
representation for the performance of this Purchase Contract by the Seller or
Purchaser.
ARTICLE 11
POSSESSION
11.1 Possession of the Property subject to the Permitted Exceptions and the
Leases shall be delivered to Purchaser at the Closing.
ARTICLE 12
DEFAULTS AND REMEDIES
12.1 In the event Purchaser fails to close when obligated to do so under this
Purchase Contract, Seller and Purchaser agree that it would be impractical and
extremely difficult to estimate the damages which Seller may suffer. Therefore
Seller and Purchaser hereby agree that, except for the Purchaser's obligations
to Seller under Section 4.4, the reasonable estimate of the total net detriment
that Seller would suffer in the event that Purchaser terminates this Purchase
Contract or defaults hereunder prior to the Closing Date is and shall be, as
Seller' sole and exclusive remedy (whether at law or in equity), the right to
receive from the Escrow Agent and retain the full amount of the Deposit. The
payment and performance of the above as liquidated damages is not intended as a
forfeiture or penalty within the meaning of applicable law and is intended to
settle all issues and questions about the amount of damages suffered by Seller
in the applicable event, except only for damages under Section 4.4 above,
irrespective of the time when the inquiry about such damages may take place.
Upon any such default by Purchaser hereunder, this Purchase Contract shall be
terminated, and no party shall have any further rights or obligations hereunder,
each to the other, except for the Purchaser's obligations to Seller under
Section 4.4 and the obligations of Seller and Purchaser pursuant to Sections
10.1 and 10.2 of this Purchase Contract, and Purchaser and Seller shall not be
relieved of their respective obligations pursuant to Sections 10.1 and 10.2 of
this Purchase Contract above, and the right of Seller to collect such liquidated
damages to the extent not theretofore paid by Purchaser.
Initials for Seller Initials for Seller Initials for Purchaser
12.2 If the Purchaser terminates this Purchase Contract in accordance with its
terms, then this Purchase Contract shall be null and void, the Escrow Agent
shall return the Deposit to the Purchaser and no party shall have any further
liability or obligation to any other party under this Purchase Contract, except
that Purchaser shall not be relieved of its obligations under Section 4.4 and
Purchaser and Seller shall not be relieved of their respective obligations
pursuant to Section 10.1 of this Purchase Contract. If Seller defaults in
performing any covenants or agreements to be performed by Seller under this
Purchase Contract or Seller breaches any representations or warranties made by
Seller in this Purchase Contract, Purchaser shall have the right, instead of
terminating this Purchase Contract, to elect to permit this Purchase Contract to
remain in effect and, in lieu of the remedies set forth in this Section 12.2
other than the obligation to return the Deposit to Purchaser, to seek specific
performance or other injunctive relief, it being agreed that Purchaser's
election to terminate this Purchase Contract or make full settlement under this
Purchase Contract shall not relieve Seller of its liability for breach of any
representation, warranty, covenant or agreement of Seller. In the event that
specific performance or other injunctive relief is unavailable to Purchaser, but
a court determines that Seller's refusal to close under this Purchase Contract
was wrongful, Seller shall pay to Purchaser the actual third-party out-of-pocket
costs and expenses that Purchaser has incurred in connection with the
negotiation and preparation of this Agreement, its due diligence investigations
and the prospective purchase of the Property in an amount not to exceed a total
of Twenty Thousand and 00/100 Dollars ($20,000) for the Property and as a
condition of and prior to such payment to Purchaser, Seller shall have been
provided copies of and rights to all inspections and reports.
ARTICLE 13
RISK OF LOSS OR CASUALTY
13.1 The risk of loss or damage to the Property by fire or other casualty until
the deed of conveyance is recorded for the Property is assumed by Seller,
provided that Seller's responsibility shall be only to the extent of any
recovery from insurance carried on Property. In the event of the damage or
destruction of all or any part of the Property, the aggregate cost to repair,
replace and/or restore of which shall be One Hundred Thousand and 00/100 Dollars
($100,000) or more (as estimated by Seller's insurance carrier) for such
Property, prior to Closing, Purchaser may, at its option, exercisable by written
Notice to Seller within five (5) days after Purchaser is notified of such damage
or destruction, either (i) terminate this Purchase Contract, or (ii) continue
under this Purchase Contract, with no reduction in the Purchase Price, and
receive any insurance proceeds due to Seller as a result of such damage or
destruction (plus a credit against the Purchase Price for the amount of any
deductible with respect to such insurance proceeds), and assume responsibility
for the repair of such Property. Upon completion of repairs, Purchaser shall
promptly forward to Seller proof of payment for such repairs, and any other
information reasonably required by Seller or Seller's insurance carrier. In the
event of the damage or destruction of any part of the Property prior to Closing,
the aggregate cost to repair, replace and/or restore of which shall be less than
One Hundred Thousand and 00/100 Dollars ($100,000) (as estimated by Seller's
insurance carrier) for the Property, Purchaser shall have no right to terminate
this Purchase Contract on account thereof, but any insurance proceeds due to
Seller as a result of such damage or destruction shall be paid or assigned to
Purchaser by Seller (plus a credit against the Purchase Price for the amount any
deductible with respect to such insurance proceeds) and Purchaser shall assume
the responsibility for such repair, provided, however, in the case of a casualty
in which Purchaser has either elected or is obligated to close under this
Purchase Contract, the Closing Date shall be postponed for a reasonable period
of time not to exceed fifteen (15) days to enable Purchaser to obtain two (2)
estimates of the cost of repair and restoration and to obtain an acknowledgment
from Seller's insurance carrier that adequate funds are available to fully
repair and restore the Property; in no event shall Purchaser be obligated to
proceed to close unless the casualty is fully insurable, it being acknowledged
by Seller that Purchaser shall be entitled to a return of the Deposit and the
right to terminate this Purchase Contract if Seller's insurance proceeds (less
deductible) are not available to restore the applicable Property. Upon
completion of repairs, Purchaser shall promptly forward to Seller proof of
payment for such repairs, and any other information reasonably required by
Seller or Seller's insurance carrier. The obligation of Purchaser to provide
requested information to Seller shall survive Closing. Seller shall not, in any
event, be obligated to effect any repair, replacement, and/or restoration, but
shall take all necessary actions to protect and preserve the damaged
improvements and shall comply with the terms and conditions of the Leases.
