UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 10-Q

 

(Mark One)

QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended September 30, 2017

OR

TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from                      to                     

Commission file number 001-36041

 

INDEPENDENCE REALTY TRUST, INC.

(Exact Name of Registrant as Specified in Its Charter)

 

 

Maryland

26-4567130

(State or Other Jurisdiction of

Incorporation or Organization)

(I.R.S. Employer

Identification No.)

 

 

Two Liberty Place

50 S. 16 th Street, Suite 3575

Philadelphia, PA

19102

(Address of Principal Executive Offices)

(Zip Code)

(267) 270-4800

(Registrant’s Telephone Number, Including Area Code)

N/A

(Former name, former address and former fiscal year, if changed since last report)

 

Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.    Yes       No  

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).    Yes       No  

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large Accelerated filer

Accelerated filer

 

 

 

 

Non-Accelerated filer

(Do not check if a smaller reporting company)

Smaller reporting company

 

 

 

 

Emerging growth company

 

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).    Yes       No  

As of October 30, 2017 there were 83,518,602 shares of the Registrant’s common stock issued and outstanding.

 

 


INDEPENDENCE REALTY TRUST, INC.

INDEX

 

 

 

 

 

Page

 

 

 

 

 

PART I—FINANCIAL INFORMATION

 

3

 

 

 

 

 

Item 1.

 

Financial Statements (unaudited)

 

3

 

 

 

 

 

 

 

Consolidated Balance Sheets as of September 30, 2017 and December 31, 201 6

 

3

 

 

 

 

 

 

 

Consolidated Statements of Operations for the Three and Nine Months ended September 30, 2017 and September 30, 201 6

 

4

 

 

 

 

 

 

 

Consolidated Statements of Comprehensive Income (Loss) for the Three and Nine Months ended September 30, 2017 and September 30, 2016

 

5

 

 

 

 

 

 

 

Consolidated Statements of Changes in Equity for the Nine Months ended September 30, 201 7

 

6

 

 

 

 

 

 

 

Consolidated Statements of Cash Flows for the Nine Months ended September 30, 2017 and September 30, 2016

 

7

 

 

 

 

 

 

 

Condensed Notes to Consolidated Financial Statements as of September 30, 2017

 

8

 

 

 

 

 

Item 2.

 

Management’s Discussion and Analysis of Financial Condition and Results of Operations

 

22

 

 

 

 

 

Item 3.

 

Quantitative and Qualitative Disclosures About Market Risk

 

32

 

 

 

 

 

Item 4.

 

Controls and Procedures

 

32

 

 

 

 

 

PART II—OTHER INFORMATION

 

33

 

 

 

 

 

Item 1.

 

Legal Proceedings

 

33

 

 

 

 

 

Item 1A.

 

Risk Factors

 

33

 

 

 

 

 

Item 2.

 

Unregistered Sales of Equity Securities and Use of Proceeds

 

33

 

 

 

 

 

Item 3.

 

Defaults Upon Senior Securities

 

33

 

 

 

 

 

Item 4.

 

Mine Safety Disclosures

 

33

 

 

 

 

 

Item 5.

 

Other Information

 

33

 

 

 

 

 

Item 6.

 

Exhibits

 

33

 

 

 

 

 

Signatures

 

35

 

 

 


P ART I—FINANCIAL INFORMATION

Item 1.

Financial Statements

Independence Realty Trust, Inc. and Subsidiaries

Consolidated Balance Sheets

(Unaudited and dollars in thousands, except share and per share data)

 

 

 

As of September 30, 2017

 

 

As of December 31, 2016

 

ASSETS:

 

 

 

 

 

 

 

 

Investments in real estate:

 

 

 

 

 

 

 

 

Investments in real estate, at cost

 

$

1,427,057

 

 

$

1,249,356

 

Accumulated depreciation

 

 

(75,084

)

 

 

(51,511

)

Investments in real estate, net

 

 

1,351,973

 

 

 

1,197,845

 

Real estate held for sale

 

 

22,031

 

 

 

60,786

 

Cash and cash equivalents

 

 

10,128

 

 

 

20,892

 

Restricted cash

 

 

6,665

 

 

 

5,518

 

Accounts receivable and other assets

 

 

9,416

 

 

 

5,211

 

Derivative assets

 

 

3,581

 

 

 

3,867

 

Intangible assets, net of accumulated amortization of $664 and $0, respectively

 

 

1,418

 

 

 

118

 

Total Assets

 

$

1,405,212

 

 

$

1,294,237

 

LIABILITIES AND EQUITY:

 

 

 

 

 

 

 

 

Indebtedness, net of unamortized deferred financing costs of $5,697 and $6,371, respectively

 

$

731,625

 

 

$

743,817

 

Accounts payable and accrued expenses

 

 

23,236

 

 

 

14,028

 

Accrued interest payable

 

 

134

 

 

 

491

 

Dividends payable

 

 

5,176

 

 

 

4,297

 

Other liabilities

 

 

3,063

 

 

 

2,913

 

Total Liabilities

 

 

763,234

 

 

 

765,546

 

Equity:

 

 

 

 

 

 

 

 

Stockholders’ equity:

 

 

 

 

 

 

 

 

Preferred stock, $0.01 par value; 50,000,000 shares authorized, 0 and 0 shares issued and outstanding, respectively

 

 

-

 

 

 

 

Common stock, $0.01 par value; 300,000,000 shares authorized, 83,518,602 and 68,996,070 shares issued and outstanding, including 295,846 and 281,000 unvested restricted common share awards, respectively

 

 

835

 

 

 

690

 

Additional paid-in capital

 

 

691,550

 

 

 

564,633

 

Accumulated other comprehensive income

 

 

3,466

 

 

 

3,683

 

Retained earnings (accumulated deficit)

 

 

(76,419

)

 

 

(62,181

)

Total stockholders’ equity

 

 

619,432

 

 

 

506,825

 

Noncontrolling interests

 

 

22,546

 

 

 

21,866

 

Total Equity

 

 

641,978

 

 

 

528,691

 

Total Liabilities and Equity

 

$

1,405,212

 

 

$

1,294,237

 

 

The accompanying notes are an integral part of these consolidated financial statements.

 

 

3


Independence Realty Trust, Inc. and Subsidiaries

Consolidated Statements of Operations

(Unaudited and dollars in thousands, except share and per share data)

 

 

 

For the Three Months Ended September 30,

 

 

For the Nine Months Ended September 30,

 

 

 

2017

 

 

2016

 

 

2017

 

 

2016

 

REVENUE:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Rental income

 

$

35,531

 

 

$

34,333

 

 

$

105,444

 

 

$

103,271

 

Tenant reimbursement income

 

 

1,373

 

 

 

1,351

 

 

 

4,232

 

 

 

4,194

 

Other property income

 

 

2,960

 

 

 

2,680

 

 

 

8,514

 

 

 

7,892

 

Property management and other income

 

 

202

 

 

 

-

 

 

 

579

 

 

 

-

 

Total revenue

 

 

40,066

 

 

 

38,364

 

 

 

118,769

 

 

 

115,357

 

EXPENSES:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Property operating expenses

 

 

16,196

 

 

 

16,107

 

 

 

48,106

 

 

 

47,588

 

Property management expenses

 

 

1,328

 

 

 

1,219

 

 

 

4,310

 

 

 

3,710

 

General and administrative expenses

 

 

2,322

 

 

 

2,665

 

 

 

7,128

 

 

 

8,074

 

Acquisition and integration expenses

 

 

569

 

 

 

19

 

 

 

956

 

 

 

37

 

Depreciation and amortization expense

 

 

8,671

 

 

 

7,765

 

 

 

24,289

 

 

 

26,927

 

Total expenses

 

 

29,086

 

 

 

27,775

 

 

 

84,789

 

 

 

86,336

 

Operating income

 

 

10,980

 

 

 

10,589

 

 

 

33,980

 

 

 

29,021

 

Interest expense

 

 

(6,963

)

 

 

(8,820

)

 

 

(21,573

)

 

 

(27,815

)

Hedge ineffectiveness

 

 

12

 

 

 

-

 

 

 

-

 

 

 

-

 

Other income (expense)

 

 

-

 

 

 

(2

)

 

 

(5

)

 

 

(2

)

Net gains (losses) on sale of assets

 

 

(92

)

 

 

(1

)

 

 

15,873

 

 

 

31,773

 

Gains (losses) on extinguishment of debt

 

 

-

 

 

 

-

 

 

 

(572

)

 

 

(558

)

Acquisition related debt extinguishment expenses

 

 

(2,781

)

 

 

-

 

 

 

(2,781

)

 

 

-

 

Gains (losses) on TSRE merger

 

 

-

 

 

 

641

 

 

 

-

 

 

 

732

 

Net income (loss):

 

 

1,156

 

 

 

2,407

 

 

 

24,922

 

 

 

33,151

 

(Income) loss allocated to noncontrolling interest

 

 

(59

)

 

 

(140

)

 

 

(1,009

)

 

 

(1,972

)

Net income (loss) allocable to common shares

 

$

1,097

 

 

$

2,267

 

 

$

23,913

 

 

$

31,179

 

Earnings (loss) per share:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Basic

 

$

0.02

 

 

$

0.05

 

 

$

0.34

 

 

$

0.66

 

Diluted

 

$

0.02

 

 

$

0.05

 

 

$

0.34

 

 

$

0.66

 

Weighted-average shares:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Basic

 

 

71,972,394

 

 

 

47,215,918

 

 

 

69,875,802

 

 

 

47,164,543

 

Diluted

 

 

72,144,544

 

 

 

47,314,629

 

 

 

70,105,571

 

 

 

47,190,139

 

 

The accompanying notes are an integral part of these consolidated financial statements.

 

 

4


Independence Realty Trust, Inc. and Subsidiaries

Consolidated Statements of Comprehensive Income (Loss)

(Unaudited and dollars in thousands)

 

 

 

 

For the Three Months Ended September 30,

 

 

For the Nine Months Ended September 30,

 

 

 

2017

 

 

2016

 

 

2017

 

 

2016

 

Net income (loss)

 

$

1,156

 

 

$

2,407

 

 

$

24,922

 

 

$

33,151

 

Other comprehensive income (loss):

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Change in fair value of interest rate hedges

 

 

(14

)

 

 

217

 

 

 

(424

)

 

 

(990

)

Realized (gains) losses on interest rate hedges reclassified to earnings

 

 

(14

)

 

 

251

 

 

 

177

 

 

 

271

 

Total other comprehensive income

 

 

(28

)

 

 

468

 

 

 

(247

)

 

 

(719

)

Comprehensive income (loss) before allocation to noncontrolling interests

 

 

1,128

 

 

 

2,875

 

 

 

24,675

 

 

 

32,432

 

Allocation to noncontrolling interests

 

 

(33

)

 

 

(140

)

 

 

(979

)

 

 

(1,972

)

Comprehensive income (loss)

 

$

1,095

 

 

$

2,735

 

 

$

23,696

 

 

$

30,460

 

 

The accompanying notes are an integral part of these consolidated financial statements.

 

 

5


Independence Realty Trust, Inc. and Subsidiaries

Consolidated Statements of Changes in Equity

(Unaudited and dollars in thousands, except share information)

 

 

 

Common

Shares

 

 

Par

Value

Common

Shares

 

 

Additional

Paid In

Capital

 

 

Accumulated Other Comprehensive Income

 

 

Retained

Earnings

(Deficit)

 

 

Total

Stockholders’

Equity

 

 

Noncontrolling

Interests

 

 

Total

Equity

 

Balance, January 1, 2017

 

 

68,996,070

 

 

$

690

 

 

$

564,633

 

 

$

3,683

 

 

$

(62,181

)

 

$

506,825

 

 

$

21,866

 

 

$

528,691

 

Net income

 

 

-

 

 

 

-

 

 

 

-

 

 

 

-

 

 

 

23,913

 

 

 

23,913

 

 

 

1,009

 

 

 

24,922

 

Other comprehensive income

 

 

-

 

 

 

-

 

 

 

-

 

 

 

(217

)

 

 

-

 

 

 

(217

)

 

 

(30

)

 

 

(247

)

Stock compensation expense

 

 

168,010

 

 

 

1

 

 

 

1,547

 

 

 

-

 

 

 

-

 

 

 

1,548

 

 

 

-

 

 

 

1,548

 

Issuance of common shares

 

 

14,375,000

 

 

 

144

 

 

 

125,563

 

 

 

 

 

 

 

 

 

 

 

125,707

 

 

 

 

 

 

 

125,707

 

Issuance of LP Units related to acquisitions

 

 

-

 

 

 

-

 

 

 

-

 

 

 

-

 

 

 

-

 

 

 

-

 

 

 

1,654

 

 

 

1,654

 

Repurchase of shares related to equity award tax withholding

 

 

(60,377

)

 

 

(1

)

 

 

(564

)

 

 

-

 

 

 

-

 

 

 

(565

)

 

 

-

 

 

 

(565

)

Conversion of noncontrolling interest to common shares

 

 

39,899

 

 

 

1

 

 

 

371

 

 

 

-

 

 

 

-

 

 

 

372

 

 

 

(372

)

 

 

-

 

Common dividends declared

 

 

-

 

 

 

-

 

 

 

-

 

 

 

-

 

 

 

(38,151

)

 

 

(38,151

)

 

 

-

 

 

 

(38,151

)

Distribution to noncontrolling interest declared

 

 

-

 

 

 

-

 

 

 

-

 

 

 

-

 

 

 

-

 

 

 

-

 

 

 

(1,581

)

 

 

(1,581

)

Balance, September 30, 2017

 

 

83,518,602

 

 

$

835

 

 

$

691,550

 

 

$

3,466

 

 

$

(76,419

)

 

$

619,432

 

 

$

22,546

 

 

$

641,978

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The accompanying notes are an integral part of these consolidated financial statements.

 

 

6


Independence Realty Trust, Inc. and Subsidiaries

Consolidated Statements of Cash Flows

(Unaudited and dollars in thousands)

 

 

 

For the Nine Months Ended September 30,

 

 

 

2017

 

 

2016

 

Cash flows from operating activities:

 

 

 

 

 

 

 

 

Net income

 

$

24,922

 

 

$

33,151

 

Adjustments to reconcile net income (loss) to cash flow from operating activities:

 

 

 

 

 

 

 

 

Depreciation and amortization

 

 

24,289

 

 

 

26,927

 

Amortization of deferred financing costs

 

 

1,160

 

 

 

2,236

 

Stock compensation expense

 

 

1,548

 

 

 

832

 

Net (gains) losses on sale of assets

 

 

(15,873

)

 

 

(31,773

)

(Gains) losses on extinguishment of debt

 

 

572

 

 

 

558

 

Acquisition related debt extinguishment expenses

 

 

2,781

 

 

 

-

 

(Gains) losses on TSRE merger

 

 

-

 

 

 

(732

)

Changes in assets and liabilities:

 

 

 

 

 

 

 

 

Accounts receivable and other assets

 

 

(1,931

)

 

 

(1,377

)

Accounts payable and accrued expenses

 

 

8,098

 

 

 

3,895

 

Accrued interest payable

 

 

(345

)

 

 

(376

)

Other liabilities

 

 

(165

)

 

 

(11

)

Net cash provided by operating activities

 

 

45,056

 

 

 

33,330

 

Cash flows from investing activities:

 

 

 

 

 

 

 

 

Disposition of real estate properties

 

 

34,519

 

 

 

39,690

 

Acquisition of real estate properties

 

 

(169,156

)

 

 

-

 

Capital expenditures

 

 

(10,100

)

 

 

(8,039

)

(Increase) decrease in restricted cash

 

 

(1,147

)

 

 

(2,615

)

Cash flow (used in) provided by investing activities

 

 

(145,884

)

 

 

29,036

 

Cash flows from financing activities:

 

 

 

 

 

 

 

 

Proceeds from unsecured credit facility

 

 

148,190

 

 

 

93,501

 

Unsecured credit facility repayments

 

 

(138,500

)

 

 

(197,666

)

Proceeds from mortgages

 

 

-

 

 

 

105,980

 

Mortgage principal repayments

 

 

(1,969

)

 

 

(44,532

)

Payments for deferred financing costs

 

 

(1,166

)

 

 

(1,450

)

Proceeds from issuance of common stock

 

 

125,707

 

 

 

-

 

Distributions on common stock

 

 

(37,279

)

 

 

(25,495

)

Distributions to noncontrolling interests

 

 

(1,573

)

 

 

(1,615

)

Payments related to extinguishment of debt

 

 

(2,781

)

 

 

-

 

Repurchase of shares related to equity award tax withholding

 

 

(565

)

 

 

(143

)

Cash flow provided by (used in) financing activities

 

 

90,064

 

 

 

(71,420

)

Net change in cash and cash equivalents

 

 

(10,764

)

 

 

(9,054

)

Cash and cash equivalents, beginning of period

 

 

20,892

 

 

 

38,301

 

Cash and cash equivalents, end of the period

 

$

10,128

 

 

$

29,247

 

 

The accompanying notes are an integral part of these consolidated financial statements.

 

 

 

7


 

Independence Realty Trust, Inc. and Subsidiaries

Notes to Consolidated Financial Statements

As of September 30, 2017

(Unaudited and dollars in thousands, except share and per share data)

 

NOTE 1: Organization

 

Independence Realty Trust, Inc., or IRT, was formed on March 26, 2009 as a Maryland corporation that has elected to be taxed as a real estate investment trust, or REIT, commencing with the taxable year ended December 31, 2011.  As of September 30, 2017, we own and operate 50 multifamily apartment properties, totaling 13,729 units, across non-gateway U.S markets, including Louisville, Memphis, Atlanta and Raleigh. Our investment strategy is focused on gaining scale within key amenity rich submarkets that offer good school districts, high-quality retail and major employment centers. We aim to provide stockholders with attractive risk-adjusted returns through diligent portfolio management, strong operational performance, and a consistent return through distributions and capital appreciation. We own substantially all of our assets and conduct our operations through Independence Realty Operating Partnership, LP, which we refer to as IROP, of which we are the sole general partner.

 

We became an internally managed REIT on December 20, 2016. Prior to that date, we were externally managed by a subsidiary of RAIT Financial Trust, or RAIT, a publicly traded Maryland REIT whose common shares are listed on the New York Stock Exchange under the symbol “RAS” (referred to as our former advisor).  On December 20, 2016, we completed our management internalization, which was announced on September 27, 2016 as part of the agreement, or the internalization agreement, with RAIT and RAIT affiliates that provided for transactions which changed us from being externally managed to being internally managed and separated us from RAIT.  The management internalization consisted of two parts: (i) our acquisition of our former advisor, which was a subsidiary of RAIT, and (ii) our acquisition of substantially all of the assets and the assumption of certain liabilities relating to the multifamily property management business of RAIT, including property management contracts relating to apartment properties owned by us, RAIT and third parties. Also, pursuant to the internalization agreement, on October 5, 2016, we repurchased all of the 7,269,719 shares of our common stock owned by certain of RAIT’s subsidiaries and retired these shares.  

 

As used herein, the terms “we,” “our” and “us” refer to Independence Realty Trust, Inc. and, as required by context, IROP and their subsidiaries.

 

NOTE 2: Summary of Significant Accounting Policies

a. Basis of Presentation

The accompanying unaudited interim consolidated financial statements have been prepared by management in accordance with generally accepted accounting principles in the United States, or GAAP. Certain information and footnote disclosures normally included in annual consolidated financial statements prepared in accordance with GAAP have been condensed or omitted pursuant to such rules and regulations, although we believe that the included disclosures are adequate to make the information presented not misleading. The unaudited interim consolidated financial statements should be read in conjunction with our audited financial statements as of and for the year ended December 31, 2016 included in our Annual Report on Form 10-K, or the 2016 annual report. In the opinion of management, all adjustments, consisting only of normal recurring adjustments, necessary to present fairly our consolidated financial position and consolidated results of operations and cash flows are included. The results of operations for the interim periods presented are not necessarily indicative of the results for the full year.

b. Principles of Consolidation

The consolidated financial statements reflect our accounts and the accounts of IROP and its subsidiaries. All intercompany accounts and transactions have been eliminated in consolidation.  Pursuant to FASB Accounting Standards Codification Topic 810, “Consolidation”, IROP is considered a variable interest entity.  As our significant asset is our investment in IROP, substantially all of our assets and liabilities represent the assets and liabilities of IROP.

c. Use of Estimates

The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities, the disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenue and expenses during the reporting periods. Actual results could differ from those estimates.

8


Independence Realty Trust, Inc. and Subsidiaries

Notes to Consolidated Financial Statements

As of September 30, 2017

(Unaudited and dollars in thousands, except share and per share data)

 

d. Cash and Cash Equivalents

Cash and cash equivalents include cash held in banks and highly liquid investments with maturities of three months or less when purchased.  Cash, including amounts restricted, may at times exceed the Federal Deposit Insurance Corporation deposit insurance limit of $250 per institution.  We mitigate credit risk by placing cash and cash equivalents with major financial institutions.  To date, we have not experienced any losses on cash and cash equivalents.

e. Restricted Cash

Restricted cash includes escrows of our funds held by lenders to fund certain expenditures, such as real estate taxes and insurance, or to be released at our discretion upon the occurrence of certain pre-specified events.  As of September 30, 2017 and December 31, 2016, we had $6,665 and $5,518, respectively, of restricted cash.

f. Accounts Receivable and Allowance for Bad Debts

We make estimates of the collectability of our accounts receivable related to base rents, expense reimbursements and other revenue.  We analyze accounts receivable and historical bad debt levels, tenant credit worthiness and current economic trends when evaluating the adequacy of the allowance for doubtful accounts.  In addition, tenants experiencing financial difficulties are analyzed and estimates are made in connection with expected uncollectible receivables.  Our reported operating results are affected by management’s estimate of the collectability of accounts receivable. For the three months ended September 30, 2017 and 2016, we recorded bad debt expense of $101 and $306, respectively. For the nine months ended September 30, 2017 and 2016, we recorded bad debt expense of $670 and $727, respectively.  

g. Investments in Real Estate

Investments in real estate are recorded at cost less accumulated depreciation. Costs that both add value and appreciably extend the useful life of an asset are capitalized. Expenditures for repairs and maintenance are expensed as incurred.

Investments in real estate are classified as held for sale in the period in which certain criteria are met including when the sale of the asset is probable and actions required to complete the plan of sale indicate that it is unlikely that significant changes to the plan of sale will be made or the plan of sale will be withdrawn.

Allocation of Purchase Price of Acquired Assets

We account for acquisitions of properties that meet the definition of a business pursuant to Financial Accounting Standards Board, or FASB, Accounting Standards Codification, or ASC, Topic 805, “Business Combinations”. The fair value of the real estate acquired is allocated to the acquired tangible assets, generally consisting of land, building and tenant improvements, and identified intangible assets and liabilities, consisting of the value of above-market and below-market leases for acquired in-place leases and the value of tenant relationships, based in each case on their fair values. Purchase accounting is applied to assets and liabilities associated with the real estate acquired. Transaction costs and fees incurred related to an acquisition are expensed as incurred. Transaction costs and fees incurred related to the financing of an acquisition are capitalized and amortized over the life of the related financing.

Upon the acquisition of properties, we estimate the fair value of acquired tangible assets (consisting of land, building and improvements) and identified intangible assets (consisting of in-place leases), and assumed debt at the date of acquisition, based on the evaluation of information and estimates available at that date.  Based on these estimates, we allocate the initial purchase price to the applicable assets and liabilities. As final information regarding fair value of the assets acquired and liabilities assumed is received and estimates are refined, appropriate adjustments will be made to the purchase price allocation, in no case later than twelve months after the acquisition date.  

The aggregate value of in-place leases is determined by evaluating various factors, including the terms of the leases that are in place and assumed lease-up periods.  During the three and nine months ended September 30, 2017, we acquired in-place leases with a value of $1,034 and $1,963, respectively, as part of related property acquisitions that are discussed further in Note 3. The value assigned to this intangible asset is amortized over the assumed lease up period, typically six months. For the three and nine months ended September 30, 2017, we recorded $416 and $664, respectively, of amortization expense for intangible assets. For the three and

9


Independence Realty Trust, Inc. and Subsidiaries

Notes to Consolidated Financial Statements

As of September 30, 2017

(Unaudited and dollars in thousands, except share and per share data)

 

nine months ended September 30, 2016, we recorded $0 and $3,735, respectively, of amortization expense for intangible assets. As of September 30, 2017, we expect to record additional amortizat ion expense on current in-place intangible assets of $795 for the remainder of 2017.   

Impairment of Long-Lived Assets

Management evaluates the recoverability of our investment in real estate assets, including related identifiable intangible assets, in accordance with FASB ASC Topic 360, “Property, Plant and Equipment”. This statement requires that long-lived assets be reviewed for impairment whenever events or changes in circumstances indicate that recoverability of the assets is not assured.

Management reviews its long-lived assets on an ongoing basis and evaluates the recoverability of the carrying value when there is an indicator of impairment. An impairment charge is recorded when it is determined that the carrying value of the asset exceeds the fair value. The estimated cash flows used for the impairment analysis and the determination of estimated fair value are based on our plans for the respective assets and our views of market and economic conditions. The estimates consider matters such as current and historical rental rates, occupancies for the respective and/or comparable properties, and recent sales data for comparable properties. Changes in estimated future cash flows due to changes in our plans or views of market and economic conditions could result in recognition of impairment losses, which, under the applicable accounting guidance, could be substantial.

Depreciation Expense

Depreciation expense for real estate assets is computed using a straight-line method based on a life of 40 years for buildings and improvements and five to ten years for equipment and fixtures. For the three and nine months ended September 30, 2017, we recorded $8,255 and $23,625 of depreciation expense, respectively. For the three and nine months ended September 30, 2016, we recorded $7,765 and $23,192 of depreciation expense, respectively.

h. Revenue and Expenses

 

Rental revenues are recognized on an accrual basis when due from residents.  We primarily lease apartments units under operating leases generally with terms of one year or less. Rental payments are generally due monthly and recognized when earned.  Rental income represents gross market rent less adjustments for concessions and vacancy loss.  Tenant reimbursement income represents reimbursement from tenants for utility charges while other property income includes parking, trash, late fees, and other miscellaneous property related income.

For the three and nine months ended September 30, 2017, we recognized revenues of $11 and $96, respectively, related to recoveries of lost rental revenue due to natural disasters and other insurable events from our insurance providers. For the three and nine months ended September 30, 2016, we recognized revenues of $38 and $151, respectively, related to recoveries of lost rental revenue due to natural disasters and other insurable events from our insurance providers.

For the three and nine months ended September 30, 2017, we incurred $437 and $1,285 of advertising expenses, respectively. For the three and nine months ended September 30, 2016, we incurred $435 and $1,325 of advertising expenses, respectively.  

For the three months ended September 30, 2017 and 2016, we incurred $0 and $1,933 of asset management and incentive fees, respectively. For the nine months ended September 30, 2017 and 2016, we incurred $0 and $5,491 of asset management and incentive fees, respectively. Asset management and incentive fees are now included in general and administrative expenses since as an internally-managed REIT, we no longer incur external asset management fees and the compensation cost of our employees who now perform this function are recorded within general and administrative expenses.  See Note 8: Related Party Transactions and Arrangements.  

For the three months ended September 30, 2017 and 2016, we incurred $1,328 and $1,219 of property management expenses, respectively. For the nine months ended September 30, 2017 and 2016, we incurred $4,310 and $3,710 of property management expenses, respectively. Subsequent to our management internalization, property management expenses include payroll and related expenses that directly support on-site property management.  Prior to our management internalization, property management expenses included property and construction management fees paid to our former property manager.  See Note 8: Related Party Transactions and Arrangements.    

10


Independence Realty Trust, Inc. and Subsidiaries

Notes to Consolidated Financial Statements

As of September 30, 2017

(Unaudited and dollars in thousands, except share and per share data)

 

i. Derivative Instruments

We may use derivative financial instruments to hedge all or a portion of the interest rate risk associated with our borrowings. The principal objective of such arrangements is to minimize the risks and/or costs associated with our operating and financial structure, as well as to hedge specific anticipated transactions. While these instruments may impact our periodic cash flows, they benefit us by minimizing the risks and/or costs previously described.  The counterparties to these contractual arrangements are major financial institutions with which we and our affiliates may also have other financial relationships. In the event of nonperformance by the counterparties, we are potentially exposed to credit loss. However, because of the high credit ratings of the counterparties, we do not anticipate that any of the counterparties will fail to meet their obligations.

In accordance with FASB ASC Topic 815, “Derivatives and Hedging”, we measure each derivative instrument (including certain derivative instruments embedded in other contracts) at fair value and record such amounts in our consolidated balance sheets as either an asset or liability.  For derivatives designated as cash flow hedges, the changes in the fair value of the effective portions of the derivative are reported in other comprehensive income and changes in the fair value of the ineffective portions of cash flow hedges, if any, are recognized in earnings.  For derivatives not designated as hedges (or designated as fair value hedges), or for derivatives designated as cash flow hedges associated with debt for which we elected the fair value option under FASB ASC Topic 825, “Financial Instruments”, the changes in fair value of the derivative instrument are recognized in earnings.  Any derivatives that we designate in hedge relationships are done so at inception.  At inception, we determine whether or not the derivative is highly effective in offsetting changes in the designated interest rate risk associated with the identified indebtedness using regression analysis.  At each reporting period, we update our regression analysis and use the hypothetical derivative method to measure any ineffectiveness.

j. Fair Value of Financial Instruments

In accordance with FASB ASC Topic 820, “Fair Value Measurements and Disclosures”, fair value is the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. Where available, fair value is based on observable market prices or parameters or derived from such prices or parameters. Where observable prices or inputs are not available, valuation models are applied. These valuation techniques involve management estimation and judgment, the degree of which is dependent on the price transparency for the instruments or market and the instruments’ complexity for disclosure purposes. Assets and liabilities recorded at fair value in our consolidated balance sheets are categorized based upon the level of judgment associated with the inputs used to measure their value. Hierarchical levels, as defined in FASB ASC Topic 820, “Fair Value Measurements and Disclosures” and directly related to the amount of subjectivity associated with the inputs to fair valuations of these assets and liabilities, are as follows:

 

Level 1 : Valuations are based on unadjusted, quoted prices in active markets for identical assets or liabilities at the measurement date. The types of assets carried at Level 1 fair value generally are equity securities listed in active markets. As such, valuations of these investments do not entail a significant degree of judgment.

