EXHIBIT 10.3
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ASSIGNMENT AND ASSUMPTION OF LIMITED PARTNERSHIP INTERESTS
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THIS ASSIGNMENT (this "Assignment") is made and entered into as of
the 14th day of August, 2003, by and between ERI CASTLE CREEK, INC., a
Delaware corporation ("Assignor"), and AMLI RESIDENTIAL PROPERTIES, LLC, a
Delaware limited liability company ("Assignee").
RECITALS
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A. Assignor is the sole limited partner in AMLI at Castle Creek,
L.P., a Delaware limited partnership (the "Partnership"), pursuant to that
certain Agreement of Limited Partnership of AMLI at Castle Creek, L.P.,
dated as of December 29, 1998, as amended (the "Partnership Agreement";
capitalized terms used herein and not defined herein shall have the
meanings given them in the Partnership Agreement).
B. The Partnership owns real property located in Indianapolis,
Indiana, upon which the Partnership owns, operates and manages an apartment
community known as Amli at Castle Creek (the "Community").
C. Assignor desires to assign and Assignee desires to acquire all
of Assignor's right, title and interest in Assignor's limited partnership
interests in the Partnership (the "Assigned Interests") and all interests,
rights and obligations under the Partnership Agreement with respect to the
Assigned Interests only, as hereinafter provided.
NOW, THEREFORE, in consideration of the foregoing Recitals, and
the warranties and mutual covenants set forth herein, Assignor and Assignee
hereby agree as follows:
1. ASSIGNMENT OF ASSIGNED INTERESTS. Assignor hereby sells,
assigns, transfers, conveys and delivers to Assignee, free and clear
from any liens, encumbrances or defects of title, and Assignee hereby
accepts, acquires and takes assignment and delivery of, the Assigned
Interests, including, but not limited to, all right, title and
interest in and to the properties (real and personal), capital, cash
flow distributions, profits and losses of the Partnership relating or
allocable to the Assigned Interests.
2. PURCHASE PRICE. In consideration of the sale,
assignment, transfer, conveyance and delivery of the Assigned
Interests, upon the execution hereof Assignee shall pay to Assignor
cash in the amount of $14,069,527, determined in accordance with
Schedule A hereto and as adjusted in accordance with Sections 4 and 5
below (the "Purchase Price"). The Purchase Price shall be paid not
later than 11:00 a,m., Chicago time, on the Effective Date by wire
transfer to such account as shall be provided in writing by Assignor.
3. EFFECTIVE DATE. The assignment herein made is effective
as of the date of this Assignment (the "Effective Date"). For all
periods up to, but not including, the Effective Date, that portion of
the net profits or net losses of the Partnership that are allocable
to the Assigned Interests in accordance with the Partnership
Agreement shall be credited, charged or distributed, as the case may
be, to Assignor and not to Assignee and, for all periods from and
after the Effective Date, that portion of the net profits or net
losses of the Partnership allocable to the Assigned Interests shall
be credited, charged or distributed, as the case may be, to Assignee
and not to Assignor.
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4. PRORATIONS.
(a) On or prior to October 31, 2003, Assignor and Assignee
shall agree upon the prorations set forth in this Section 4. Any
payments owing as a result of such prorations shall be made as soon
as reasonably practicable after such agreement is reached. For
purposes of making the prorations, the Effective Date shall belong to
Assignee and all prorations hereinafter provided to be made as of the
Effective Date shall each be made as of the end of the day before the
Effective Date. In each such proration set forth below, the portion
thereof applicable to periods beginning as of the Effective Date
shall be credited or charged to Assignee and the portion thereof
applicable to periods ending immediately prior to the Effective Date
shall be credited or charged to Assignor.
1. TAXES AND ASSESSMENTS. General real estate taxes
and assessments imposed by governmental authority and any
assessments imposed by private covenant constituting a lien or
charge on the Community for all tax periods through and
including the then current calendar year or other current tax
period (collectively, "Taxes") not yet due and payable shall be
prorated; provided, however, that an initial estimated
proration of Taxes for all periods prior to the Effective Date
has been reflected in the Purchase Price as set forth on
Schedule A hereto. If a final tax xxxx for any period is
available prior to the proration under this Section 4(a), the
Taxes for such period shall be allocated on a fair and
equitable basis according to this Section 4(a) as a final
proration, with a final and complete proration of Taxes for all
other tax periods, for which final tax bills are not available
prior to the proration under this Section 4(a), to be made
pursuant to Section 4(b); provided, that, if the final tax
bills for all periods are available prior to the proration
under this Section 4(a), the Taxes and all other items to be
prorated shall be allocated on a fair and equitable basis
according to this Section 4(a) as a final proration.