Seller may elect at its option to effect a repair, replacement or restoration,
in which case Seller may apply the insurance proceeds to the costs of
restoration; provided, however, that if Seller commences restoration, it shall
be obligated to complete the repair, replacement and/or restoration the
Improvements.
ARTICLE 14
OFFER DEADLINE DATE
14.1 This Purchase Contract shall be null and void unless fully executed by
Purchaser and Seller and delivered to each of the parties on or before midnight
October ___, 2002.
ARTICLE 15
EMINENT DOMAIN
15.1 In the event that at the time of Closing all or any part of the Property is
(or has previously been) acquired, or Seller has received notice of any pending
or threatened taking by authority of any governmental agency in purchase in lieu
thereof or access to the Property would be denied or limited because of the
condemnation of property adjacent to the Property (or in the event that at such
time there is any notice of any such acquisition by any such governmental
agency), Purchaser shall have the right, at Purchaser's option, to terminate
this Purchase Contract by giving written Notice within fifteen (15) days of the
occurrence of such event and recover the Deposit hereunder, or to close in
accordance with the terms of this Purchase Contract for the full Purchase Price
and receive the full benefit of any condemnation award.
ARTICLE 16
MISCELLANEOUS
16.1 Exhibits, Schedules And Riders. All Exhibits, Schedules and Riders annexed
hereto are a part of this Purchase Contract for all purposes.
16.2 Assignability. This Purchase Contract is not assignable without first
obtaining the prior written approval of the non-assigning party; provided,
however, that Purchaser may assign this Purchase Contract prior to Closing to a
partnership or partnerships or limited liability company or limited liability
companies which entities shall be affiliated with Purchaser so long as (i)
Purchaser is not released from its liability hereunder and (ii) Seller consents
thereto (which consent shall not be unreasonably withheld, conditioned or
delayed).
16.3 Binding Effect. This Purchase Contract shall be binding upon and inure to
the benefit of Seller and Purchaser, and their respective successors, heirs and
permitted assigns.
16.4 Captions. The captions, headings, and arrangements used in this Purchase
Contract are for convenience only and do not in any way affect, limit, amplify,
or modify the terms and provisions hereof.
16.5 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.
16.6 Notices. All notices, demands, requests and other communications required
pursuant to the provisions of this Purchase Contract ("Notice") shall be in
writing and shall be deemed to have been properly given or served for all
purposes (i) if sent by Federal Express or the nationally recognized overnight
carrier for next business day delivery, on the first business day following
deposit of such Notice with such carrier, or (ii) if personally delivered, on
the actual date of delivery, or (iii) if sent by certified mail, return receipt
requested postage prepaid, on the fifth (5th) business day following the date of
mailing, or (iv) if sent by facsimile, on the date such facsimile is sent and a
confirmation of transmission is received by the sender, provided that a copy is
sent by nationally recognized overnight courier on the day following the date of
receipt, addressed as follows:
If to Seller:
North River Village III Limited Partnership
c/o AIMCO
2000 South Colorado Blvd.
Tower Two
Suite 2-1000
Denver, Colorado 80222
Attention: Mr. Patrick Slavin
FAX: (303) 300-3282
TELEPHONE: (303) 691-4340
with a copy to:
North River Village III Limited Partnership
c/o AIMCO
2000 South Colorado Blvd.
Tower Two
Suite 2-1000
Denver, Colorado 80022
Attention: Mr. Harry G. Alcock
FAX: (305) 300-3282
TELEPHONE: (303) 691-4344
with a copy to:
Argent Real Estate
1401 Brickell Avenue, Suite 520
Miami, Florida 33131
Attention: Mr. David Marquette
FAX: (305) 371-2386
TELEPHONE: (305) 371-9299
If to Purchaser:
Investors Realty Group, Inc.
5600 Roswell Road
Suite 201 North
Atlanta, Georgia 30342
Attention: Mr. David P. Baker
FAX: (404) 847-9648
TELEPHONE: (404) 847-9668
with a copy to:
Sam E. Thomas & Associates
1819 Peachtree Street, N.E.
Suite 520
Atlanta, Georgia 30309
Attention: Sam E. Thomas, Esq.
FAX: (404) 350-8626
TELEPHONE: (404) 350-8337
Any of the parties may designate a change of address by Notice in writing
to the other parties. Whenever in this Purchase Contract the giving of Notice by
mail or otherwise is required, the giving of such Notice may be waived in
writing by the person or persons entitled to receive such Notice.
16.7 Governing Law And Venue. The laws of the State of Georgia shall govern the
validity, construction, enforcement, and interpretation of this Purchase
Contract, unless otherwise specified herein except for the conflict of laws
provisions thereof. All claims, disputes and other matters in question arising
out of or relating to this Purchase Contract, or the breach thereof, shall be
decided by proceedings instituted and litigated in the United States District
Court for the district in which the Property is situated, and the parties hereto
expressly consent to the venue and jurisdiction of such court.
16.8 Entirety And Amendments. This Purchase Contract embodies the entire
Purchase Contract between the parties and supersedes all prior Purchase
Contracts and understandings, if any, relating to the Property, and may be
amended or supplemented only by an instrument in writing executed by the party
against whom enforcement is sought.