 

Level 2 : Valuations are based on quoted prices for similar instruments in active markets or quoted prices for identical or similar instruments in markets that are not active or for which all significant inputs are observable, either directly or indirectly.

 

Level 3 : Inputs are unobservable for the asset or liability, and include situations where there is little, if any, market activity for the asset or liability. In certain cases, the inputs used to measure fair value may fall into different levels of the fair value hierarchy. In such cases, the level in the fair value hierarchy within which the fair value measurement in its entirety falls has been determined based on the lowest level input that is significant to the fair value measurement in its entirety. Our assessment of the significance of a particular input to the fair value measurement in its entirety requires judgment, and considers factors specific to the asset or liability.

The availability of observable inputs can vary depending on the financial asset or liability and is affected by a wide variety of factors, including, for example, the type of investment, whether the investment is new, whether the investment is traded on an active exchange or in the secondary market, and the current market condition. To the extent that valuation is based on models or inputs that are less observable or unobservable in the market, the determination of fair value requires more judgment. Accordingly, the degree of judgment exercised by us in determining fair value is greatest for instruments categorized in Level 3.

11


Independence Realty Trust, Inc. and Subsidiaries

Notes to Consolidated Financial Statements

As of September 30, 2017

(Unaudited and dollars in thousands, except share and per share data)

 

Fair v alue is a market-based measure considered from the perspective of a market participant who holds the asset or owes the liability rather than an entity-specific measure. Therefore, even when market assumptions are not readily available, our own assumptions are set to reflect those that management believes market participants would use in pricing the asset or liability at the measurement date. We use prices and inputs that management believes are current as of the measurement date, including during periods of market dislocation. In periods of market dislocation, the observability of prices and inputs may be reduced for many instruments. This condition could cause an instrument to be transferred from Level 1 to Level 2 or Level 2 to Level 3.

Fair value for certain of our Level 3 financial instruments is derived using internal valuation models. These internal valuation models include discounted cash flow analyses developed by management using current interest rates, estimates of the term of the particular instrument, specific issuer information and other market data for securities without an active market. In accordance with FASB ASC Topic 820, “Fair Value Measurements and Disclosures”, the impact of our own credit spreads is also considered when measuring the fair value of financial assets or liabilities, including derivative contracts. Where appropriate, valuation adjustments are made to account for various factors, including bid-ask spreads, credit quality and market liquidity. These adjustments are applied on a consistent basis and are based on observable inputs where available. Management’s estimate of fair value requires significant management judgment and is subject to a high degree of variability based upon market conditions, the availability of specific issuer information and management’s assumptions.

FASB ASC Topic 825, “Financial Instruments” requires disclosure of the fair value of financial instruments for which it is practicable to estimate that value. Given that cash and cash equivalents and restricted cash are short term in nature with limited fair value volatility, the carrying amount is deemed to be a reasonable approximation of fair value and the fair value input is classified as a Level 1 fair value measurement. The fair value input for the derivatives is classified as a Level 2 fair value measurement within the fair value hierarchy. The fair value inputs for our unsecured credit facility and our former secured credit facility are classified as Level 2 fair value measurements within the fair value hierarchy. The fair value of mortgage indebtedness is based on a discounted cash flows valuation technique. As this technique utilizes current credit spreads, which are generally unobservable, this is classified as a Level 3 fair value measurement within the fair value hierarchy.  We determine appropriate credit spreads based on the type of debt and its maturity. The following table summarizes the carrying amount and the fair value of our financial instruments as of the periods indicated:

 

 

 

As of September 30, 2017

 

 

As of December 31, 2016

 

Financial Instrument

 

Carrying

Amount

 

 

Estimated

Fair Value

 

 

Carrying

Amount

 

 

Estimated

Fair Value

 

Assets

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cash and cash equivalents

 

$

10,128

 

 

$

10,128

 

 

$

20,892

 

 

$

20,892

 

Restricted cash

 

 

6,665

 

 

 

6,665

 

 

 

5,518

 

 

 

5,518

 

Derivative assets

 

 

3,581

 

 

 

3,581

 

 

 

3,867

 

 

 

3,867

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Liabilities

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Debt:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Secured credit facility

 

 

-

 

 

 

-

 

 

 

147,280

 

 

 

150,000

 

Unsecured credit facility

 

 

157,163

 

 

 

159,690

 

 

 

-

 

 

 

-

 

Mortgages

 

 

574,462

 

 

 

565,954

 

 

 

596,537

 

 

 

588,523

 

 

k. Deferred Financing Costs

Costs incurred in connection with debt financing are deferred and classified within indebtedness and charged to interest expense over the terms of the related debt agreements, under the effective interest method. As of January 1, 2016, we adopted the accounting standard classified under FASB ASC Topic 835, “Interest” which required deferred financing costs to be presented on the balance sheet as a direct deduction from indebtedness.

l. Income Taxes

We have elected to be taxed as a REIT beginning with the taxable year ended December 31, 2011.  Accordingly, we recorded no income tax expense for the three and nine months ended September 30, 2017 and 2016.

12


Independence Realty Trust, Inc. and Subsidiaries

Notes to Consolidated Financial Statements

As of September 30, 2017

(Unaudited and dollars in thousands, except share and per share data)

 

To qualify as a REIT, we must meet certain organizational and oper ational requirements, including a requirement to distribute at least 90% of our ordinary taxable income to stockholders.  As a REIT, we generally are not subject to federal income tax on taxable income that we distribute to our stockholders.  If we fail to qualify as a REIT in any taxable year, we will be subject to federal income taxes on our taxable income at regular corporate rates and will not be permitted to qualify for treatment as a REIT for federal income tax purposes for four years following the ye ar during which qualification is lost unless the Internal Revenue Service grants us relief under certain statutory provisions.  Such an event could materially adversely affect our net income and net cash available for distribution to stockholders; however, we believe that we are organized and operate in such a manner as to qualify and maintain treatment as a REIT and intend to operate in such a manner so that we will remain qualified as a REIT for federal income tax purposes.   

m. Recent Accounting Pronouncements

Below is a brief description of recent accounting pronouncements that could have a material effect on our financial statements.  

Adopted Within these Financial Statements

In March 2016, the FASB issued an accounting standard classified under FASB ASC Topic 718, “Compensation – Stock Compensation”.  This accounting standard simplifies several aspects of the accounting for share-based payment award transactions, including: (i) income tax consequences; (ii) classification of awards as either equity or liabilities; and (iii) classification on the statement of cash flows.  This standard is effective for annual periods beginning after December 15, 2016, and interim periods within those annual periods. The adoption of this accounting standard did not have a material impact on our consolidated financial statements.

Not Yet Adopted Within these Financial Statements

In May 2014, the FASB issued an accounting standard classified under FASB ASC Topic 606, “Revenue from Contracts with Customers”. This accounting standard generally replaces existing guidance by requiring an entity to recognize the amount of revenue to which it expects to be entitled for the transfer of promised goods or services to customers. This accounting standard applies to all contracts with customers, except those that are within the scope of other Topics in the FASB ASC. During 2016, the FASB issued three amendments to this accounting standard which provide further clarification to this accounting standard. These standards amending FASB ASC Topic 606 are currently effective for annual reporting periods beginning after December 15, 2017. We are finalizing our evaluation of the impact that these standards may have on our consolidated financial statements however, a majority of our revenue is derived from real estate lease contracts which are specifically excluded from the scope of this standard.

In February 2016, the FASB issued an accounting standard classified under FASB ASC Topic 842, “Leases”.  This accounting standard amends lease accounting by requiring the recognition of lease assets and lease liabilities by lessees for those leases classified as operating leases on the balance sheet and disclosing key information about leasing arrangements.  This standard is effective for annual periods beginning after December 15, 2018, including interim periods within those fiscal years.  Early application of the amendments in this standard is permitted.  Management is currently evaluating the impact that this standard may have on our consolidated financial statements.

In August 2016, the FASB issued an accounting standard classified under FASB ASC Topic 230, “Statement of Cash Flows”.  This accounting standard provides guidance on eight specific cash flow issues: (i) debt prepayment or debt extinguishment costs; (ii) settlement of zero-coupon debt instruments or other debt instruments with coupon interest rates that are insignificant in relation to the effective interest rate of the borrowing; (iii) contingent consideration payments made after a business combination; (iv) proceeds from the settlement of insurance claims; (v) proceeds from the settlement of corporate-owned life insurance policies, including bank-owned life insurance policies; (vi) distributions received from equity method investees; (vii) beneficial interests in securitization transactions; and (viii) separately identifiable cash flows and application of the predominance principle.  The amendments are effective for fiscal years beginning after December 15, 2017, and interim periods within those fiscal years. Early adoption is permitted, including adoption in an interim period.  Management is currently evaluating the impact that this standard may have on our consolidated statement of cash flows.

 

In January 2017, the FASB issued an accounting standard update under FASB ASC Topic 805, “Business Combinations” that changes the definition of a business to assist entities with evaluating whether a set of transferred assets is a business. As a result, the accounting for acquisitions of real estate could be impacted. The updated standard will be effective for us on January 1, 2018 with

13


Independence Realty Trust, Inc. and Subsidiaries

Notes to Consolidated Financial Statements

As of September 30, 2017

(Unaudited and dollars in thousands, except share and per share data)

 

early adoption permitted. The new definition will be applied prospectively to any transactions occurring within the period of adoption. Management expects that the updated standard will result in fewer acquisitions of real estate meeting the definition of a business and fewer acquisition-related costs being expensed in the period incurred.

 

In May 2017, the FASB issued an accounting standard update under FASB ASC Topic 718, “Compensation – Stock Compensation.” The amendments in this update provide guidance about which changes to the terms or conditions of a share-based payment award require an entity to apply modification accounting in Topic 718. As a result, the accounting for share-based payment award transactions could be impacted. The updated standard will be effective for us on January 1, 2018 with early adoption permitted. The new definition will be applied prospectively to an award modified on or after the adoption date. Management is currently evaluating the impact that this standard may have on our consolidated financial statements.

 

In August 2017, the FASB issued an accounting standard update under FASB ASC Topic 815, “Derivatives and Hedging.” The amendments in this update provide guidance about the application of the hedge accounting guidance in current GAAP based on the feedback received from preparers, auditors, and other stakeholders. As a result, the accounting for derivatives and hedging transac tions could be impacted. The updated standard will be effective for us on January 1, 2019 with early adoption permitted. The new definition will be applied prospectively to any transactions occurring within the period of adoption. Management is currently evaluating the impact that this standard may have on our consolidated financial statements.

 

 

NOTE 3: Investments in Real Estate

As of September 30, 2017, our investments in real estate consisted of 50 apartment properties with 13,729 units.  The table below summarizes our investments in real estate:   

 

 

As of September 30, 2017

 

 

As of December 31, 2016

 

 

Depreciable Lives

(In years)

 

Land

 

$

187,935

 

 

$

165,120

 

 

 

 

Building

 

 

1,211,985

 

 

 

1,066,611

 

 

 

40

 

Furniture, fixtures and equipment

 

 

27,137

 

 

 

17,625

 

 

5-10

 

Total investment in real estate

 

$

1,427,057

 

 

$

1,249,356

 

 

 

 

 

Accumulated depreciation

 

 

(75,084

)

 

 

(51,511

)

 

 

 

 

Investments in real estate, net

 

$

1,351,973

 

 

$

1,197,845

 

 

 

 

 

As of September 30, 2017 and December 31, 2016, we had investments in real estate with a carrying value of $22,031 and $60,786, respectively, classified as held for sale.

Acquisitions

The below table summarizes the acquisitions for the nine months ended September 30, 2017:

 

Property Name

 

Date of Purchase

 

Location

 

Units (unaudited)

 

 

Purchase Price

 

Lakes of Northdale

 

2/27/2017

 

Tampa, FL

 

 

216

 

 

$

29,750

 

Haverford Place

 

5/24/2017

 

Lexington, KY

 

 

160

 

 

$

14,240

 

South Terrace (1)

 

6/30/2017

 

Durham, NC

 

 

328

 

 

$

42,950

 

Cherry Grove (2)

 

9/26/2017

 

North Myrtle Beach, SC

 

 

172

 

 

$

16,157

 

Riverchase (2)

 

9/26/2017

 

Indianapolis, IN

 

 

217

 

 

$

18,899

 

Kensington (2)

 

9/26/2017

 

Canal Winchester, OH

 

 

264

 

 

$

24,409

 

Schirm Farms (2)

 

9/26/2017

 

Canal Winchester, OH

 

 

264

 

 

$

23,749

 

Total

 

 

 

 

 

 

1,621

 

 

$

170,154

 

 

(1)

This property was acquired from a joint venture of which our former advisor was a controlling member.  See Note 8: Related Party Transactions and Arrangements.  In conjunction with this acquisition, we issued IROP units to third parties that were members of the joint venture that owned the property.  See Note 6: Shareholder Equity and Noncontrolling Interests.  

14


Independence Realty Trust, Inc. and Subsidiaries

Notes to Consolidated Financial Statements

As of September 30, 2017

(Unaudited and dollars in thousands, except share and per share data)

 

 

(2)

These properties were acquired as the first phase of our acquisition of a nine- community portfolio , totaling 2,353 units , which we agreed to acquire on September 3, 2017 for a total purch ase price of $228,1 44 . In connection with the acquisition of these properties, we incurred defeasance costs totaling $ 2,781 , which are included in Acquisition related debt extinguishment expenses within the Consolidated Statements of Operations.

The following table summarizes the aggregate fair value of the assets and liabilities associated with the properties acquired during the nine-month period ended September 30, 2017, on the date of acquisition, accounted for under FASB ASC Topic 805.

 

Description

 

Fair Value

of Assets Acquired

During the

Nine-Month Period Ended

September 30,

2017

 

Assets acquired:

 

 

 

 

Investments in real estate

 

$

168,191

 

Accounts receivable and other assets

 

$

463

 

Intangible assets

 

$

1,963

 

Total assets acquired

 

$

170,617

 

Liabilities assumed:

 

 

 

 

Accounts payable and accrued expenses

 

$

1,502

 

Other liabilities

 

$

490

 

Total liabilities assumed

 

$

1,992

 

Estimated fair value of net assets acquired

 

$

168,625

 

The table below presents the revenue and net income (loss) for the properties acquired during the nine-month period ended September 30, 2017 as reported in our consolidated financial statements, excluding any related acquisition and integration expenses.

 

 

 

 

For the Three-Month Period

Ended September 30, 2017

 

 

For the Nine-Month Period

Ended September 30, 2017

 

Property

 

Total revenue

 

 

Net income (loss) allocable to common shares

 

 

Total revenue

 

 

Net income (loss) allocable to common shares

 

Lakes of Northdale

 

$

789

 

 

$

223

 

 

$

1,829

 

 

$

447

 

Haverford Place

 

$

452

 

 

$

107

 

 

$

637

 

 

$

179

 

South Terrace

 

$

1,039

 

 

$

198

 

 

$

1,049

 

 

$

203

 

Cherry Grove

 

$

26

 

 

$

17

 

 

$

26

 

 

$

17

 

Riverchase

 

$

25

 

 

$

13

 

 

$

25

 

 

$

13

 

Kensington

 

$

35

 

 

$

25

 

 

$

35

 

 

$

25

 

Schirm Farms

 

$

35

 

 

$

23

 

 

$

35

 

 

$

23

 

Total

 

$

2,401

 

 

$

606

 

 

$

3,636

 

 

$

907

 

The table below represents the revenue, net income and earnings per share effect of the acquired property, as reported in our consolidated financial statements and on a pro forma basis as if the acquisition occurred on January 1, 2016. These pro forma results are not necessarily indicative of the results that actually would have occurred if the acquisition had occurred on January 1, 2016, nor does the pro forma financial information purport to represent the results of operations for future periods.

 

15


Independence Realty Trust, Inc. and Subsidiaries

Notes to Consolidated Financial Statements

As of September 30, 2017

(Unaudited and dollars in thousands, except share and per share data)

 

Description

 

For the

Three-Month

Period Ended

September 30, 2017

 

 

For the

Three-Month

Period Ended

September 30, 2016

 

 

For the

Nine-Month

Period Ended

September 30, 2017

 

 

For the

Nine-Month

Period Ended

September 30, 2016

 

Pro forma total revenue (unaudited)

 

 

43,421

 

 

 

42,695

 

 

 

128,834

 

 

 

128,350

 

Pro forma net income (loss) allocable to common shares (unaudited)

 

 

2,347

 

 

 

3,211

 

 

 

27,663

 

 

 

34,012

 

Earnings (loss) per share attributable to common shareholders:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Basic-pro forma (unaudited)

 

$

0.03

 

 

$

0.07

 

 

$

0.40

 

 

$

0.72

 

Diluted-pro forma (unaudited)

 

$

0.03

 

 

$

0.07

 

 

$

0.39

 

 

$

0.72

 

 

We did not make any purchase price allocation adjustments during the nine-month period ended September 30, 2017.

On October 25, 2017, we acquired a 264 unit residential community located in Baton Rouge, LA, known as Live Oak Trace, for $28,501. This acquisition was part of the nine-property portfolio acquisition announced on September 5, 2017.

Dispositions

The table below summarizes the dispositions for the nine months ended September 30, 2017 and also presents each property’s contribution to net income (loss) allocable to common shares, excluding the impact of the gain (loss) on sale:

 

 

 

 

 

 

 

 

 

 

 

 

 

Net income (loss) allocable to common shares

 

Property Name

 

Date of Sale

 

Sale Price

 

 

Gain (loss) on sale (1)

 

 

For the Three Months Ended September 30, 2017

 

 

For the Nine Months Ended September 30, 2017

 

Copper Mill

 

5/5/2017

 

$

32,000

 

 

$

15,616

 

 

$

(3

)

 

$

794

 

Heritage Trace

 

6/1/2017

 

 

11,600

 

 

 

(1,237

)

 

 

(3

)

 

 

477

 

Berkshire

 

6/9/2017

 

 

16,000

 

 

 

1,579

 

 

 

(33

)

 

 

457

 

Total

 

 

 

$

59,600

 

 

$

15,958

 

 

$

(39

)

 

$

1,728

 

 

(1)

The gain (loss) on sale for these properties is net of $2,748 of defeasance costs.  All properties were previously classified as held for sale.

 

NOTE 4: Indebtedness

The following tables contain summary information concerning our indebtedness as of September 30, 2017:

 

Debt:

 

Outstanding Principal

 

 

Unamortized Discount and Debt Issuance Costs

 

 

Carrying Amount

 

 

Type

 

Weighted Average Rate

 

 

Weighted Average Maturity (in years)

 

     Unsecured credit facility (1)(2)

 

$

159,690

 

 

$

(2,527

)

 

$

157,163

 

 

Floating

 

 

2.7%

 

 

 

3.9

 

     Mortgages-Fixed rate

 

 

577,632

 

 

 

(3,170

)

 

 

574,462

 

 

Fixed

 

 

3.7%

 

 

 

6.0

 

Total Debt

 

$

737,322

 

 

$

(5,697

)

 

$

731,625

 

 

 

 

 

3.5%

 

 

 

5.6

 

 

(1)

The unsecured credit facility total capacity is $300,000, of which $159,690 was outstanding as of September 30, 2017.

 

(2)

As of September 30, 2017, IRT maintained a float-to-fixed interest rate swap with a $150,000 notional amount. This swap, which expires on June 17, 2021 and has a fixed rate of 1.1325%, has converted $150,000 of our floating rate debt to fixed rate debt.

   

16


Independence Realty Trust, Inc. and Subsidiaries

Notes to Consolidated Financial Statements

As of September 30, 2017

(Unaudited and dollars in thousands, except share and per share data)

 

 

 

Original maturities on or before December 31,

 

 

 

Debt:

 

2017

 

 

2018

 

 

2019

 

 

2020

 

 

2021

 

 

Thereafter

 

 

 

Unsecured credit facility

 

$

-

 

 

$

-

 

 

$

-

 

 

$

-

 

 

$

109,690

 

 

$

50,000

 

 

 

Mortgages-Fixed rate

 

 

685

 

 

 

3,245

 

 

 

4,660

 

 

 

7,611

 

 

 

102,597

 

 

 

458,834

 

 

 

Total

 

$

685

 

 

$

3,245

 

 

$

4,660

 

 

$

7,611

 

 

$

212,287

 

 

$

508,834

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

As of September 30, 2017, we were in compliance with all financial covenants contained in our indebtedness.

The following table contains summary information concerning our indebtedness as of December 31, 2016:

Debt:

 

Outstanding Principal

 

 

Unamortized Discount and Debt Issuance Costs

 

 

Carrying Amount

 

 

Type

 

Weighted Average Rate

 

 

Weighted Average Maturity (in years)

 

     Secured credit facility (1)

 

$

150,000

 

 

$

(2,720

)

 

$

147,280

 

 

Floating

 

 

3.0%

 

 

 

1.7

 

     Mortgages-Fixed rate

 

 

600,188

 

 

 

(3,651

)

 

 

596,537

 

 

Fixed

 

 

3.8%

 

 

 

6.7

 

Total Debt

 

$

750,188

 

 

$

(6,371

)

 

$

743,817

 

 

 

 

 

3.6%

 

 

 

5.7

 

 

 

(1)

The secured credit facility total capacity was $312,500, of which $150,000 was outstanding as of December 31, 2016.

In February 2017, IROP drew down $22,000 on the secured credit facility in connection with the Lakes of Northdale acquisition.  

On May 1, 2017, we closed on a new $300,000 unsecured credit facility, refinancing and terminating the previous secured credit facility. The new facility is comprised of a $50,000 term loan and a revolving commitment of up to $250,000. The maturity date on the new term loan is May 1, 2022, and the maturity date on borrowings outstanding under the revolving commitment is May 1, 2021, extending the September 17, 2018 maturity of the previous secured credit facility. Based on our current leverage levels, our annual interest cost is LIBOR plus 145 basis points under the term loan and LIBOR plus 150 basis points for borrowings outstanding under the revolving commitments.  We recognized the refinance as a partial extinguishment of our prior secured credit facility and recognized a loss on extinguishment of debt of $572.

In May 2017, IROP drew down $9,000 on the unsecured credit facility in connection with the Haverford Place acquisition.

In June 2017, IROP drew down $31,250 on the unsecured credit facility in connection with the South Terrace acquisition.

In September 2017, IROP (1) paid down $117,500 on the unsecured credit facility using proceeds from the common stock offering on September 11, 2017, which is discussed in Note 6: Shareholders Equity, and (2) drew down $85,000 in connection with the four properties acquired on September 26, 2017.

In connection with the three property dispositions during the nine months ended September 30, 2017, we extinguished, through defeasance, property mortgages totaling $20,586.

 

 

NOTE 5: Derivative Financial Instruments

We may use derivative financial instruments to hedge all or a portion of the interest rate risk associated with our borrowings. The principal objective of such arrangements is to minimize the risks and/or costs associated with our operating and financial structure as well as to hedge specific anticipated transactions.  While these instruments may impact our periodic cash flows, they benefit us by minimizing the risks and/or costs previously described.  

Interest Rate Swaps and Caps

We have entered into an interest rate cap contract and an interest rate swap contract to hedge interest rate exposure on floating rate indebtedness.          

On June 24, 2016, we entered into an interest rate swap contract with a notional value of $150,000, a strike rate of 1.145% and a maturity date of June 17, 2021.  We designated this interest rate swap as a cash flow hedge at inception and determined that the hedge

17


Independence Realty Trust, Inc. and Subsidiaries

Notes to Consolidated Financial Statements

As of September 30, 2017

(Unaudited and dollars in thousands, except share and per share data)

 

is highly effective in offsetting interest rate fluctuations associated with the i dentified indebted ness. We did not recognize any ineffectiveness associated with this cash flow hedge through April 2017.  On April 17, 2017, in conjunction with the refinance of our credit facility, we restructured our existing interest rate swap to remov e the LIBOR floor.  This resulted in a decrease in the strike rate to 1.1325%.  The notional value and maturity date remained the same.  We designated the restructured interest rate swap as a cash flow hedge at inception and determined that the hedge is hi ghly effective in offsetting interest rate fluctuations associated with the identified indebtedness. However, since the fair value of the swap at inception of the hedging relationship was not zero, we expect some ineffectiveness to be recognized over the l ife of the instrument.  During the three and nine months ended September 30, 2017, we recognized $(12) and $0 of ineffectiveness based on the hypothetical derivative method. Our interest rate cap is not designated as a cash flow hedge.   

The following table summarizes the aggregate notional amount and estimated net fair value of our derivative instruments as of September 30, 2017 and December 31, 2016:

 

 

 

As of September 30, 2017

 

 

As of December 31, 2016

 

 

 

Notional

 

 

Fair Value of

Assets

 

 

Fair Value of

Liabilities

 

 

Notional

 

 

Fair Value of

Assets

 

 

Fair Value of

Liabilities

 

Cash flow hedges:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Interest rate swap

 

$

150,000

 

 

$

3,581

 

 

$

 

 

$

150,000

 

 

$

3,867

 

 

$

 

Freestanding derivatives:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Interest rate cap

 

 

200,000

 

 

 

 

 

 

 

 

 

200,000

 

 

 

 

 

 

 

Net fair value

 

$

350,000

 

 

$

3,581

 

 

$

 

 

$

350,000

 

 

$

3,867

 

 

$

 

Effective interest rate swaps and caps are reported in accumulated other comprehensive income, and the fair value of these hedge agreements is included in other assets or other liabilities.

For our interest rate swap that is considered a highly effective hedge, we reclassified realized gains of $27 and losses of $156 to earnings within interest expense for the three and nine months ended September 30, 2017, respectively, and we expect $471 to be reclassified out of accumulated other comprehensive income to earnings over the next 12 months.

 

 

NOTE 6: Shareholder Equity and Noncontrolling Interests

Stockholder Equity

Our board of directors has declared the following dividends in 2017: 

Month

 

Declaration Date

 

Record Date

 

Payment Date

 

Dividend

Declared

Per Share

 

January 2017

 

January 12, 2017

 

January 31, 2017

 

February 15, 2017

 

$

0.06

 

February 2017

 

January 12, 2017

 

February 28, 2017

 

March 15, 2017

 

$

0.06

 

March 2017

 

January 12, 2017

 

March 31, 2017

 

April 17, 2017

 

$

0.06

 

April 2017

 

April 12, 2017

 

April 28, 2017

 

May 15, 2017

 

$

0.06

 

May 2017

 

April 12, 2017

 

May 31, 2017

 

June 15, 2017

 

$

0.06

 

June 2017

 

April 12, 2017

 

June 30, 2017

 

July 17, 2017

 

$

0.06

 

July 2017

 

July 14, 2017

 

July 31, 2017

 

August 15, 2017

 

$

0.06

 

August 2017

 

July 14, 2017

 

August 31, 2017

 

September 15, 2017

 

$

0.06

 

September 2017

 

July 14, 2017

 

September 29, 2017

 

October 13, 2017

 

$

0.06

 

October 2017

 

October 12, 2017

 

October 31, 2017

 

November 15, 2017

 

$

0.06

 

November 2017

 

October 12, 2017

 

November 30, 2017

 

December 15, 2017

 

$

0.06

 

December 2017

 

October 12, 2017

 

December 29, 2017

 

January 15, 2018

 

$

0.06

 

Common Shares

During the three and nine months ended September 30, 2017, we also paid $0 and $126, respectively, of dividends on restricted common share awards that vested during the period.

18


Independence Realty Trust, Inc. and Subsidiaries

Notes to Consolidated Financial Statements

As of September 30, 2017

(Unaudited and dollars in thousands, except share and per share data)

 

On August 4, 2017, we entered into an At-the-Market Issuance Sales Agreement (the “Sales Agreement”) with various sales agents. Pursuant to the Sales Agreement, we may offer and sel l shares of our common stock, $0.01 par value per share, having an aggregate offering price of up to $150,000, from time to time through the sales agents. The sales agents are entitled to compensation in an agreed amount not to exceed 2.0% of the gross sal es price per share for any shares sold from time to time under the Sales Agreement. We have no obligation to sell any of the shares under the Sales Agreement and may at any time suspend solicitations and offers under the Sales Agreement. No shares were iss ued pursuant to the Sales Agreement as of September 30, 2017.

On September 11, 2017, we issued 12,500,000 shares of our common stock at a public offering price of $9.25 per share. We also closed on the underwriters’ option to purchase an additional 1,875,000 shares of common stock at the public offering price. As a result of the offering and exercise or the underwriters’ option, we received approximately $126,100 in net proceeds, after deducting the underwriting discount and offering expenses.

 

Noncontrolling Interest

In June 2017, we issued 166,604 IROP units in connection with our acquisition of South Terrace.  The IROP units were valued at $1,654 based on the price of our common stock. See Note 3: Investments in Real Estate for details on the property acquisition.

As of September 30, 2017, 3,035,654 IROP units held by unaffiliated third parties remain outstanding with a redemption value of $30,873, based on IRT’s stock price of $10.17 as of September 29, 2017.

