<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported)
June 28, 1996
VININGS INVESTMENT PROPERTIES TRUST
-----------------------------------
(Exact name of registrant as specified in charter)
MASSACHUSETTS 0-13693 13-6850434
- ---------------------------- ------------------------ -------------------
(State or other jurisdiction (Commission file number) (IRS employer
of incorporation) identification no.)
3111 PACES MILL ROAD, SUITE A-200, ATLANTA, GA 30339
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code: (770) 984-9500
-------------
There are 28 pages in this Report, including exhibits.
The Exhibit Index is located on page 4.
<PAGE> 2
Item 2 - Acquisition or Disposition of Assets
- ---------------------------------------------
On June 28, 1996, Thicket Apartments, L.P. ("Thicket LP"), a Delaware
limited partnership and an indirect wholly-owned subsidiary of Vinings
Investment Properties Trust (the "Trust" or the "Registrant"), acquired The
Thicket Apartments, a 254-unit apartment complex located in Atlanta, Georgia.
Thicket LP purchased The Thicket Apartments for a cash purchase price of
$8,650,000, financed by a mortgage loan on the acquired property of $7,392,000.
The Trust also obtained a secured line of credit, a portion of which was used to
finance the transaction. In connection with the acquisition, a broker's
commission was paid by the seller to MFI Realty Company, Inc., a wholly owned
subsidiary of The Vinings Group, Inc., of which certain members of the Trust's
management and Board of Trustees are principal stockholders and/or directors.
Item 7 - Financial Statements, Pro Forma Financial Information and Exhibits
- ---------------------------------------------------------------------------
(a) Financial Statements of Businesses Acquired. At the time of the
filing of this Form 8-K, it is impracticable for the Registrant to provide
certain of the required financial information concerning the acquired assets.
Such required financial information will be filed by amendment to this Form 8-K
not later than 60 days in accordance with Item 7, paragraph (a)(4) of Form 8-K.
(b) Pro Forma Financial Information. The following pro forma financial
statements of the Registrant are filed as an Exhibit hereto:
Unaudited Pro Forma Consolidated Balance Sheet as of May 31, 1996
Unaudited Pro Forma Consolidated Statement of Operations for the Five
Months Ended May 31, 1996
Notes to Unaudited Pro Forma Consolidated Financial Statements
At the time of the filing of this Form 8-K, it is impracticable for the
Registrant to provide certain of the required pro forma financial information
concerning the acquired assets. Such required pro forma financial information
will be filed by amendment to this Form 8-K not later than 60 days in accordance
with Item 7, paragraph (b)(2) of Form 8-K.
(c) Exhibits.
Exhibit 99.1 - Agreement for Purchase and Sale, dated March 27,
1996 (excluding exhibits)
Exhibit 99.2 - Unaudited Pro Forma Condensed Consolidated Balance
Sheet as of May 31, 1996
Exhibit 99.3 - Unaudited Pro Forma Consolidated Statement of
Operations for the Five Months Ended May 31, 1996
2
<PAGE> 3
SIGNATURES
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 thereunto duly authorized.
VININGS INVESTMENT PROPERTIES TRUST
Date: July 1, 1996 By: /s/ Stephanie A. Reed
------------------------------
Name: Stephanie A. Reed
Title: Vice President and Treasurer
3
<PAGE> 4
EXHIBIT INDEX
-------------
Exhibit No. Name
- ----------- ----
99.1 Agreement for Purchase and Sale, dated
March 27, 1996 (excluding exhibits)
99.2 Unaudited Pro Forma Consolidated Balance
Sheet as of May 31, 1996
99.3 Unaudited Pro Forma Consolidated Statement
of Operations for the Five Months Ended
May 31, 1996.
4
<PAGE> 1
AGREEMENT FOR PURCHASE AND SALE
-------------------------------
THE THICKET APARTMENTS
THIS AGREEMENT OF PURCHASE AND SALE ("Agreement") is made and entered into
as of the 27th day of March, 1996 (the "Effective Date"), between THE PATRICIAN
MORTGAGE COMPANY, ("Seller") and A & P INVESTORS, INC., a Georgia corporation,
or its assigns ("Purchaser").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Seller owns certain real property and improvements thereon located
at 5816 Covington Highway, Decatur, Dekalb County, Georgia, consisting of an
apartment complex commonly known as "The Thicket Apartments" comprised of 254
residential apartment units (collectively the "Project"), together with Seller's
interest in and to certain rights, benefits and obligations associated with the
ownership and operation of the Project; and
WHEREAS, Seller desires to sell and Purchaser desires to purchase such
Project, rights, benefits and obligations upon the terms and conditions set
forth hereinbelow;
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable considerations, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
1. Purchase and Sale
-----------------
1.1 On the Closing Date, as hereinafter defined, and subject to the terms
and conditions set forth in this Agreement, Seller agrees to sell, assign,
transfer, and deliver to Purchaser, and Purchaser agrees to purchase, acquire,
and accept from Seller, the following, hereinafter referred to collectively as
the "Property":
(a) The real property described more fully in EXHIBIT "A", attached
hereto and incorporated herein by reference, together with all of Seller's
right, title and interest in the improvements erected thereon and rights in
connection therewith, including without limitation all right, title and
interest of Seller in and to any easements appurtenant thereto and all
covenants, licenses, privileges, and benefits thereto belonging, and all
right, title and interest, if any, of Seller in and to any land lying in
the bed of any street, road, or avenue opened or proposed in front of or
adjoining said real property, to the center line thereof, all of which
shall hereinafter be referred to collectively as the "Real Property",
(b) All right, title and interest of Seller in and to the improvements
constructed on the Real Property (hereinafter referred to as the
"Improvements");
1
<PAGE> 2
(c) All right, title and interest of Seller in and to all tenant
leases, applications, and other records pertaining to the use and operation
of the Project and the Real Property, together with all refundable tenant
deposits not previously forfeited or applied in connection therewith;
(d) All right, title and interest of Seller in and to any guaranties,
warranties, licenses, permits, certificates, rights and privileges, if any,
in the possession of Seller related to the Real Property and the use and
operation of the Project, including the name "The Thicket Apartments", all
of which shall hereinafter be referred to as the "Intangible Personal
Property"; and
(e) All right, title and interest of Seller in and to all equipment,
furniture, fixtures, furnishings, tools, spare parts, supplies, and other
tangible assets located at the Real Property and used in connection with
the management, operation, maintenance, and repair of the Project,
including the items listed in EXHIBIT "B", all of which shall hereinafter
be referred to as the "Tangible Personal Property".