16.9 Severability. If any of the provisions of this Purchase Contract is held to
be illegal, invalid, or unenforceable under present or future laws, such
provision shall be fully severable. The Purchase Contract shall be construed and
enforced as if such illegal, invalid, or unenforceable provision had never
comprised a part of this Purchase Contract; and the remaining provisions of this
Purchase Contract shall remain in full force and effect and shall not be
affected by the illegal, invalid, or unenforceable provision or by its severance
from this Purchase Contract. In lieu of such illegal, invalid, or unenforceable
provision, there shall be added automatically as a part of this Purchase
Contract a provision as similar in terms to such illegal, invalid, or
unenforceable provision as may be possible to make such provision legal, valid,
and enforceable.
16.10 Multiple Counterparts. This Purchase Contract may be executed in a number
of identical counterparts. If so executed, each of such counterparts is to be
deemed an original for all purposes and all such counterparts shall,
collectively, constitute one Purchase Contract. In making proof of this Purchase
Contract, it shall not be necessary to produce or account for more than one such
counterpart.
16.11 Further Acts. In addition to the acts and deeds recited herein and
contemplated and performed, executed and/or delivered by Seller and Purchaser,
Seller and Purchaser agree to perform, execute and/or deliver or cause to be
performed, executed and/or delivered any and all such further acts, deeds, and
assurances as may be necessary to consummate the transactions contemplated
hereby.
16.12 Construction. No provision of this Purchase Contract shall be construed in
favor of, or against, any particular party by reason of any presumption with
respect to the drafting of this Purchase Contract; the parties, being
represented by counsel, having fully participated in the negotiation of this
instrument.
16.13 Confidentiality. Purchaser and Seller shall not disclose the terms and
conditions contained in this Purchase Contract and shall keep the same
confidential except that Purchaser and Seller may disclose the terms and
conditions of this Purchase Contract to the limited extent required to comply
with federal, state or local governmental reporting requirements. Purchaser
shall not disclose and shall keep the same confidential any of the information
delivered or made available by Seller to Purchaser in accordance with this
Purchase Contract or obtained by Purchaser in the course of its investigations,
provided that Purchaser may disclose the terms and conditions of this Purchase
Contract or such information delivered, made available or obtained as aforesaid
(I) as required by law, (ii) to consummate the terms of this Purchase Contract,
or any financing relating thereto, or (iii) to Purchaser's or Seller' lenders,
attorneys, accountants, engineers, consultants, partners, members, affiliates or
controlling persons. Any information provided by Seller to Purchaser under the
terms of this Purchase Contract is for informational purposes only. In providing
such information to Purchaser, Seller make no representation or warranty,
express, written, oral, statutory, or implied, unless expressly set forth
herein, and all other representations and warranties are hereby expressly
excluded. Purchaser shall not in any way be entitled to rely upon the accuracy
of such information. Such information is also confidential and Purchaser shall
be prohibited from making such information public to any other person or entity
other than its agents and legal representatives, without Seller' prior written
authorization, which may be granted or denied in Seller' sole discretion.
16.14 Time Of The Essence. IT IS EXPRESSLY AGREED BY THE PARTIES HERETO THAT
TIME IS OF THE ESSENCE WITH RESPECT TO THIS PURCHASE CONTRACT.
16.15 Cumulative Remedies And Waiver. Except as otherwise provided herein, no
remedy herein conferred or reserved is intended to be exclusive of any other
available remedy or remedies, but each and every such remedy shall be cumulative
and shall be in addition to every other remedy given under this Purchase
Contract or now or hereafter existing at law or in equity. 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 Purchase Contract shall be established by conduct,
custom, or course of dealing.
16.16 Litigation Expenses. In the event any party hereto commences litigation
against the other to enforce its rights hereunder, the prevailing party in such
litigation shall be entitled to recover from the other party its reasonable
attorneys' fees and expenses incidental to such litigation.
16.17 Time Periods. 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.
16.18 Section 1031 Exchange. Notwithstanding the provisions contained in this
Purchase Contract relating to the sale of the Property, the parties acknowledge
that it is the desire and intention of Seller, if possible, to exchange the
Property for property of a like kind in an exchange qualifying as a tax-free
exchange under Section 1031 of the Internal Revenue Code of 1986. If requested
by Seller, Purchaser shall cooperate with Seller in attempting to implement such
exchange as hereinafter provided, at Seller's sole cost and expense, provided
that: (i) Purchaser incurs no liability, obligation, cost or expense associated
with the exchange; (ii) the exchange does not affect or delay settlement of
Purchaser's acquisition of the Property as provided in this Purchase Contract;
and (iii) Seller agrees to indemnify and hold Purchaser harmless from and
against all liability arising out of its cooperation in effecting the exchange
as requested by Seller.
16.19 Lead-Based Paint Disclosure.
16.19.1 Every purchaser of an interest in residential property on which a
residential dwelling was built prior to 1978 is notified that such property may
present exposure to lead from lead-based paint that may place young children at
risk of developing lead poisoning. Lead poisoning in young children may produce
permanent neurological damage, including learning disabilities, reduced
intelligence quotient, behavioral problems, and impaired memory. Lead poisoning
also poses a particular risk to pregnant women. The seller of any interest in
residential real property is required to provide the purchaser with any
information on lead-based paint hazards from risk assessments or inspections in
the seller's possession and notify the purchaser of any known lead-based paint
hazards. A risk assessment or inspection for possible lead-based paint hazards
in the housing located on the land is recommended prior to purchase.
16.19.2 Purchaser has received the opportunity to conduct a risk assessment or
inspection for the presence of lead-based paint and/or lead-based paint hazards.
16.20 ADA Disclosure. Purchaser acknowledges that the Property may be subject to
the federal Americans With Disabilities Act (the "ADA"), which 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 any similar
state or local law), and Seller expressly disclaims any such representation.