Our board of directors has declared the following distributions on IROP’s LP units in 2017:

Month

 

Declaration Date

 

Record Date

 

Payment Date

 

Dividend

Declared

Per Share

 

January 2017

 

January 12, 2017

 

January 31, 2017

 

February 15, 2017

 

$

0.06

 

February 2017

 

January 12, 2017

 

February 28, 2017

 

March 15, 2017

 

$

0.06

 

March 2017

 

January 12, 2017

 

March 31, 2017

 

April 17, 2017

 

$

0.06

 

April 2017

 

April 12, 2017

 

April 28, 2017

 

May 15, 2017

 

$

0.06

 

May 2017

 

April 12, 2017

 

May 31, 2017

 

June 15, 2017

 

$

0.06

 

June 2017

 

April 12, 2017

 

June 30, 2017

 

July 17, 2017

 

$

0.06

 

July 2017

 

July 14, 2017

 

July 31, 2017

 

August 15, 2017

 

$

0.06

 

August 2017

 

July 14, 2017

 

August 31, 2017

 

September 15, 2017

 

$

0.06

 

September 2017

 

July 14, 2017

 

September 29, 2017

 

October 13, 2017

 

$

0.06

 

October 2017

 

October 12, 2017

 

October 31, 2017

 

November 15, 2017

 

$

0.06

 

November 2017

 

October 12, 2017

 

November 30, 2017

 

December 15, 2017

 

$

0.06

 

December 2017

 

October 12, 2017

 

December 29, 2017

 

January 15, 2018

 

$

0.06

 

 

NOTE 7: Equity Compensation Plans

Long Term Incentive Plan

In May 2016, our shareholders approved and our board of directors adopted an amended and restated Long Term Incentive Plan, or the incentive plan, which provides for the grants of awards to our directors, officers and full-time employees, full-time employees of our former advisor and its affiliates, full-time employees of entities that provide services to our former advisor, directors of our former advisor or of entities that provide services to it, certain of our consultants and certain consultants to our former advisor and its affiliates or to entities that provide services to our former advisor. The incentive plan authorizes the grant of restricted or unrestricted shares of our common stock, non-qualified and incentive stock options, restricted stock units, stock appreciation rights, dividend equivalents and other stock- or cash-based awards. In conjunction with the amendment, the number of shares of common stock issuable under the incentive plan was increased to 4,300,000 shares, and the term of the incentive plan was extended to May 12, 2026.  

       Under the incentive plan or predecessor incentive plans, we granted restricted shares and stock appreciation rights, or SARs, to our employees and employees of our former advisor.  These awards generally vested over a three-year period.  In addition, we granted unrestricted shares to our directors.  These awards generally vested immediately. 

19


Independence Realty Trust, Inc. and Subsidiaries

Notes to Consolidated Financial Statements

As of September 30, 2017

(Unaudited and dollars in thousands, except share and per share data)

 

On February 28, 2017, our compensation committee awarded 143,180 restricted stock awards, valued at $9.19 per share, or $1,316 in the aggregate.  The restricted stock awards vest over a three-year period except for 6,585 awards that vested immediately.  In addition, our compensation committee awarded performance share units, or PSUs, to eligible officers under a newly adopted 2017 Annual Equity Award Program purs uant to the incentive plan.  The number of PSUs awarded will be based on attainment of certain performance criteria over a three-year period, with 226,469 PSUs granted for achieving the maximum performance criteria. The aggregate grant date fair value of t he PSUs was $1,076.

On May 16, 2017, our compensation committee granted stock under the incentive plan such that our independent directors received an aggregate of 24,830 shares of our common stock, valued at $225 using our closing stock price of $9.06.  These awards vested immediately.

 

NOTE 8: Related Party Transactions and Arrangements

 

Fees and Expenses Paid to Our Former Advisor

 

On December 20, 2016, in connection with our management internalization, we acquired our former advisor and, therefore, fees and expenses to our former advisor are no longer incurred.

 

For the three months ended September 30, 2017 and 2016, our former advisor earned $0 and $1,727 of asset management fees, respectively, and $0 and $5,141 for the nine months ended September 30, 2017 and 2016, respectively. These fees are included within general and administrative expenses in our consolidated statements of operations.

 

For the three months ended September 30, 2017 and 2016, our former advisor earned $0 and $206 of incentive fees, respectively, and $0 and $350 for the nine months ended September 30, 2017 and 2016, respectively.  These fees are included within general and administrative expenses in our consolidated statements of operations.

 

For the nine months ended September 30, 2017 and 2016, we incurred costs of $727 and $0, respectively, with respect to our shared services agreement with our former advisor. The term of the agreement was from December 21, 2016 to June 20, 2017 and the associated fees are included within general and administrative expenses in our consolidated statements of operations.

 

As of September 30, 2017 and December 31, 2016, we had no liabilities payable to our former advisor for asset management fees, incentive fees or shared service fees.

 

Property Management Fees Paid to Our Former Property Manager

          

On December 20, 2016, in connection with our management internalization, we acquired property management agreements with respect to each of our properties from RAIT Residential, our former property manager, which is wholly owned by RAIT.

 

For the three months ended September 30, 2017 and 2016, our former property manager earned $0 and $1,219, respectively, and $0 and $3,710 for the nine months ended September 30, 2017 and 2016, respectively, of property management and leasing fees. As of September 30, 2017 and December 31, 2016, we had no liabilities payable to our property manager for property management and leasing fees.

 

Dividends Paid to Affiliates of Our Former Advisor

 

On October 5, 2016, we repurchased and retired all 7,269,719 shares of our common stock owned by subsidiaries of RAIT.

 

Since October 5, 2016, RAIT has not owned any shares of our common stock.  For the three months ended September 30, 2017 and 2016, we declared and subsequently paid dividends of $0 and $1,309, respectively, and $0 and $3,926 for the nine months ended September 30, 2017 and 2016, respectively, related to shares of common stock owned by subsidiaries of RAIT.  

 

20


Independence Realty Trust, Inc. and Subsidiaries

Notes to Consolidated Financial Statements

As of September 30, 2017

(Unaudited and dollars in thousands, except share and per share data)

 

RAIT Indebtedness

 

In the second quarter of 2016, we repaid $38,075 of mortgage indebtedness with proceeds from two property dispositions.  This indebtedness was held by RAIT. Total interest expense paid to RAIT for the three and nine months ended September 30, 2017 and 2016 was $0 and $486, respectively.

 

Related Party Transaction

 

In June 2017, we acquired South Terrace, a 328-unit property in Durham, NC for $42,950 from a joint venture, of which a subsidiary of RAIT was a controlling member. For further information, see Note 3: Investment in Real Estate.

 

 

NOTE 9: Earnings (Loss) Per Share

The following table presents a reconciliation of basic and diluted earnings (loss) per share for the three and nine months ended September 30, 2017 and 2016:

 

 

 

For the Three Months Ended September 30,

 

 

For the Nine Months Ended September 30,

 

 

 

2017

 

 

2016

 

 

2017

 

 

2016

 

Net income (loss)

 

$

1,156

 

 

$

2,407

 

 

$

24,922

 

 

$

33,151

 

(Income) loss allocated to non-controlling interests

 

 

(59

)

 

 

(140

)

 

 

(1,009

)

 

 

(1,972

)

Net income (loss) allocable to common shares

 

 

1,097

 

 

 

2,267

 

 

 

23,913

 

 

 

31,179

 

Weighted-average shares outstanding—Basic

 

 

71,972,394

 

 

 

47,215,918

 

 

 

69,875,802

 

 

 

47,164,543

 

Weighted-average shares outstanding—Diluted

 

 

72,144,544

 

 

 

47,314,629

 

 

 

70,105,571

 

 

 

47,190,139

 

Earnings (loss) per share—Basic

 

$

0.02

 

 

$

0.05

 

 

$

0.34

 

 

$

0.66

 

Earnings (loss) per share—Diluted

 

$

0.02

 

 

$

0.05

 

 

$

0.34

 

 

$

0.66

 

 

Certain IROP units, stock appreciation rights, or SARs, and unvested shares were excluded from the earnings (loss) per share computation because their effect would have been anti-dilutive, totaling 3,035,654 for the three and nine months ended September 30, 2017, and 2,915,008 and 3,091,380 for the three and nine months ended September 30, 2016, respectively.

 

NOTE 10: Other Disclosures

Litigation

We are subject to various legal proceedings and claims that arise in the ordinary course of our business operations. Matters which arise out of allegations of bodily injury, property damage, and employment practices are generally covered by insurance. While the resolution of these matters cannot be predicted with certainty, we currently believe the final outcome of such matters will not have a material adverse effect on our financial position, results of operations or cash flows.

Other Matters

To the extent that a natural disaster or similar event occurs with more than a remote risk of having a material impact on the consolidated financial statements, we will disclose the estimated range of possible outcomes, and, if an outcome is probable, accrue an appropriate liability.

 

 

 

 

 

21


 

Item 2.

M anagement’s Discussion and Analysis of Financial Condition and Results of Operations

Forward-Looking Statements

The Securities and Exchange Commission, or SEC, encourages companies to disclose forward-looking information so that investors can better understand a company’s future prospects and make informed investment decisions. This report contains or incorporates by reference such “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, or Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended, or Exchange Act.

Words such as “anticipates,” “estimates,” “expects,” “projects,” “intends,” “plans,” “believes” and words and terms of similar substance used in connection with any discussion of future operating or financial performance identify forward-looking statements. As used herein, the terms “we,” “our” and “us” refer to Independence Realty Trust, Inc., which we refer to as IRT, and, as required by context, Independence Realty Operating Partnership, LP, which we refer to as IROP, and their subsidiaries.

We claim the protection of the safe harbor for forward-looking statements provided in the Private Securities Litigation Reform Act of 1995. These statements may be made directly in this report and they may also be incorporated by reference in this report to other documents filed with the SEC, and include, but are not limited to, statements about future financial and operating results and performance, statements about our plans, objectives, expectations and intentions with respect to future operations, products and services, and other statements that are not historical facts. These forward-looking statements are based upon the current beliefs and expectations of our management and are inherently subject to significant business, economic and competitive uncertainties and contingencies, many of which are difficult to predict and generally beyond our control. In addition, these forward-looking statements are subject to assumptions with respect to future business strategies and decisions that are subject to change. Actual results may differ materially from the anticipated results discussed in these forward-looking statements.

The risk factors discussed and identified in Item 1A of our 2016 Annual Report on Form 10-K, this Report and in other of our public filings with the SEC, among others, could cause actual results to differ materially from the anticipated results or other expectations expressed in the forward-looking statements. We caution you not to place undue reliance on these forward-looking statements, which speak only as of the date of this report. All subsequent written and oral forward-looking statements attributable to us or any person acting on our behalf are expressly qualified in their entirety by the cautionary statements contained or referred to in this section. Except to the extent required by applicable law or regulation, we undertake no obligation to update these forward-looking statements to reflect events or circumstances after the date of this filing or to reflect the occurrence of unanticipated events.

Overview

General

We are a Maryland corporation that owns and operates multifamily apartment properties across non-gateway U.S. markets, including Louisville, Memphis, Atlanta and Raleigh.  Our investment strategy is focused on gaining scale within key amenity rich submarkets that offer good school districts, high-quality retail and major employment centers.  We aim to provide stockholders attractive risk-adjusted returns through diligent portfolio management, strong operational performance, and a consistent return of capital through distributions and capital appreciation. We elected to be taxed as a REIT under the Internal Revenue Code of 1986, as amended, or the Code, commencing with our taxable year ended December 31, 2011.

We seek to acquire and operate apartment properties that:

 

have stable occupancy;

 

 

are located in submarkets that we do not expect will experience substantial new apartment construction in the foreseeable future;

 

 

in appropriate circumstances, present opportunities for repositioning or updating through capital expenditures when we see opportunities for increased rents; and

 

 

present opportunities to apply tailored marketing and management strategies to attract and retain residents and enable rent increases.

 

 

 

22


 

 

 

Property Portfolio 

As of September 30, 2017, we owned 50 multifamily apartment properties, totaling 13,729 units.  Below is a summary of our property portfolio by market.  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Dollars in thousands, except per unit data)

 

As of September 30, 2017

 

 

For the Three Months Ended September 30, 2017

 

Market

 

Units

 

 

Gross Real

Estate

Assets

 

 

Period End

Occupancy

 

 

Average

Effective

Monthly Rent

per Unit

 

 

Net Operating

Income (a)

 

 

% of NOI

 

Louisville. KY

 

 

1,709

 

 

$

179,557

 

 

 

94.7

%

 

$

941

 

 

$

2,945

 

 

 

12.4

%

Memphis, TN

 

 

1,383

 

 

 

137,777

 

 

 

95.0

%

 

 

1,029

 

 

 

2,549

 

 

 

10.8

%

Atlanta, GA

 

 

1,092

 

 

 

136,681

 

 

 

96.1

%

 

 

1,105

 

 

 

2,419

 

 

 

10.2

%

Raleigh, NC

 

 

1,372

 

 

 

182,511

 

 

 

95.3

%

 

 

1,101

 

 

 

2,907

 

 

 

12.3

%

Oklahoma City, OK

 

 

1,658

 

 

 

73,256

 

 

 

92.8

%

 

 

642

 

 

 

1,595

 

 

 

6.7

%

Dallas, TX

 

 

734

 

 

 

85,390

 

 

 

95.9

%

 

 

1,138

 

 

 

1,480

 

 

 

6.3

%

Charleston, SC

 

 

690

 

 

 

94,948

 

 

 

95.8

%

 

 

1,220

 

 

 

1,217

 

 

 

5.1

%

Jackson, MS (b)

 

 

602

 

 

 

44,699

 

 

 

94.0

%

 

 

892

 

 

 

924

 

 

 

3.9

%

Little Rock, AR

 

 

462

 

 

 

54,298

 

 

 

94.8

%

 

 

992

 

 

 

849

 

 

 

3.6

%

Orlando, FL

 

 

297

 

 

 

47,517

 

 

 

94.9

%

 

 

1,380

 

 

 

760

 

 

 

3.2

%

Chicago, IL

 

 

370

 

 

 

29,385

 

 

 

93.8

%

 

 

1,007

 

 

 

675

 

 

 

2.9

%

Indianapolis, IN

 

 

645

 

 

 

60,600

 

 

 

95.0

%

 

 

928

 

 

 

710

 

 

 

3.0

%

Greenville, SC

 

 

346

 

 

 

48,176

 

 

 

93.9

%

 

 

1,092

 

 

 

687

 

 

 

2.9

%

Austin, TX

 

 

300

 

 

 

35,471

 

 

 

95.0

%

 

 

1,276

 

 

 

625

 

 

 

2.6

%

Charlotte, NC

 

 

208

 

 

 

41,749

 

 

 

93.8

%

 

 

1,461

 

 

 

628

 

 

 

2.7

%

Asheville, NC

 

 

252

 

 

 

28,291

 

 

 

94.8

%

 

 

1,054

 

 

 

576

 

 

 

2.4

%

Chattanooga, TN

 

 

295

 

 

 

25,951

 

 

 

95.9

%

 

 

961

 

 

 

486

 

 

 

2.1

%

Tampa-St. Petersburg, FL

 

 

216

 

 

 

29,735

 

 

 

92.6

%

 

 

1,212

 

 

 

489

 

 

 

2.1

%

St. Louis, MO

 

 

152

 

 

 

32,967

 

 

 

92.8

%

 

 

1,568

 

 

 

450

 

 

 

1.9

%

Columbus, OH

 

 

768

 

 

 

65,639

 

 

 

96.5

%

 

 

854

 

 

 

409

 

 

 

1.7

%

Huntsville, AL

 

 

178

 

 

 

16,070

 

 

 

98.3

%

 

 

849

 

 

 

277

 

 

 

1.2

%

Total/Weighted Average

 

 

13,729

 

 

$

1,450,668

 

 

 

94.8

%

 

$

1,004

 

 

$

23,657

 

 

 

100.0

%

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(a)

Net operating income for the three months ended September 30, 2017 excludes $11 primarily related to sold properties.

(b)

Includes $23,611 of properties classified as held-for-sale.

 

As of September 30, 2017, our same-store portfolio consisted of 42 multifamily apartment properties, totaling 11,676 units.  See “Non-GAAP Financial Measures – Same Store Portfolio Net Operating Income” below for our definition of same store and definitions and reconciliations related to our net operating income and net operating income margin. 

Property Operations

During the three months ended September 30, 2017, we saw strong operational results.  On a same-store basis, our total revenues were up 3.0% as compared to the third quarter of 2016 driven by higher average effective monthly rents and higher average occupancy.  Revenue growth was especially strong in the Columbus, OH and Atlanta, GA markets driven by steady occupancy and higher average effective rent per unit in the third quarter of 2017 as compared to the third quarter of 2016.   

Same-store net operating income increased 4.0% during the third quarter of 2017 as compared to the same period in the prior year driven by the higher revenues and operating expenses that increased just 1.5% as we continued to focus on expense management.  For the nine months ended September 30, 2017, our same-store total revenues were 4.0% higher and our same-store net operating income was 4.9% higher than for the nine months ended September 30, 2016.

Other Matters

On June 20, 2017, we completed our use of shared services previously provided by RAIT and fully completed our previously disclosed management internalization. The shared services previously provided included certain transitional services such as information technology, human resources, insurance, investor relations, legal, tax and accounting.

23


 

On July 31, 2017, we transferred the list ing of our common stock to the New York Stock Exchange (“NYSE”) from the NYSE MKT. Our common stock continues to trade under the ticker symbol “IRT”. 

On September 3, 2017, IRT reached an agreement to acquire a portfolio of nine communities (the “HPI Portfolio”), totaling 2,353 units, for a gross purchase price of $228.1 million. The acquisition accelerates IRT’s penetration into a number of core existing markets, including Columbus, OH, Indianapolis, IN and Atlanta, GA, while providing entry into two new markets. The portfolio contains nine communities that were built or renovated between 2000 and 2011, had period end occupancy of 95% as of July 31, 2017, and had an average effective rent per unit of $884 for the three months ended July 31, 2017. On September 26, 2017, IRT closed on the acquisition of four of these multifamily apartment communities, aggregating 917 units, representing the consummation of the first phase of the portfolio acquisition. The acquisition of the remaining five communities are expected to close in succession during the fourth quarter of 2017, after and subject to the satisfaction of customary closing conditions, as well as the debt assumption process on three of the five. On October 25, 2017, we acquired one of the remaining five communities, a 264 unit community located in Baton Rouge, LA, known as Live Oak Trace for $28,501.

 

On September 11, 2017, IRT announced the closing of its public offering of 12,500,000 shares of its common stock at a public offering price of $9.25 per share. IRT also closed on the underwriters’ option to purchase an additional 1,875,000 shares of common stock at the public offering price. As a result of the offering and the exercise of the underwriters’ option, IRT received approximately $126.1 million in net proceeds, after deducting the underwriting discount and estimated offering expenses. IRT is using the net proceeds from the offering to pay a portion of the purchase price for the HPI portfolio. Any remaining proceeds will be used for general corporate purposes.

 

Results of Operations

Three Months Ended September 30, 2017 compared to the Three Months Ended September 30, 2016

 

 

 

SAME STORE PROPERTIES

 

 

NON SAME STORE PROPERTIES

 

 

CONSOLIDATED

 

(Dollars in thousands)

 

Three Months Ended September 30,

 

 

Three Months Ended September 30,

 

 

Three Months Ended September 30,

 

 

 

2017

 

 

2016

 

 

Increase (Decrease)

 

 

% Change

 

 

2017

 

 

2016

 

 

Increase (Decrease)

 

 

% Change

 

 

2017

 

 

2016

 

 

Increase (Decrease)

 

 

% Change

 

Revenue:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Rental income

 

$

32,483

 

 

$

31,698

 

 

$

785

 

 

 

2.5

%

 

$

3,048

 

 

$

2,635

 

 

$

413

 

 

 

15.7

%

 

$

35,531

 

 

$

34,333

 

 

$

1,198

 

 

 

3.5

%

Reimbursement and other income

 

 

3,913

 

 

 

3,645

 

 

 

268

 

 

 

7.4

%

 

 

420

 

 

 

386

 

 

 

34

 

 

 

8.8

%

 

 

4,333

 

 

 

4,031

 

 

 

302

 

 

 

7.5

%

Total revenue

 

 

36,396

 

 

 

35,343

 

 

 

1,053

 

 

 

3.0

%

 

 

3,468

 

 

 

3,021

 

 

 

447

 

 

 

14.8

%

 

 

39,864

 

 

 

38,364

 

 

 

1,500

 

 

 

3.9

%

Expenses:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Real estate operating expenses

 

 

14,744

 

 

 

14,520

 

 

 

224

 

 

 

1.5

%

 

 

1,452

 

 

 

1,587

 

 

 

(135

)

 

 

-8.5

%

 

 

16,196

 

 

 

16,107

 

 

 

89

 

 

 

0.6

%

Net Operating Income

 

$

21,652

 

 

$

20,823

 

 

$

829

 

 

 

4.0

%

 

$

2,016

 

 

$

1,434

 

 

$

582

 

 

 

40.6

%

 

$

23,668

 

 

$

22,257

 

 

$

1,411

 

 

 

6.3

%

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Other Income:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Property management and other income

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

202

 

 

 

-

 

 

 

202

 

 

NM

 

Total other income

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

202

 

 

 

-

 

 

 

202

 

 

NM

 

Corporate and other expenses:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Property management expenses

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1,328

 

 

 

1,219

 

 

 

109

 

 

 

8.9

%

General and administrative expenses

 

 

 

2,322

 

 

 

2,665

 

 

 

(343

)

 

 

-12.9

%

Acquisition and integration expenses

 

 

 

569

 

 

 

19

 

 

 

550

 

 

NM

 

Depreciation and amortization expense

 

 

 

8,671

 

 

 

7,765

 

 

 

906

 

 

 

11.7

%

Total corporate and other expenses

 

 

 

12,890

 

 

 

11,668

 

 

 

1,222

 

 

 

10.5

%

Operating Income (loss)

 

 

 

10,980

 

 

 

10,589

 

 

 

391

 

 

 

3.7

%

Interest expense

 

 

 

(6,963

)

 

 

(8,820

)

 

 

1,857

 

 

 

21.1

%

Hedge ineffectiveness

 

 

 

12

 

 

 

-

 

 

 

12

 

 

N/M

 

Other income (expense)

 

 

 

-

 

 

 

(2

)

 

 

2

 

 

N/M

 

Net gains (losses) on sale of assets

 

 

 

(92

)

 

 

(1

)

 

 

(91

)

 

NM

 

Gains (losses) on extinguishment of debt

 

 

 

-

 

 

 

-

 

 

 

-

 

 

N/M

 

Acquisition related debt extinguishment expenses

 

 

 

(2,781

)

 

 

-

 

 

 

(2,781

)

 

N/M

 

Gains (losses) on TSRE merger and property acquisitions

 

 

 

-

 

 

 

641

 

 

 

(641

)

 

 

-100.0

%

Net income (loss)

 

 

 

1,156

 

 

 

2,407

 

 

 

(1,251

)

 

 

-51.97

%

(Income) loss allocated to noncontrolling interests

 

 

 

(59

)

 

 

(140

)

 

 

81

 

 

 

57.9

%

Net income (loss) available to common shares

 

 

$

1,097

 

 

$

2,267

 

 

$

(1,170

)

 

 

-51.61

%

Revenue

Rental income . Rental revenue increased $1.2 million to $35.5 million for the three months ended September 30, 2017 from $34.3 million for the three months ended September 30, 2016. The increase was primarily attributable to a $0.8 million increase in same store rental income driven by higher average effective monthly rents and higher occupancy than the prior year period and a $0.4 million increase in non same store rental income. The non same store increase was due to the number of properties included in each period being different as a result of the timing of property sales and acquisitions.

24


 

Reimbursement and other income . Reimb ursement and other income increased $0.3 million to $4.3 million for the three months en ded September 30, 2017 from $4.0 million for the three months ended September 30, 2016. The increase was primarily due to a $0.3 million increase in same store reimburs ement and other income attributable to our continued focus on driving non-rental revenue and fee income.

Property management income. Property management income was $0.2 million for the three months ended September 30, 2017 compared to $0.0 million for the three months ended September 30, 2016.  This was due to third party property management income that we received for managing properties on behalf of third parties during the current period.  This service did not exist prior to our management internalization in December 2016.  

Expenses

Real estate operating expenses . Property operating expenses increased $0.1 million to $16.2 million for the three months ended September 30, 2017 from $16.1 million for the three months ended September 30, 2016.

Property management expenses. Property management expenses increased $0.1 million to $1.3 million for the three months ended September 30, 2017 from $1.2 million for the three months ended September 30, 2016. This increase coincides with the above-mentioned increase in property management income driven by our management internalization.  After our management internalization, property management expenses include costs incurred to directly support on-site management. Prior to this, property management expenses included property and construction management fees paid to our former property manager.

General and administrative expenses. General and administrative expenses decreased $0.4 million to $2.3 million for the three months ended September 30, 2017 from $2.7 million for the three months ended September 30, 2016. The decrease was due to cost savings from our management internalization.

Acquisition and integration expenses . Acquisition and integration expenses were $0.6 million for the three months ended September 30, 2017 compared to $0.0 million for the three months ended September 30, 2016. This increase was due to our acquisition of the HPI Portfolio. Acquisition and integration expenses include costs to identify, underwrite, close, and integrate new acquisitions.

Depreciation and amortization expense . Depreciation and amortization expense increased $0.9 million to $8.7 million for the three months ended September 30, 2017 from $7.8 million for the three months ended September 30, 2016. The increase was primarily attributable to $0.4 million of in-place lease intangible amortization recognized during the three months ended September 30, 2017 related to 2017 property acquisitions and a $0.5 million increase in depreciation expense due to property acquisitions during 2017.

Interest expense . Interest expense decreased $1.8 million to $7.0 million for the three months ended September 30, 2017 from $8.8 million for the three months ended September 30, 2016. The decrease was due to debt reductions during 2016 when our term loan was fully repaid and our credit facility balance decreased by $121.5 million.  

Acquisition related debt extinguishment expenses. Acquisition related debt extinguishment expenses were $2.8 million for the three months ended September 30, 2017 due to defeasance related costs incurred in connection with the HPI portfolio acquisitions.

25


 

 

Nine Months Ended September 30, 2017 compared to the Nine Months Ended September 30, 2016

 

 

 

SAME STORE PROPERTIES

 

 

NON SAME STORE PROPERTIES

 

 

CONSOLIDATED

 

(Dollars in thousands)

 

Nine Months Ended September 30,

 

 

Nine Months Ended September 30,

 

 

Nine Months Ended September 30,

 

 

 

2017

 

 

2016

 

 

Increase (Decrease)

 

 

% Change

 

 

2017

 

 

2016

 

 

Increase (Decrease)

 

 

% Change

 

 

2017

 

 

2016

 

 

Increase (Decrease)

 

 

% Change

 

Revenue:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Rental income

 

$

96,587

 

 

$

93,313

 

 

$

3,274

 

 

 

3.5

%

 

$

8,857

 

 

$

9,958

 

 

$

(1,101

)

 

 

-11.1

%

 

$

105,444

 

 

$

103,271

 

 

$

2,173

 

 

 

2.1

%

Reimbursement and other income

 

 

11,513

 

 

 

10,640

 

 

 

873

 

 

 

8.2

%

 

 

1,233

 

 

 

1,446

 

 

 

(213

)

 

 

-14.7

%

 

 

12,746

 

 

 

12,086

 

 

 

660

 

 

 

5.5

%

Total revenue

 

 

108,100

 

 

 

103,953

 

 

 

4,147

 

 

 

4.0

%

 

 

10,090

 

 

 

11,404

 

 

 

(1,314

)

 

 

-11.5

%

 

 

118,190

 

 

 

115,357

 

 

 

2,833

 

 

 

2.5

%

Expenses:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Real estate operating expenses

 

 

43,297

 

 

 

42,199

 

 

 

1,098

 

 

 

2.6

%

 

 

4,809

 

 

 

5,389

 

 

 

(580

)

 

 

-10.8

%

 

 

48,106

 

 

 

47,588

 

 

 

518

 

 

 

1.1

%

Net Operating Income

 

$

64,803

 

 

$

61,754

 

 

$

3,049

 

 

 

4.9

%

 

$

5,281

 

 

$

6,015

 

 

$

(734

)

 

 

-12.2

%

 

$

70,084

 

 

$

67,769

 

 

$

2,315

 

 

 

3.4

%

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Other Income:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Property management and other income

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

579

 

 

 

-

 

 

 

579

 

 

 

-

 

Total other income

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

579

 

 

 

-

 

 

 

579

 

 

 

-

 

Corporate and other expenses:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Property management expenses

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

4,310

 

 

 

3,710

 

 

 

600

 

 

 

16.2

%

General and administrative expenses

 

 

 

7,128

 

 

 

8,074

 

 

 

(946

)

 

 

-11.7

%

Acquisition and integration expenses

 

 

 

956

 

 

 

37

 

 

 

919

 

 

NM

 

Depreciation and amortization expense

 

 

 

24,289

 

 

 

26,927

 

 

 

(2,638

)

 

 

-9.8

%

Total corporate and other expenses

 

 

 

36,683

 

 

 

38,748

 

 

 

(2,065

)

 

 

-5.3

%

Operating Income (loss)

 

 

 

33,980

 

 

 

29,021

 

 

 

4,959

 

 

 

17.1

%

Interest expense

 

 

 

(21,573

)

 

 

(27,815

)

 

 

6,242

 

 

 

22.4

%

Hedge ineffectiveness

 

 

 

-

 

 

 

-

 

 

 

-

 

 

N/M

 

Other income (expense)

 

 

 

(5

)

 

 

(2

)

 

 

(3

)

 

 

150.0

%

Net gains (losses) on sale of assets

 

 

 

15,873

 

 

 

31,773

 

 

 

(15,900

)

 

 

-50.0

%

Gains (losses) on extinguishment of debt

 

 

 

(572

)

 

 

(558

)

 

 

(14

)

 

 

2.5

%

Acquisition related debt extinguishment expenses

 

 

 

(2,781

)

 

 

-

 

 

 

(2,781

)

 

N/M

 

Gains (losses) on TSRE merger and property acquisitions

 

 

 

-

 

 

 

732

 

 

 

(732

)

 

N/M

 

Net income (loss)

 

 

 

24,922

 

 

 

33,151

 

 

 

(8,229

)

 

 

-24.82

%

(Income) loss allocated to noncontrolling interests

 

 

 

(1,009

)

 

 

(1,972

)

 

 

963

 

 

 

48.8

%

Net income (loss) available to common shares

 

 

$

23,913

 

 

$

31,179

 

 

$

(7,266

)

 

 

-23.30

%

Revenue

Rental income. Rental revenue increased $2.2 million to $105.4 million for the nine months ended September 30, 2017 from $103.3 million for the nine months ended September 30, 2016. The increase was primarily attributable to a $3.3 million increase in same store rental income driven by higher average effective monthly rents and higher occupancy than the year-ago period. This increase was partially offset by $1.1 million of lower non same store rental income due to the number of properties included in each period being different as a result of the timing of property sales and acquisitions.