2. REVENUES. All revenues and income, including, but
not limited to, collected rent and other collected income (and
any applicable state or local tax on rent) under apartment
leases in effect on the Effective Date, shall be prorated.
Assignee and AMLI Residential Properties, L,P., a Delaware
limited partnership ("AMLI"), agree to make all reasonable
efforts to collect, and to cause the Partnership to collect,
any rents applicable to the period prior to the Effective Date.
Any prepaid rents for the period on or after the Effective Date
shall be credited to Assignee.
3. UTILITIES. Utilities, including water, sewer,
electric, and gas, based upon the last reading of meters prior
to the Effective Date shall be prorated. The Partnership shall
endeavor to obtain meter readings on the day before the
Effective Date, and if such readings are obtained, the
proration of such items shall be based upon such readings.
4. FEES AND CHARGES UNDER SERVICE CONTRACTS. Fees and
charges under contracts for the provision of services to the
Partnership based upon the periods to which such service
contracts relate shall be prorated.
5. EXPENSES. All other costs and expenses of the
Partnership not otherwise specifically set forth in this
Section 4(a) shall be prorated.
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6. DEPOSITS. Nonrefundable deposits held by the
Partnership which would be available for distribution to the
Partners if the Partnership were to be liquidated shall be
prorated.
(b) If a final proration with respect to any Taxes cannot be
made under this Section 4 on or before October 31, 2003, then
Assignee and Assignor agree to perform a final proration of such
Taxes and any other remaining undetermined items on a fair and
equitable basis as soon as the applicable tax bills for such tax
periods are available, with final adjustment to be made as soon as
reasonably possible thereafter. Payments in connection with the final
adjustment shall be made as soon as reasonably practicable after such
final adjustment is agreed upon.
(c) Assignor shall have reasonable access to, and the right
to inspect and audit, the Partnership's books to confirm the
prorations. Any such audit shall be at Assignor's sole cost and
expense; provided, however, that in the event any such audit reveals
an underpayment to Assignor in excess of $5,000, then Assignee shall
pay for the cost and expense of such audit.
5. EARNOUT.
(a) For purposes of this Section 5, the terms set forth below
shall have the following meanings.
"Actual Revenues" means the actual Total Property
Revenues for the Earnout Period.
"Calculated NOI" means Actual Revenues less Projected
Expenses.
"Earnout Period" means the 12-month period beginning on
the one-year anniversary of the first day of the first month
following the Effective Date.
"Projected Expenses" means $1,197,740.
"Projected NOI" means $1,761,853.
(b) Within 30 days after the end of the Earnout Period,
Assignor and Assignee shall determine the earnout, if any, to be paid
by Assignee to Assignor. If the Calculated NOI is equal to or less
than the Projected NOI, then no payment under this Section 5(b) is
required and the parties shall have no further obligations to each
other under this Assignment. If the Calculated NOI exceeds the
Projected NOI, then the value of the earnout (the "Earnout") shall
equal (i) the difference between the Calculated NOI and the Projected
NOI divided by (ii) 0.09. The payment by Assignee to Assignor shall
equal the Earnout multiplied by 0.30.
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(c) In no event shall the Earnout calculated pursuant to
Section 5(b) of this Assignment, together with the earnout calculated
pursuant to Section 5(b) of the Assignment and Assumption of Limited
Partnership Interests (the "Creekside Agreement") of even date
herewith between ERI Creekside, Inc. and AMLI Residential Properties,
LLC (the "Creekside Earnout"), exceed $2,200,000. In the event that
the Earnout plus the Creekside Earnout exceeds $2,200,000, the
Earnout and the Creekside Earnout shall each be reduced in proportion
to the actual earnouts calculated so that the total earnouts
determined pursuant to this Section 5(b) and Section 5(b) of the
Creekside Agreement equal $2,200,000. For example, if the Earnout as
calculated equals $1,000,000 and the Creekside Earnout as calculated
equals $1,500,000, then the Earnout would be reduced to $880,000
($1000/$2500 x $2,200,000) and the Creekside Earnout would be reduced
to $1,320,000 ($1500/$2500 x $2,200,000). The resulting payment to
Assignor under this example with respect to Castle Creek would equal
$880,000 x 0.30 or $264,000.