16.21 No Personal Liability of Officers, Trustees or Directors of Seller's
Partners. Purchaser acknowledges that this Purchase Contract is entered into by
Seller which is a South Carolina limited partnership, and Purchaser agrees that
none of Seller's Indemnified Parties shall have any personal liability under
this Purchase Contract or any document executed in connection with the
transactions contemplated by this Purchase Contract.
16.22 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 Purchase Contract, including any
claim based on contract, tort or statute, shall be resolved at the written
request of any party to this Purchase Contract by binding 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 16.22 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, specific performance 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 Purchase 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 Purchase Contract between the parties hereto shall be determined
through final and binding arbitration in accordance with this Section 13.22.
16.23 AIMCO Marks. Purchaser agrees that Seller, the current property manager of
the Property or AIMCO, or their respective affiliates, are the sole owners of
all right, title and interest in and to the AIMCO Marks (or have the right to
use such AIMCO Marks pursuant to license agreements with third parties) and that
no right, title or interest in or to the AIMCO Marks is granted, transferred,
assigned or conveyed as a result of this Purchase Contract. Purchaser further
agrees that Purchaser will not use the AIMCO Marks for any purpose.
ARTICLE 17
OPERATION OF THE PROPERTY
17.1.1 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 the Property Contracts, or institute
and prosecute any available remedies for default under any Lease without first
obtaining the written consent of Purchaser with respect to the Property;
provided, however, Seller agrees that any such new Property Contracts in excess
of $1,000 or any new or renewed Leases entered into after the Effective Date
with a term in excess of one (1) year shall not be entered into without
Purchaser's prior written consent, such consent not to be unreasonably withheld,
conditioned or delayed by Purchaser unless required by any mortgage holder. If
Seller shall enter into a new permitted Property Contract or a new Lease, or
shall renew, modify, terminate or accept the surrender of any Lease, or modify
the Property Contract during such time period, Seller shall provide Purchaser
with written notice of such event and a true, correct and complete copy of any
new Lease or new Property Contract, or any modification of any Lease or Property
Contract within two (2) Business Days after executing same.
17.1.2 Except as specifically set forth in this Article 17, Seller shall operate
the Property after the Effective Date in the ordinary course of business, and
except as necessary in Seller's sole discretion to address any life or safety
issue at the Property, Seller will not make any material alterations to the
Property or remove any material Fixtures and Tangible Personal Property from the
Property without the prior written consent of Purchaser which consent shall not
be unreasonably withheld, conditioned, denied or delayed.
[SIGNATURES ON THE FOLLOWING PAGE]
NOW WHEREFORE, the parties hereto have executed this Purchase Contract as of the
date first set forth above.
SELLER:
NORTH RIVER VILLAGE III LIMITED
PARTNERSHIP
By: Shelter III GP Limited Partnership,
its general partner
By: Shelter Realty III
Corporation,
its general partner
By:
Name: Harry G. Alcock
Title:Executive Vice President
PURCHASER:
INVESTORS REALTY GROUP, INC.
By:
Name:
Title:
EXHIBITS
Exhibit A - Legal Description
Exhibit B - Escrow Agreement
Exhibit 1.1.5 - List of Excluded Permits
Exhibit 1.1.7 - Existing Financing
Exhibit 1.1.9 - List of Excluded Fixtures and Tangible Personal
Property
Exhibit 7.2.1.1 - Limited Warranty Deed
Exhibit 7.2.1.2 - Bill of Sale
Exhibit 7.2.1.3 - General Assignment
Exhibit 7.2.1.6 - Non-Foreign Person Affidavit
Exhibit 7.2.1.8 - Assignment of Leases and Security Deposits
Exhibit 8.1.1.7 - List of Pending Litigation
Exhibit 8.1.1.9 - Rent Roll
Exhibit 8.1.1.12 - Schedule of Rents
Exhibit 8.1.1.15 - List of Knowledge Persons
EXHIBIT A
LEGAL DESCRIPTION
Project Name: North River Village
EXHIBIT B
ESCROW AGREEMENT
This Escrow Agreement, dated as of ____________, 2002, is by and
between Investors Realty Group, Inc., ("Purchaser"), North River Village III
Limited Partnership ("Seller") and Chicago Title Insurance Company
("Chicago");
WITNESSETH:
WHEREAS, Purchaser has entered into a Purchase and Sale Contract dated
October __, 2002 (the "Purchase Contract") with Seller, whereby Seller has
agreed to sell and Purchaser has agreed to buy certain premises described on
Exhibit A attached hereto and made a part hereof (the "Premises");
WHEREAS, pursuant to the provisions of the Purchase Contract, Seller and
Purchaser have requested that Chicago act as escrow agent under the Purchase
Contract, and have tendered good funds to Chicago in the amount of One Hundred
Thousand and 00/100 Dollars ($100,000) (the "Deposit") pursuant
to said Purchase Contract;
WHEREAS, Purchaser, Chicago and Seller wish to more particularly set forth
and define the rights, obligations and duties of Chicago in and to the Deposit;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Purchaser, Seller and Chicago hereby agree as follows:
1. The Deposit is to be held in insured accounts and invested in such
short-term, high-grade securities, money market funds or accounts, interest
bearing accounts, bank certificates of deposit or bank repurchase agreements as
directed by Purchaser in its sole discretion and all interest and income thereon
shall become part of the Deposit and shall be remitted to the party entitled to
the Deposit as set forth in the Purchase Contract.
2. Purchaser and Seller shall give notice to Chicago at least two (2)
business days prior to closing pursuant to the Purchase Contract. Such notice
shall also include instructions for disbursement of the Deposit at Closing.