Reimbursement and other income . Reimbursement and other income increased $0.6 million to $12.7 million for the nine months ended September 30, 2017 from $12.1 million for the nine months ended September 30, 2016. The increase was primarily due to a $0.9 million increase in same store reimbursement and other income attributable to our continued focus on driving non-rental revenue and fee income and a $0.3 million increase in reimbursement and other income due to the seven properties acquired during 2017. These increases were partially offset by a $0.6 million decrease in reimbursement and other income due to six properties sold in 2017 and 2016.

Property management income. Property management income was $0.6 million for the nine months ended September 30, 2017 compared to $0.0 million for the nine months ended September 30, 2016. This was due to third party property management income that we received for managing properties on behalf of third parties during the current period.  This service did not exist prior to our management internalization in December 2016.

Expenses

Real estate operating expenses. Property operating expenses increased $0.5 million to $48.1 million for the nine months ended September 30, 2017 from $47.6 million for the nine months ended September 30, 2016. The increase was due to higher personnel and real estate tax expenses, which drove a $1.1 million increase in real estate operating expenses at our same store properties partially offset by lower non-same store real estate operating expenses due to sold properties.

26


 

Property managem ent expenses: Property management expenses increased $0.6 million to $4.3 million for the nine months ended September 30, 2017 from $3.7 million for the nine months ended September 30, 2016. This increase coincides with the above-mentioned increase in prop erty management income driven by our management internalization.  After our management internalization, property management expenses include costs incurred to directly support on-site management. Prior to this, property management expenses included propert y and construction management fees paid to our former property manager.

General and administrative expenses . General and administrative expenses decreased $1.0 million to $7.1 million for the nine months ended September 30, 2017 from $8.1 million for the nine months ended September 30, 2016. The decrease was due to cost savings from our management internalization.

Acquisition and integration expenses . Acquisition and integration expenses were $1.0 million for the nine months ended September 30, 2017 compared to $0.0 million for the nine months ended September 30, 2016. This increase was primarily due to our acquisition of the HPI Portfolio. Acquisition and integration expenses include costs to identify, underwrite, close, and integrate new acquisitions.

Depreciation and amortization expense . Depreciation and amortization expense decreased $2.6 million to $24.3 million for the nine months ended September 30, 2017 from $26.9 million for the nine months ended September 30, 2016. The decrease was primarily due to a $3.7 million decrease in amortization of in-place leases related to 2015 property acquisitions as they were fully amortized during 2016. This was partially offset by a $0.7 million increase in amortization of in-place leases for acquisitions in 2017.

Interest expense . Interest expense decreased $6.2 million to $21.6 million for the nine months ended September 30, 2017 from $27.8 million for the nine months ended September 30, 2016. The decrease was due to debt reductions during 2016 when our term loan was fully repaid and our credit facility balance decreased by $121.5 million.

Net gains (losses) on sale of assets. Net gains on sale of assets decreased $15.9 million to $15.9 million for the nine months ended September 30, 2017 from $31.8 million for the nine months ended September 30, 2016.  The 2017 net gains were driven primarily by a $15.6 million gain on the sale of Copper Mill, a 320-unit apartment property in Austin, TX.  The 2016 net gains were driven primarily by gains of $15.1 million and $14.2 million realized upon the sales of Tresa at Arrowhead and Belle Creek.

Gains (losses) on extinguishment of debt. Loss on extinguishment of debt was $0.6 million from the partial extinguishment of our prior secured credit facility.  

Acquisition related debt extinguishment expenses. Acquisition related debt extinguishment expenses were $2.8 million for the nine months ended September 30, 2017 due to defeasance related costs incurred in connection with the HPI portfolio acquisitions.

 

Non-GAAP Financial Measures

 

Funds from Operations (FFO) and Core Funds from Operations (CFFO)

We believe that FFO and CFFO, each of which is a non-GAAP measure, are additional appropriate measures of the operating performance of a REIT and IRT in particular. We compute FFO in accordance with the standards established by the National Association of Real Estate Investment Trusts, or NAREIT, as net income or loss (computed in accordance with GAAP), excluding real estate-related depreciation and amortization expense, gains or losses on sales of real estate and the cumulative effect of changes in accounting principles.

CFFO is a computation made by analysts and investors to measure a real estate company’s operating performance by removing the effect of items that do not reflect ongoing property operations, including stock compensation expense, depreciation and amortization of other items not included in FFO, amortization of deferred financing costs, acquisition and integration expenses, and other non-operating gains or losses related to items such as hedge ineffectiveness, defeasance costs we incur when we sell a property subject to secured debt, asset sales, debt extinguishments, acquisition related debt extinguishment expenses, gains on the TSRE merger, and management internalization expenses, from the determination of FFO. IRT incurs acquisition expenses in connection with acquisitions of real estate properties and expenses those costs when incurred in accordance with U.S. GAAP. As these expenses are one-time and reflective of investing activities rather than operating performance, IRT adds back these costs to FFO in determining CFFO.  

Our calculation of CFFO differs from the methodology used for calculating CFFO by certain other REITs and, accordingly, our CFFO may not be comparable to CFFO reported by other REITs. Our management utilizes FFO and CFFO as measures of our operating performance, and believe they are also useful to investors, because they facilitate an understanding of IRT’s operating performance after adjustment for certain non-cash or non-recurring items that are required by GAAP to be expensed but may not necessarily be indicative of current operating performance and that may not accurately compare our operating performance between periods. Furthermore, although FFO, CFFO and other supplemental performance measures are defined in various ways throughout the REIT industry, we believe that FFO and CFFO may provide us and our investors with an additional useful measure to compare our financial performance to certain other REITs.

27


 

Neither FFO nor CFFO is equivalent to net income or cash generate d from operating activities determined in accordance with GAAP. Furthermore, FFO and CFFO do not represent amounts available for management’s discretionary use because of needed capital replacement or expansion, debt service obligations or other commitment s or uncertainties. Neither FFO nor CFFO should be considered as an alternative to net income as an indicator of our operating performance or as an alternative to cash flow from operating activities as a measure of our liquidity.

Set forth below is a reconciliation of net income (loss) to FFO and CFFO for the three and nine months ended September 30, 2017 and 2016 (in thousands, except share and per share information):

  

 

 

For the Three Months Ended September 30, 2017

 

 

For the Three Months Ended September 30, 2016

 

 

 

Amount

 

 

Per Share (1)

 

 

Amount

 

 

Per Share (2)

 

Funds From Operations (FFO):

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net income (loss)

 

$

1,156

 

 

$

0.02

 

 

$

2,407

 

 

$

0.05

 

Adjustments:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Real estate depreciation and amortization

 

 

8,645

 

 

 

0.11

 

 

 

7,765

 

 

 

0.15

 

Net (gains) losses on sale of assets excluding defeasance costs

 

 

92

 

 

 

-

 

 

 

1

 

 

 

-

 

Funds From Operations (FFO)

 

$

9,893

 

 

$

0.13

 

 

$

10,173

 

 

$

0.20

 

Core Funds From Operations (CFFO):

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Funds From Operations (FFO)

 

$

9,893

 

 

$

0.13

 

 

$

10,173

 

 

$

0.20

 

Adjustments:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Stock compensation expense

 

 

422

 

 

 

0.01

 

 

 

247

 

 

 

0.01

 

Amortization of deferred financing costs

 

 

282

 

 

 

-

 

 

 

597

 

 

 

0.01

 

Acquisition and integration expenses

 

 

569

 

 

 

0.01

 

 

 

19

 

 

 

-

 

Other depreciation and amortization

 

 

26

 

 

 

-

 

 

 

-

 

 

 

-

 

Hedge ineffectiveness

 

 

(12

)

 

 

-

 

 

 

-

 

 

 

-

 

Defeasance costs included in net gains (losses) on sale of assets

 

 

-

 

 

 

-

 

 

 

-

 

 

 

 

 

(Gains) losses on extinguishment of debt

 

 

-

 

 

 

-

 

 

 

(641

)

 

 

(0.01

)

Acquisition related debt extinguishment expenses

 

 

2,781

 

 

 

0.04

 

 

 

-

 

 

 

-

 

Core Funds From Operations (CFFO)

 

$

13,961

 

 

$

0.19

 

 

$

10,395

 

 

$

0.21

 

 

 

 

For the Nine Months Ended September 30, 2017

 

 

For the Nine Months Ended September 30, 2016

 

 

 

Amount

 

 

Per Share (1)

 

 

Amount

 

 

Per Share (2)

 

Funds From Operations (FFO):

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net income (loss)

 

$

24,922

 

 

$

0.34

 

 

$

33,151

 

 

$

0.66

 

Adjustments:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Real estate depreciation and amortization

 

 

24,227

 

 

 

0.34

 

 

 

26,927

 

 

 

0.54

 

Net (gains) losses on sale of assets excluding defeasance costs

 

 

(18,621

)

 

 

(0.26

)

 

 

(33,169

)

 

 

(0.66

)

Funds From Operations (FFO)

 

$

30,528

 

 

$

0.42

 

 

$

26,909

 

 

$

0.54

 

Core Funds From Operations (CFFO):

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Funds From Operations (FFO)

 

$

30,528

 

 

$

0.42

 

 

$

26,909

 

 

$

0.54

 

Adjustments:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Stock compensation expense

 

 

1,548

 

 

 

0.02

 

 

 

832

 

 

 

0.02

 

Amortization of deferred financing costs

 

 

1,160

 

 

 

0.01

 

 

 

2,543

 

 

 

0.05

 

Acquisition and integration expenses

 

 

956

 

 

 

0.01

 

 

 

37

 

 

 

-

 

Other depreciation and amortization

 

 

62

 

 

 

-

 

 

 

-

 

 

 

-

 

Hedge ineffectiveness

 

 

-

 

 

 

-

 

 

 

-

 

 

 

-

 

Defeasance costs included in net gains (losses) on sale of assets

 

 

2,748

 

 

 

0.04

 

 

 

1,396

 

 

 

0.03

 

(Gains) losses on extinguishment of debt

 

 

572

 

 

 

0.01

 

 

 

558

 

 

 

0.01

 

Acquisition related debt extinguishment expenses

 

 

2,781

 

 

 

0.04

 

 

 

-

 

 

 

-

 

(Gains) losses on TSRE merger and property acquisitions

 

 

-

 

 

 

-

 

 

 

(732

)

 

 

(0.02

)

Core Funds From Operations (CFFO)

 

$

40,355

 

 

$

0.55

 

 

$

31,543

 

 

$

0.63

 

28


 

 

 

(1)

Based on 75,009,859 and 72,801,899 weighted-average shares and units outstanding for the three and nine months ended September 30, 2017, respectively.

 

(2)

Based on 50,229,637 and 50,105,147 weighted-average shares and units outstanding for the three and nine months ended September 30, 2016, respectively.

Same Store Portfolio Net Operating Income

We believe that Net Operating Income (“NOI”), a non-GAAP measure, is a useful measure of our operating performance. We define NOI as total property revenues less total property operating expenses, excluding depreciation and amortization, asset management fees, property management fees, acquisition expenses, and general and administrative expenses. In connection with our management internalization, which was completed in the fourth quarter of 2016, we modified our calculation of NOI to exclude property management expenses. We retrospectively adjusted previously reported NOI to conform to this change. Other REITs may use different methodologies for calculating NOI, and accordingly, our NOI may not be comparable to other REITs. We believe that this measure provides an operating perspective not immediately apparent from GAAP operating income or net income. We use NOI to evaluate our performance on a same store and non-same store basis because NOI measures the core operations of property performance by excluding corporate level expenses and other items not related to property operating performance and captures trends in rental housing and property operating expenses. However, NOI should only be used as an alternative measure of our financial performance.

29


 

We review our same store properties or portfolio at the beginning of each calendar year.  Properties a re added into the same store portfolio if they were owned at the beginning of the previous year.  Properties that have been sold or are classified as held for sale are excluded from the same store portfolio.

Set forth below is a reconciliation of same store net operating income to net income (loss) available to common shares for the three and nine months ended September 30, 2017 and 2016 (in thousands, except per unit data):

 

 

Three Months Ended September 30, (a)

 

Nine Months Ended September 30, (a)

 

 

2017

 

 

2016

 

 

% change

 

2017

 

 

2016

 

 

% change

 

Revenue:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Rental income

$

32,483

 

 

$

31,698

 

 

 

2.5

%

 

 

$

96,587

 

 

$

93,313

 

 

 

3.5

%

Reimbursement and other income

 

3,913

 

 

 

3,645

 

 

 

7.4

%

 

 

 

11,513

 

 

 

10,640

 

 

 

8.2

%

Total revenue

 

36,396

 

 

 

35,343

 

 

 

3.0

%

 

 

 

108,100

 

 

 

103,953

 

 

 

4.0

%

Operating Expenses

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Real estate taxes

 

4,388

 

 

 

4,280

 

 

 

2.5

%

 

 

 

13,153

 

 

 

12,845

 

 

 

2.4

%

Property insurance

 

747

 

 

 

748

 

 

 

-0.1

%

 

 

 

2,348

 

 

 

2,254

 

 

 

4.2

%

Personnel expenses

 

3,573

 

 

 

3,449

 

 

 

3.6

%

 

 

 

10,456

 

 

 

10,038

 

 

 

4.2

%

Utilities

 

2,353

 

 

 

2,280

 

 

 

3.2

%

 

 

 

6,699

 

 

 

6,540

 

 

 

2.4

%

Repairs and maintenance

 

1,550

 

 

 

1,460

 

 

 

6.2

%

 

 

 

4,117

 

 

 

3,816

 

 

 

7.9

%

Contract services

 

1,074

 

 

 

1,060

 

 

 

1.3

%

 

 

 

3,207

 

 

 

3,254

 

 

 

-1.4

%

Advertising expenses

 

397

 

 

 

399

 

 

 

-0.5

%

 

 

 

1,161

 

 

 

1,198

 

 

 

-3.1

%

Other expenses

 

662

 

 

 

844

 

 

 

-21.6

%

 

 

 

2,156

 

 

 

2,254

 

 

 

-4.3

%

Total operating expenses

 

14,744

 

 

 

14,520

 

 

 

1.5

%

 

 

 

43,297

 

 

 

42,199

 

 

 

2.6

%

Net operating income

$

21,652

 

 

$

20,823

 

 

 

4.0

%

 

 

$

64,803

 

 

$

61,754

 

 

 

4.9

%

NOI Margin

 

59.5

%

 

 

58.9

%

 

 

0.6

%

 

 

 

59.9

%

 

 

59.4

%

 

 

0.5

%

Average Occupancy

 

94.7

%

 

 

94.3

%

 

 

0.4

%

 

 

 

94.5

%

 

 

93.5

%

 

 

1.0

%

Average effective monthly rent, per unit

$

1,020

 

 

$

999

 

 

 

2.2

%

 

 

$

1,014

 

 

$

984

 

 

 

3.0

%

Reconciliation of Same-Store Net Operating Income to Net Income (Loss)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Same-store portfolio net operating income (a)

$

21,652

 

 

$

20,823

 

 

 

 

 

 

 

$

64,803

 

 

$

61,754

 

 

 

 

 

Non same-store net operating income

 

2,016

 

 

 

1,434

 

 

 

 

 

 

 

 

5,281

 

 

 

6,015

 

 

 

 

 

Property management income

 

202

 

 

 

-

 

 

 

 

 

 

 

 

579

 

 

 

-

 

 

 

 

 

Property management expenses

 

(1,328

)

 

 

(1,219

)

 

 

 

 

 

 

 

(4,310

)

 

 

(3,710

)

 

 

 

 

General and administrative expenses

 

(2,322

)

 

 

(2,665

)

 

 

 

 

 

 

 

(7,128

)

 

 

(8,074

)

 

 

 

 

Acquisition and integration expenses

 

(569

)

 

 

(19

)

 

 

 

 

 

 

 

(956

)

 

 

(37

)

 

 

 

 

Depreciation and amortization

 

(8,671

)

 

 

(7,765

)

 

 

 

 

 

 

 

(24,289

)

 

 

(26,927

)

 

 

 

 

Interest expense

 

(6,963

)

 

 

(8,820

)

 

 

 

 

 

 

 

(21,573

)

 

 

(27,815

)

 

 

 

 

Hedge ineffectiveness

 

12

 

 

 

-

 

 

 

 

 

 

 

 

-

 

 

 

-

 

 

 

 

 

Other income (expense)

 

-

 

 

 

(2

)

 

 

 

 

 

 

 

(5

)

 

 

(2

)

 

 

 

 

Net gains (losses) on sale of assets

 

(92

)

 

 

(1

)

 

 

 

 

 

 

 

15,873

 

 

 

31,773

 

 

 

 

 

Gains (losses) on extinguishment of debt

 

-

 

 

 

-

 

 

 

 

 

 

 

 

(572

)

 

 

(558

)

 

 

 

 

Acquisition related debt extinguishment expenses

 

(2,781

)

 

 

-

 

 

 

 

 

 

 

 

(2,781

)

 

 

-

 

 

 

 

 

Gains (losses) on TSRE merger

 

-

 

 

 

641

 

 

 

 

 

 

 

 

-

 

 

 

732

 

 

 

 

 

Net income (loss) available to common shares

$

1,156

 

 

$

2,407

 

 

 

 

 

 

 

$

24,922

 

 

$

33,151

 

 

 

 

 

 

(a)

Same store portfolio for the three and nine months ended September 30, 2017 and 2016 included 42 properties containing 11,676 units.

Liquidity and Capital Resources

Liquidity is a measure of our ability to meet potential cash requirements, including ongoing commitments to repay borrowings, fund and maintain investments, pay distributions and other general business needs.  We believe our available cash balances, financing arrangements and cash flows from operations will be sufficient to fund our liquidity requirements with respect to our existing portfolio for the next 12 months and the foreseeable future.

30


 

Our primary cash requirements are to:

 

make investments and fund the associated costs;

 

repay our indebtedness;

 

pay our operating expenses; and

 

distribute a minimum of 90% of our REIT taxable income (determined without regard to the deduction for dividends paid and excluding net capital gain) and to make investments in a manner that enables us to maintain our qualification as a REIT.

We intend to meet these liquidity requirements primarily through:

 

the use of our cash and cash equivalent balance of $10.1 million as of September 30, 2017;

 

existing and future financing secured directly or indirectly by the apartment properties in our portfolio;

 

cash generated from operating activities;

 

net cash proceeds from property sales implementing our capital recycling strategy and other sales;

 

proceeds from the sale of our common stock; and

 

if required, proceeds from future borrowings and offerings.

 

On May 1, 2017, we closed on a new $300.0 million unsecured credit facility, refinancing and terminating the previous secured credit facility. The new facility is comprised of a $50.0 million term loan and a revolving commitment of up to $250.0 million. The maturity date on the new term loan is May 1, 2022, and the maturity date on borrowings outstanding under the revolving commitment is May 1, 2021, extending the September 17, 2018 maturity of the previous secured credit facility. Based on our current leverage levels, our annual interest cost is LIBOR plus 145 basis points under the term loan and LIBOR plus 150 basis points for borrowings outstanding under the revolving commitments, an annual savings of approximately 35 to 40 basis points from our previous secured credit facility.

Cash Flows

As of September 30, 2017 and 2016, we maintained cash and cash equivalents of approximately $10.1 million and $29.2 million, respectively. Our cash and cash equivalents were generated from the following activities (dollars in thousands):

 

 

 

For the Nine Months Ended September 30,

 

 

 

2017

 

 

2016

 

Cash flow provided by operating activities

 

$

45,056

 

 

$

33,330

 

Cash flow (used in) provided by investing activities

 

 

(145,884

)

 

 

29,036

 

Cash flow (used in) provided by financing activities

 

 

90,064

 

 

 

(71,420

)

Net change in cash and cash equivalents

 

 

(10,764

)

 

 

(9,054

)

Cash and cash equivalents at beginning of period

 

 

20,892

 

 

 

38,301

 

Cash and cash equivalents at end of period

 

$

10,128

 

 

$

29,247

 

The increase in our cash flow from operating activities during the nine months ended September 30, 2017 was primarily driven by the increased performance of our property portfolio.

Our cash outflow from investing activities during the nine months ended September 30, 2017 was primarily due to seven property acquisitions partially offset by three property dispositions. Our cash inflow from investing activities during the nine months ended September 30, 2016 was primarily due to the disposition of three properties.  

Our cash inflow from financing activities during the nine months ended September 30, 2017 was primarily due to draws on our current and previous credit facilities related to the acquisitions of seven properties, partially offset by the proceeds from the issuance of our common stock. Our cash outflow from financing activities during the nine months ended September 30, 2016 was primarily due to repayments of mortgage indebtedness and the interim facility with proceeds from the three property dispositions.  

As a REIT, we evaluate our dividend coverage based on our cash flow from operating activities, excluding acquisition and integration expenses and changes in other assets and liabilities.  During the nine months ended September 30, 2017, we paid

31


 

distributions to ou r common stockholders and noncontrolling interests of $38 .9 million and generated cash flow from operating activities excluding acquisition and integration expenses and changes in oth er assets and liabilities of $40.4 million.

Off-Balance Sheet Arrangements

There were no off-balance sheet arrangements during the nine months ended September 30, 2017 that have or are reasonably likely to have a current or future effect on our financial condition, changes in financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources that are material to our interests.

Critical Accounting Estimates and Policies

Our 2016 Annual Report on Form 10-K contains a discussion of our critical accounting policies. On January 1, 2016, we adopted three new accounting pronouncements and revised our accounting policies as described in Note 2 to the Consolidated Financial Statements included in Part I, Item 1 of this report. Management discusses our critical accounting policies and management’s judgments and estimates with the audit committee of our board of directors.

 

 

Item 3.

Qualitative and Quantitative Disclosure About Market Risk.

Market risk is the adverse effect on the value of a financial instruments that results from a change in interest rates. We may be exposed to interest rate changes primarily as a result of long-term debt used to maintain liquidity, fund capital expenditures and expand our real estate investment portfolio and operations. Market fluctuations in real estate financing may affect the availability and cost of funds needed to expand our investment portfolio. In addition, restrictions upon the availability of real estate financing or high interest rates for real estate loans could adversely affect our ability to dispose of real estate in the future. We seek to limit the impact of interest rate changes on earnings and cash flows and to lower our overall borrowing costs. We may use derivative financial instruments to hedge exposures to changes in interest rates on loans secured by our assets. The market risk associated with interest-rate contracts is managed by establishing and monitoring parameters that limit the types and degree of market risk that may be undertaken. With regard to variable rate financing, we assess our interest rate cash flow risk by continually identifying and monitoring changes in interest rate exposures that may adversely impact expected future cash flows and by evaluating hedging opportunities. We maintain risk management control systems to monitor interest rate cash flow risk attributable to both our outstanding and forecasted debt obligations as well as our potential offsetting hedge positions. While this hedging strategy is designed to minimize the impact on our net income and funds from operations of changes in interest rates, the overall returns on any investment in our securities may be reduced. We currently have limited exposure to financial market risks.

We may also be exposed to credit risk in derivative contracts we may use. Credit risk is the failure of the counterparty to perform under the terms of the derivative contract. If the fair value of a derivative contract is positive, the counterparty will owe us, which creates credit risk for us. If the fair value of a derivative contract is negative, we will owe the counterparty and, therefore, do not have credit risk. We seek to minimize the credit risk in derivative instruments by entering into transactions with high-quality counterparties.

There have been no material changes in quantitative and qualitative market risks during the nine months ended September 30, 2017 from the disclosures included in our 2016 Annual Report on Form 10-K.

Item 4.

Controls and Procedures.

Disclosure Controls and Procedures

We maintain disclosure controls and procedures that are designed to ensure that information required to be disclosed in our reports under the Securities Exchange Act of 1934, as amended, or the Exchange Act, is recorded, processed, summarized, and reported within the time periods specified in the SEC’s rules and forms, and that such information is accumulated and communicated to our management, including our chief executive officer and our chief financial officer, as appropriate, to allow timely decisions regarding required disclosure. In designing and evaluating the disclosure controls and procedures, our management recognized that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control objectives, and our management necessarily was required to apply its judgment in evaluating the cost-benefit relationship of possible controls and procedures.

Under the supervision of our chief executive officer and chief financial officer and with the participation of our disclosure committee, we have carried out an evaluation of the effectiveness of our disclosure controls and procedures as of the end of the period covered by this report. Based upon that evaluation, our chief executive officer and chief financial officer concluded that our disclosure controls and procedures are effective at the reasonable assurance level.

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Changes in Internal Control Over Finan cial Reporting

There has been no change in our internal control over financial reporting or in other factors during the quarter ended September 30, 2017, that have materially affected, or were reasonably likely to materially affect, our internal control over financial reporting.

 

 

PART II—OTHER INFORMATION

Item 1.

Legal Proceedings.

We are subject to various legal proceedings and claims that arise in the ordinary course of our business operations. Matters which arise out of allegations of bodily injury, property damage, and employment practices are generally covered by insurance. While the resolution of these matters cannot be predicted with certainty, we currently believe the final outcome of such matters will not have a material adverse effect on our financial position, results of operations or cash flows .

 

Item 1A.

Risk Factors.

There have not been any material changes from the risk factors previously disclosed in Item 1A—“Risk Factors” in our 2016 Annual Report on Form 10-K.

Item 2.

Unregistered Sales of Equity Securities and Use of Proceeds.

 

We have previously disclosed four “UPREIT” transactions completed in May 2014, August 2014, November 2014 and December 2014 wherein IROP issued, in the aggregate, 1,282,449 common units, or units, to unaffiliated entities or persons in order to acquire properties. In addition, we have previously disclosed that in September 2015, IROP issued 1,925,419 units, plus cash in lieu of fractional TSR OP units, in a transaction related to the TSRE acquisition.  In June 2017, IROP issued 166,604 units in connection with our acquisition of South Terrace. All such issuances were exempt from registration pursuant to Section 4(a)(2) of the Securities Act. No underwriters were involved with such issuances. As previously disclosed, these units are subject to exchange agreements containing the terms and conditions under which the units could be exchanged for cash in an amount equal to the value of an equivalent number of shares of our common stock as of the date IROP receives the holder’s notice of its desire to exchange the units for cash or, at IROP’s option, for the equivalent number of shares of our common stock. During the first half of 2017, IROP exchanged 39,899 units for 39,899 shares of our common stock (with fractional units being settled in cash). At September 30, 2017, there were 3,035,654 units held by unaffiliated third parties outstanding.  The issuance of the shares of our common stock in these exchanges was exempt from registration pursuant to Section 4(a)(2) of the Securities Act and Rule 506 of Regulation D; all the persons receiving such shares were accredited investors. No underwriters were involved with such issuances.

 

Item 3.

Defaults Upon Senior Securities.

None.

 

Item 4.

Mine Safety Disclosures.

None.

 

Item 5.

Other Information.

 

None.

Item 6.

Exhibits.

The following exhibits are filed as part of, or incorporated by reference into, this Quarterly Report on Form 10-Q.

 

10.1

 

HPI Purchase and Sale Agreement dated September 3, 2017, filed herewith.

 

 

 

10.2

 

First Amendment to HPI Purchase and Sale Agreement dated September 25, 2017, filed herewith.

 

 

 

10.3

 

Second Amendment to HPI Purchase and Sale Agreement dated October 24, 2017, filed herewith.

 

 

 

12.1

 

Statements regarding computation of ratios as of September 30, 2017, filed herewith.

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31.1

 

Certification of the Principal Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002, filed herewith.

 

 

 

31.2

 

Certification of the Principal Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002, filed herewith.

 

 

 

32.1

 

Certification of Chief Executive Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, filed herewith.

 

 

 

32.2

 

Certification of Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, filed herewith.

 

 

 

101

 

XBRL (eXtensible Business Reporting Language). The following materials, formatted in XBRL: (i) Consolidated Balance Sheets as of September 30, 2017 and December 31, 2016, (ii) Consolidated Statements of Operations for the three and nine months ended September 30, 2017 and 2016, (iii) Consolidated Statement of Comprehensive Income (Loss) for the three and nine months ended September 30, 2017 and 2016, (iv) Consolidated Statements of Changes in Equity for the nine months ended September 30, 2017, (v) Consolidated Statements of Cash Flows for the nine months ended September 30, 2017 and 2016 and (vi) notes to the consolidated financial statements as of September 30, 2017.

 

 

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S IGNATURES

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.

 

 

 

Independence Realty Trust, Inc.