2. Good Faith Deposit.
------------------
2.1 Purchaser shall make a good faith deposit (which deposit, including
any additions thereto and any interest thereon, is called the "Deposit") with
First American Title Insurance Company ("Escrow Agent") in the sum of Ten
Thousand and No/100ths Dollars ($10,000.00) within two (2) business days of the
execution of this Agreement, to be held by Escrow Agent in accordance with the
terms of this Agreement and Escrow Agent's standard form Escrow Agreement for
Purchaser's and Seller's benefit and to be disbursed in accordance with the
provisions of this Agreement and said Escrow Agreement. In the event Purchaser
elects to extend the Closing Date as provided in Section 4.1 below, Purchaser
shall deposit an additional Twenty-Five Thousand and No/10ths Dollars
($25,000.00) in immediately available funds with the Escrow Agent to be added
to the Deposit and thereafter held, invested and disbursed in accordance with
the terms of this Agreement.
2.2 In the event the sale and purchase of the Property is consummated in
accordance with this Agreement, the Deposit shall be credited to the Purchase
Price (as hereinafter defined) at the Closing of this transaction. In the event
Purchaser shall properly terminate its obligations hereunder in accordance with
Section 6 hereof, or otherwise as expressly permitted in this Agreement, the
Deposit shall be promptly disbursed to Purchaser. If the sale and purchase of
the Property is not closed because of a breach by Purchaser, then and in such
event, the Deposit shall be disbursed to Seller pursuant to Section 11 hereof.
If the sale and purchase of the Property is not closed because of a breach
hereof by Seller, the disbursement of the Deposit and the respective rights of
the parties shall be as set forth in Section 10 hereof. All interest accruing on
the Deposit shall belong to Purchaser except in the event of Purchaser's default
hereunder in which case the interest shall be paid to Seller.
2.3 The duties of the Escrow Agent shall be determined solely by the
express provisions of this Agreement and the Escrow Agreement. The parties
authorize the Escrow Agent, without creating any obligation on the part of the
Escrow Agent, in the event this Agreement or the Deposit becomes involved in
litigation, to pay over the Deposit to the clerk
2
<PAGE> 3
of the court in which the litigation is pending and thereupon the Escrow Agent
shall be fully relieved and discharged of any further responsibility under this
Agreement. The undersigned also authorizes the Escrow Agent, if it is threatened
with litigation, to interplead all interested parties in any court of competent
jurisdiction and to pay over the Deposit to the clerk of that court and
thereupon the Escrow Agent shall be fully relieved and discharged of any further
responsibility hereunder.
2.4 The Escrow Agent shall not be liable for any mistake of fact or error
of judgment or any acts or omissions of any kind unless caused by its
intentional misconduct or negligence. The Escrow Agent shall be entitled to rely
on any instrument or signature believed by it to be genuine and may assume that
any person purporting to give any writing, notice or instruction in connection
with this Agreement is duly authorized to do so by the party on whose behalf
such writing, notice or instruction is given.
2.5 The parties, severally, will indemnify the Escrow Agent for and hold
it harmless against any loss, liability or expense incurred without negligence
or bad faith on the part of the Escrow Agent arising out of or in connection
with the acceptance of, or the performance of its duties under this Agreement,
as well as the reasonable costs and expenses of defending against any claim or
liability arising under this Agreement.
3. Purchase Price.
--------------
3.1 The purchase price shall be Eight Million Six Hundred Fifty Thousand
and No/100 Dollars ($8,650,000.00) (the "Purchase Price").
3.2 The Purchase Price shall be paid at Closing by immediately available
funds, less a credit for the Deposit; provided, however, that the amount of the
Purchase Price shall be adjusted to reflect the prorations between Purchaser and
Seller as described in Section 4.6 hereof.
4. Closing Procedures
------------------
4.1 The consummation of the sale and purchase of the Property pursuant to
the terms of this Agreement (the "Closing") shall be consummated on or before
the sixtieth (60th) day after the Effective Date (the "Closing Date"); provided,
however, that Purchaser shall have the right to extend the Closing Date for a
thirty (30) day period by depositing an additional Deposit as set forth in
Section 2.1 hereof prior to the expiration of the original Closing Date period.
4.2 Purchaser shall give Seller and Escrow Agent notice of the Closing
Date selected by Purchaser at least five (5) days prior thereto. The Closing
shall be conducted at the offices of Purchaser's attorneys in Atlanta, Georgia
(or at such other location as may be agreed upon by Purchaser and Seller) and
shall be consummated by 5:00 p.m. on the Closing Date.