3. Purchaser and Seller agree that (i) Chicago is a mere stakeholder with
respect to the Deposit and/or other monies payable to Chicago as escrow agent
under the Purchase Contract and/or this Escrow Agreement, and (ii) Chicago has
no liability with respect to said Deposit and other monies, except for gross
negligence and/or willful neglect on the part of Chicago.
4. In the event of a dispute between Purchaser and Seller with respect to
the Deposit and/or other monies payable to Chicago as escrow agent under the
Purchase Contract and/or this Escrow Agreement, Chicago has the right, at its
exclusive discretion, to deposit the Deposit into any court having jurisdiction
over the dispute between Purchaser and Seller. In the event Chicago exercises
its rights under this paragraph, (a) all costs incurred by Chicago (including
but not limited to reasonable attorney's fees) shall be borne equally by Seller
and Purchaser, and (b) all obligations of Chicago under the Purchase Contract
and/or this Escrow Agreement shall terminate (except for liability of Chicago
for gross negligence and/or willful neglect as aforesaid).
5. All costs incurred by Chicago as escrow agent under the Purchase
Contract and/or this Escrow Agreement (except costs or liabilities arising from
Chicago's gross negligence and/or willful neglect) shall be allocated in
accordance with the Purchase Contract. Chicago shall receive a fee of Five
Hundred and 00/100 Dollars ($500) for its services hereunder to be paid in
accordance with the Purchase Contract and not out of the Deposit. Non-payment of
such fee shall not entitle Chicago to refuse or fail to act as required by this
Escrow Agreement.
6. Any notice, requests or demands to be made or given hereunder to any
party shall be deemed duly given only if in writing and sent (i) by messenger
for hand delivery, (ii) by overnight delivery service or (iii) by certified
mail, return receipt requested and is addressed to the parties as follows:
(a) If to Seller:
North River Village III Limited Partnership
c/o AIMCO
2000 S. Colorado Blvd.
Tower Two, Suite 2-1000
Denver, Colorado 80222
Attention: Mr. Harry G. Alcock
Telephone: (303) 691-4344
and
North River Village III Limited Partnership
c/o AIMCO
2000 S. Colorado Blvd.
Tower Two, Suite 2-1000
Denver, Colorado 80222
Attention: Mr. Patrick Slavin
Telephone: (303) 691-4340
With a copy to:
Loeb & Loeb LLP
1000 Wilshire Boulevard, Suite 1800
Los Angeles, California 90017
Attention: Susan V. Noonoo, Esq.
Telephone: (213) 688-3400
(b) If to Purchaser:
Investors Realty Group, Inc.
5600 Roswell Road
Suite 201 North
Atlanta, Georgia 30342
Attention: Mr. David P. Baker
Telephone: (404) 847-9668
With a copy to:
1819 Peachtree Street, N.E.
Suite 520
Atlanta, Georgia 30309
Attention: Sam E. Thomas, Esq.
Telephone: (404) 350-8337
(c) If to Chicago:
Chicago Title Insurance Company
2110 Powers Ferry Road, Suite 440
Atlanta, Georgia 30339
Attention: Mr. Gregory D. Hughes
Telephone: (770) 955-9055
7. This Escrow Agreement may be executed in counterparts. This Escrow
Agreement shall be governed by the laws of the state in which the Premises are
located.
8. Time is of the essence of this Escrow Agreement.
[Signatures on Following Page]
IN WITNESS WHEREOF, this Escrow Agreement has been duly executed by the
parties hereto, to be effective as of the date above written.
SELLER:
NORTH RIVER VILLAGE III LIMITED
PARTNERSHIP
By: Shelter III GP Limited Partnership,
its general partner
By: Shelter Realty III
Corporation,
its general partner
By:
Name: Harry G. Alcock
Title:Executive Vice President
PURCHASER:
INVESTORS REALTY GROUP, INC.
By:
Name:
Title:
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
CHICAGO:
CHICAGO TITLE INSURANCE COMPANY
By:
Name:
Title:
EXHIBIT 1.1.5
LIST OF EXCLUDED PERMITS
NONE
EXHIBIT 1.1.7
EXISTING FINANCING
First Real Estate Note from North River Village III Limited Partnership to
Lexington Mortgage Company dated as of September 30, 1993 in the original
principal amount of $1,731,450.
Second Real Estate Note from North River Village III Limited Partnership to
Lexington Mortgage Company dated as of September 30, 1993 in the original
principal amount of $53,550.
EXHIBIT 1.1.9
LIST OF EXCLUDED FIXTURES AND TANGIBLE PERSONAL PROPERTY
1. AIMCO Benchmark Series Books.
2. Connect: Remote Horizon Software.
3. "Buyer's Access" computer, monitor, printer and software.
4. All items listed in Section 1.1.10(i) through (iv) of the Contract.
EXHIBIT 7.2.1.1
FORM OF LIMITED WARRANTY DEED
Following recording, please return to:
STATE OF GEORGIA
COUNTY OF _________
LIMITED WARRANTY DEED
THIS INDENTURE, made as of the _____ day of ______________, in the year
two thousand and two, between NORTH RIVER VILLAGE III LIMITED PARTNERSHIP, as
party of the first part ("hereinafter referred to as Grantor") and INVESTORS
REALTY GROUP, INC., as party of the second part (hereinafter referred to as
"Grantee") (the words "Grantor" and "Grantee" to include their respective heirs,
successors and assigns where the context requires or permits).
W I T N E S S E T H:
That: Grantor, for and in consideration of the sum of TEN DOLLARS
($10.00), and other good and valuable consideration, in hand paid at and before
the sealing and delivery of this Deed, the receipt and sufficiency of which are
hereby acknowledged, has granted, bargained, sold, aliened, conveyed and
confirmed and by this Deed does grant, bargain, sell, alien, convey and confirm
unto Grantee, the following:
ALL those tracts or parcels of land lying and being in Land Lots 363, 367
and 368 of the 6th District of Fulton County, Georgia, and being more
particularly described on Exhibit A attached hereto and by this reference
made a part hereof.