 

 

 

 

 

Date: October 31, 2017

 

By:

 

/s/ Scott f . Schaeffer  

 

 

 

 

Scott F. Schaeffer

 

 

 

 

Chairman of the Board and Chief Executive Officer

 

 

 

 

(Principal Executive Officer)

 

 

 

 

 

Date: October 31, 2017

 

By:

 

/s/ James J. Sebra

 

 

 

 

James J. Sebra

 

 

 

 

Chief Financial Officer and Treasurer

 

 

 

 

(Principal Financial Officer and Principal Accounting Officer)

 

 

 

 

35

Exhibit 10.1

 

PURCHASE AND SALE AGREEMENT

September 3, 2017

 

 

1


 

 

 

PURCHASE AND SALE AGREEMENT

T able of Contents

 

Article 1 AGREEMENt TO PURCHASE 2

 

Section 1.1

The Property2

 

Section 1.2

Purchase Price3

 

Section 1.3

Payment of Purchase Price4

 

Section 1.4

Loan Assumption6

Article 2 ESCROW 7

 

Section 2.1

Opening of Escrow7

 

Section 2.2

Closing Date8

 

Section 2. 3

Escrow Instructions9

 

Section 2.4

Conveyance of Title9

 

Section 2.5

Conditions to Buyer’s Obligations to Purchase10

 

Section 2.6

Conditions to Seller’s Obligation to Sell12

 

Section 2.7

Delivery of Documents by Escrow Holder13

 

Article 3 Inspections and review 14

 

Section 3.1

Access to Books and Records; Items to be Inspected and Revewied by Buyer14

 

Section 3.2

Physical Inspection15

 

Se ction 3.3

Approval of Title16

 

Article 4 PRORATIONS, CLOSING COSTS, AND DEPOSITS 18

 

Section 4.1

Proration of Taxes18

 

Section 4.2

Assumable Loans18

 

Section 4.3

Proration of Rents18

 

Section 4.4

Deposits19

 

Section 4.5

Utilities19

 

Section 4.6

Property Contracts19

 

Section 4.7

Insurance19

 

Section 4.8

Other19

 

Section 4.9

Closing Costs19

 

Section 4.10

Closing Statement20

 

Section 4.11

Liquidated Damages20

 

Section 4.12

Breach by Seller21

(i)

 

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Section 4.13

General 21

 

 

Article 4 as-is purchase; release; representations and warranties 21

 

Section 5.1

Disclaimer; Live Oak Repairs21

 

Section 5.2

Release and Waiver24

 

Section 5.3

Waiver of General Release Defenses24

 

Section 5.4

Natural Hazards24

 

Section 5.5

Lead Warning Statement25

 

Section 5.6

Radon25

 

Section 5.7

Survival25

 

Section 5.8

Representations25

 

Section 5.9

Representations and Warranties of Seller26

Article 6 miscellaneous 31

 

Section 6.1

Covenants of Seller Pending Closing31

 

Section 6.2

Risk of Physical Loss33

 

Section 6.3

Condemnation34

 

Section 6.4

Inentionally Omitted34

 

Section 6.5

Attorney’s Fees34

 

Sectio n 6.6

Waiver of Jury Trial34

 

Sectio n 6.7

Notices34

 

Sectio n 6.8

Entire Agreement35

 

Sectio n 6.9

Successors35

 

Sectio n 6.10

Assignment35

 

Sectio n 6.11

Governing Law; Jurisdiction36

 

Sectio n 6.12

Headings36

 

Sectio n 6.13

Time36

 

Sectio n 6.14

Time Period Communications36

 

Sectio n 6.15

Counterparts36

 

Sectio n 6.16

Brokerage Commissions37

 

Sectio n 6.17

Information Report37

 

Sectio n 6.18

Independent Counsel37

 

Sectio n 6.19

Acceptance of Deed37

 

Sectio n 6.20

Buyer’s Delivery of Work Product37

 

Sectio n 6.21

Intentionally Omitted38

 

Section 6. 22

No Third Party Beneficiary38

 

Sectio n 6.23

Limited Liability38

 

Sectio n 6.24

Seller’s Maximum Aggregate Liability; Minimum Claim38

 

Section 6. 2 5

Conditions to Closing39

 

Section 6. 26

Incorporation39

 

 

 

 

 

(ii)

 

2


 

 

 

 

List of Schedules and Exhibits

 

Exhibit A-1: Legal Description – Live Oak Property

Exhibit A-2: Legal Description – Tides Property

Exhibit A-3: Legal Description – Tides Vacant Land Property

Exhibit A-4: Legal Description – Cherry Grove Property

Exhibit A-5: Legal Description – Brunswick Point Property

Exhibit A-6: Legal Description – Creekside Property

Exhibit A-7: Legal Description – Schirm Farms Property

Exhibit A-8: Legal Description – Hartshire Property

Exhibit A-9: Legal Description – Kensington Property

Exhibit A-10: Legal Description – Riverchase Property

Exhibit B-1: Loan Documents – Hartshire Seller

Exhibit B-2: Loan Documents – Brunswick Point Seller

Exhibit B-3: Loan Documents – Creekside Seller

Exhibit C: Defeased Loans

Exhibit D-1: Deed – Brunswick Point

Exhibit D-2: Deed – Cherry Grove

Exhibit D-3: Deed -  Creekside

Exhibit D-4: Deed – Live Oak

Exhibit D-5: Deed – Tides and Tides Vacant Land

Exhibit E: Original Assignment of Leases

Exhibit F: Original Assignment of Contracts

Exhibit G: Original Bill of Sale

Exhibit H: Due Diligence Items

Exhibit I: Inventory of Personal Property

Exhibit J: Intentionally Omitted

Exhibit K: Form of Assignment and Assumption of Limited Liability Company Interest

Exhibit L: Form of Survey Affidavit of No Change

Exhibit M: Form of Non-Imputation Affidavit

Exhibit N: Form of Auditor Representation Letter

 

Schedule 1: Selling Entities and Real Property

Schedule 4.9(c): Transfer/Documentary Stamp Tax , Title Premium and Search and Exam Fee Allocations

Schedule 5.1(c): Live Oak Repairs

Schedule 5.9(b): IN/OH Property Owner’s Organizational Documents

Schedule 5.9(h): Pending Litigation

Schedule 5.9(k)-1: Rent Roll

Schedule 5.9(k)-2: Arrearage Report

Schedule 5.9(l): Property Contracts

(iii)

 

3


Execution Copy

 

 

PURCHASE AND SALE AGREEMENT

THIS PURCHASE AND SALE AGREEMENT (this “ Agreement ”) is made as of the 3rd day of September, 2017 (the “ Effective Date ”), by and between THE ENTITIES LISTED ON SCHEDULE 1 ATTACHED HERETO , each a Delaware limited liability company, with an address c/o Hamilton Point Investments LLC, 2 Huntley Road, Old Lyme, Connecticut 06371 (individually and collectively as the context may require, “ Property Seller ”), HPI REAL ESTATE OPPORTUNITY FUND III, LLC , a Delaware limited liability company, with an address c/o Hamilton Point Investments LLC, 2 Huntley Road, Old Lyme, Connecticut 06371 (“ Entity Seller ” and collectively with the Property Seller as the context may require, “ Seller ”) and INDEPENDENCE REALTY OPERATING PARTNERSHIP, LP , a Delaware limited partnership, with an address c/o Independence Realty Trust, Two Liberty Place, 50 S. 16 th Street, Suite 3575, Philadelphia, Pennsylvania 19102 (“ Buyer ”).

 

RECITALS:

A. Each Property Seller is the owner of the GA/LA/NC/SC Real Property (as defined below) and the GA/LA/NC/SC Improvements (as defined below) set forth opposite its name on Schedule 1 , and the GA/LA/NC/SC Personal Property (as defined below) associated with such GA/LA/NC/SC Real Property and GA/LA/NC/SC Improvements.

B. The Entity Seller is the owner of one hundred percent (100%) of the limited liability company interests in (i) HPI Hartshire LLC, a Delaware limited liability company (“ Hartshire Property Owner ”), (ii) HPI Kensington Commons LLC, a Delaware limited liability company (“ Kensington Property Owner ”), (iii) HPI Riverchase LLC, a Delaware limited liability company (“ Riverchase Property Owner ”) and (iv) HPI Schirm Farms LLC, a Delaware limited liability company (“ Schirm Farms Property Owner ” and collectively with the Hartshire Property Owner, Kensington Property Owner and Riverchase Property Owner, individually and collectively as the context may require, the “ IN/OH Property Owner ” and together with Property Seller hereinafter collectively referred to as the “ Property Owners ”).  Each IN/OH Property Owner is the owner of the IN/OH Real Property (as defined below) and the IN/OH Improvements (as defined below) set forth opposite its name on Schedule 1 , and the IN/OH Personal Property (as defined below) associated with such IN/OH Real Property and IN/OH Improvements.

C. Property Seller desires to sell, and Buyer desires to purchase, the GA/LA/NC/SC Property (as hereinafter defined) upon and subject to the terms and conditions hereinafter set forth.

D. Entity Seller desires to sell, transfer and assign and Buyer desires to acquire and assume (i) one hundred percent (100%) of the limited liability company interests in Hartshire Property Owner (the “ Hartshire Limited Liability Company Interests ”), (ii) one hundred percent (100%) of the limited liability company interests in Kensington Property Owner (the “ Kensington Limited Liability Company Interests ”), (iii) one hundred percent (100%) of the limited liability company interests in Riverchase Property Owner (the “ Riverchase Limited

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Liability Company Interests ”) and (iv) one hundred percent (100%) of the limited liability company interests in Schirm Farms Property Owner (the “ Schirm Farms Limited Liability Company Interests ” and collectively with the Hartshire Limited Liability Company Interests, Kensington Limited Liability Company Interests and Riverchase Limited Liability Company Interests, individually and collectively as the context may require, the “ Limited Liability Company Interests ”).

AGREEMENTS:

NOW, THEREFORE , in consideration of the representations, warranties, agreements, covenants and conditions contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller and Buyer agree as follows:

ARTICLE 1
AGREEMENT TO PURCHASE

1.1 The Property .  Subject to all of the terms, conditions and provisions of this Agreement, and for the consideration herein set forth:

(a) Property Seller hereby agrees to sell and Buyer hereby agrees to buy that certain real property (the “ GA/LA/NC/SC Real Property ”) legally described on Exhibits A-1 through A-6 attached hereto, which GA/LA/NC/SC Real Property is improved with one or more multifamily apartment buildings (the “ GA/LA/NC/SC Improvements ”), together with Property Seller’s interest (if any) in and to (i) all appurtenances, streets, alleys, easements, rights-of-way in or to all streets or other interests in, on, across, in front of, abutting, or adjoining the GA/LA/NC/SC Real Property, (ii) all rights in contracts, agreements, leases, warranties, guarantees and bonds respecting the GA/LA/NC/SC Real Property and GA/LA/NC/SC Improvements, (iii) all licenses, permits, authorizations and approvals issued by governmental authorities respecting the GA/LA/NC/SC Real Property and GA/LA/NC/SC Improvements, (iv) all plans, specifications and surveys of the GA/LA/NC/SC Real Property and GA/LA/NC/SC Improvements, and (v) all tangible personal property (“ GA/LA/NC/SC Personal Property ”) owned by Property Seller and located at the GA/LA/NC/SC Improvements as described on Exhibit I attached hereto, (vi) all intangible personal property and intellectual property owned by Property Seller respecting the GA/LA/NC/SC Real Property and GA/LA/NC/SC Improvements including, without limitation, any and all copyrights, trademarks and goodwill, (vii) all of the rights, title, interests, privileges and appurtenances which are related to or used in connection with the GA/LA/NC/SC Real Property and GA/LA/NC/SC Improvements including, but not limited to, all applicable websites, domain names and artwork, air rights, development rights, sewer rights, mineral rights and water rights related to the GA/LA/NC/SC Real Property and/or GA/LA/NC/SC Improvements.  The GA/LA/NC/SC Real Property, the GA/LA/NC/SC Improvements, the GA/LA/NC/SC Personal Property and all other items and rights described above in this Section 1.1(a) and set forth on Schedule 1 attached hereto and that certain real property (the “ IN/OH Real Property ”) legally described on Exhibits A-7 through A-10 attached hereto, which IN/OH Real Property is improved with one or more multifamily apartment buildings (the “ IN/OH Improvements ”), together with IN/OH Property Owner’s interest (if any) in and to (i) all appurtenances, streets, alleys, easements, rights-of-way in or to all streets or other

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interests in, on, across, in front of, abutting, or adjoining the IN/OH Real Property, (ii) all rights in contracts, agreements, leases, warranties, guarantees and bonds respecting the IN/OH Real Property and IN/OH Improvements, (iii) all licenses, permits, authorizations and approvals issued by governmental authorities respecting the IN/OH Real Property and IN/OH Improvements, (iv) all plans, specifications and surveys of the IN/OH Real Property and IN/OH Improvements, and (v) all tangible personal property (“ IN/OH Personal Property ”) owned by IN/OH Property Owner and located at the IN/OH Improvements as described on Exhibit I attached hereto, (vi) all intangible personal property and intellectual property owned by IN/OH Property Owner respecting the IN/OH Real Property and IN/OH Improvements including, without limitation, any and all copyrights, trademarks and goodwill, (vii) all of the rights, title, interests, privileges and appurtenances which are related to or used in connection with the IN/OH Real Property and IN/OH Improvements including, but not limited to, all applicable websites, domain names and artwork, air rights, development rights, sewer rights, mineral rights and water rights related to the IN/OH Real Property and/or IN/OH Improvements are individually referred to herein as an “ Individual Property ” and collectively referred to herein as the “ Property .”   Notwithstanding any provision to the contrary herein, it is acknowledged and agreed that the IN/OH Real Property and IN/OH Improvements comprising the Kensington Property (as defined below) consists of 264 condominium units located at the Kensington Property, as such Units are numbered, described and shown of record in the Declaration of Condominium and By-Laws of Condominium Association for Kensington Condominium (the “ Declaration ”), of record as Instrument No. 201312300211669, Recorder’s Office, Franklin County, Ohio; and in Condominium Plat Book 236, Page 91, Recorder’s Office, Franklin County, Ohio (the “ Plat ”). The property described and/or depicted in the Declaration and the Plat shall hereinafter be referred to collectively as the “ Condominium ”. The Kensington Property Owner’s right, title and interest in the Units shall include all of Kensington Property Owner’s undivided interest in all of the common elements in the Condominium, all of Kensington Property Owner’s declarant rights and any and all of Kensington Property Owner’s rights as an officer or director of the Association for the Condominium.

(b) Entity Seller agrees to sell and Buyer agrees to buy, free and clear of any and all liens and encumbrances, the Limited Liability Company Interests.

1.2 Purchase Price .  Subject to Section 5.1(b) hereof, the purchase price which Seller agrees to accept and Buyer agrees to pay for the GA/LA/NC/SC Property and the Limited Liability Company Interests is the aggregate sum of TWO HUNDRED TWENTY-EIGHT MILLION ONE HUNDRED FORTY-FOUR THOUSAND AND 00/100 DOLLARS ($228,144,000.00) (the “ Purchase Price ”). Seller and Buyer agree that the Purchase Price shall be attributable among the Individual Properties pursuant to purchase price allocations determined by Buyer and reasonably approved by Seller prior to the expiration of the Due Diligence Period (as defined below) (the “ Individual Property Allocations ”).  Seller and Buyer agree that the Individual Property Allocations may be further allocated among (i) the Real Property, (ii) the Improvements, and (iii) the Personal Property, in each case with respect to each Individual Property as may be determined by mutual agreement of Seller and Buyer for federal, state and local tax purposes.

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1.3 Payment of Purchase Price .  The Purchase Price shall be paid by Buyer as follows:

(a) Deposit .  Within five (5) business days after the Effective Date, Buyer shall deliver to Escrow Holder (as hereinafter defined) the sum of FIVE MILLION AND 00/100 DOLLARS ($5,000,000.00) (together with any interest thereon, the “ Deposit ”).  Immediately upon delivery thereof by Buyer, the Deposit shall be deposited by Escrow Holder in an interest-bearing account with interest thereon to accrue for the benefit of Buyer, and such Deposit shall be applied in accordance with the terms of this Agreement.  Upon the Defeasance Close of Escrow (as hereinafter defined), a portion of the Deposit equal to Three Million Three Hundred Thirty-Three Thousand Three Hundred Thirty-Three and 33/100 Dollars ($3,333,333.33) (the “ Defeasance Property Deposit ”) shall be applied as a credit to the Purchase Price payable at the Defeasance Closing (as defined below) in accordance with the Individual Property Allocations for the Defeasance Property (as defined below) (the “ Defeasance Property Purchase Price ”).  Upon the Assumption Close of Escrow, the remaining portion of the Deposit (e.g., $1,666,666.67 plus any interest accrued on the Deposit) (the “ Assumption Property Deposit ” and together with the Defeasance Property Deposit collectively referred to herein as the “ Deposit ”) shall be applied as a credit to the Purchase Price payable at the Assumption Closing (as defined below) in accordance with the Individual Property Allocations for the Assumption Property (as defined below) (the “ Assumption Property Purchase Price ” and together with the Defeasance Property Purchase Price collectively referred to herein as the “ Purchase Price ”).  A portion of the Deposit in the amount of Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00) shall be deemed earned by Seller as of the date hereof and shall be non-refundable to Buyer except as expressly set forth herein (the “ Non-Refundable Portion ”); provided, however, that a portion of the Non-Refundable Portion equal to One Hundred Sixty-Six Thousand Six Hundred Sixty-Sixty and 67/100 Dollars ($166,666.67) shall be applied as a credit to the Defeasance Property Purchase Price at the Defeasance Closing, and the remainder of the Non-Refundable Portion (e.g., $83,333.33) shall be applied as a credit to the Assumption Property Purchase Price at the Assumption Closing.

(b) Assumed Indebtedness .  Buyer shall assume (i) that certain mortgage loan in the original principal amount of Sixteen Million and 00/100 Dollars ($16,000,000.00) made to the Hartshire Property Owner, (ii) that certain mortgage loan in the original principal amount of Nineteen Million and 00/100 Dollars ($19,000,000.00) made to the Brunswick Point Seller and (iii) that certain mortgage loan in the original principal amount of Twenty-Three Million Five Hundred Thousand and 00/100 Dollars ($23,500,000.00) made to the Creekside Seller (collectively, the “ Assumable Loans ”).  The documents evidencing and securing the Assumable Loans are listed on Exhibits B-1 through B-3 attached hereto (collectively, the “ Loan Documents ”).   Buyer shall take title to the Hartshire Property (through its purchase of the Hartshire Limited Liability Company Interests), the Brunswick Point Property and the Creekside Property subject to and shall assume the Assumable Loans (for purposes hereof, the “ Loan Assumption ”) as more fully set forth in Section 1.4 below.  At the Assumption Closing, Buyer shall be entitled to a credit against the Assumption Purchase Price equal to the outstanding principal balance of the Assumable Loans.  Seller represents that the outstanding principal balance of the Assumable Loans is Fifty-Eight Million Five Hundred Thousand and 00/100 Dollars ($58,500,000.00).

(c) Balance of Purchase Price .  

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(i) The Defeasance Property P urchase Price , less the Defeasance Property Deposit , as adjusted by the prorations and expenses to be received or paid by Buyer at the Defeasance Closing pursuant to this Agreement, shall be paid by Buyer to Escrow Holder prior to the Defeasance Closing Date (as hereinafter defined) in cash or by wire transfer of funds.   

(ii) The sum of (A) the Assumption Property Purchase Price and (B) if Buyer does not exercise its right to terminate this Agreement solely with respect to the Live Oak Property pursuant to Section 5.1(b) below, the Individual Property Allocation for the Live Oak Property (as defined below), less (A) the Assumption Property Deposit and (B) the outstanding principal balance of the Assumable Loans, as adjusted by the prorations and expenses to be received or paid by Buyer at the Assumption Closing pursuant to this Agreement, shall be paid by Buyer to Escrow Holder prior to the Assumption Closing Date (as hereinafter defined) in cash or by wire transfer of funds.  

(d) Net Amount to Seller; Defeasance and other Prepayment Penalties .  It is expressly agreed that except as set forth in subsection (c) above, the Purchase Price shall be net to Seller.  Buyer shall pay all costs associated with the prepayment or defeasance of all mortgage loans set forth on Exhibit C attached hereto (the “ Defeased Loans ”), including but not limited to, prepayment or yield maintenance premiums, defeasance premiums above the principal amount of the Defeased Loans, defeasance deposits, custodial fees, accountants’ fees, successor borrower fees and servicer fees and expenses including legal fees (all of the foregoing, the “ Defeasance/Prepayment Costs ”).  Buyer acknowledges that the cost of the securities required to defease the Defeased Loans will most likely exceed the principal balance of the Defeased Loans and that Buyer is responsible for the payment of such excess.  Seller shall pay only the outstanding principal amount of the Defeased Loans at the Defeasance Close of Escrow from the Defeasance Property Purchase Price and any of Seller’s counsel fees with respect to coordinating the defeasance of the Defeased Loans.  Seller shall retain, at Buyer’s expense, a defeasance consultant reasonably acceptable to Buyer on terms acceptable to Buyer (the “ Defeasance Consultant ”).  Seller shall take all actions reasonable and necessary to coordinate and complete the defeasance of the Defeased Loans with the Defeasance Consultant and, except for paying the Defeasance/Prepayment Costs at the Defeasance Closing and otherwise reasonably cooperating with Seller and the Defeasance Consultant, Buyer shall have no other responsibilities with respect thereto.  At Buyer’s option upon written notice to Seller, Buyer may instead seek to assume one or more of the Defeased Loans, in which case such loan(s) shall each be treated as an Assumable Loan for purposes hereof and shall be governed by Section 1.4 below, and such Individual Property shall thereafter be treated as part of the Assumption Property for purposes hereof.

(e) Indivisible Economic Package .  Except as otherwise expressly set forth in Section 5.1(b) (Live Oak Repairs), Section 6.2 (Risk of Physical Loss) and Section 6.3 (Condemnation) below, Buyer has no right to purchase, and Seller has no obligation to sell, less than (i) all of the Property owned by Property Seller and (ii) all of the Limited Liability Company Interests, it being the express agreement and understanding of Buyer and Seller that, as a material inducement to Seller and Buyer to enter into this Agreement, Buyer has agreed to purchase, and Property Seller and Entity Seller, as applicable, have agreed to sell, in the aggregate, each of the Individual Properties owned by Property Seller and the Limited Liability Company Interests, subject to and in accordance with the terms and conditions hereof.

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1.4 Loan Assumption .

 

(a) Seller shall make written request within five (5) business days after the Effective Date for the application package from the lender servicing the Assumable Loans (the “ Lender ”) that is required for the Loan Assumption (the “ Assumption Package ”).

(b) Buyer shall submit a written application to the Lender for the Loan Assumption within ten (10) days after receipt of the Assumption Package.  Buyer shall then proceed and diligently pursue in good faith obtaining a conditional commitment from Lender for the Loan Assumption as of Closing (the “ Assumption Approval ”).  Buyer shall pay all deposits, fees, payments and expenses required or charged by Lender, including without limitation processing fees, application fees, assumption fees, inspection fees, closing fees, Lender’s counsel fees and, except for the Assumption Consultant (as defined below), expenses of consultants arising out of resulting from or related to the Assumption Approval (the “ Assumption Costs ”), and Buyer’s obligations, liabilities and duties in this regard shall survive the Closing or earlier termination of this Agreement.  Seller’s only expense with respect to the Assumption shall be the payment of fees to 1 st Service Solutions, Inc. (the “ Assumption Consultant ”) retained by Seller to expedite the Assumption Approval.  Buyer shall reasonably cooperate in good faith with the requests of the Assumption Consultant in seeking the Assumption Approval.

(c) Buyer’s agreement to obtain Assumption Approval shall be conditioned upon Lender approving Buyer for assumption of the Assumable Loans on terms and conditions that are the same as the terms and conditions of the Loan Documents in all material respects and without material modification to the Loan Documents.  Buyer shall not request any material modifications to the terms of the Loan Documents in seeking the Assumption Approval; provided, however, it shall be a condition of the assumption of the Assumable Loans that (i) none of Buyer or any other parties that Lender may require to incur liability in the form of recourse guaranties or environmental indemnities in order to approve Buyer for assumption of the Assumable Loans (each a “ Buyer Guaranty Party ”) shall be liable on the Assumable Loans for any claims, actions, causes of action, suits, proceedings, demands, rights, damages, costs, expenses or other compensation whatsoever first arising prior to the Closing Date under recourse guaranties or environmental indemnities (collectively, “ Pre-Closing Claims ”); or (ii) if the Lender requires Buyer or any Buyer Guaranty Party to be liable on the Assumable Loans for Pre-Closing Claims as a condition to the Assumption Approval, then an affiliate of Seller reasonably acceptable to Buyer shall deliver to Buyer at the Closing an indemnification agreement in form and substance mutually acceptable to Buyer and Seller wherein such affiliate of Seller shall indemnify, defend (with counsel reasonably acceptable to Buyer) and hold harmless Buyer any each Buyer Guaranty Party with respect to all Pre-Closing Claims.  Within five (5) days after receiving the initial draft of the assumption agreement, Buyer shall notify Seller whether the language with respect to the assumption of guarantor liability is acceptable to Buyer for purposes of this Section 1.4(c).  In the event Lender requires any modifications to the terms of the Loan Documents, other than ministerial changes needed to reflect the assumption of the Assumable Loans, the substitution of the borrower and any guarantors and changes to the transfer provisions in light of Buyer’s structure, Buyer shall have the right to terminate this Agreement as provided in Section 2.5 and receive a return of the Deposit only, less the Non-Refundable Portion which shall be paid to Seller.

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(d) In connection with the Assumption Approval, Buyer shall be entitled to obtain a statement from Lender to Buyer for assumption purposes that includes (a) confirmation as to the outstanding principal balance and all accrued interest and other charges due with respect to the Loan as of the Closing; (b) any reserve deposits which will be held by Lender as of the Closing and (c) confirmation that there are no known outstanding defaults or circumstances that with the passage of time or giving of notice, or both, will become a default under the Loan Documents.

(e) Seller shall cooperate with Buyer in pursuing the Assumption Approval, but it shall be a condition of the assumption that Seller, and any other parties with liability on the Assumable Loans in the form of recourse guaranties or environmental indemnities (each a “ Seller Guaranty Party ”), be released from liability on the Assumable Loans for all claims, actions, causes of action, suits, proceedings, demands, rights, damages, costs, expenses or other compensation whatsoever first arising from and after the date of Closing under recourse guaranties or environmental indemnities (collectively, “ Post-Closing Claims ”).  If Lender does not grant such release, an entity reasonably acceptable to Seller shall deliver to Seller at the Closing an indemnification agreement in form and substance mutually acceptable to Buyer and Seller wherein Buyer shall indemnify, defend (with counsel reasonably acceptable to Seller) and hold harmless Seller and each Seller Guaranty Party with respect to all Post-Closing Claims.  Within five (5) days after receiving the initial draft of the assumption agreement, Seller shall notify Buyer whether the release language with respect to Post-Closing Claims is acceptable to Seller for purposes of this Section 1.4(e).

(f) Buyer will credit Seller with the amount of any escrows held by Lender in connection with the Assumable Loans, so long as such escrows remain with the Loan and are transferred to Buyer at Closing.

ARTICLE 2
ESCROW

2.1 Opening of Escrow .  Closing of the sale of the GA/LA/NC/SC Property and the Limited Liability Company Interests shall take place through an escrow (“ Escrow ”) to be established with Land Services USA, Inc., 1835 Market Street, Suite 420, Philadelphia, Pennsylvania 19103, Attn: Michael G. Moyer, Esquire, 215-255-8989, mmoyer@lsutitle.com ( Escrow Holder ”).  Escrow shall be deemed open upon delivery of a fully executed copy of this Agreement to Escrow Holder (“ Opening of Escrow ”).  Upon receipt of a fully executed copy of this Agreement, Escrow Holder shall compile any counterpart signatures into one document, execute the Escrow Holder’s acceptance attached hereto and date the acceptance the date of Opening of Escrow.  Escrow Holder shall immediately distribute to Buyer and Seller fully executed copies of this Agreement and notify Buyer and Seller of the date of Opening of Escrow.

2.2 Closing Date .  

(a) The “ Defeasance Closing Date ” shall occur on the date that is fifteen (15) business days after the expiration of the Due Diligence Period or, at Buyer’s request, on such earlier date as mutually agreed upon between the parties and reasonably practical under the circumstances.   The terms “ Defeasance Close of Escrow ” and “ Defeasance Closing ” shall mean

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the date by which each of the parties is required to deliver to Escrow Holder all of the documents and funds required by this Agreement with respect to the Defeasance Property, and to notify the Escrow Holder that all conditions precedent to the release of such documents and funds from Escrow for delivery to the persons entitled thereto have occurred .   

(b) The “ Assumption Closing Date ” shall occur on the date that is fifteen (15) days after receipt of the Assumption Approval or, at Buyer’s request, on such earlier date after the Assumption Approval as mutually agreed upon between the parties and reasonably practical under the circumstances.   The terms “ Assumption Close of Escrow ” and “ Assumption Closing ” shall mean the date by which each of the parties is required to deliver to Escrow Holder all of the documents and funds required by this Agreement with respect to the Assumption Property and, if Buyer does not exercise its right to terminate this Agreement solely with respect to the Live Oak Property pursuant to Section 5.1(b) below, the Live Oak Property, and to notify the Escrow Holder that all conditions precedent to the release of such documents and funds from Escrow for delivery to the persons entitled thereto have occurred.   Buyer shall use commercially reasonable efforts to obtain the Assumption Approval within ninety (90) days after the Effective Date.  If, despite using commercially reasonable efforts, Buyer is unable to obtain the Assumption Approval within ninety (90) days after the Effective Date, Buyer shall be granted an additional thirty-five (35) days to obtain the Assumption Approval so long as Buyer continues to use commercially reasonable efforts to obtain the Assumption Approval.  Notwithstanding anything to the contrary set forth herein, in the event the Assumption Approval is not obtained within one hundred twenty-five (125) days after the Effective Date despite Buyer’s commercially reasonable efforts, Seller may terminate this Agreement, in which event Buyer shall be entitled to the return of the Deposit less the Non-Refundable Portion which shall be paid to Seller, and the parties shall have no further obligations hereunder other than those which expressly survive the termination of this Agreement.

(c) As used herein, (i) the term “ Closing Date ” shall mean the Defeasance Closing Date or the Assumption Closing Date as the context may require; (ii) the term “ Close of Escrow ” shall mean the Defeasance Close of Escrow or the Assumption Close of Escrow as the context may require; and (iii) the term “ Closing ” shall mean the Defeasance Closing or the Assumption Closing as the context may require.