6. REPRESENTATIONS OF ASSIGNOR. Assignor hereby represents and
warrants to Assignee that:
(a) Assignor is duly organized and validly existing under the
laws of the state of its organization and has been duly authorized by
all necessary and appropriate action to enter into this Assignment
and to consummate the transactions contemplated hereby, This
Assignment is a valid and binding obligation of Assignor, enforceable
against Assignor in accordance with its terms, except insofar as
enforceability may be affected by bankruptcy, insolvency or similar
laws affecting creditor's rights generally and the availability of
any particular equitable remedy.
(b) Assignor is the record and beneficial owner of all of the
Assigned Interests, free and clear of any lien, claim, option, call,
right of first refusal, charge, encumbrance, restriction on transfer
(other than any restriction under the Securities Act of 1933, as
amended, or state securities or "blue sky" laws) or other right of
any other party. The Assigned Interests represent all of Assignor's
ownership interest in the Partnership.
(c) Assignor's execution and delivery of this Assignment, its
performance of its obligations hereunder and its consummation and the
validity of the transactions contemplated hereby do not require it to
obtain any consent, approval or action of, or make any filing with or
give any notice to, any corporation, person or firm or any public,
governmental or regulatory body or judicial authority.
7. REPRESENTATIONS OF ASSIGNEE. Assignee hereby represents and
warrants to Assignor that:
(a) Assignee is duly organized and validly existing under the
laws of the state of its organization and has been duly authorized by
all necessary and appropriate action to enter into this Assignment
and to consummate the transactions contemplated hereby, This
Assignment is a valid and binding obligation of Assignee, enforceable
against Assignee in accordance with its terms, except insofar as
enforceability may be affected by bankruptcy, insolvency or similar
laws affecting creditor's rights generally and the availability of
any particular equitable remedy.
(b) Assignee's execution and delivery of this Assignment, its
performance of its obligations hereunder and its consummation and the
validity of the transactions contemplated hereby do not require it to
obtain any consent, approval or action of, or make any filing with or
give any notice to, any corporation, person or firm or any public,
governmental or regulatory body or judicial authority.
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8. ASSUMPTION BY ASSIGNEE. Assignee hereby (i) accepts the
Assigned Interests and all rights of Assignor under the Partnership
Agreement in respect thereof and (ii) assumes (A) all of the liabilities of
the Partnership as they relate to the Assigned Interests accruing on or
after the date of this Assignment and (B) all obligations of Assignor under
the Partnership Agreement in respect of the Assigned Interests, and agrees
to be bound by the provisions thereof with respect thereto. In no event
shall the liabilities assumed by Assignee include any federal or state
income tax liabilities of Assignor relating to the Partnership or the
Assigned Interests incurred or accrued, whether known or unknown, as of the
date hereof.
9. GUARANTOR. AMLI hereby confirms its agreement to act as
guarantor of all of Assignee's payment obligations to Assignor under this
Assignment.
10. SALE OF COMMUNITY. For a period of two (2) years from the
Effective Date, neither AMLI nor any of its Affiliates shall cause the
Partnership to sell or otherwise dispose of the Community (other than with
respect to any condemnation or other involuntary disposition).
11. NO BROKERS. No broker, finder or similar intermediary has
acted for or on behalf of, or is entitled to any broker's, finder's or
similar fee or other commission from, Assignor or Assignee or any of their
respective Affiliates in connection with this Assignment or the
transactions contemplated hereby.
12. FURTHER ASSURANCES. Each party, at its sole cost and expense,
upon request of the other party, shall execute and deliver such further
instruments and do or cause to be done such further acts as may be
necessary to be done by such party to effectuate and confirm the assignment
of the Assigned Interests.
13. MUTUAL RELEASE.
(a) As of the Effective Date, except as explicitly provided
in this Assignment or except where such liabilities arise from or are
caused by the gross negligence, willful misconduct or fraud of
Assignee, the Partnership, AMLI or their Affiliates, as the case may
be, Assignor, on its behalf and on behalf of each of its Affiliates
and each of their respective representatives, agents, successors,
assigns, officers, directors, members, managers, employees and each
of them (collectively, the "Assignor Parties") hereby irrevocably
waives, releases and discharges, absolutely and forever, Assignee,
the Partnership and AMLI and each of their Affiliates from any and
all liabilities to Assignor or the other Assignor Parties of any kind
and nature whatsoever (including in respect of any rights of
contribution or indemnification) in respect of facts, events,
circumstances or conditions occurring or arising prior to the
Effective Date.