Without expanding by implication the limited warranty set forth herein,
this conveyance is made subject to the matters set forth on Exhibit B attached
hereto and by this reference made a part hereof.
TO HAVE AND TO HOLD the said tract or parcel of land, with the buildings
thereon with all and singular the rights, members and appurtenances thereof, to
the same being, belonging, or in anywise appertaining, to the only proper use,
benefit and behoof of the said Grantee forever in FEE SIMPLE.
AND THE SAID GRANTOR will warrant and forever defend the right and title
to the above-described property unto the said Grantee against the claims of
Grantor and all others claiming by, through or under Grantor, but not otherwise.
IN WITNESS WHEREOF, the duly authorized general partner of Grantor has
signed and sealed this Deed on the date first above written.
Signed, sealed and delivered in the NORTH RIVER VILLAGE III LIMITED
presence of: PARTNERSHIP
By: Shelter III GP Limited Partnership,
its general partner
Witness
By: Shelter Realty III Corporation,
its general partner
By:
Notary Public Name: Harry G. Alcock
Title:Executive Vice President
My Commission Expires:
[NOTARIAL SEAL]
EXHIBIT 7.2.1.2
BILL OF SALE
This Bill of Sale ("Assignment") is executed by North River Village III
Limited Partnership ("Seller"), in favor of Investors Realty Group, Inc.
("Purchaser").
Seller and Purchaser, have entered into that certain Purchase and Sale
Contract and dated as of October __, 2002 ("Purchase Contract"), in which Seller
has agreed to sell and Purchaser has agreed to purchase the real property
described in Exhibit A attached thereto and the improvements located thereon
(collectively, the "Project").
Pursuant to the Purchase 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 Property (as hereinafter defined).
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
1. As used herein, the term "Property" shall mean the following property
to the extent said property is owned by Seller and used in, held for use in
connection with, or necessary for the operation of the Project:
a. Property Contracts. All of Seller's rights and interests in
and to purchase orders, maintenance, service or utility
contracts and similar contracts, excluding Leases, which
relate to the ownership, maintenance, construction or repair
and/or operation of the Project, but only to the extent
transferable.
b. Leases. All of Seller's rights and interests in and to leases,
subleases, and other occupancy agreements, whether or not of
record, which provide for use or occupancy of space or
facilities on or relating to the Project.
c. Permits. All of Seller's rights and interests in and to all
licenses or permits granted by governmental authorities having
jurisdiction over the Project in respect of the matter to
which the applicable license or permit applies and owned by
Seller and used in or relating to the ownership, occupancy or
operation of the Project.
d. Fixtures and Tangible Personal Property. All of Seller's
rights and interests in and to all fixtures, furniture,
furnishings, fittings, equipment, machinery, apparatus,
appliances and other articles of tangible personal property
now located on the Project or in the improvements thereon
and used in connection with any present or future
occupation or operation of all or any part of the Project,
but only to the extent transferable.
The term "Property" shall not include any of the foregoing: (i) to the
extent the same are excluded or reserved to Seller pursuant to the Purchase
Contract to which Seller and Purchaser are parties; and (ii) to the extent that
the sale or transfer thereof requires consent or approval of any third party,
which consent or approval is not obtained by Seller. Nothing herein shall create
a transfer or assignment of intellectual property or similar assets of Seller.
2. Assignment. 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 Property, subject to any rights of consent as provided
therein.
3. Assumption. Purchaser expressly agrees to assume and hereby assumes all
liabilities and obligations of the Seller in connection with the Property and
agrees to perform all of the covenants and obligations of Seller thereunder.
Purchaser further agrees to indemnify, defend and hold Seller harmless from and
against any and all cost, loss, harm or damage which may arise in connection
with the Property on or after the date hereof.
4. Counterparts. This Assignment may be executed in counterparts, each of
which shall be deemed an original, and both of which together shall constitute
one and the same instrument.
5. 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 entitled to recover all reasonable costs and
expenses incurred in such action or proceeding, including reasonable attorneys'
fees and costs, in addition to any other relief awarded by the court.
6. Applicable Law. This Assignment shall be governed by and interpreted in
accordance with the laws of the State where the Project is located, without
reference to the conflict of law provisions thereof.
7. Titles and Section Headings. Titles of sections and subsections
contained in this Assignment are inserted for convenience of reference only, and
neither form a part of this Assignment or are to be used in its construction or
interpretation.
8. Binding Effect. This Assignment shall be binding upon and inure to the
benefit of the parties hereto and their respective transferees, successors, and
assigns.
9. Entire Agreement; Modification. This Assignment supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may not be altered or modified without the written consent of
all parties.
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 PROJECT IS LOCATED.
WITNESS the signatures and seals of the undersigned.
Dated: .
SELLER:
NORTH RIVER VILLAGE III LIMITED
PARTNERSHIP
By: Shelter III GP Limited Partnership,
its general partner
By: Shelter Realty III Corporation,
its general partner
By:
Name: Harry G. Alcock
Title:Executive Vice President
PURCHASER:
INVESTORS REALTY GROUP, INC.
By:
Name:
Title:
EXHIBIT 7.2.1.3
GENERAL ASSIGNMENT
This General Assignment ("Assignment") is executed by North River
Village III Limited Partnership ("Seller"), in favor of Investors Realty
Group, Inc. ("Purchaser").
Seller and Purchaser, have entered into that certain Purchase and Sale
Contract and dated as of October __, 2002 ("Purchase Contract"), in which Seller
has agreed to sell and Purchaser has agreed to purchase the real property
described in Exhibit A attached thereto and the improvements located thereon
(collectively, the "Project").