(d) As used herein, (i) the term “ Defeasance Property ” shall collectively refer to (A) the Individual Property known as Tides at Calabash and located at 7112 Town Center Road, Sunset, North Carolina (the “ Tides Property ”), (B) the Individual Property comprised of vacant land adjacent to the Tides Property (the “ Tides Vacant Land ”), (C) the Individual Property known as Kensington Commons Residences and located at 6300 Refugee Road, Canal Winchester, Ohio (the “ Kensington Property ”), (D) the Individual Property known as Schirm Farms and located at 6340 Saddler Way, Canal Winchester, Ohio (the “ Schirm Farms Property ”), (E) the Individual Property known as Cherry Grove Commons and located at 1100 David Street, North Myrtle Beach, South Carolina (the “ Cherry Grove Property ”) and (F) the Individual Property known as Riverchase Apartments and located at 2730 Riverchase Drive, Indianapolis, Indiana (the “ Riverchase Property ”); (ii) the term “ Assumption Property ” shall collectively refer to (A) the Individual Property known as Hartshire Lakes and located at 3170 Hartshire South Drive, Bargersville, Indiana (the “ Hartshire Property ”), (B) the Individual Property known as Brunswick Point and located at 1001 Hunterstone Drive, Leland, North Carolina (the

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Brunswick Property ”) and (C) the Individual Property known as Creekside Corners Apartments and located at 5301 West Fairington Parkway, Lithonia, Georgia (the “ Creekside Corners Property ”) ; and (iii) the term “ Live Oak Property ” shall refer to the Individual Property known as Live Oak Trace and located at 7615 Magnolia Beach Road, Denham Springs, Louisiana .

2.3 Escrow Instructions .  Articles 1, 2, 4, 5 and 6 also constitute escrow instructions to Escrow Holder.  Additionally, Buyer and Seller agree to execute any mutually acceptable form of escrow instructions as the Escrow Holder customarily requires as escrow holder in real property escrows administered by it.  In the event of a conflict between any such additional terms and provisions of this Agreement, this Agreement shall supersede and be controlling.  

2.4 Conveyance of Title .  

(a) At least one (1) business day prior to the Defeasance Closing Date, Seller shall deliver to Escrow Holder (i) a deed to the Tides Property in the form attached hereto as Exhibit D-5 , (ii) a deed to the Tides Vacant Land in the form attached hereto as Exhibit D-5 and (iii) a deed to the Cherry Grove Property in the form attached hereto as Exhibit D-2 (each a “ Defeasance Property Deed ” and collectively, the “ Defeasance Property Deeds ” or the “ Deeds ” as the context may require), which Defeasance Property Deeds shall convey all of Property Seller’s interest in fee title to the real property legally described on Exhibits A-2 through A-4 attached hereto (collectively, the “ Defeasance Real Property ”) subject to the Permitted Exceptions (as defined below).  Escrow Holder shall be instructed to record such Defeasance Property Deeds if and when Escrow Holder holds the instruments and funds accruing to Buyer and Seller as set forth herein and can obtain for Buyer the Defeasance Title Policies (as defined below).

(b) At least one (1) business day prior to the Assumption Closing Date, Seller shall deliver to Escrow Holder (i) a deed to the Brunswick Property in the form attached hereto as Exhibit D-1 (the “ Brunswick Deed ”), (ii) a deed to the Creekside Corners Property in the form attached hereto as Exhibit D-3 (the “ Creekside Corners Deed ”) and (iii) if Buyer does not exercise its right to terminate this Agreement solely with respect to the Live Oak Property pursuant to Section 5.1(b) below, a deed to the Live Oak Property in the form attached hereto as Exhibit D-4 (the “ Live Oak Deed ”; the Brunswick Deed and the Creekside Corners Deed each sometimes being individually referred to herein as an “ Assumption Property Deed ” and collectively as the “ Assumption Property Deeds ” and, together with the Live Oak Deed, sometimes being collectively referred to herein as the “ Deeds ” as the context may require), which Assumption Property Deeds shall convey all of Property Seller’s interest in fee title to the real property legally described on Exhibits A-5 and A-6 attached hereto (collectively, the “ Assumption Real Property ”) subject to the Permitted Exceptions (as defined below), and which Live Oak Deed shall convey all of Property Seller’s interest in fee title to the real property legally described on Exhibit A-1 attached hereto subject to the Permitted Exceptions.  Escrow Holder shall be instructed to (i) record such Assumption Property Deeds if and when Escrow Holder holds the instruments and funds accruing to Buyer and Seller as set forth herein and can obtain for Buyer the Assumption Title Policies (as defined below); and (ii) if Buyer does not exercise its right to terminate this Agreement solely with respect to the Live Oak Property pursuant to Section 5.1(b) below, record such Live Oak Deed if and when Escrow Holder holds the

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instruments and funds accruing to Buyer and Seller set forth herein and can obtain for Buyer the Live Oak Title Policy (as defined below) .

2.5 Conditions to Buyer’s Obligation to Purchase .  Buyer’s obligation to consummate the transaction contemplated under this Agreement is expressly conditioned upon the satisfaction of each of the following conditions prior to or simultaneously with Closing:

(a) Performance by Seller .  Performance in all material respects of the obligations, covenants and deliveries required of Seller under this Agreement.

(b) Deliveries .  On or before the Closing Date, Seller shall deliver to Escrow Holder (unless indicated to be delivered directly to Buyer) the following documents and other items:

(i) An original Assignment of Leases with respect to each Individual Property being conveyed, assigning the leases by the applicable Seller to Buyer (the “ Assignment of Leases ”) in the form attached as Exhibit E , duly executed by the applicable Seller;

(ii) An original Assignment of Contracts with respect to each Individual Property being conveyed assigning certain contracts by the applicable Seller to Buyer (the “ Assignment of Contracts ”) in the form attached as Exhibit F , duly executed by the applicable Seller;

(iii) A Certificate of Non-Foreign Status (each the “ Non-Foreign Affidavit ”) with respect to each Seller;

(iv) Copies of all contracts relating to the Property to be assumed by Buyer pursuant to Section 3.2 (to be delivered to Buyer at the Property);

(v) An original Special Warranty Bill of Sale with respect to each Individual Property being conveyed, pursuant to which Seller conveys certain personal property associated with such Property to Buyer in the form attached as Exhibit G , duly executed by Seller;

(vi) A copy of the Closing Statement, duly executed by Seller;

(vii) All keys to the Improvements which Seller or Seller’s agents have in their possession (to be delivered to Buyer at the Property);

(viii) The original executed copy of each lease of the Property (to the extent that Seller has the original leases in its possession), including any amendments thereto (to be delivered to Buyer at the Property);

(ix) A copy of a notice to tenants regarding the transfer of title with respect to each Individual Property.  Seller may provide a single notice with respect to each Individual Property;

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(x) A rent roll with respect to each Individual Property, ce rtified by Seller as being true, correct and complete in all material respects and dated within three ( 3 ) days of the Closing Date;

(xi) An affidavit as to construction liens and parties in possession reasonably sufficient to the Title Company to allow it to delete from the Title Policy any exception for construction liens and parties in possession (other than the existing tenants under the Leases), which affidavit shall also include any other customary matters included in a standard seller’s title affidavit in each state where an Individual Property is located;

(xii) Any other documents, instruments or funds required to be delivered by Seller under the terms of this Agreement or other reasonable and customary items required by Escrow Holder or Title Company in order to close Escrow which have not previously been delivered;

(xiii) A date down of Seller’s representations and warranties contained in Section 5.9 confirming that they are all true and correct as of Closing;

(xiv) With respect to the Individual Properties located in South Carolina and Georgia, if required by law, either an affidavit of residency legally sufficient to enable Buyer not to withhold and submit a portion of the Purchase Price to the applicable taxing authority, or an affidavit of gain or similar certification to the applicable taxing authority (in such instance, the applicable percentage of gain as required by applicable law shall be submitted by Title Company from Seller’s proceeds to the taxing authority);

(xv) A Survey Affidavit of No Change in the form attached as Exhibit L with respect to the existing survey for each Individual Property delivered to Buyer as part of the Due Diligence Items (as defined below), except with respect to the property owned by the Kensington Property Owner;

(xvi) An original executed estoppel certificate from the Association for the Condominium in form and substance mutually acceptable to Buyer and Seller;

(xvii) Solely with respect to the Assumption Closing, any documents or instruments required to be delivered to the Lender in connection with the Loan Assumption;

(xviii) A document terminating any existing property management agreement for each Individual Property, which shall include an acknowledgment that any and all fees, costs and expenses have been paid in full through and including the Closing Date;

(xix) With respect to the IN/OH Property, an affidavit and indemnity in the form attached as Exhibit M as necessary to issue a non-imputation endorsement to any new Title Policy obtained by Buyer for an IN/OH Property;

(xx) For each IN/OH Property Owner, Certificates of Good Standing and Certificates of Authority evidencing such IN/OH Property Owner’s authority to transact business in the state in which the applicable IN/OH Property is located;

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(xxi) A certification, dated as of the Closing Date, from Entity Seller attaching all organizational documents of each IN/OH Property Owner stating that such organizational documents have not been modified or amended;

(xxii) A duly executed original Assignment and Assumption of Limited Liability Company Interest for each IN/OH Property Owner (the “ Assignment and Assumption ”) in the form attached as Exhibit K ; and

(xxiii) To the extent required by the jurisdiction in which any Individual Property is located, a properly-completed property tax transfer return or affidavit in form and substance appropriate to such jurisdiction.

(c) Seller’s Representations and Warranties .  The representations and warranties of Seller set forth in Section 5.9 shall be true and correct in all material respects as of Closing.

(d) Assumption Approval .  Solely with respect to the Assumption Closing, the Assumption Approval shall have been obtained in accordance with the terms of this Agreement.  

The failure of any condition in this Section 2.5, to the extent not waived by Buyer, shall enable Buyer to terminate this Agreement and exercise its remedies under Section 4.12 hereof (unless there is a failure under subsection (d) above, for which Buyer shall receive a return of the Deposit only (less the Non-Refundable Portion which shall be paid to Seller), so long as it has diligently pursued the Assumption Approval in good faith).

2.6 Conditions to Seller’s Obligation to Sell .  Seller’s obligation to consummate the transaction contemplated under this Agreement is expressly conditioned upon the satisfaction of each of the following conditions prior to or simultaneously with Closing:

(a) Performance by Buyer .  Performance in all material respects of the obligations, covenants and deliveries required of Seller under this Agreement.

(b) Deliveries .  On or before the Closing Date, Buyer shall deliver to Escrow Holder (unless indicated to be delivered directly to Buyer) the following documents and other items:

(i) The original Assignment of Leases with respect to each Individual Property, duly executed by Buyer;

(ii) The original Assignment of Contracts with respect to each Individual Property, duly executed by Buyer;

(iii) A copy of the Closing Statement, duly executed by Buyer;

(iv) With respect to the Defeasance Closing Date, the balance of the Defeasance Property Purchase Price plus all costs, fees and expenses of Buyer set forth in Section

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1.3(d) hereof, to be released upon the confirmation that the deliveries required by both the Buyer and Seller under this Agreement have been received ;

(v) With respect to the Assumption Closing Date, (A) the balance of the Assumption Property Purchase Price plus all costs, fees and expenses of Buyer set forth in Section 1.3(d) hereof, to be released upon the confirmation that the deliveries required by both the Buyer and Seller under this Agreement have been received and (B) if Buyer does not exercise its right to terminate this Agreement solely with respect to the Live Oak Property pursuant to Section 5.1(b) below, the Individual Property Allocation for the Live Oak Property plus all costs, fees and expenses of Buyer set forth in Section 1.3(d) hereof, to be released upon the confirmation that the deliveries required by both the Buyer and Seller under this Agreement have been received;

(vi) Any other documents, instruments or funds required to be delivered by Buyer under the terms of this Agreement or other reasonable and customary items required by Escrow Holder or Title Company in order to close Escrow which have not previously been delivered;

(vii) Solely with respect to the Assumption Closing, any documents or instruments required to be delivered to the Lender in connection with the Loan Assumption; and

(viii) The original Assignment and Assumption, duly executed by Buyer.

(c) Buyer’s Representations and Warranties .  The representations and warranties of Buyer set forth in Section 2.5 shall be true and correct in all material respects as of Closing.

(d) Assumption Approval .  Solely with respect to the Assumption Closing, the Assumption Approval shall have been obtained in accordance with the terms of this Agreement.

(e) Defeasance Title Policies . Solely with respect to the Defeasance Closing, Escrow Holder has irrevocably committed to obtain for Buyer ALTA standard coverage owner's policies of title insurance for the Defeasance Property (collectively, the “ Defeasance Title Policies ”) with such endorsements as are required by Buyer and which are available in the state in which each Defeasance Property is located, issued by First American Title Insurance Company (“ Title Company ”) with liability in an amount equal to the Defeasance Property Purchase Price in the aggregate, showing the Defeasance Real Property vested in Buyer (or the applicable IN/OH Property Owner) subject only to the Permitted Exceptions.

(f) Assumption Title Policies .  Solely with respect to the Assumption Closing, Escrow Holder has irrevocably committed to obtain for Buyer ALTA standard coverage owner's policies of title insurance for the Assumption Property (collectively, the “ Assumption Title Policies ” and together with the Defeasance Title Policies and, if Buyer does not exercise its right to terminate this Agreement solely with respect to the Live Oak Property pursuant to Section 5.1(b) below, the Live Oak Title Policy (as defined below) being sometimes collectively referred to herein as the “ Title Policies ”) with such endorsements as are required by Buyer and

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which are available in the state in which each Assumption Property is located, issued by Title Company with liability in an amount equal to the Assumption Property Purchase Price in the aggregate , showing the Assumption Real Property vested in Buyer (or the applicable IN/OH Property Owner) s ubject only to the Permitted Exceptions.

(g) Live Oak Title Policy . Solely with respect to the Assumption Closing if Buyer does not exercise its right to terminate this Agreement with respect to the Live Oak Property pursuant to Section 5.1(b) below, Escrow Holder has irrevocably committed to obtain for Buyer an ALTA standard coverage owner's policy of title insurance for the Live Oak Property (the “ Live Oak Title Policy ”) with such endorsements as are required by Buyer and which are available in the state in which the Live Oak Property is located, issued by Title Company with liability in an amount equal to the Individual Property Allocation for the Live Oak Property, showing the real property legally described on Exhibit A-1 vested in Buyer subject only to the Permitted Exceptions.

The failure of any condition in this Section 2.6, to the extent not waived by Seller, shall enable Seller to terminate this Agreement and receive the Deposit as liquidated damages pursuant to Section 4.11 hereof (unless there is a failure under subsection (d) above, for which Buyer shall receive a return of the Deposit only (less the Non-Refundable Portion which shall be paid to Seller) so long as it has used commercially reasonable efforts to pursue the Assumption Approval in good faith).

2.7 Delivery of Documents by Escrow Holder .  On the Close of Escrow, Escrow Holder shall deliver to Buyer all of the items listed in Section 2.5 above which were delivered by Seller to Escrow Holder, except that Escrow Holder shall be instructed to record the original Deeds upon Close of Escrow and to deliver a conformed copy of the Deeds to Buyer after recordation thereof and Escrow Holder shall only deliver to Buyer one duplicate original of the documents submitted as duplicate originals.  Escrow Holder shall deliver the Purchase Price, less costs, expenses and prorations chargeable to Seller hereunder, to Seller by wire transfer as provided in written instructions to be furnished to Escrow Holder by Seller prior to the Close of Escrow, together with one duplicate original of all of the items listed in Section 2.6 above on the Close of Escrow and a conformed copy of the Deeds.

ARTICLE 3
INSPECTIONS AND REVIEW

3.1 Access to Books and Records; Items to be Inspected and Reviewed by Buyer.   

(a) Within three (3) business days of the execution of this Agreement by Buyer and Seller, Seller shall deliver to Buyer (or make available for review) copies of the items listed in the attached Exhibit H with respect to each Individual Property, to the extent in Seller’s or its property manager’s possession or control (collectively, the “ Due Diligence Items ”).  Seller has not made an independent investigation to determine the truth or accuracy of any such documents and materials and except as expressly set forth in Section 5.9 hereof, shall have no liability to Buyer for any inaccuracy, misrepresentation or omission in such documents or materials.  

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(b) In addition, Seller shall provide to Buyer and Buyer’s agents or representatives (including, without limitation, its accountant and/or auditor) copies of, or shall provide Buyer reasonable access to, such information as may be reasonably requested by Buyer, and in the possession or control of Seller, or its property manager or accountants, to enable Buyer’s auditor to conduct an audit (“ Rule 3-14 Audit ”), in accordance with Rule 3-14 of Securities and Exchange Commission Regulation S-X (“ Rule 3-14 ”) , of the balance sheet and income statements of the Property for the year-to-date 2017 plus the two (2) immediately preceding calendar years.  Buyer will use reasonable efforts to cause the Rule 3-14 Audit to be completed within thirty (30) days from the Effective Date.   In connection with Buyer’s Rule 3-14 Audit an executive officer of Entity Seller shall execute and deliver to Buyer’s auditor a representation letter for each Individual Property (each an “ Auditor Representation Letter ”) in the form attached as Exhibit N .

3.2 Physical Inspection .  From and after the Effective Date until 5:00 pm (ET) on the later of (a) October 3, 2017 and (b) the date which is two (2) business days after completion of the Rule 3-14 Audit (the “ Due Diligence Period ”), Seller shall permit Buyer, its engineers, analysts, contractors, agents and consultants, at the sole cost and expense of Buyer, to conduct physical inspections of the Property; provided, however, that notwithstanding clause (b) above, in no event shall the Due Diligence Period extend beyond forty (40) days after the Effective Date.  Such investigations may be made by Buyer and/or its agents during any normal business hours.  If this Agreement is not terminated (or deemed terminated), Buyer shall continue to have access to the Property until the Closing with the prior consent of Seller, which consent shall not be unreasonably withheld or delayed.  Seller shall cooperate fully to assist Buyer in completing such inspections and special investigations at no cost or expense to Seller.  Such inspections and investigations shall be conducted only upon no less than forty-eight (48) hours’ notice to Seller and shall be conducted at such times and in such a manner as to minimize any disruption to tenants upon the Property.  Notwithstanding any provision to the contrary herein, (a) all site visits shall be scheduled and announced forty-eight (48) hours in advance and (b) all communications regarding the scheduling of site visits and additional diligence information requests, shall be made through Owner’s representatives at KeyBanc Capital Markets: Kevin Kreshover ( kkreshover@key.com ) and Michael Hawkins ( michael.hawkins@key.com ) and not by contacting Owner or its property manager directly. Seller shall have the right, but not the obligation, to accompany Buyer during such investigations and/or inspections.  Notwithstanding the foregoing, Buyer shall not perform any invasive or destructive testing of the Property (including a Phase II investigation) without the prior written consent of Seller, which consent will not be unreasonably withheld (provided, however, if any Phase I investigation recommends a Phase II investigation, then Seller shall permit such Phase II investigation).  Buyer shall repair any and all damage to the Property or to any tenant’s property caused by such inspections or investigations in a timely manner and Buyer shall indemnify, defend (with counsel reasonably acceptable to Seller) and hold harmless Seller, its partners, members, affiliates, officers, employees, agents and consultants (the “ Indemnified Parties ”) from and against any liability whatsoever (including without limitation, reasonable attorneys’ costs and fees whether or not legal proceedings are initiated, and if they are, reasonable attorneys’ costs and fees at the trial level and all levels of appeal) sought by the Indemnified Parties to the extent arising from Buyer’s physical inspection of the Property or access to the Property granted hereunder to Buyer, its engineers, analysts, contractors, agents and consultants.  Buyer's indemnification obligations under this Section shall survive the recordation of the Deeds or the termination of this Agreement

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for one (1) year .  As a condition to allowing Buyer, or its engineers, analysts, contractors, agents and consultants access to the Property, Buyer shall obtain and deliver to Seller a certificate of insurance or other evidence satisfactory to Seller that Buyer has in force adequate liability insurance in an amount not less than TWO MILLION DOLLARS ($ 2 ,000,000.00) naming Seller as additional insured, and a copy of such policy upon Seller’s request.  In addition, Buyer shall, not later than the expiration of the Due Diligence Period, advise Seller in writing of the labor, service, supply and maintenance contracts which it elects to assume .    Buyer’s obligation to purchase the GA/LA/NC/SC Property and the Limited Liability Company Interests pursuant to this Agreement is contingent upon Buyer being satisfied, in its sole and absolute discretion, with the results of its due diligence investigation on or before the expiration of the Due Diligence Period.    Buyer shall have the right to terminate this Agreement, for any or no reason, prior to expiration of the Due Diligence Period by providing written notice of such termination to Seller, whereupon Buyer shall receive immediate return of its Deposit (less the Non-Refundable Portion which shall be paid to Seller) and neither Buyer nor Seller shall have any further rights or obligations hereunder except as may be otherwise expressly set forth herein.  If, prior to expiration of the Due Diligence Period, Buyer does not furnish written notice to Seller as required in the immediately preceding sentence, Buyer will be deemed to have elected to proceed with the transaction contemplated hereby and Buyer’s right to terminate this Agreement under this Section 3.2 shall be waived.  

3.3 Approval of Title .  Substantially concurrent with the execution of this Agreement, the Title Company shall prepare and promptly deliver to Buyer title commitments with respect to each Individual Property, together with copies of all recorded instruments specified therein (individually a “ Title Commitment ” and collectively, the “ Title Commitments ”). Buyer may at its sole cost and expense order an updated ALTA/NSPS current survey of each Individual Property (individually a “ Survey ” and collectively, the “ New Surveys ”). Buyer hereby acknowledges receipt of the Title Commitments and the existing as built surveys (collectively, the “ Existing Surveys ”) of the Property.  Not later than fifteen (15) days after the Effective Date, Buyer shall notify Seller and Title Company in writing (“ Buyer’s Title Notice ”) of Buyer’s approval of all matters contained or referenced in the Title Commitments, the Existing Surveys and/or the New Surveys or of any objections Buyer may have to title exceptions or other matters contained in the Title Commitments, or the Existing Surveys and/or the New Surveys (the “ Disapproved Title Matters ”).  If Buyer fails to timely deliver Buyer’s Title Notice either approving of the condition of title or identifying certain Disapproved Title Matters, Buyer shall be deemed to have approved of the condition of title to the Real Property as disclosed by the Title Commitments.  If Buyer timely delivers Buyer’s Title Notice objecting to certain Disapproved Title Matters, Seller shall have five (5) business days to deliver a written response as to whether Seller will cure and/or remove some or all of the Disapproved Title Matters (“ Seller’s Title Response ”). If Seller fails to timely deliver Seller’s Title Response, it will be conclusively presumed that Seller elects to cure and/or remove all Disapproved Title Matters. Buyer shall have five (5) business days after delivery of Seller’s Title Response, if Seller delivers a Seller’s Title Response, to provide written notice to Seller electing to either (1) accept Seller’s Title Response; or (2) terminate this Agreement and receive a full return of the Deposit (less the Non-Refundable Portion which shall be paid to Seller, unless Buyer’s termination relates to Seller’s unwillingness to cure a Mandatory Cure Item), after which the parties shall have no further obligations to each other (except for those obligations hereunder which survive termination) (“ Buyer’s Title Response ”). If Buyer fails to deliver Buyer’s Title Response, Buyer

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will be deemed to have accepted Seller’s Title Response.    From and after the date that Buyer delivers Buyer’s Title Notice, u pon the issuance of any amendment or supplement to any Title Commitment which adds additional exceptions to the Title Commitment and Buyer’s receipt of any New Survey , the foregoing right of review and approval shall also apply to said amendment , supplement or New Survey , provided, however, that Buyer’s period of review and approval or disapproval of any such additional exceptions (and consequently, Buyer’s waiver of objection or election to terminate, as applicable) shall be limited to the date that is five (5) business days following receipt of notice of such additional exceptions or New Survey and all underlying documents pertaining thereto (provided further that said additional review period shall be inapplicable to any exceptions or matters which are shown on the Existing S urvey or otherwise noted by Title Company based upon Title Company’s review of an y New Survey received by Buyer prior to Buyer’s delivery of Buyer’s Title Notice ).   All title and survey matters that are either affirmatively approved by Buyer or deemed approved by Buyer in accordance with this Section 3.3, together with the Assumable Loans, shall be collectively referred to in this Agreement as the “ Permitted Exceptions .  Notwithstanding anything to the contrary set forth in this Agreement, Seller agrees, at or prior to Closing, (i) to cause the Title Company to delete from each Title Policy any exception for real estate taxes and assessments due and payable for any period prior to Closing, (ii) except for the Assumable Loans, remove any lien in a liquidated amount created by the acts or omissions of Seller against all or any part of the Real Property including, without limitation, any mortgage (other than payment of the Defeasance/Prepayment Costs, which shall be paid by Buyer) , mechanics’, or similar lien or encumbrance that can be satisfied and discharged with the payment of a specified amount of money, (iii) to cause the Title Company to delete from each Title Policy the standard preprinted exceptions that are typically omitted from an owner’s title policy where the Real Property is located, (iv) remove any items filed by Seller after the effective date of a Title Commitment, except to the extent approved by Buyer in writing , and (v) either (I) convey to Buyer fee simple title that is insurable by the Title Company to that certain real property identified as “Except Parcel IV” as shown on the Existing Survey for the Hartshire Property (“ Except Parcel IV ”) , together with all improvements thereon and all appurtenances, streets, alleys, easements, rights-of-way in or to all streets or other interests in, on, across, in front of, abutting, o r adjoining such real property , (II) provide written confirmation from the Town of Bargersville that the Town of Bargersville owns fee simple title to Except Parcel IV and publicly maintains Hartshire East Drive as shown on the Existing Survey for the Hartshire Property , or (III) provide other evidence reasonably satisfactory to Buyer confirming that Buyer shall have dedicated access to the Hartshire Property via Hartshire East Drive ( items (i) through (v) being collectively referred to herein as the “ Mandatory Cure Items ”).  In no event shall any Mandatory Cure Item be considered a Permitted Exception for the purposes set forth in this Agreement.   Except with respect to any amendment or supplement to any Title Commitment which adds additional exceptions to the Title Commitment as set forth above, i n no event shall the timeframes for notification and response under this Section 3.3 extend beyond the Due Diligence Period, it being agreed that Buyer shall either be satisfied with the Title Commitments, Existing Surveys and/or New Surveys, or it will terminate this Agreement.

ARTICLE 4
PRORATIONS, CLOSING COSTS, AND DEPOSITS

4.1 Proration of Taxes .  All general and special real estate taxes and assessments imposed by any governmental authority against the Property (herein called the “ Taxes ”), for the

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year in which Closing occurs shall be prorated as of the Closing Date on an accrual basis between Seller and Buyer as of the Closing Date with Seller responsible for the payment of all Taxes accruing before the Closing Date and Buyer responsible for the payment of all Taxes accruing on and after the Closing Date, with such proration being based upon the most recent tax bill; provided, however, that if the most recent tax bill received by Seller before the Closing Date is not the actual current tax bill, then Seller and Buyer shall prorate the taxes as of the Closing Date by applying the tax rate for the period covered by the most current available tax bill to t he latest assessed valuation.  

4.2 Assumable Loans .  (a) Interest on the Assumable Loans shall be prorated as of the Assumption Closing Date on an accrual basis between Seller and Buyer as of the Closing Date with Seller responsible for the payment of all such interest and other payments attributable to Seller's period of ownership of the Property and Buyer responsible for the payment of all interest and other payments attributable to Buyer's period of ownership of the Property.

(b) Seller shall receive a credit in the amount of all funds held in escrow by the Lender under the Assumable Loans, including, without limitation, for the payment of capital improvements, taxes or insurance premiums for the Property (collectively, the “ Loan Reserves ”), and at the Assumption Closing Seller shall transfer and assign to Buyer (which transfer and assignment must be acknowledged by Lender) all of Seller's right, title and interest in and to such Loan Reserves.

4.3 Proration of Rents .  All rents, payments for taxes, payments for insurance, payments for common area maintenance charges, payments for operating expenses and other payments on account of financial obligations of Tenants (herein called the “ Tenant Financial Obligations ”) which have actually been received by Seller as of the Closing Date shall be prorated as of the Closing Date.  At Closing, Buyer will receive a credit against the Purchase Price in the amount of that portion of any prepaid Tenant Financial Obligations paid to Seller under the Leases which are allocable to periods from and after the Closing Date.  No proration shall be made for delinquent Tenant Financial Obligations existing as of the Closing Date; and all Tenant Financial Obligations collected by Buyer from and after Closing from Tenants who were delinquent in the payment of Tenant Financial Obligations as of Closing shall be applied first to current Tenant Financial Obligations then due and payable, then to post-closing arrearages, then to Tenant Financial Obligations for the month in which the Closing occurs, and then to pre-closing arrearages, regardless of whether such payments are identified by tenant for a specific purpose.  Buyer shall promptly refund to Seller any past due Tenant Financial Obligations collected by Buyer and allocable to periods prior to the Closing Date as provided above.  Seller shall promptly remit to Buyer any Tenant Financial Obligations received by Seller for any period from and after the Closing Date.  Seller shall have no right after Closing to attempt to collect any delinquent Tenant Financial Obligations owing to Seller unless any such delinquent tenant has unconditionally vacated its leased premises.  

4.4 Deposits .  All unapplied security deposits collected by Seller from any of the tenants (with interest thereon as required by law or any of the leases) shall be credited to Buyer at the Closing.  