4.3 On the Closing Date, Seller shall deliver to Purchaser the following:
3
<PAGE> 4
(a) Transferable and recordable limited warranty deed conveying
Marketable Fee Simple Title to the Real Property. "Marketable Fee Simple
Title" shall be such title as is acceptable to a reasonable purchaser using
the Georgia Bar Association "Title Standards," as currently published, as
the criteria to marketability of the title required hereby, and insurable
by First American Title Insurance Company at standard rates without
exceptions except for the standard exceptions and the Permitted Title
Exceptions. As used in this Agreement, the term "Permitted Title
Exceptions" means those matters affecting title to the Property set forth
on EXHIBIT "C" attached hereto, together with such other matters as shall
become additional Permitted Title Exceptions in accordance with the terms
of Section 7 below.
(b) Bill of Sale and Assignment of all Tangible Personal Property and
Intangible Personal Property, free and clear of all liens and encumbrances,
except for the Permitted Title Exceptions, containing a limited warranty of
title relative to the Tangible Personal Property and Intangible Personal
Property and otherwise containing terms consistent with the terms hereof.
(c) Delivery of good and proper assignments of all leases and
contracts (specifically accepted and assumed by Purchaser) with respect to
the Property hereunder, together with the originals of all said leases and
contracts which are in Seller's possession.
(d) A current rent roll (the "Rent Roll") certified to be true and
accurate in all material respects by Seller showing all rentals collected
from each tenant in the Property during the month prior to, and as of the
Closing Date, which Rent Roll shall include the name, apartment number,
lease expiration date and refundable security deposit not previously
forfeited or applied for each tenant. A Rent Roll current as of the date
stated thereon is attached hereto as EXHIBIT "D" and by this reference made
a part hereof.
(e) An assignment of any unexpired warranties and guaranties in the
possession of Seller now in effect with respect to any part of the Property
and/or any mechanical equipment in, on or about the Property, without,
however, warranty of any nature.
(f) All Certificates of Occupancy or their equivalent, if available,
for all buildings on the Property which are in Seller's possession.
(g) Sufficient evidence that Seller is duly authorized to consummate
the transaction.
4
<PAGE> 5
(h) An affidavit setting forth that the Seller is not a foreign person
or a foreign corporation and providing the Seller's United States Taxpayer
Identification Number.
(i) An affidavit with respect to Seller's residence sufficient to
comply with the requirements of O.C.G.A. [Section]48-7-128. In the event
that Seller shall fail to furnish the affidavit required hereby, Purchaser
shall withhold from the proceeds of the sale hereunder, an amount
sufficient to comply with the requirements of O.C.G.A. [Section]48-7-128.
(j) A termite inspection report from a reputable termite inspection
service certifying that the Improvements are free of wood boring insects.
All corrective work (if termite infestation and/or damage is found) will be
satisfactorily completed by Seller, at Seller's cost, prior to Closing.
4.4 On the Closing Date, Purchaser shall deliver to Seller:
(a) The Purchase Price (subject to any adjustments and prorations
required hereunder) in good and immediately available funds.
(b) Sufficient evidence that the Purchaser is duly authorized to
consummate the transaction.
(c) An agreement executed by the Purchaser under the terms of which
Purchaser assumes and agrees to hold harmless Seller from and indemnify
Seller against all of the obligations of the "Landlord" pursuant to all
tenant leases affecting the Property and all of the obligations of Seller
pursuant to any contracts assigned to Purchaser to the extent that said
obligations accrue subsequent to the Closing Date.
4.5 Seller shall pay the State of Georgia transfer tax and its own
attorney's fees and costs. Purchaser shall pay its own attorney's fees and
costs, the recording fees on the Warranty Deed and any other conveyancing
documents, all title examination fees and any premiums for title insurance,
survey and appraisal costs and engineering costs.
4.6 The following shall be apportioned between Seller and Purchaser as of
12:01 a.m. on the Closing Date, unless otherwise specified and agreed:
(a) All rents collected by Seller up to the Closing Date which are
allocable to the period commencing with and after the Closing Date shall be
paid to Purchaser at Closing. In prorating rents, Seller shall not receive
any credit for rents due from any unoccupied units in the Property nor
receive credit for rent which is delinquent on the Closing Date. All rent
collected from a delinquent tenant on or after the Closing Date shall first
be applied to rents due the month of Closing, then to rents due the month
before Closing, then to rents due the month after Closing, then to rents
due two (2) months before Closing, then to rents due two (2) months after
Closing, and so on until all such rents are disbursed. Purchaser will make
good faith efforts to collect delinquent rents
5
<PAGE> 6
which accrue prior to the Closing Date from any tenant Purchaser allows to
remain on the Property.
(b) Real and personal property taxes and assessments for improvements
to the Real Property, if any, shall be apportioned on the basis of the
actual tax bills for the current year, if available, or based upon the most
current information available on the Closing Date. If, upon receipt of the
actual ad valorem property tax and assessment bills for the Property, such
proration is incorrect, then either Purchaser or Seller shall be entitled,
upon demand, to receive such amounts from the other as may be necessary to
correct such mal-apportionment. This obligation so to correct such
mal-apportionment shall survive the Closing and not be merged into any
documents delivered pursuant to the Closing.