(b) As of the Effective Date, except as explicitly provided
in this Assignment or except where such liabilities arise from or are
caused by the gross negligence, willful misconduct or fraud of
Assignor or its Affiliates, as the case may be, each of Assignee, the
Partnership and AMLI, on its behalf and on behalf of each of their
respective Affiliates and each of their respective representatives,
agents, successors, assigns, officers, directors, members, managers,
employees and each of them (collectively, the "Assignee Parties")
hereby irrevocably waives, releases and discharges, absolutely and
forever, the Assignor and each of its Affiliates, from any and all
liabilities to Assignee, the Partnership, AMLI or the other Assignee
Parties of any kind and nature whatsoever (including in respect of
any rights of contribution or indemnification) in respect of facts,
events, circumstances or conditions occurring or arising prior to the
Effective Date.
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14. INDEMNIFICATION.
(a) Assignee hereby agrees to indemnify and hold Assignor
free and harmless from and against any and all actions, causes of
action, or suits brought against it by third parties (each, a "Third
Party Claim") for losses, liabilities, damages and expenses,
including, without limitation, reasonable attorneys' fees and
disbursements (collectively, "Damages") arising from any such Third
Party Claim, incurred by Assignor as a result of or relating to
Assignor's status as a limited partner of the Partnership, except to
the extent such Damages are caused by the gross negligence, willful
misconduct or fraud of Assignor.
(b) Assignor shall give notice as promptly as practicable to
Assignee of the assertion of any Third Party Claim; provided, that
the failure of Assignor to give notice shall not relieve Assignee of
its obligations under this Section 14 except to the extent (if any)
that Assignee shall have been prejudiced thereby. Assignee may, at
its election and own expense, upon notice to Assignor, assume the
defense thereof. If Assignee assumes such defense, Assignor shall
have the right (but not the obligation) to participate in the defense
thereof and to employ counsel, at its own expense, separate from the
counsel employed by Assignee. Whether or not Assignee chooses to
defend or prosecute any such Third Party Claim, each of the parties
hereto shall cooperate in the defense or prosecution thereof.
15. TAX MATTERS. Pursuant to Section 708(b)(1)(B) of the Internal
Revenue Code of 1986, as amended (the "Code"), the sale of the Assigned
Interests pursuant to this Assignment will cause the Partnership to
terminate for federal income tax purposes only on the Effective Date and
the taxable year of the Partnership to end. AMLI shall (i) cause to be
prepared all federal and state income and franchise tax returns of the
Partnership for its taxable year ending on the Effective Date (the
"Pre-Termination Tax Returns") and (ii) provide all such Pre-Termination
Tax Returns to Assignor for its review and approval, which approval shall
not be unreasonably withheld or delayed, at least 5 business days prior to
the proposed filing date of such Pre-Termination Tax Returns. The costs of
preparing the Pre-Termination Tax Returns shall be borne by the
Partnership. AMLI shall continue to act as the "tax matters partner," as
such term is defined in Section 6231(a)(7) of the Code, of the Partnership
for all taxable years of the Partnership ending on or prior to the
Effective Date. AMLI shall promptly notify Assignor of any administrative
or judicial tax proceeding with respect to any Pre-Termination Tax Returns
of the Partnership. In its capacity as the tax matters partner of the
Partnership, AMLI shall not (i) take any action which could have an adverse
effect on Assignor without the prior written consent of Assignor, which
consent shall not be unreasonably withheld or delayed, or (ii) refrain from
taking any action, which failure to act could have an adverse effect on
Assignor, without giving Assignor prompt and timely advance notice thereof
and the opportunity to act. Without limitation on the foregoing, AMLI shall
not file or permit the Partnership to file any amended federal or state
income or franchise tax return of the Partnership for any taxable year of
the Partnership ending on or prior to the Effective Date, or make or revoke
or permit the Partnership to make or revoke any tax election or other
determination with respect thereto, without the prior written consent of
Assignor, which consent shall not be unreasonably withheld or delayed. AMLI
shall, and shall cause the Partnership (as constituted after the Effective
Date) to, cooperate fully with Assignor, to the extent reasonably requested
by Assignor and at Assignor's cost and expense (only to the extent such
cooperation with Assignor results in incremental costs and expenses to be
incurred by AMLI and/or the Partnership), in connection with any audit,
litigation or other tax proceeding involving Assignor with respect to any
federal or state income or franchise tax return of the Partnership for any
taxable year of the Partnership ending on or prior to the Effective Date.