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4.5 Utilities .  Utility accounts shall be transferred to Buyer as of the Closing, and all charges for utilities relative to the Property for the period ending 11:59 p.m. (EST) on the day prior to the Closing Date shall be the responsibility of Seller and shall be paid by Seller at Closing to the extent feasible (or promptly thereafter following the availability of billings with respect thereto). Buyer shall credit to the account of Seller all refundable cash or other deposits posted with utility companies serving the Property or, at Buyer’s option, Seller shall be entitled to receive and retain such refundable cash and deposits

4.6 Property Contracts .  Seller shall be responsible for payment of all Property Contracts to 11:59 p.m. (EST) on the day prior to the Closing Date.  Buyer shall be responsible for such services thereafter for any such contracts which it elects to assume or is required to assume.  The current property management agreements shall be terminated by Seller at Closing.

4.7 Insurance .  Seller shall cause its policies of insurance for the Property to be terminated effective immediately as of the Closing Date and Buyer shall be responsible for obtaining its own insurance. There shall be no proration of Seller's insurance premiums for the Property.

4.8 Other . Any other items which are customarily prorated in connection with the purchase and sale of properties similar to the Property shall be prorated as of the Closing Date as of the Closing Date on an accrual basis between Seller and Buyer as of the Closing Date with Seller responsible for the payment of all such items accruing before the Closing Date and Buyer responsible for the payment of all such items accruing on and after the Closing Date.  All door fees, up-front fees, bonus payments and similar fees received by Seller or any IN/OH Property Owner shall be prorated as of the Closing Date.

4.9 Closing Costs .

(a) Seller shall pay (i) the cost of recording the Deeds and any corrective title instruments; (ii) the costs of the Assumption Consultant; and (iii) one-half the cost of the escrow fees charged by Escrow Holder, if any.

(b) Buyer shall pay (i) the costs of obtaining any extended coverage for the Title Policies, the additional cost of the premiums for any additional or different title insurance coverage requested by Buyer, including the deletion of exceptions (unless in connection with a Mandatory Cure Item (in which Seller shall be responsible for such cost)), and the issuance of any requested title endorsements (unless in connection with a Mandatory Cure Item (in which Seller shall be responsible for such cost)); (ii) the cost of the Surveys; (iii) the Defeasance/Prepayment Costs; (iv) the Assumption Costs; (v) any mortgage taxes; and (vi) one-half the cost of the escrow fees charged by Escrow Holder, if any.  

(c) Any state, county or local transfer or documentary stamp taxes in connection with the sale (other than mortgage taxes in connection with Buyer’s financing (if any) (“ Transfer Taxes ”), any search and examination fees charged in connection with the preparation of the Title Commitments (“ Search and Exam Fees ”) and the premiums for the Title Policies (“ Owner’s Policy Premium ”) shall be allocated in accordance with Schedule 4.9(c) attached hereto.

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(d) Seller and Buyer shall each be responsible for its own attorneys’ costs and fees incurred in connection with the preparation and negotiation of this Agreement.

(e) Any other expenses or closing costs in connection with this transaction shall be allocated in accordance with local real estate closing customs with respect to each Individual Property.

4.10 Closing Statement .  No later than five (5) business days prior to the Closing Date, Escrow Holder shall prepare for approval by Buyer and Seller a closing statement (“ Closing Statement ”) on Escrow Holder’s standard form indicating, among other things, Escrow Holder’s estimate of all closing costs and prorations made pursuant to this Agreement.  Buyer and Seller shall provide Escrow Holder the amounts of all prorations.

4.11 LIQUIDATED DAMAGES .  IN THE EVENT THAT BUYER BREACHES ITS OBLIGATIONS UNDER THIS AGREEMENT, THE DAMAGES THAT SELLER WILL INCUR BY REASON THEREOF ARE AND WILL BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTABLISH.  BUYER AND SELLER, IN A REASONABLE EFFORT TO ASCERTAIN WHAT SELLER’S DAMAGES WOULD BE IN THE EVENT OF SUCH A DEFAULT BY BUYER, HAVE AGREED THAT SUCH DAMAGES SHALL BE IN AN AMOUNT EQUAL TO THE AMOUNT OF THE DEPOSIT AND THAT SUCH DEPOSIT SHALL BE DELIVERED TO SELLER UPON SUCH DEFAULT BY BUYER AND RETAINED BY SELLER AS LIQUIDATED DAMAGES, WHICH DAMAGES SHALL BE SELLER’S SOLE AND EXCLUSIVE REMEDY AT LAW OR IN EQUITY IN THE EVENT OF AND FOR SUCH DEFAULT BY BUYER.  WITHOUT LIMITING THE FOREGOING PROVISIONS OF THIS PARAGRAPH, SELLER WAIVES ANY AND ALL RIGHTS WHICH SELLER OTHERWISE WOULD HAVE HAD TO SPECIFICALLY ENFORCE THIS AGREEMENT.  NOTWITHSTANDING THE FOREGOING, SELLER AND BUYER ACKNOWLEDGE AND AGREE THAT THIS SECTION SHALL NOT LIMIT SELLER’S RIGHT TO RECOVER FROM BUYER, IN ADDITION TO THE FOREGOING LIQUIDATED DAMAGES, ANY AMOUNTS TO WHICH IT MAY BE ENTITLED PURSUANT TO AN INDEMNITY OR ATTORNEYS’ FEE PROVISION CONTAINED IN THIS AGREEMENT.  SELLER AND BUYER ACKNOWLEDGE AND AGREE THAT THEY HAVE READ AND UNDERSTAND THE PROVISIONS OF THIS PARAGRAPH AND BY THEIR INITIALS AGREE TO BE BOUND BY ITS TERMS.

/s/JS/s/MS
Buyer’s InitialsSeller’s Initials

4.12

Breach by Seller .  If Seller defaults in its obligation to sell and convey the GA/LA/NC/SC Property and/or Limited Liability Company Interests to Buyer pursuant to this Agreement, Buyer’s sole remedy shall be to elect one of the following:  (a) to terminate this Agreement, in which event Buyer shall be entitled to the return of the Deposit (including the Non-Refundable Portion) and Seller shall reimburse Buyer’s Out of Pocket Costs within three (3) business days or (b) to enforce specific performance, provided that any suit for specific performance must be filed and served within ninety (90) days of Seller’s default and Buyer waives the right to bring suit at any later date.   Notwithstanding the foregoing, in the event Buyer is unable to seek specific performance because Seller has willfully breached this Agreement and

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sold al l or any portion of the Property, directly or indirectly, to a third party purchaser, then , in addition to terminating this Agreement and getting its Deposit (including the Non-Refundable Portion) returned, Buyer may pursue any and all remedies against Seller at law or in equity, including damages.   Buyer shall give Escrow Holder and Seller written notice of Buyer’s election of such remedy.  The term “ Out of Pocket Costs ” shall mean actual and verifiable costs and expenses incurred by Buyer in connection with this transaction, not to exceed Five Hundred Thousand Dollars ($ 50 0 ,000.00) ; provided, however, from and after the Defeasance Closing, such amount shall not exceed Three Hundred Thousand Dollars ($300,000.00) .

4.13

General .  To the extent that the exact amount of items of income and expense (such as utility expenses) are not available on the Closing Date, such items shall be apportioned on an estimated basis, and Seller and Buyer shall make any final adjustments on such items within one hundred twenty (120) days after the Closing Date; provided, however, that Taxes shall be apportioned based on one hundred three percent (103%) of the most recent ascertainable Taxes and shall be re-prorated within thirty (30) days following Buyer’s receipt of the final tax bill for the year in which the Closing occurs.  Notwithstanding the foregoing, if Buyer fails to deliver to Seller a final tax bill for any Individual Property within thirty (30) days following the issuance of a final bill by the relevant taxing authority (it being understood that Seller shall promptly deliver to Buyer any final bills received by Seller), Buyer thereafter fully and forever waives its right to re-prorate the Taxes for such Individual Property.  To the extent that any items of income and expense are not known to either Buyer or Seller at Closing and are not properly apportioned at Closing, such items shall be apportioned between Buyer and Seller promptly upon discovery thereof, but in no event later than one hundred twenty (120) days after the Closing Date.  The terms of this Section 4.13 shall survive the Closing.

ARTICLE 5
AS-IS PURCHASE; RELEASE; REPRESENTATIONS AND WARRANTIES

5.1 Disclaimer; Live Oak Repairs .  

(a) Except for the specific representations and warranties of Seller set forth in Section 5.9 below or any of the documents to be delivered by Seller to Buyer pursuant to Section 2.5(b) above, Buyer acknowledges and agrees that it will have the opportunity to thoroughly inspect, investigate and exercise due diligence, and the opportunity to fully and independently become familiar with, and fully satisfy itself regarding, any and all matters relating to the Property.  Except for the specific representations and warranties of Seller set forth in Section 5.9 below or any of the documents to be delivered by Seller to Buyer pursuant to Section 2.5(b) above, Seller has not made, does not make and specifically negates and disclaims any representations, warranties, promises, covenants, agreements or guaranties of any kind or character whatsoever, whether express or implied, oral or written, past, present or future, of, as to, concerning or with respect to the Property or its condition, including, without limitation, (i) the value of the Property; (ii) the income to be derived from the Property; (iii) the suitability of the Property for any and all activities and uses which Buyer may conduct thereon, including, without limitation, the possibilities for future development of the Property; (iv) the habitability, merchantability, marketability, profitability or fitness for a particular purpose of the Property; (v) the manner, quality, state of repair or lack of repair of the Property; (vi) the nature, quality or condition of the Property, including, without limitation, the water, soil and geology; (vii) the

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compliance of or by the Property or its operation with any laws, rules, ordinances or regulations of any applicable governmental authority or body including, without limitation, Title III of the Americans With Disabilities Act of 1990 as amended; (viii) [intentionally omitted] ; (ix) [intentionally omitted] ; ( x ) the manner or quality of the construction or materials incorporated into the Property; (x i ) compliance with any environmental protection, pollution or land use laws, rules, regulations, orders or requirements including, without limitation, the Federal Water Pollution Control Act, the Federal Resource Conservation and Recovery Act, the U.S. Environmental Protection Agency Regulations at 40 C.F.R., Part 261, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, the Resource Conservation and Recovery Act of 1976, as amended, the Clean Water Act, the Safe Drinking Water Act, the Hazardous Materials Transportation Act, the Toxic Substance Control Act, and any and all laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders, and decrees of the United States, the states where the Property is located or any other political subdivisions in which the Property is located, and any other political subdivision, agency or instrumentality exercising jurisdiction over the owner of the Property, the Property or the use of the Property, relating to pollution, or the emission, discharge, release or threatened release of pollutants, contaminants, chemicals, or industrial, toxic or hazardous substances or waste or Hazardous Materials (as defined in Section 5.9(m) below) into, or the presence thereof in, the environment (including, without limitation, ambient air, surface water, ground water or land or soil), as any or all of the same may be amended from time to time , and regulations promulgated under any of the foregoing (collectively, “ Environmental Laws ”) , (xi) [intentionally omitted] ; (x ii ) the presence or absence of H azardous M aterials at, on, under, or adjacent to the Property including, but not limited to, petroleum products, asbestos, lead-based paint, mold or fungi; (xi ii ) the content, completeness or accuracy of any of the Due Diligence Items; ( i x) the conformity of the Improvements to any plans or specifications for the Property, including any plans and specifications that may have been or may be provided to Buyer; (x v ) the conformity of the Property to past, current or future applicable zoning or building requirements or the ability or feasibility of the Property to be converted to a condominium scheme; (xv i ) deficiency of any undershoring; (xv ii ) deficiency of any drainage; (xvi ii ) the fact that all or a portion of the Property may be located on or near an earthquake fault line or sinkhole ; (x i v) the existence of vested land use, zoning or building entitlements affecting the Property; and (x x ) any matters arising from or relating to Seller’s alleged superior knowledge.  Seller is not liable or bound in any manner by any oral or written statements, representations or information pertaining to the Property, or the operation thereof, furnished by any real estate broker, agent, employee, servant or other person.  Buyer further acknowledges and agrees that to the maximum extent permitted by law, the sale of the Property as provided for herein is made on an “AS ‑IS” condition and basis as of the Closing Date with all faults, and that , except for Seller’s covenants to maintain the Property in its current condition prior to Closing and make vacant units rent ready, Seller has no obligations to make repairs, replacements or improvements, whether before or after the Close of Escrow.  Buyer represents, warrants and covenants to Seller, which representation, warranty, and covenant will survive the Close of Escrow and not be merged with the Deed , that Buyer will solely rely upon Buyer’s own investigation of the Property and all other matters relating to the Property and Seller’s representation in Section 5.9 below or any of the documents to be delivered by Seller to Buyer pursuant to Section 2.5(b) above , and not on any other information provided or to be provided by Seller or anyone acting on Seller’s behalf.

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(b) Buyer and Seller hereby acknowledge and agree that, prior to the Effective Date, the Live Oak Property was damaged as a result of a casualty, the repairs to which have not yet been completed and the extent of the damage to which Buyer has not yet had an opportunity to fully inspect and investigate.  Accordingly, and notwithstanding anything to the contrary set forth in this Agreement, Buyer may, in its sole and absolute discretion, terminate this Agreement solely with respect to the Live Oak Property by giving written notice of such termination to Seller at any time prior to the expiration of the Due Diligence Period, in which event the Purchase Price shall be reduced by Twenty Six Million Four Hundred Thousand and 00/100 Dollars ($26,400,000.00 and this Agreement shall remain in full force and effect with respect to the remainder of the Property.

(c) Seller hereby agrees to complete all such repairs as set forth on Schedule 5.1(c) (the “ Live Oak Repairs ”) in a good and workmanlike manner prior to the Assumption Closing.  If Buyer does not exercise its right to terminate this Agreement solely with respect to the Live Oak Property pursuant to Section 5.1(b) above, then at the Defeasance Closing Seller shall escrow with Escrow Holder an amount equal to One Million Five Hundred Thousand and 00/100 Dollars ($1,500,000.00) (the “ Live Oak Escrow Funds ”).  If Seller notifies Buyer that the Live Oak Repairs have been completed prior to the Defeasance Closing, Buyer shall within five (5) days inspect the Live Oak Property.  If Buyer agrees that the Live Oak Repairs have been completed in a good and workmanlike manner, no escrow shall be required.  If Buyer does not agree, the Live Oak Inspector (as defined below) shall inspect the Live Oak Property, and in the event the Live Oak Inspector agrees the Live Oak Repairs have been completed in a good and workmanlike manner, no escrow shall be required.  On or before the date that is ten (10) days prior to the Assumption Closing (or earlier pursuant to the preceding sentence), Buyer and Seller shall cause an independent third-party engineer or similar professional licensed in the State of Louisiana and mutually acceptable to Buyer and Seller (the “ Live Oak Inspector ”) to inspect the Live Oak Repairs (the “ Live Oak Repairs Inspection ”).  If, as a result of the Live Oak Repairs Inspection, the Live Oak Inspector determines that all of the Live Oak Repairs have been completed in a good and workmanlike manner, then at the Assumption Closing Escrow Holder shall disburse the Live Oak Escrow Funds to Seller.  If, as a result of the Live Oak Repairs Inspection, the Live Oak Inspector determines that the Live Oak Repairs have been completed in a good and workmanlike manner, the Live Oak Escrow Funds shall be released to Seller.  If, as a result of the Live Oak Repairs Inspection, the Live Oak Inspector determines that all, or any portion, of the Live Oak Repairs have not been completed in a good and workmanlike manner, then at the Assumption Closing Escrow Holder shall disburse to Buyer from the Live Oak Escrow Funds an amount equal to the cost (as determined by the Live Oak Inspector) to complete any such Live Oak Repairs that have not yet been completed in a good and workmanlike manner (the “ Live Oak Repairs Costs ”); provided, however, if the Live Oak Repairs Costs exceed the Live Oak Escrow Funds, Buyer shall receive at the Assumption Closing, in addition to the Live Oak Escrow Funds, a credit against the Purchase Price equal to the amount of such excess.  If the Live Oak Repairs Costs are less than the Live Oak Escrow Funds, then at the Assumption Closing Escrow Holder shall disburse to Seller such remaining portion of the Live Oak Escrow Funds.  The cost of the Live Oak Repairs Inspection and any fees of the Live Oak Inspector shall be divided equally between Buyer and Seller.

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5.2 Release and Waiver .   

(a) Except for the specific representations and warranties of Seller set forth in Section 5.9 below or any of the documents to be delivered by Seller to Buyer pursuant to Section 2.5(b) above, Buyer hereby fully and forever releases, acquits and discharges Seller of and from, and hereby fully and forever waives any and all claims, actions, causes of action, suits, proceedings, demands, rights, damages, costs, expenses or other compensation whatsoever, whether known or unknown, direct or indirect, foreseeable or unforeseeable, absolute or contingent, that Buyer now has or may have or which may arise in the future arising out of, directly or indirectly, or in any way connected with the Property or any other matters relating to the Property, including, without limitation:  (A) except to the extent caused by any act or omission of Seller or any agent or representative of Seller after the Closing Date, any condition of environmental contamination or pollution at the Property, however and whenever occurring (including, without limitation, the contamination or pollution of any soils, subsoil media, surface waters or groundwaters at the Property) including, but not limited to, petroleum products, asbestos, lead-based paint, mold or fungi; (B) to the extent not already included in (A) above and except to the extent caused by any act or omission of Seller or any agent or representative of Seller after the Closing Date, the prior, present or future existence, release or discharge, or threatened release, of any Hazardous Materials at the Property, however and whenever occurring; (C) the violation of, or non-compliance with, any applicable law now or hereafter in effect, however or whenever occurring; (D) the condition of the soil at the Property; (E) the condition of Improvements including, without limitation, the structural integrity and seismic compliance of such Improvements; (F) the unintentional inaccuracy, unreliability, or incompleteness of, or any defect or mistake in, any Due Diligence Items; (G) to the extent not already covered by any of the foregoing clauses (A) through (F), above, the use, maintenance, development, construction, conversion of use, ownership or operation of the Property by Seller or any of Seller’s predecessor(s)-in-interest in the Property; (H) any matters arising from or relating to the leases; or (G) any matters based on Seller’s alleged superior knowledge.

(b) Except for any specific representations or warranties of Seller set forth in Section 5.9 below or any of the documents to be delivered by Seller to Buyer pursuant to Section 2.5(b) above, without limiting the scope or generality of the foregoing release and waiver provisions, those provisions shall specifically include and cover (1) any claim for or right to indemnification, contribution or other compensation based on or arising under any Environmental Law now or hereafter in effect, and (2) any claim for or based on trespass, nuisance, waste, negligence, negligence per se, strict liability, ultrahazardous activity, indemnification, contribution of other theory arising under the common law of the states where the Property is located or arising, under any applicable law now or hereafter in effect.

5.3 Waiver of General Release Defenses .  Buyer hereby acknowledges that a general release may not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor .   Nonetheless, Buyer hereby waives the provisions of any statute, principle of common law or case law which would limit the scope of the foregoing waiver and release, in connection with matters which are the subject of the foregoing waiver and release.

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5.4 Natural Hazards .   BUYER ACKNOWLEDGES THAT CERTAIN HAZARDS SUCH AS SINKHOLES, RADON AND OTHER NATURALLY OCCURRING HAZARDS MAY AFFECT THE PROPERTY.  BUYER ACKNOWLEDGES AND AGREES THAT BUYER WILL HAVE THE OPPORTUNITY TO INDEPENDENTLY EVALUATE AND INVESTIGATE WHETHER ANY OR ALL OF SUCH NATURAL HAZARDS AFFECT THE PROPERTY AND SELLER SHALL HAVE NO LIABILITIES OR OBLIGATIONS WITH RESPECT THERETO.  WITHOUT LIMITING THE FOREGOING, BUYER ACKNOWLEDGES AND AGREES THAT BUYER KNOWINGLY AND INTENTIONALLY WAIVES ANY DISCLOSURES, OBLIGATIONS OR REQUIREMENTS OF SELLER WITH RESPECT TO NATURAL HAZARDS.  BUYER REPRESENTS THAT BUYER HAS EXPERIENCE ACQUIRING AND CONDUCTING DUE DILIGENCE, AND THAT THIS WAIVER HAS BEEN NEGOTIATED AND IS AN ESSENTIAL ASPECT OF THE BARGAIN BETWEEN THE PARTIES.

5.5 Lead Warning Statement .  EVERY BUYER OF ANY INTEREST IN RESIDENTIAL REAL 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 BUYER WITH ANY INFORMATION ON LEAD-BASED PAINT HAZARDS FROM RISK ASSESSMENTS OR INSPECTIONS IN THE SELLER’S POSSESSION AND NOTIFY THE BUYER OF ANY KNOWN LEAD-BASED PAINT HAZARDS.  A RISK ASSESSMENT OR INSPECTION FOR POSSIBLE LEAD-BASED PAINT HAZARDS IS RECOMMENDED PRIOR TO PURCHASE.

By its execution of this Agreement, Buyer acknowledges that (a) it has read and understands the foregoing Lead Warning Statement, (b) it has reviewed, or during the Due Diligence Period will review, the Due Diligence Items concerning lead-based paint or lead-based paint hazards located on the Property, and (c) Seller has provided, or Buyer has independently obtained, a lead hazard information pamphlet in the form prescribed by the Environmental Protection Agency under Section 406 of the Toxic Substances Control Act.  Buyer shall conduct such studies and tests for lead-based paint during the Due Diligence Period as Buyer deems appropriate.  By its execution of this Agreement, Seller acknowledges that, to Seller’s knowledge, the statements contained herein and the information provided, or to be provided, to Buyer pursuant to the terms of this Agreement concerning lead-based paint and lead-based paint hazards are accurate.

5.6 Radon .  Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time.  Additional information regarding radon and radon testing may be obtained from county public health units.

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5.7 Survival .  Buyer’s acknowledgements, consents, agreements and releases set forth in this Article 5 shall survive the Closing or the termination of this Agreement.

5.8 Representations and Warranties of Buyer .  Buyer hereby represents and warrants to Seller as follows:

(a) Buyer is a limited partnership duly organized, validly existing, and in good standing under the laws of Delaware, and as of the Closing Date, it or its designee will be authorized to transact business in the states where the Property is located, and has all requisite power and authority to carry out the transactions contemplated by this Agreement and has obtained all necessary approvals to authorize the transaction and consummate the transfer of the Property as herein contemplated.

(b) This Agreement has been duly authorized and approved by Buyer, has been duly and validly executed and delivered by Buyer and is a valid and legally binding agreement of Buyer, enforceable against Buyer in accordance with its terms, except to the extent that such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relative to or affecting the rights and remedies of creditors generally and by general principles of equity (regardless of whether in equity or at law).

(c) The execution, delivery and performance of this Agreement by Buyer will not breach any statute or regulation of any governmental authority, and will not conflict with or result in a breach of or default under any of the terms, conditions or provisions of any order, writ, injunction, decree, agreement or instrument to which Buyer is a party.

(d) Buyer has the requisite financial wherewithal in order to consummate the transaction contemplated under this Agreement and to pay at Closing the Purchase Price.

Notwithstanding any other provisions of this Agreement and in addition to any of Seller’s remedies hereunder, the representations and warranties and the indemnity included in this Section 5.8 shall survive the Closing and the execution and delivery of the Deed for nine (9) months (the “ Survival Period ”).

5.9 Representations and Warranties of Seller .  The matters set forth in this Section 5.9 constitute representations and warranties by Seller which are now and (subject to matters contained in any notice given pursuant to the next succeeding sentence) shall be true and correct at Closing.  If Seller, after the execution of this Agreement, learns of, or has a reason to believe that any of the representations and warranties contained in this Section 5.9 may cease to be true, Seller shall give prompt written notice to Buyer (which written notice shall include copies of the instrument, correspondence, or document, if any, upon which Seller's written notice is based).  Upon receiving such written notice, Buyer shall have the right to accept such revised representation and warranty and proceed with the Closing or to terminate this Agreement in which event Buyer shall be entitled to the return of the Deposit (including the Non-Refundable Portion) and, if such representation was intentionally or materially misleading when made, Seller shall reimburse Buyer’s Out of Pocket Costs within three (3) business days and the parties shall have no further obligations hereunder other than those which expressly survive the termination of this Agreement. As used in this Section 5.9, the phrase “to Seller’s knowledge” shall mean

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the actual, current knowledge of J. David Kelsey and Matthew A. Sharp , without any duty of inquiry .  There shall be no personal liability on the part of any of such individual s .   Each Seller , with respect to itself , its respective Individual Property and/or any IN/OH Property Owner, as applicable , represents and warrants to Buyer , as follows:

(a) Seller is a limited liability company duly organized, validly existing, and in good standing under the laws of Delaware, and is authorized to transact business in the states where its Individual Property is located, and has all requisite power and authority to carry out the transactions contemplated by this Agreement and has obtained all necessary approvals to authorize the transaction and consummate the transfer of the Property as herein contemplated.

(b) Entity Seller has provided Buyer with true, correct and complete copies of the IN/OH Property Owner’s organizational documents (the “ IN/OH Property Owner’s Organizational Documents ”), as more particularly listed on Schedule 5.9(b), prior to the execution of this Agreement.  Except as described on Schedule 5.9(b), the IN/OH Property Owner’s Organizational Documents have not been modified, amended or supplemented and the same are in full force and effect.

(c) IN/OH Property Owner is a limited liability company duly organized, validly existing, and in good standing under the laws of Delaware, and is authorized to transact business in the state where its Individual Property is located.

(d) This Agreement has been duly authorized and approved by Seller, has been duly and validly executed and delivered by Seller and is a valid and legally binding agreement of Seller, enforceable against Seller in accordance with its terms, except to the extent that such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relative to or affecting the rights and remedies of creditors generally and by general principles of equity (regardless of whether in equity or at law).

(e) The execution, delivery and performance of this Agreement by Buyer will not breach any statute or regulation of any governmental authority, and will not conflict with or result in a breach of or default under any of the terms, conditions or provisions of any order, writ, injunction, decree, agreement or instrument to which Seller is a party. None of the execution, delivery or performance of this Agreement by Seller does or will, with or without the giving of notice, lapse of time or both, violate, conflict with, constitute a default, result in a loss of rights, acceleration of payments due or creation of any lien upon the Limited Liability Company Interests or the Property.

(f) (i) There is no pending condemnation or similar proceeding affecting any part of the Property; and (ii) Seller has not received any written notice of, nor does Seller have knowledge of, any threatened condemnation or similar proceeding affecting any part of the Property.

(g) Seller has not received written notice from any governmental authority that the Property is not in compliance with all applicable laws, except for such failures to comply, if any, which have been remedied prior to the Effective Date.  To the best of Seller’s knowledge, the Property is in material compliance with all applicable laws.

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(h) Other than as set forth on Schedule 5.9(h ) hereof, (i) there is no pending litigation or administrative proceedings affecting the Seller or Property; and (ii) Seller has not received any written notice of , nor does Seller have knowledge of, any pending litigation or administrative proceedings affecting the Seller or Property.

(i) Seller has not (i) made a general assignment for the benefit of creditors, (ii) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by Seller's creditors, (iii) suffered the appointment of a receiver to take possession of all, or substantially all, of Seller's assets, (iv) suffered the attachment or other judicial seizure of all, or substantially all, of Seller's assets, (v) admitted in writing its inability to pay its debts as they come due, or (vi) made an offer of settlement, extension or composition to its creditors generally.

(j) Seller is not a “foreign person” as defined in Section 1445 of the Internal Revenue Code of 1986, as amended (the “Code”) and any related regulations.

(k) The rent roll for the Property attached hereto as Schedule 5.9(k)-1 is true, correct and complete in all material respects as of the date set forth therein.  Seller has provided or made available to Buyer with true, correct and complete copies of each of the tenant leases listed on the rent roll including all amendments and modifications thereto (collectively, the “ Leases ”), prior to the execution of this Agreement.  Other than as set forth on Schedule 5.9(k)-2 hereof, (i) no tenant is in arrears more than thirty (30) days with respect to any payment obligations under its Lease; and (ii) neither Seller nor, to Seller’s knowledge, the applicable tenant is otherwise in default in any material respect of the terms and conditions under the Leases.  Other than the Leases, there are no contracts, written or otherwise, with any individual, partnership, corporation, limited liability company, trust, estate, or unincorporated organization, or other entity, or a government or agency or political subdivision thereof (each, a “ Person ”) for the occupancy of all or any portion of the Real Property.

(l) The list of contracts or servicing agreements affecting the Property (the “ Property Contracts ”) attached hereto as Schedule 5.9(l) is a true, correct and complete list of Property Contracts to which Seller is a party or which otherwise affect the Property. Seller has provided or made available to Buyer with true, correct and complete copies of each of the Property Contracts prior to the execution of this Agreement.   Neither Seller nor, to Seller’s knowledge, the applicable vendor is in default in any material respect of the terms and conditions under the Property Contracts.  Other than the Service Contracts, there are no contracts, written or otherwise, with any Person, firm, labor union or entity for maintenance, labor, materials, supplies or services at the Property.  There are, and will be as of Closing Date, no past due amounts under the Property Contracts that Buyer either elects, or is required, to assume at Closing.

(m) Seller is currently in compliance with, and shall at all times during the term of this Agreement (including any extension thereof) remain in compliance with, the regulations of the Office of Foreign Assets Control (" OFAC ") of the Department of the Treasury (including those named on OFAC's Specially Designated Nationals and Blocked Persons List) and any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action relating thereto.

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(k)There are no pending special assessments affecting the Property and to Seller’s knowledge none are threatened against Seller or the Property.

(l) There are no options or rights in any party, other than Buyer, to purchase, or acquire any fee ownership interest in the Property.

( m) The Seller has received no notices of violation of any Environmental Law and to Seller’s knowledge no Hazardous Material is located on the Property.  Seller has heretofore delivered to Buyer all environmental audit reports covering the Property in Seller’s possession or control.  Seller makes no representation or warranties as to any previous or present generation, storage, disposal or existence of any oil, petroleum products, or other hazardous materials, as defined under applicable Environmental Laws (collectively, “ Hazardous Materials ”) in, on, under or about the Property.  