(c) Final readings for telephone, electric, gas, sewer, water and
other utility bills with respect to the Property will be made, if possible,
as of the Closing Date, and Seller shall pay all outstanding amounts due as
of that date. Seller shall also be entitled to any applicable refunds of
security deposits held by any utility company, and Purchaser shall make
arrangements on or before Closing so that said deposits can be paid to
Seller on the Closing Date. If final readings and billings cannot be
obtained as of the Closing Date, Seller shall be responsible for having all
meters read not earlier than two (2) days prior to the Closing Date, and a
final adjustment on a per diem basis shall be made after Closing when the
next reading is available.
(d) The amount of all refundable security or other refundable deposits
collected from tenant and not previously forfeited or applied, shall be
transferred to Purchaser as a credit against the Purchase Price at Closing.
Purchaser shall indemnify Seller from all claims of tenants concerning any
such deposits transferred to Purchaser.
(e) Trade payables claimed to be payable by any person or entity
relating in any manner to the Property, including without limitation all
work, material and supply payables, for which mechanics' liens could arise,
and amounts due and payable under service contracts, relating to the period
prior to the Closing Date shall be paid by Seller on the Closing Date or a
sufficient escrow deposit placed with the title company at Closing.
(f) At Closing, any and all adjustments and prorations shall be
reflected in an adjustment in the Purchase Price and shall be set forth in
a Closing Statement executed by the parties hereto.
5. SURVEY. Purchaser may elect to have prepared, at Purchaser's expense,
an accurate survey of the Property by a surveyor registered under the laws of
the State of Georgia (hereinafter referred to as the "Survey"). Purchaser shall
deliver three (3) prints of the Survey, together with a legally sufficient
description of the metes and bounds of the Property based on
6
<PAGE> 7
the Survey, to the Seller no later than ten (10) days prior to the Closing,
whereupon said description shall become a part of this Agreement without the
necessity of any further action by any of the parties hereto and said
description shall replace and supersede the description of the Property attached
hereto as EXHIBIT "A". Notwithstanding the foregoing, however, in the event that
the revised legal description differs from that contained in EXHIBIT "A", Seller
shall only be required to deliver a Warranty Deed containing the legal
description in EXHIBIT "A", and Seller shall deliver a Quitclaim Deed containing
the revised legal description.
6. INSPECTION. Purchaser has been provided with the opportunity to
inspect the Property and has determined that the Property is suitable and
acceptable to Purchaser for purposes of purchasing the Property pursuant to this
Agreement. Seller shall continue to cooperate with Purchaser in providing
information concerning the Property as reasonably requested for purposes of
obtaining a loan for the Property. Purchaser shall also have the privilege at
any time during the term of this Agreement to go upon the Property with
Purchaser's agents, representatives or designees to further examine and survey
the Property. Purchaser agrees to indemnify and hold Seller harmless from and
against loss or damage Seller may incur and any and all liens that may arise as
a result of Purchaser's activities or the activities of Purchaser's agents,
representatives or designees on the Property and against any and all claims for
death or injury to persons or properties arising out of or connected with
Purchaser's (or its agents, representatives or designees) going upon the
Property pursuant to the provisions of this Section 6 or otherwise, and against
all costs, expenses and liabilities occurring in or in connection with any such
claim or proceeding brought thereon, including, without limitation, court costs
and reasonable attorneys' fees. This indemnity shall survive the Closing or any
termination of this Agreement.
7. TITLE. Within thirty (30) days after the Effective Date, Purchaser
shall, at Purchaser's expense, examine the title to the Real Property and obtain
an owner's title insurance commitment issued by First American Title Insurance
Company, together with copies of all exceptions listed therein. Within ten (10)
business days of receipt of said commitment, Purchaser shall furnish Seller with
a written statement of any and all title matters to which Purchaser objects
(collectively "Purchaser's Title Objections"), including the Permitted Title
Exceptions and matters disclosed by the Survey, if then available (or if not
then available, then within ten (10) business days of receipt of the Survey),
affecting title to the Real Property. Purchaser shall also have the right to
examine, or cause to be examined, title to the Real Property at any time or
times after such initial title examination and prior to Closing and to have the
Survey updated, and to furnish Seller with a written statement or statements of
any and all additional Purchaser's Title Objections, which affect the title to
the Real Property as aforesaid and which arise, first appear of record, or first
become known to Purchaser from and after Purchaser's initial title examination.
Seller shall have ten (10) days after receipt of any such written statement to
correct such Purchaser's Title Objections; provided that Seller shall have no
obligation to correct any of Purchaser's Title Objections with respect to
Purchaser's initial title examination. If Seller shall have failed to correct
such Purchaser's Title Objections or if Seller shall have notified Purchaser
that Seller has elected not to correct such Purchaser's Title Objections, then
Purchaser may, by written notice to Seller and Escrow Agent (given within five
(5) business days after the
7
<PAGE> 8
earlier of (i) the expiration of Seller's aforesaid ten (10) day correction
period, or (ii) Seller's notice that Seller has elected not to correct such
Purchaser's Title Objections) either:
(a) elect to terminate this Agreement whereupon Escrow Agent shall
return the Deposit to Purchaser and the parties hereto shall have no
further rights, duties, obligations or liabilities hereunder, except for
those which expressly survive the termination of this Agreement as set
forth in Section 20; or
(b) waive such Purchaser's Title Objections and proceed to close the
purchase of the Property (without a reduction of the Purchase Price) in
accordance with the terms of this Agreement, in which case said Purchaser's
Title Objections shall become additional Permitted Title Exceptions for
purposes of this Agreement.