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16. SUCCESSORS AND ASSIGNS. This Assignment shall be binding upon
and inure to the benefit of Assignor and Assignee and the respective heirs,
legal representatives, successors and assigns of each.
17. SURVIVAL OF REPRESENTATIONS. The representations, warranties,
covenants, indemnities and agreements of the parties contained in this
Assignment are the only such terms made or relied upon by the parties and
shall survive the consummation of the transactions contemplated hereby.
18. MODIFICATION AND WAIVER. No supplement, modification, waiver
or termination of this Assignment or any provision hereof shall be binding
unless executed in writing by the parties to be bound thereby. No waiver of
any of the provisions of this Assignment shall constitute a waiver of any
other provision (whether or not similar), nor shall such waiver constitute
a continuing waiver unless otherwise expressly provided.
19. GOVERNING LAW. This Assignment shall be construed and enforced
in accordance with the laws of the State of Delaware applicable to
agreements made and to be performed entirely within said state.
20. RECOURSE TO AMLI. ANYTHING CONTAINED HEREIN TO THE CONTRARY
NOTWITHSTANDING, NO PERSONAL LIABILITY OR PERSONAL DEFICIENCY JUDGMENT
SHALL BE ASSERTED OR ENFORCED AGAINST ANY PARTNERS OF AMLI, AGAINST THE
TRUSTEES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, SHAREHOLDERS OR PRINCIPALS
OF SUCH PARTNERS, OR AGAINST THE ASSETS OF ANY SUCH PARTIES, FOR PAYMENT OF
ANY AMOUNT HEREUNDER OR FOR OBSERVANCE OR PERFORMANCE OF ANY OF THE
OBLIGATIONS OF AMLI, ASSIGNEE OR THE PARTNERSHIP. NOTHING CONTAINED ABOVE
SHALL LIMIT THE REMEDIES AGAINST ANY PERSON FOR SUCH PERSON'S FRAUD OR
INTENTIONAL MISCONDUCT, IN WHICH EVENT SUCH REMEDIES SHALL BE DETERMINED BY
APPLICABLE LAW.
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IN WITNESS WHEREOF, this Assignment is executed as of the day and
year first above written.
ASSIGNOR:
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ERI CASTLE CREEK, INC.
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: President
ASSIGNEE:
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AMLI RESIDENTIAL PROPERTIES, LLC
By: AMLI Residential Properties, L.P.,
Its managing member
By: AMLI Residential Properties Trust,
Its general partner
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Senior Vice President
For purposes of Section 13(b) only:
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AMLI AT CASTLE CREEK, L.P.
By: AMLI Residential Properties, L.P.,
Its general partner
By: AMLI Residential Properties Trust,
Its general partner
By:
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Name: Xxxx Xxxxxxx
Title: Senior Vice President
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For purposes of Sections 4(a)(2), 9, 10, 13(b)
and 15 only:
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AMLI RESIDENTIAL PROPERTIES, L.P.
By: AMLI Residential Properties Trust
Its general partner
By: AMLI Residential Properties Trust,
Its general partner
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Senior Vice President
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SCHEDULE A
Calculation of Purchase Price
Partnership Value $23,850,000
Assignor's percentage interest 60%
Value of Assignor's partnership interest $14,310,000
LESS: Assignor's share of unpaid real estate
taxes accrued by the Partnership and relating
to all periods prior to the Effective Date (1) $ 240,473
Purchase Price to be paid to Assignor by
Assignee on the Effective Date $14,069,527
(1) This amount reflects the Assignor's pro rata portion of the
Partnership's estimated real estate taxes for all periods prior
to the Effective Date and which the Partnership has not yet
paid as of the Effective Date. Because the Partnership makes
distributions to its partners on a cash basis, this amount
reflects the excess distributions received by Assignor from the
Partnership as a result of non-payment of the taxes. The
Purchase Price is, therefore, reduced by this amount. A final
proration of the real estate taxes will be completed in
accordance with Section 4 of the Assignment upon receipt by the
Partnership of the final tax xxxx.
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