Pursuant to the Purchase 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 (as hereinafter defined).
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
1. As used herein, the term "Miscellaneous Property Assets" shall mean all
contract rights, leases, concessions, warranties, plans, drawings, and other
items of intangible personal property relating to ownership or operation of the
Project and owned by Seller.
The term "Miscellaneous Property Assets" shall not include any of the
foregoing: (i) to the extent the same are excluded or reserved to Seller
pursuant to the Purchase Contract to which Seller and Purchaser are parties; and
(ii) to the extent that the sale or transfer thereof requires consent or
approval of any third party, which consent or approval is not obtained by
Seller. Nothing herein shall create a transfer or assignment of intellectual
property or similar assets of Seller.
2. Assignment. 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, subject to any rights of
consent as provided therein.
3. Assumption. Purchaser expressly agrees to assume and hereby assumes all
liabilities and obligations of the Seller in connection with the Miscellaneous
Property Assets and agrees to perform all of the covenants and obligations of
Seller thereunder arising on or after the date hereof. Purchaser further agrees
to indemnify, defend and hold Seller harmless from and against any and all cost,
loss, harm or damage which may arise in connection with the Miscellaneous
Property Assets, pertaining to acts arising on and after the date hereof.
4. Counterparts. This Assignment may be executed in counterparts, each of
which shall be deemed an original, and both of which together shall constitute
one and the same instrument.
5. 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 entitled to recover all reasonable costs and
expenses incurred in such action or proceeding, including reasonable attorneys'
fees and costs, in addition to any other relief awarded by the court.
6. Applicable Law. This Assignment shall be governed by and interpreted in
accordance with the laws of the State where the Project is located, without
reference to the conflict of law provisions thereof.
7. Titles and Section Headings. Titles of sections and subsections
contained in this Assignment are inserted for convenience of reference only, and
neither form a part of this Assignment or are to be used in its construction or
interpretation.
8. Binding Effect. This Assignment shall be binding upon and inure to the
benefit of the parties hereto and their respective transferees, successors, and
assigns.
9. Entire Agreement; Modification. This Assignment supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may not be altered or modified without the written consent of
all parties.
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 PROJECT IS LOCATED.
[Signatures on Following Page]
WITNESS the signatures and seals of the undersigned.
Dated: .
SELLER:
NORTH RIVER VILLAGE III LIMITED
PARTNERSHIP
By: Shelter III GP Limited Partnership,
its general partner
By: Shelter Realty III Corporation,
its general partner
By:
Name: Harry G. Alcock
Title:Executive Vice President
PURCHASER:
INVESTORS REALTY GROUP, INC.
By:
Name:
Title:
EXHIBIT 7.2.1.6
NON-FOREIGN PERSON AFFIDAVIT
1. Section 1445 of the Internal Revenue Code of 1986, as amended (the "IRC"),
provides that a transferee of a United States real property interest must
withhold tax if the transferor is a foreign person.
2. In order to inform INVESTORS REALTY GROUP, INC. (the "Transferee"), that
withholding of tax is not required upon the disposition by NORTH RIVER
VILLAGE LIMITED PARTNERSHIP (the "Transferor"), of the United States real
property more particularly described on Exhibit "A" attached hereto and
incorporated herein by reference (the "Property"), the undersigned
Transferor certifies and declares by means of this certification, the
following:
(a) The Transferor is not a foreign person, foreign corporation, foreign
partnership, foreign trust or foreign estate (as such terms are
defined in the IRC and the Income Tax Regulations).
(b) The Transferor is a ________________________________.
(c) Record title to the Property is in the name of the Transferor.
(d) The Federal Taxpayer Identification Number for the Transferor is
____________.
(e) The address for the Transferor is:
North River Village III Limited Partnership
c/o AIMCO
2000 S. Colorado Blvd.
Tower Two, Suite 2-1000
Denver, Colorado 80222
3. The Transferor understands that this certification may be disclosed to the
Internal Revenue Service by the Transferee and that any false statement
contained in this certification may be punished by fine, imprisonment or
both.
Under penalties of perjury, the Transferor declares that it has carefully
examined this certification and it is true, correct and complete.
Executed this ______ day of _______________, 2002.
TRANSFEROR:
NORTH RIVER VILLAGE III LIMITED
PARTNERSHIP
By: Shelter III GP Limited Partnership,
its general partner
By: Shelter Realty III Corporation,
its general partner
By:
Name: Harry G. Alcock
Title:Executive Vice President
EXHIBIT 7.2.1.8
ASSIGNMENT OF LEASES AND SECURITY DEPOSITS
This Assignment of Leases and Security Deposits ("Assignment") is
executed by North River Village III Limited Partnership ("Assignor"), in
favor of Investors Realty Group, Inc. ("Assignee").
Assignor, as landlord, has entered into those certain leases identified on
Exhibit "A" attached hereto and incorporated herein by reference (collectively,
together with all amendments, modifications, supplements, restatements and
guarantees thereof, the "Leases"), for that certain property located in the
County of Fulton, State of Georgia.
Assignee and Assignor have entered into that certain Purchase and Sale
Contract, dated October __, 2002 (the "Purchase Contract"); and
The Purchase Contract requires Assignor and Assignee to execute this
Assignment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Assignor and Assignee hereby agree
as follows:
1. Capitalized Terms. Unless the context otherwise requires, all
capitalized terms used, but not otherwise defined herein, shall have the
meanings set forth for the same in the Purchase Contract.