If Purchaser shall fail to give Seller and Escrow Agent notice of its
election to terminate this Agreement pursuant to Section 7(a) above within said
five (5) business day period, then Purchaser shall be deemed to have elected to
waive all such Purchaser's Title Objections and the provisions of Section 7(b)
above shall apply. Notwithstanding the foregoing, Seller shall be required to
pay or cause to be bonded, discharged or otherwise removed of record on or
before the Closing Date any security deed, security interest or lien on the
title to any of the Property which secures or evidences the indebtedness
incurred by or at the direction of Seller. From and after the date of this
Agreement to the date and time of Closing, Seller shall not, without the prior
written consent of Purchaser, convey any portion of the Property or any rights
therein, nor enter into any conveyance, lease, security document, easement or
other agreement or amendment to agreement granting to any person or entity any
rights with respect to the Property or any part thereof, or any interest
whatsoever therein, or any option thereto, and any such conveyance or other
agreement entered into in violation of this shall be null and void and of no
force or effect. Notwithstanding anything contained in this Agreement to the
contrary, Seller shall have the right during the term of this Agreement, to
enter into tenant leases, in the ordinary course of business.
Each party shall deliver to Purchaser's title insurance company such duly
executed and acknowledged or verified certificates, affidavits and other
documents respecting the power and authority to perform the obligations
hereunder and as to the due authorization thereof by appropriate corporate,
partnership or other entities and as to the authority of the officer, partner or
other representatives acting for it at the Closing, as Purchaser's title
insurance company may reasonably request.
8. INTENTIONALLY DELETED.
---------------------
9. WAIVER OF CONDITIONS. Either party may at any time or times on or
before the Closing Date at its election waive any obligation or condition
benefitting only such party, but any such waiver shall be effective only if
contained in a writing signed by the party making such waiver and delivered to
the other party. Any such waiver shall be deemed a waiver of any and all claims
against the other party relative to the obligation or condition so waived.
8
<PAGE> 9
10. BREACH BY SELLER. In the event of any breach of this Agreement or any
warranty or representation hereunder by Seller prior to the Closing hereunder,
Purchaser shall have the right to a refund of the Deposit, may pursue an action
in equity for specific performance, and may sue for damages.
11. BREACH BY PURCHASER. In the event of any breach of this Agreement or
of any warranty or representation hereunder by Purchaser, Seller shall be
entitled to terminate this Agreement and to receive, as its sole remedy, the
Deposit as liquidated damages, it being difficult or impossible to determine
Seller's actual damages, and which liquidated damages shall be in lieu of any
other rights or remedies of Seller. Seller and Purchaser agree that the amount
of the Deposit is a reasonable estimate of actual damages which have been agreed
to in an effort to make such damages certain. Said liquidated damages shall be
Seller's sole and exclusive remedy, and Seller shall expressly not have the
right to seek specific performance.
12. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents and
warrants to Seller that Purchaser has and shall have at Closing, full power and
authority to acquire and own the Property described in this Agreement.
13. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER. Seller
represents, warrants and covenants to and with Purchaser the following:
(a) Seller is the sole owner of legal title to the Property subject
only to the Permitted Title Exceptions. Seller has Marketable Fee Simple
Title to the Property subject to the Permitted Title Exceptions, and on the
Closing Date Seller's title to the Property shall be Marketable Fee Simple
Title subject to the Permitted Title Exceptions.
(b) Seller has duly and validly authorized and executed this
Agreement, and has full right, title, power and authority to execute this
Agreement and carry out all of its terms. The consummation of this
transaction shall not constitute a default or breach under any agreement to
which Seller is subject or by which it is bound.
14. RISK OF LOSS. For the period ending on the Closing Date, Seller shall
bear all risk of loss and Seller will keep in force such insurance as presently
maintained by Seller.
14.1 If, prior to Closing, the Property shall be destroyed or sustain
"Major Damage" (as hereinafter defined) as a result of fire or other casualty,
then either Purchaser or Seller may elect to terminate this Agreement by written
notice to the other party within ten (10) days after the terminating party's
receipt of the contractor's estimate of the cost of repair as hereinafter
described. Any such termination of this Agreement shall entitle Purchaser to a
refund of the Deposit and shall effect a release of the parties hereto with
respect to the obligations under this Agreement, except as provided in Section
20 hereof. If neither party elects to terminate this Agreement, then Seller
shall repair such damage and restore the Property as promptly as is reasonably
possible, and, in such event, the Closing Date shall be postponed until such
repair is completed.
9
<PAGE> 10
14.2 If, prior to Closing, the Property shall sustain "Minor Damage"
(as hereinafter defined) as a result of fire or other casualty, Purchaser shall
close the purchase of the Property in accordance with the terms hereof, without
reduction of the Purchase Price, and Seller shall assign, without recourse, to
Purchaser all Seller's right to all insurance proceeds payable as a result of
such casualty. In the event of such Minor Damage, Seller shall have no
obligation to repair or restore the Property so damaged.
14.3 The term "Major Damage" shall mean damage to the Property of a
nature such that the cost of restoring the Property will exceed Two Hundred
Thousand Dollars ($200,000). The term "Minor Damage" shall mean damage to the
Property of a nature such that the cost of restoring the Property will not
exceed Two Hundred Thousand Dollars ($200,000). The cost of such restoration and
repair shall be estimated by a contractor designated by Seller and approved by
Purchaser, with such approval not to be unreasonably conditioned, withheld or
delayed.
14.4 To the extent covered by insurance, any obligations of Seller to
repair Major Damage shall be conditioned upon receipt of the insurance proceeds.
Except as set forth in Section 14.2 above, Seller shall be entitled to receive
all proceeds of insurance payable with respect to such destruction or damage.
The provisions of this Section 14 shall not be applicable to condemnation or
similar proceedings.
15. CONDEMNATION. Purchaser and Seller agree that if all or any material
portion of the Property is taken or threatened to be taken by eminent domain or
condemnation prior to the Closing, then Purchaser shall have the right either
(i) by failure to give notice of termination in writing to Seller within thirty
(30) days after Purchaser receives notification in writing of such taking or
contemplated taking, to require Seller to perform its obligations under this
Agreement, without reduction in the Purchase Price, and to assign and deliver to
Purchaser without recourse all of the award of rights for such taking, or (ii)
by notice of termination to Seller within such thirty (30) day period, may
terminate all obligations of the parties under this Agreement, require the
return of the Deposit and thereupon neither party shall have any obligation to
the other except as provided in Section 20 hereof. A "material portion of the
Property" shall mean (i) all or a portion of one or more apartment buildings
comprising the Property, (ii) the means of access to the Property, or (iii) a
sufficient number of parking spaces such that the Property cannot be used as an
apartment project. A taking (or threat thereof) of less than all or a material
portion of the Property shall not permit Purchaser to terminate this Agreement,
but shall entitle Purchaser to an assignment without recourse of the award or
rights for such taking without, however, a reduction in the Purchase Price.
16. COMMISSIONS. Purchaser and Seller warrant and represent to each other
that they have not dealt with any real estate broker, real estate agent,
salesman or finder with respect to this Agreement or the sale contemplated
hereunder other than M.F.I. Realty Company, Inc., as agent for Purchaser (the
"Broker"). Seller shall pay M.F.I. Realty Company, Inc. $150,000.00 as real
estate brokerage commission if, only if and when the Closing has been
consummated, it being understood and agreed that if this Agreement is terminated
or if the Closing does not
10
<PAGE> 11
occur for any reason whatsoever, including, without limitation, a default by
Purchaser or Seller, then no real estate brokerage commission or any other fee
or compensation of whatever kind, nature or amount shall be due Broker. The
parties hereto agree to indemnify and hold the other harmless against any and
all claims for real estate brokerage commissions or other fees or similar
compensation that may be asserted by any third party with respect to this
Agreement to the extent that the liability for any such claims shall be based
upon the actions of the indemnifying party. Broker has executed this Agreement
for the purpose of acknowledging and agreeing to the amount and the method of
payment of the commission to be paid it, and agreeing that no real estate
commission shall be earned by it or due it until such time as and unless the
sale contemplated hereby is closed. Broker hereby represents and warrants to
Seller and Purchaser that no party is entitled, as a result of the actions of
Broker, to a real estate commission or other fee resulting from the execution of
this Agreement or the sale and conveyance herein contemplated. Broker hereby
indemnifies and holds Seller and Purchaser harmless from and against any and all
losses, costs, damages and expenses (including attorney's fees) incurred or paid
as a result of any claim arising out of the actions of Broker with regard to any
claim for a real estate commission or other fee resulting from the execution of
this Agreement or the sale and conveyance herein contemplated. The provisions of
this paragraph shall survive the Closing or any termination of this Agreement.
17. ASSIGNABILITY. This Agreement shall be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and assigns.
Purchaser shall have the right to assign this Agreement upon prior written
notice to Seller, without Seller's consent, and the transaction contemplated by
this Agreement shall be closed in the name of such assignee. In the event of
such assignment, the assignee shall assume the obligations of Purchaser under
this Agreement, and Purchaser shall have no further obligation or liability
under this Agreement.
18. NOTICES. Any notice, demand or document which either party is required
or may desire to give or deliver to or make upon the other party shall, in the
case of a notice or demand, be in writing and sent by hand delivery, by
commercial delivery service (such as Federal Express) or sent by United States
registered or certified mail, postage prepaid, return receipt requested,
addressed to such party at its address set forth hereinbelow, subject to the
right of either party to designate a different address by notice similarly
given. Any notice, demand or document so given shall be deemed delivered or made
upon receipt at such address, or on the date of delivery by a hand delivery or
by a commercial delivery service (if guaranteed overnight for next day delivery
by such commercial delivery service), or if mailed, three (3) days after
postmarked by the U.S. Postal Service.
All notices should be sent:
If to Purchaser:
---------------
A & P Investors, Inc.
3111 Paces Mill Road
Suite A-200
Atlanta, Georgia 30339
11
<PAGE> 12
Attn: Mr. Peter D. Anzo
With a copy to:
--------------
Darla K. Jaben, Esq.
405 Emory Drive
Atlanta, Georgia 30307
If to Seller:
------------
The Patrician Mortgage Company
4550 Montgomery Ave., Suite 1150
----------------------------------------
Bethesda, MD 20814
----------------------------------------
Attn: Thomas Boeher
----------------------------------------
With a copy to:
Melissa Garnett, Esq.
----------------------------------------
Gray & Gillilaud
----------------------------------------
400 Perimeter Center Terrace, Suite 1050
----------------------------------------
Atlanta, Georgia 30346
19. Other Documents.
---------------
The parties agree that they shall cooperate in good faith to accomplish the
objectives of this Agreement and to that end agree to execute and delivery from
time to time such other and further instruments and documents as may be
necessary and convenient to the fulfillment of those purposes.