2. Assignment and Assumption. Assignor hereby irrevocably assigns, sets
over, transfers and conveys to Assignee all of Assignor's right, title and
interest in and to (a) the Leases and (b) all unrefunded and unapplied security
deposits made under the Leases, [together with all accrued interest, if and to
the extent required to be paid to tenants on such security deposits pursuant to
the terms of the Leases] (collectively, the "Security Deposits"). Assignee
hereby accepts this Assignment and the rights granted herein, and Assignee
hereby expressly assumes, for itself and its successors, assigns and legal
representatives, the Leases and the Security Deposits and all of the obligations
and liabilities, fixed and contingent, of Assignor thereunder accruing from and
after the date hereof with respect to the Leases and the Security Deposits and
agrees to (i) be fully bound by all of the terms, covenants, agreements,
provisions, conditions, obligations and liability of Assignor 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 Assignor to be
kept, performed and observed, from and after the date hereof.
3. Indemnification. Assignee shall indemnify, protect, defend and hold
harmless Assignor from and against any and all claims incurred by Assignor with
respect to the Security Deposits assigned herein.
4. 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 as many
counterparts as may be deemed necessary and convenient, and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed an original, but all such counterparts shall constitute one and the
same instrument.
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 Georgia, without regard to its principles of
conflicts of law.
[Signature on Following Page]
WITNESS the signatures and seals of the undersigned.
Dated: .
ASSIGNEE:
NORTH RIVER VILLAGE III LIMITED
PARTNERSHIP
By: Shelter III GP Limited Partnership,
its general partner
By: Shelter Realty III Corporation,
its general partner
By:
Name: Harry G. Alcock
Title:Executive Vice President
ASSIGNOR:
INVESTORS REALTY GROUP, INC.
By:
Name:
Title:
EXHIBIT 8.1.1.7
LIST OF PENDING LITIGATION
NONE
EXHIBIT 8.1.1.9
RENT ROLL
[To Be Attached]
EXHIBIT 8.1.1.12
SCHEDULE OF RENTS
North River Village
Unit Type Rent Schedule
2 BR/ 11/2BA $800 per month
2 BR/ 21/2BA $880 per month
3 BR/ 21/2BA $1060 per month
EXHIBIT 8.1.1.15
LIST OF KNOWLEDGE PERSONS
Name Title
Jeff Clark Regional Property Manager for
North River Village
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINED TERMS...................................................1
ARTICLE 2 PURCHASE AND SALE OF PROPERTY...................................4
ARTICLE 3 PURCHASE PRICE, DEPOSIT AND ESCROW PROVISIONS...................4
ARTICLE 4 ACCESS TO PROPERTY..............................................5
ARTICLE 5 TITLE...........................................................7
ARTICLE 6 FINANCING.......................................................9
ARTICLE 7 CLOSING.........................................................9
ARTICLE 8 REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND
PURCHASER......................................................14
ARTICLE 9 CONDITIONS PRECEDENT TO CLOSING................................18
ARTICLE 10 BROKERAGE......................................................19
ARTICLE 11 POSSESSION.....................................................20
ARTICLE 12 DEFAULTS AND REMEDIES..........................................20
ARTICLE 13 RISK OF LOSS OR CASUALTY.......................................21
ARTICLE 14 OFFER DEADLINE DATE............................................22
ARTICLE 15 EMINENT DOMAIN.................................................22
ARTICLE 16 MISCELLANEOUS..................................................22
ARTICLE 17 OPERATION OF THE PROPERTY......................................28
EXHIBIT 10(iv)(b)
ASSIGNMENT OF PURCHASE AGREEMENT
THIS ASSIGNMENT OF PURCHASE AND SALE AGREEMENT ("Assignment") is made this
__ day of November, 2002, by INVESTORS REALTY GROUP, INC. ("Assignor"), to
SILVER TREE ASSOCIATES, LLC ("Assignee").
WITNESSETH:
WHEREAS, NORTH RIVER VILLAGE III LIMITED PARTNERSHIP hereinafter referred
to as "Seller"), and Assignor have entered into a certain Purchase and Sale
Agreement, dated October __, 2002 (hereinafter referred to as the "Contract"),
wherein Assignor agreed to buy and Seller agreed to sell certain real property
located in Fulton County, Georgia, being more fully and particularly described
as follows:
All that tract or parcel of land lying and being in Land Lots 363, 367 and
368, of the 6th District of Fulton County, Georgia, known as North River
Village Apartments, and being more particularly described on Exhibit "A"
attached hereto and made a part hereof.
WHEREAS, Assignor desires to assign all of Assignor's right, title and
interest in and to the Contract to Assignee, and Assignee desires to assume
Assignor's obligations under the Contract, and accordingly accepts and consents
to such Assignment;
NOW, THEREFORE, for and in consideration of Ten and No/100 Dollars
($10.00) and other good and valuable consideration paid by Assignee to Assignor,
the receipt, adequacy and sufficiency of which is hereby acknowledged, Assignor
hereby grants, transfers and assigns to Assignee, and the successors and assigns
of Assignee, all of the right, title and interest of Assignor in and to the
Contract, including, but not limited to, the right to accept delivery of any and
all deeds from Seller to Assignee which convey the Property, provided, however,
pursuant to the terms of the Contract, Assignor shall not be released from its
liability thereunder.
Assignor represents and warrants that (a) the Contract is in full force
and effect, (b) there are no amendments to the Contract; (c) Assignor has
neither taken any action or omitted to take any action with might result in a
default under the Contract, and (d) Assignor has made no prior or other
assignment of any of Assignor's right, title or interest in and to the Contract.
Assignee hereby assumes and agrees to perform all of Assignor's
obligations under the Contract
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
under seal as of the day and year first above written.
ASSIGNOR ASSIGNEE
INVESTORS REALTY GROUP, INC SILVER TREE ASSOCIATES, LLC
By_____________________________ By:___________________________
David P. Baker, President David P. Baker, Manager/Member
ACKNOWLEDGED AND CONSENTED TO
this __ day of November, 2002
NORTH RIVER VILLAGE III LIMITED PARTNERSHIP
By:______________________________
Its:______________________________