20. SURVIVAL OF AGREEMENT. The covenants, obligations, representations,
warranties and agreements contain in this Agreement shall survive the execution
and delivery of this Agreement and of any and all documents or instruments
delivered in connection herewith for twelve (12) months; provided, however the
indemnification provisions of Sections 6 and 16 hereof shall survive the
termination of this Agreement or the Closing of the sale and purchase of the
Property, whichever occurs, and shall not be merged, until the applicable
statute of limitations with respect to any claim, cause of action, suit or other
action relating thereto shall have fully and finally expired.
21. EFFECT ON INVALIDATION. If any one or more of the provisions of this
Agreement is for any reason held to be invalid, illegal or unenforceable in any
respect by any court of competent jurisdiction, such invalidity, illegality or
unenforceability shall not affect the validity and enforceability of the other
provisions hereof, and this Agreement shall be construed as though such invalid,
illegal or unenforceable provision had never been contained herein.
22. MISCELLANEOUS.
12
<PAGE> 13
22.1 This Agreement contains the entire agreement between the parties in
respect to the matters herein set forth, supersedes all prior agreements between
the parties with respect thereto, and may not be modified, amended or terminated
except by written agreement signed by both Purchaser and Seller.
22.2 This Agreement may be executed in any number of counterparts, each of
which shall for all purposes be deemed to be an original and all of which
together shall constitute one and the same agreement of the parties. Captions of
the paragraphs and subparagraphs of this Agreement are for convenience only and
shall not be considered or referred to in resolving questions of interpretation
or construction.
22.3 Should either party hereto institute any action or proceeding in any
court to enforce any provision of this Agreement, the prevailing party shall be
entitled to receive from the losing party reasonable attorneys' fees and costs
incurred in such action or proceeding, whether or not such action or proceeding
is prosecuted to judgment.
22.4 This Agreement and the transactions contemplated herein shall be
governed by and construed under the laws of the State of Georgia. Time is of the
essence of this Agreement.
22.5 Except as otherwise specifically provided herein, no waiver by either
party of any breach by the other of any provision of this Agreement shall be
deemed or construed to be a waiver of any subsequent or continuing breach of the
same or any other provision of this Agreement; except as otherwise specifically
provided herein, nor shall any forbearance by either party from the exercise of
a remedy for any such breach be deemed or construed to be a waiver by such party
of any of its rights or remedies with respect to such breach.
22.6 The terms and provisions of this Agreement represent the results of
negotiations between the parties, each of which has been represented by counsel
of its own selection, and neither of which has acted under duress or compulsion,
whether legal, economic or otherwise. Consequently, the terms and provisions of
this Agreement shall be interpreted and construed in accordance with their usual
and customary meanings, and the parties hereby expressly waive and disclaim in
connection with the interpretation and construction of the Agreement, any rule
of law or procedure requiring otherwise, including, without limitation, any rule
of law to the effect that ambiguous or conflicting terms or provisions contained
in this Agreement shall be interpreted or construed against the party whose
attorney prepared this Agreement or any earlier draft of this Agreement.
13
<PAGE> 14
IN WITNESS WHEREOF, the parties hereto have executed, sealed and delivered
this Agreement as of the date and year first above written.
SELLER:
THE PATRICIAN MORTGAGE
COMPANY
By: /s/ W. Thomas Buol
-------------------------------------
Title: Vice President and General Counsel
----------------------------------
[CORPORATE SEAL]
PURCHASER:
---------
A & P INVESTORS, INC., a Georgia
corporation
By: /s/ Peter D. Anzo
-------------------------------------
Title: President
------------------------------
Broker joins in the execution hereof as of the date first above written for
the purpose of acknowledging and accepting the terms of Section 16 hereof.
Except to the extent any subsequent modification or amendment hereof alters the
rights, duties or liabilities of Broker hereunder, Broker shall not be required
to join in the execution of any such modification or amendment.
M.F.I. REALTY COMPANY, INC.
By: /s/ Martin H. Petersen
--------------------------------------
14
<PAGE> 15
Escrow Agent joins in the execution hereof as of the date first above
written for the purpose of (i) acknowledging the receipt of the Deposit, and
(ii) accepting the duties of Escrow Agent hereunder. Except to the extent any
subsequent modification or amendment hereof alters the rights, duties or
liabilities of Escrow Agent hereunder, Escrow Agent shall not be required to
join in the execution of any such modification or amendment.
FIRST AMERICAN TITLE INSURANCE
COMPANY
By:
------------------------
Its:
--------------------
15
<PAGE> 16
EXHIBIT "A"
LEGAL DESCRIPTION
<PAGE> 17
EXHIBIT "B"
TANGIBLE PERSONAL PROPERTY
<PAGE> 18
EXHIBIT "C"
PERMITTED TITLE EXCEPTIONS
<PAGE> 1
Exhibit 99.2
------------
VININGS INVESTMENT PROPERTIES TRUST
AND SUBSIDIARIES
<TABLE>
PRO FORMA CONSOLIDATED BALANCE SHEET
AS OF MAY 31, 1996
(UNADUITED)
<CAPTION>
PRO FORMA
HISTORICAL ACQUISITION PRO FORMA
MAY 31, 1996 ADJUSTMENTS(A) MAY 31, 1996
<S> <C> <C> <C>
ASSETS
CASH AND CASH EQUIVALENTS $ 147,799 $ (84,099) $ 63,700
CASH-ESCROWS - 231,633 (C) 231,633
RECEIVABLES 55,509 - 55,509
PREPAID EXPENSES 161,129 7,425 168,554
UNAMORTIZED LEASE COMMISSIONS 7,770 - 7,770
PEACHTREE BUSINESS CENTER 2,334,853 - 2,334,853
THE THICKET APARTMENTS - 8,650,000 8,650,000
ACQUISTITION/LOAN COSTS - 235,327 235,327
TOTAL ASSETS $2,707,060 $9,040,286 $11,747,346
LIABILITIES
ACCOUNTS PAYABLE $ 9,487 $ - $ 9,487
ACCRUED LIABILITIES 65,250 80,182 (D) 145,432
ACCRUED TAXES 14,206 - 14,206
SECURITY DEPOSITS 19,422 - 19,422
MORTGAGES & NOTES PAYABLE - 8,960,104 8,960,104
TOTAL LIABILITIES 108,365 9,040,286 9,148,651
SHAREHOLDERS' EQUITY
SHAREHOLDERS' EQUITY 36,973,249 - 36,973,249
CUMULATIVE EARNINGS 38,244,925 80,182 38,244,925
CUMULATIVE DISTRIBUTIONS (72,619,479) - (72,619,479)
TOTAL SHAREHOLDERS' EQUITY 2,598,695 - 2,598,695
TOTAL LIABILITIES & SHAREHOLDERS' EQUITY $2,707,060 $9,040,286 $11,747,346
</TABLE>
<PAGE> 1
EXHIBIT 99.3
<TABLE> ------------
VININGS INVESTMENT PROPERTIES TRUST
AND SUBSIDIARIES
PRO FORMA CONSOLIDATED STATEMENT OF OPERATIONS
FOR THE FIVE MONTHS ENDED MAY 31, 1996
(UNAUDITED)
<CAPTION>
PRO FORMA
HISTORICAL ACQUISITION PRO FORMA
MAY 31, 1996 ADJUSTMENTS MAY 31, 1996
<S> <C> <C> <C>
REVENUES
RENTAL REVENUES $354,276 $706,903(B) $1,061,178
OTHER PROPERTY REVENUES 51,443 18,601(B) 70,044
-----------------------------------------------------
TOTAL PROPERTY REVENUES 405,719 725,504 1,131,222
INTEREST INCOME 91,805 -- 91,805
-----------------------------------------------------
TOTAL REVENUES 497,524 725,504 1,223,027
-----------------------------------------------------
EXPENSES
PROPERTY OPERATING EXPENSES 86,583 314,939(B) 401,522
DEPRECIATION AND AMORTIZATION 34,362 91,614(E) 125,976
INTEREST EXPENSE -- 332,032(F) 332,032
PROFESSIONAL FEES 711,276 -- 711,276
GENERAL & ADMINISTRATIVE 82,970 -- 82,970
-----------------------------------------------------
TOTAL EXPENSES 915,191 738,585 1,653,776
-----------------------------------------------------
INCOME/(LOSS) BEFORE LOSS ON
REAL ESTATE INVESTMENT (417,667) (13,081) (430,749)
LOSS ON REAL ESTATE INVESTMENT (26,800) -- (26,800)
-----------------------------------------------------
NET INCOME ($444,467) ($13,081) ($457,549)
=====================================================
WEIGHTED AVERAGE NUMBER OF SHARES
OUTSTANDING 8,645,000 -- 8,645,000
========== =========
PER SHARE INFORMATION:
INCOME BEFORE LOSS ON REAL ESTATE
INVESTMENTS ($0.05) ($0.05)
LOSS ON REAL ESTATE INVESTMENTS (0.00) (0.00)
---------- ---------
NET INCOME ($0.05) ($0.05)
========== =========
</TABLE>
<PAGE> 2
VININGS INVESTMENT PROPERTIES TRUST
NOTES TO PRO FORMA CONSOLIDATED FINANCIAL STATEMENTS
MAY 31, 1996
(UNAUDITED)
(A) The Unaudited Pro Forma Consolidated Balance Sheet is presented as if the
June 28, 1996 acquisition of The Thicket Apartments had occurred as of May
31, 1996.
(B) The Unaudited Pro Forma Consolidated Statement of Operations reflects
rental revenues, other property revenues and property operating and
maintenance expenses for The Thicket Apartments for the five month period
ended May 31, 1996. In management's opinion, all adjustments necessary to
present fairly the effects of the acquisition have been made.
(C) Cash - Escrows of $231,633 represents mortgage escrows established at
closing asfollows:
<TABLE>
<CAPTION>
<S> <C>
Tax & Insurance Escrow $ 114,841
Repair Escrow 111,500
Replacement Reserve Escrow 5,292
---------
$ 231,633
=========
</TABLE>
(D) Accrued liabilities represents real estate tax and prorated rent
liabilities assumed at closing.
(E) Depreciation expense is reflected for the five month period based on the
costs associated with the acquisition of the property. Loan costs have
been amortized over the life of the loan obtained in connection with the
acquisition. The expense is shown for the five months ended May 31, 1996.
(F) Interest expense is associated with the mortgage note which was obtained
in connection with the acquisition an with borrowings under a secured line
of credit used in the acquisition. The expense is shown for the five
months ended May 31, 1996.
(G) The Unaudited Pro Forma Consolidated Financial Statements are not
necessarily indicative of what the actual financial position of the Trust
would have been at May 31, 1996 nor do they purport to present the future
financial position of the Trust