 

(n) Based on Seller’s title policies, the Property is separately assessed for real property tax assessment purposes and is not combined with any other real property for such tax assessment purposes.  The Property is not subject to or affected by, and Seller has not received notice of any contemplated or actual, re-assessments of the Property or any part thereof for general real estate tax purposes or special assessment purposes, nor has Seller filed, or contracted with any party to investigate or file, any tax assessment appeal.  All property tax returns required to be filed by Seller or the IN/OH Property Owner relating to the Property under any Law have been, or will be, as the case may be, truthfully, correctly and time filed.  There are no pending tax appeals affecting the Property.

 

(o) Other than the Condominium located at the Kensington Property, no portion of the Property is subject to a condominium regime.  The Kensington Property Owner owns all Units of the Condominium.

 

(p) The Seller has no employees.  Seller has not, and will not, represent to the employees of its property manager that Buyer or its independent manager will hire Seller’s employees on or after the Closing Date.

 

(q) (i) Seller is not an “employee benefit plan”, as defined in Section 3(3) of ERISA, subject to Title I of ERISA, (ii) Seller is not a “governmental plan” within the meaning of Section 3(32) of ERISA, (iii) transactions by or with Seller are not and will not be subject to any state statute, regulation or ruling regulating investments of, or fiduciary obligations with respect to, governmental plans, and (iv) none of the assets of Seller constitutes or will constitute “plan assets” of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-101 , as modified by Section 3(42) of ERISA.

 

(r)Seller is not undertaking any capi tal expenditures work at the Property other than in the ordinary course of business, consistent with past practice.

 

(s) The consummation of the transaction contemplated by this Agreement will not render Seller insolvent or constitute a fraudulent conveyance or fraudulent transfer under any applicable law.  Seller has not made any general assignment for the benefit of Seller’s

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creditors.  No proceeding seeking (i) relief for Seller under any bankruptcy or insolvency law, (ii) the rearrangement or readjustment of Seller’s debt, (iii) the appointment of a receiver, custodian, liquidator or trustee to take possession of substantially all of the assets of Seller, or (iv) the liquidation of Seller has been commenced, is planned by Seller or has been threatened by any other P erson.

 

(t)Seller’s insurance policies (including, without limitation, Seller’s casualty insurance and lost rent insurance) covering the Property, are in full force and effect, all premiums due with respect thereto have been paid, and no notice of cancellation has been received with respect thereto.

 

(u) The Limited Liability Company Interests represent all of the outstanding limited liability company interests of the IN/OH Property Owner.  The Limited Liability Company Interests have been duly authorized and validly issued in accordance with the IN/OH Property Owner’s Organizational Documents and applicable laws.  As to each IN/OH Property Owner, (i) there are no outstanding securities convertible into or exchangeable for limited liability company interests, (ii) no outstanding subscription rights, options, warrants or other agreements providing for the sale, issuance or purchase (contingent or otherwise) of limited liability company interests, (iii) no calls, commitments or claims of any character relating to limited liability company interests, and (iv) no other agreements which could obligate the IN/OH Property Owner to transfer any ownership interest of itself, or to issue or sell additional limited liability company interests.

 

(v) Entity Seller is the legal and beneficial owner of the Limited Liability Company Interests, and, at Closing, title to such Limited Liability Company Interest shall be conveyed to Buyer or its designee(s) free and clear of any liens.

 

(w) Each of the Assumable Loans and its respective Loan Documents are valid and binding agreements of the Hartshire Property Owner, the Brunswick Seller and the Creekside Seller, as applicable, and, to the Seller’s knowledge, valid and binding agreements of the other party or parties thereto, and each of the Assumable Loans and its respective Loan Documents are in full force and effect.  None of the Hartshire Property Owner, the Brunswick Seller and the Creekside Seller are in default under the terms of its respective Assumable Loan, and, to the Seller’s knowledge, no other Person is in default under any of the Loan Documents.  True, correct and complete copies of all of the Loan Documents have been provided to Buyer prior to the execution of this Agreement.  Except as listed on Exhibits B-1 through B-3 attached hereto, the Loan Documents have not been amended or modified in any respect, other than miscellaneous assignment documents pursuant to which each of the loans has been sold into a securitization trust.

 

(x) Entity Seller has made available to Buyer (1) true, correct and complete copies (in all material respects) of the annual financial statements for each of the Property Owners for the year ended December 31, 2016 (each a “ Financial Statement ”), and (2) true, correct and complete copies (in all material respects) of the balance sheet and statement of income for each of the Property Owners for the quarter ended June 30, 2017.  Each Financial Statement is fairly represented in conformity with generally accepted accounting principles, and

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includes all disclosures necessary for such presentation and disclosures required to be included therein by the laws and regulations to which the applicable Property Owner is subject.

 

(y) Entity Seller has filed within the time and in the manner prescribed by law any required return required to be filed with any taxing authority, including any schedule or attachment thereto or any amendment thereof (the “ Tax Returns ”).  All Tax Returns filed by the IN/OH Property Owner are true, correct and complete in all material respects.  The IN/OH Property Owner has paid in full all taxes of whatever kind or nature for the periods covered by such Tax Returns.  There are no tax liens, whether imposed by the United States, any state, local, or other taxing authority, outstanding against the IN/OH Property Owner, or any of its respective assets.

 

(z) To Seller’s knowledge, the representations set forth in the Auditor Representation Letter are true and correct.

 

(aa) The IN/OH Property Owner has at all times during its existence been properly treated as a “disregarded entity” and not as an association taxable as a corporation for federal income tax purposes.

 

(bb) To Seller’s knowledge, there are no unpaid charges, debts, liabilities, claims or obligations arising from the construction, occupancy, ownership, use or operation of the Property which could give rise to any mechanic's or materialmen's or other statutory lien against the Property, or any part thereof, for which Buyer or its designee(s) will be responsible after the Closing ; provided that if any such charge, debt, liability, claim or obligation arises prior to Closing, the same shall not be a default by Seller hereunder so long as the same is paid or discharged by Seller at or prior to Closing.  

 

(cc) Each Property Owner owns or will own the Personal Property related to its Individual Property free and clear of all liens and encumbrances.  

 

(dd) From the date of each Property Owner’s formation to the Closing Date, (i) each such Property Owner has maintained its status as a bankruptcy remote single purpose entity; and (ii) each Property Owner has conducted its operations in material compliance with the single-purpose entity covenants set forth in its organizational documents and any loan documents to which it is or, has at any time been, a party. Each Property Owner has at all times during its existence been a single-member Delaware limited liability company.

Notwithstanding any other provisions of this Agreement and in addition to any of Buyer’s other remedies hereunder, the representations and warranties and the indemnity included in this Section 5.9 shall survive the Closing and the execution and delivery of the Deed for the Survival Period. Seller’s liability hereunder shall be subject to the terms of Section 6.24 hereof.

ARTICLE 6
MISCELLANEOUS

6.1 Covenants of Seller Pending Closing .  

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(a) During the term of this Agreement, Seller will continue to manage, operate, lease and maintain the Property in substantially the same manner it has before the execution of this Agreement and shall keep Seller’s insurance policies covering the Property in full force and effect at all times from the Effective Date through the Closing Date .  Any rental unit that become s vacant more than five (5 ) days pri or to the Closing Date shall be prepared and made in Rent Ready Condition (as defined below).  Failure to comply with the covenant in the foregoing sentence shall not be a default under this Agreement, provided that , subject to the penultimate sentence of this Section 6.1(a) , Buyer shall rece ive a credit equal to One Thousand Five Hundred and 00/100 Dollars ($ 1 , 5 00.00) for each unit that becomes vacant more than five (5) days prior to the Closing but is not prepared and made in Rent Ready Condition as of the Closing Date.   In addition to the foregoing, subject to the penultimate sentence of this Section 6.1(a) , Buyer shall receive a credit equal to Seven Hundred Fifty and 00/100 Dollars ($ 750 .00) for each unit that becomes vacant within five (5) days prior to the Closing unless the same is made in Rent Ready Condition .  Buyer shall have access to each vacant unit at the Property two (2) days prior to the Closing to confirm that such units are in Rent Ready Condition as required herein .   As used herein, the term “ Rent Ready Condition ” shall mean that the applicable unit has been cleaned, all drywall within such unit has been patched, painted and is free o f holes or other damage, all carpet and other flooring within such unit is free of stains and without visible wear and tear, all appliances are present in such unit and in good working order, all HVAC, plumbing and electric servicing such unit is in good working order, all doors and windows in such unit are free of damage and in good working order and such unit is otherwise free of significant damage.  Notwithstanding anything to the contrary set forth herein, if following Buyer’s inspection of the vacant units Buyer identifies any missing appliances, significant damage or other material conditions the cost of which to repair or replace would exceed the applicable credit for a vacant unit to which Buyer is entitled above, Buyer shall receive an additional credit at the Closing in the amount of such excess as mutually agreed upon between Buyer and Seller .   Except as otherwise approved by Buyer in its reasonable discretion, a ll new lea ses entered into after the Effective Date shall be (i) arms-length transactions at current market rents consistent with Seller’s past practices with respect to the applicable class of units at the Property, (ii) on Seller’s standard form of lease, (iii) for a term of twelve (12) months, and (iv) with no ongoing or material upfront rent concessions (collectively, the “ Leasing Parameters ”) .  

(b) Notwithstanding the terms of subsection (a) above:

(i) After the expiration of the Due Diligence Period, (i) without the consent of Buyer, which may be withheld in Buyer’s sole and absolute discretion, Seller will not enter into any new service agreement or contract affecting any Individual Property that cannot be terminated without a fee and/or without more than thirty (30) days’ notice; and (ii) without the consent of Buyer, which consent shall not be unreasonably withheld, Seller will not enter into any new service agreement or contract affecting the Property that can be terminated without a fee and upon not more than thirty (30) days’ notice;  

(ii) After the expiration of the Due Diligence Period, without the consent of Buyer, which may be withheld in Buyer’s sole and absolute discretion, none of the leases affecting the Property will be amended to reduce the rents or other charges thereunder or will be renewed for rents or other charges which are less than those payable prior to such renewal; and

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(iii) The failure of Buyer to respond to a request for its consent to an agreement or contract, or an amendment or extension of a lease, or a new lease that does not meet the Leasing Parameters , within three (3) business days of Seller’s request therefor shall be deemed to constitute Buyer’s consent thereto.

(iv) Seller will not remove any personalty from the Property, other than office supplies, cleaning supplies and other similar items utilized in the ordinary course of business and items of equipment and other personalty which are replaced by Seller with an item of the same or better quality in the ordinary course of business;

(v) Seller will not alter or amend in any way which would be binding upon Buyer or the Property after the Closing, the zoning or any other governmental approval or permit affecting the Property; and

(vi) Seller will not file, or contract with any party to investigate or file, any tax assessment appeal with respect to any Individual Property.

6.2 Risk of Physical Loss .  Buyer shall be obligated to acquire an Individual Property pursuant to this Agreement, notwithstanding that such Individual Property is damaged by fire or other casualty prior to the Closing Date, provided that (i) such Individual Property can be repaired for less than ONE MILLION DOLLARS ($1,000,000.00) and the applicable damage does not materially and adversely affect access to parking or any of the Improvements located on such Individual Property, (ii) the cost to repair such damage is covered by insurance maintained by or for Seller, (iii) Seller assigns to Buyer all insurance proceeds, other than proceeds expended in restoration and repair by Seller and rental loss proceeds applied to rents accruing through the Close of Escrow, and (v) Seller credits to the account of Buyer in Escrow, the amount of any deductible under Seller’s insurance (not to exceed the cost of repair).  Any such casualty is hereinafter referred to as a “non-material insured casualty”.  In the event of casualty damage to any Individual Property, other than a non-material insured casualty, Buyer may, at its option, either terminate this Agreement solely with respect to such Individual Property by giving written notice of such termination to Seller within ten (10) days of Buyer’s receipt of written notice of such casualty from Seller, in which event Buyer shall receive a return of a portion of the Deposit as calculated based upon a fraction the numerator of which is the Individual Property Allocation for the applicable Individual Property and the denominator of which is the Purchase Price, and this Agreement shall remain in full force and effect with respect to the remainder of the Property, or elect to proceed with its purchase of the Property, in which event Seller shall transfer and assign to Buyer all insurance proceeds and all rights to receive insurance proceeds by reason of such damage through Escrow, other than proceeds expended in restoration and repair by Seller and rental loss proceeds applied to rents accruing through the Closing Date and shall credit Buyer’s account in Escrow the amount of any deductible under Seller’s insurance (not to exceed the cost of repair).  If the right to receive any such insurance proceeds to be assigned to Buyer is not assignable by Seller to Buyer, Buyer may either terminate this Agreement solely with respect to such Individual Property by giving written notice of such termination to Seller within ten (10) days of Buyer’s receipt of written notice from Seller that such insurance proceeds are not assignable, in which event Buyer shall receive a return of a portion of the Deposit as calculated based upon a fraction the numerator of which is the Individual Property Allocation for the applicable Individual Property and the denominator of

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which is the Purchase Price, or elect to close the Escrow, in which event Seller shall promptly deliver to Buyer the proceeds of any such insurance received by it following the Close of Escrow, except to the extent such proceeds are in reimbursement for restoration and repair costs incurred or to be incurred by Seller prior to the Close of Escrow and/or rental loss proceeds for rents accruing prior to the Close of Escrow. Notwithstanding any provision to the contrary in this Section 6.2, the Non-Refundable Portion shall remain unaffected by a partial termination hereunder and shall continue to be held by the Escrow Holder.

6.3 Condemnation .  In the event that, prior to the Close of Escrow, any governmental entity shall commence any actions of eminent domain or similar type proceedings to take any material portion of any Individual Property (i.e., one for which the condemnation award is One Million and 00/100 Dollars ($1,000,000.00 or more) or access to the parking area or any building is materially or adversely effected or permanent use of any apartment unit is eliminated, Buyer shall have the option either to (i) elect not to acquire such Individual Property, in which event Buyer shall receive a return of a portion of the Deposit as calculated based upon a fraction the numerator of which is the Individual Property Allocation for the applicable Individual Property and the denominator of which is the Purchase Price, or (ii) complete the acquisition of the Property, in which case Buyer shall be entitled to all the proceeds of such taking. Notwithstanding any provision to the contrary in this Section 6.3, the Non-Refundable Portion shall remain unaffected by a partial termination hereunder and shall continue to be held by the Escrow Holder.

6.4 Intentionally Omitted.

6.5 Attorneys’ Fees .  In the event of any action or legal proceeding between Buyer and Seller seeking enforcement or interpretation of any of the terms and conditions to this Agreement, or otherwise in connection with the Property, the prevailing party, whether by fixed judgment or settlement (and whether or not prosecuted to completion), shall be entitled to recover, in addition to damages, injunctive or other relief, its reasonable costs and expenses, including, but not limited to, reasonable attorneys’ fees, court costs, expert witness fees and costs of appeal at all levels.

6.6 Waiver of Jury Trial .  Each party hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in any legal proceeding directly or indirectly relating to this Agreement whether based on contract, tort or any other theory.

6.7 Notices .  All written notices under this Agreement shall be effective upon (i) personal delivery to Buyer or Seller, as the case may be, or (ii) e-mail transmission with a hard copy deposited in United States mail, or (iii) one (1) business day after deposit with an overnight courier service (e.g., Federal Express), or (iv) three (3) business days after deposit in the United States mail, registered, certified, postage fully prepaid and addressed to the respective parties as follows:

 

 

To Buyer:

Independence Realty Operating Partnership, LP

 

c/o Independence Realty Trust

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Two Liberty Place

 

50 S. 16 th Street, Suite 3575

 

Philadelphia, Pennsylvania 19102

 

Attn:  Jessica K. Norman, Esq.

 

Telephone No.: (267) 270-4812
E-mail:   jnorman@irtliving.com

 

 

Copy to:

Ledgewood

 

Two Commerce Square, Suite 3400

 

2001 Market Street

 

Philadelphia, Pennsylvania 19103

 

Attn: Brian L. Murland, Esq.

 

Telephone No.: (215) 790-2383
E-mail: bmurland@ledgewood.com

 

 

To Seller:

c/o Hamilton Point Investments LLC

 

2 Huntley Road

 

Old Lyme, Connecticut 06371

 

Attn:  Matthew Sharp / J. David Kelsey

 

Telephone No.: (860) 598-4301 / (860) 598-4302
E-mail: sharp@hamiltonptinv.com / kelsey@hamiltonptinv.com

 

 

 

 

Copy to:

O’Halloran Ryan PLLC

 

275 Madison Avenue, 36 th Floor

 

New York, New York 10016

 

Attn:  Neil O’Halloran

 

Telephone No. (212) 953-1856

 

E-mail: neil@ohalloranryan.com

 

or to such other address as the parties may from time to time designate in writing.

6.8 Entire Agreement .  This Agreement and the items incorporated herein contain all the agreements of the parties hereto with respect to the matters contained herein; and no prior agreement or understanding pertaining to any such matter shall be effective for any purpose.  No provisions of this Agreement may be amended or modified in any manner whatsoever except by an agreement in writing signed by duly authorized officers or representatives of each of the parties hereto.

6.9 Successors .  The terms, covenants and conditions of this Agreement shall be binding upon and shall inure to the benefit of the heirs, executors, administrators and assigns of the respective parties hereto.

6.10 Assignment .  

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(a) By Seller .   Seller shall not be permitted to assign this Agreement and its rights, duties and obligations hereunder.

(b) By Buyer .  Except as provided in this Section, Buyer may not assign this Agreement and/or its rights hereunder without the consent of Seller, which consent may be withheld in Seller’s sole and absolute discretion.  Any purported assignment without such consent shall be void.  Buyer shall be permitted, however, to assign this Agreement and the right to purchase the Property to a Buyer Affiliate without the consent or approval of Seller provided that Seller is given written notice of such assignment at least three (3) days prior to the Closing Date and, at the request of Seller, Buyer provides a certification that such assignee is a Buyer Affiliate, and such Buyer Affiliate agrees in writing to be bound by the Agreement.  For purposes of this Agreement, “ Buyer Affiliate ” means any entity that is directly or indirectly controlled by Buyer or an affiliate or subsidiary of Independence Realty Trust (as a manager, general partner, or other similar capacity) and in which Buyer owns a majority economic interest.  Buyer shall not be released and discharged from any liability or obligations under this Agreement on account of such assignment.  

6.11 Governing Law; Jurisdiction .  This Agreement shall be governed by the laws of the State of New York and any questions arising hereunder shall be construed or determined according to such laws. Any action, suit or proceeding arising out of this Agreement or the transactions contemplated by this Agreement shall be brought exclusively in the United States District Court for the Southern District of New York or the Supreme Court of the State of New York located in New York City, New York except in the case of a suit for specific performance pursuant to Section 4.12 hereof, which shall be brought in a court of competent jurisdiction in the state of the Individual Properties, and Seller and Buyer agree that such courts are the most convenient forum for resolution of any such action and further agree to submit to the jurisdiction of such courts and waive any right to object to venue in such courts.

6.12 Headings .  Headings at the beginning of each numbered Article and Section of this Agreement are solely for the convenience of the parties and are not a part of this Agreement.

6.13 Time .  Time is of the essence of this Agreement, it being understood that each date set forth herein and the obligations of the parties to be satisfied by such date have been the subject of specific negotiation by the parties.

6.14 Time Period Computations .  All periods of time referred to in this Agreement shall include all Saturdays, Sundays and New York state or national holidays, unless the reference is to business days, in which event such weekends and holidays shall be excluded in the computation of time, and provided that if the last day to perform any act or give any notice with respect to this Agreement shall fall on a Saturday, Sunday or New York state or national holiday, such act or notice shall be deemed to have been timely performed or given on the next succeeding business day.

6.15 Counterparts .  This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.  Signatures may be exchanged by facsimile or electronic mail, and each

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party agrees to be bound by its own facsimile or electronic signature and to accept the facsimile or electronic signatures of the other party.

6.16 Brokerage Commissions .  Each party represents and warrants that, other than KeyBanc Capital Markets (“ Broker ”), neither party has retained any brokers or finders to represent its interests in connection with this transaction.  Seller shall, upon the Close of Escrow, pay a brokerage commission to Broker pursuant to a separate agreement, if and only if Escrow closes and not otherwise.  Except as provided above, each party agrees to indemnify and hold the other harmless from and against all liabilities, costs, damages and expenses, including, without limitation, reasonable attorneys’ fees, resulting from any claims or fees or commissions, based upon agreements by it, if any, to pay any additional broker’s commission and/or finder’s fee.

6.17 Information Report .  Escrow Holder shall file and Buyer and Seller agree to cooperate with Escrow Holder and with each other in completing any report (“ Information Report ”) and/or other information required to be delivered to the Internal Revenue Service pursuant to Internal Revenue Code Section 6045(e) regarding the real estate sales transaction contemplated by this Agreement, including, without limitation, Internal Revenue Service Form 1099-B as such may be hereinafter modified or amended by the Internal Revenue Service, or as may be required pursuant to any regulation now or hereinafter promulgated by the Treasury Department with respect thereto.  Buyer and Seller also agree that Buyer and Seller, their respective employees and attorneys, and Escrow Holder and its employees may disclose to the Internal Revenue Service, whether pursuant to such Information Report or otherwise, any information regarding this Agreement or the transaction contemplated herein as such party reasonably deems to be required to be disclosed to the Internal Revenue Service by such party pursuant to Internal Revenue Code Section 6045(e), and further agree that neither Buyer nor Seller shall seek to hold any such party liable for the disclosure to the Internal Revenue Service of any such information.

6.18 INDEPENDENT COUNSEL .  EACH PARTY TO THIS AGREEMENT ADMITS, ACKNOWLEDGES AND REPRESENTS THAT IT HAS HAD THE OPPORTUNITY TO CONSULT WITH AND BE REPRESENTED BY INDEPENDENT COUNSEL OF SUCH PARTY’S CHOICE IN CONNECTION WITH THE NEGOTIATION AND EXECUTION OF THIS AGREEMENT.  EACH PARTY HAS REVIEWED AND REVISED THIS AGREEMENT AND, THEREFORE, THE RULE OF CONSTRUCTION REQUIRING THAT ANY AMBIGUITY BE RESOLVED AGAINST THE DRAFTING PARTY SHALL NOT BE EMPLOYED IN THE INTERPRETATION OF THIS AGREEMENT.  EACH PARTY FURTHER ADMITS, ACKNOWLEDGES AND REPRESENTS THAT IT HAS NOT RELIED ON ANY REPRESENTATION OR STATEMENT MADE BY ANY OF THE ATTORNEYS OF THE OTHER PARTY WITH REGARD TO THE SUBJECT MATTER, BASIS, OR EFFECT OF THIS AGREEMENT.

6.19 Acceptance of Deed .  Acceptance of the Deed by Buyer shall be deemed to fully and completely discharge any and all obligations of Seller hereunder and the terms of this Agreement shall merge into such Deed, other than those obligations, if any, which expressly survive the Closing pursuant to the terms of this Agreement.

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6.20 Buyer’s Delivery of Work Product .  In the event this Agreement is terminated for any reason prior to the Closing (other than by reason of a Seller default), if requested by Seller, Buyer shall, promptly deliver and assign to Seller, at no material cost to Seller, copies of all entitlements, applications, submittals, reports, surveys, studies, analyses, improvement plans, drawings, specifications, and other plans, reports and materials generated by or for Buyer with respect to the Property.

6.21 Intentionally Omitted .  

6.22 No Third Party Beneficiary .  No term or provision of this Agreement is intended to, or shall be, for the benefit of any Person not a party hereto and no such Person shall have any right or cause of action hereunder.  

6.23 Limited Liability .  The obligations of Seller under this Agreement and under all of the documents referenced herein are intended to be binding only on the assets of Seller and Guarantor (as defined in Section 6.23 below) and shall not be personally binding upon, nor shall any resort be had to, the private properties of any member of Seller or any trustee, partner, member, manager, officer, director, employee or affiliate of Seller.

6.24 Seller's Maximum Aggregate Liability; Minimum Claim .  

(a) Notwithstanding any provision to the contrary contained in this Agreement or any documents executed by Seller pursuant hereto or in connection herewith, the maximum aggregate liability of Seller for Seller’s breaches of representations and warranties herein, or in any documents executed by Seller at Closing shall not exceed Three Million Five Hundred Thousand and 00/100 Dollars ($3,500,000.00) in the aggregate.  In addition, Buyer acknowledges and agrees that Seller shall have no liability for, and Buyer shall not make any claim on account of, any breach of any representation or warranty herein except to the extent the aggregate measure of such claims exceeds Fifty Thousand and 00/100 Dollars ($50,000.00).  Notwithstanding the foregoing or anything to the contrary contained in this Agreement, if the Close of Escrow occurs, Buyer hereby expressly waives, relinquishes and releases any right or remedy available to it at law, in equity or under this Agreement to make a claim against Seller or Guarantor for damages that Buyer may incur, or to rescind this Agreement and the transaction, as the result of any of Seller's representations or warranties being untrue, inaccurate or incorrect if Buyer had actual knowledge that such representation or warranty was untrue, inaccurate or incorrect at the time of the Close of Escrow. The provisions of this Section 6.24 shall survive the Closing.

(b) In consideration of Buyer’s execution of this Agreement, Entity Seller (“ Guarantor ”) hereby absolutely, unconditionally and irrevocably guarantees to Buyer and its assignees any liability of Seller arising from Seller’s misrepresentation under Section 5.9 hereof, subject in all cases to the cap on liability set forth in clause (a) above.  Guarantor hereby covenants and agrees to (a) continue as an entity in good standing during the Survival Period or, if any claim is properly filed by Buyer during the Survival Period in respect of Seller’s representations and warranties set forth in Section 5.9 hereof, then until the resolution of such claim, and (b) remain adequately capitalized so that Guarantor shall be able to satisfy the payment and performance of any claim asserted by Buyer during the Survival Period in respect

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of Seller’ representations and warranties set forth in Section 5.9 hereof.   Guarantor represents and acknowledges that Guarantor owns a substantial interest in Property Seller and the IN/OH Property Owner , that Guarantor will derive substantial benefits from the execution of this Agreement and the transactions contemplated thereby, and that Guarantor’s agreement to be bound hereby is a material inducement and condition to Buyer’s execution of this Agreement .

6.25 Conditions to Closing .  It shall be a condition of Closing that Seller has complied with all of its obligations set forth in this Agreement, that all of Seller’s representations and warranties be true and correct at Closing and that the Title Company is prepared to issue a title policy to Buyer in accordance with Buyer’s Title Notice.

6.26 Incorporation .  Each of the Exhibits and Schedules as attached to this Agreement, is incorporated herein and made a part hereof.

 

[Remainder of page intentionally left blank.]

 

 

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Execution Copy

IN WITNESS WHEREOF, Buyer and Seller have executed this Agreement as of the date first above written.

 

PROPERTY SELLER:

 

HPI LIVE OAK TRACE LLC , a Delaware limited liability company

 

 

By: /s/Matt Sharp

Name: Matt Sharp

Title:   Authorized Signatory

 

 

HPI TIDES LLC , a Delaware limited liability company

 

 

By: /s/Matt Sharp

Name: Matt Sharp

Title:   Authorized Signatory

 

 

HPI TIDES LAND LLC , a Delaware limited liability company

 

By: /s/Matt Sharp

Name: Matt Sharp

Title:   Authorized Signatory

 

 

HPI HUNTERSTONE LLC , a Delaware limited liability company

 

 

By: /s/Matt Sharp

Name: Matt Sharp

Title:   Authorized Signatory

 


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40


HPI CHERRY GROVE LLC , a Delaware limited liability company

 

 

By: /s/Matt Sharp

Name: Matt Sharp

Title:   Authorized Signatory

 

HPI CREEKSIDE LLC , a Delaware limited liability company

 

 

By: /s/Matt Sharp

Name: Matt Sharp

Title:   Authorized Signatory

 

 

ENTITY SELLER :

 

HPI REAL ESTATE OPPORTUNITY FUND III, LLC , a Delaware limited liability company

 

 

By: /s/J. David Kelsey

Name: J. David Kelsey

Title:   Authorized Signatory


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BUYER:

 

INDEPENDENCE REALTY OPERATING PARTNERSHIP, LP , a Delaware limited partnership

 

 

By:  

Independence Realty Trust, Inc., its general partner  

 

By:       /s/James Sebra

Name:  James Sebra

Title:    Chief Financial Officer



 


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ACCEPTANCE BY ESCROW HOLDER

The undersigned hereby acknowledges that it has received originally executed counterparts or a fully executed original of the foregoing Purchase and Sale Agreement and agrees to act as Escrow Holder thereunder and to be bound by and perform the terms thereof as such terms apply to Escrow Holder.

Dated:  September 7, 2017

LAND SERVICES USA, INC.


By: /s/Alison Zugschwert

Name: Alison Zugschwert

Title: Title Officer

 

 

 

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Execution Copy

JOINDER BY GUARANTOR

 

Guarantor hereby executes this Agreement solely for the purpose of acknowledging and agreeing to be bound by the provisions of Section 6.24(b) of this Agreement.

 

 

HPI REAL ESTATE OPPORTUNITY FUND III, LLC , a Delaware limited liability company

 

 

By: /s/J. David Kelsey

Name: J. David Kelsey

Title:   Authorized Signatory

                    

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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SCHEDULE 1

 

Property Owner

 

Property Name

Address

HPI Live Oak Trace LLC (the “ Live Oak Seller ”)

 

Live Oak Trace (the “ Live Oak Property ”)

7615 Magnolia Beach Rd., Denham Springs, LA 70726

HPI Tides LLC

(the “ Tides Seller ”)

 

Tides At Calabash (the “ Tides Property ”)

 

7112 Town Center Rd., Sunset, NC 26468

HPI Tides Land LLC (the “ Tides Vacant Land Seller ”)

 

Tides Vacant Land

N/A

HPI Cherry Grove LLC (the “ Cherry Grove Seller ”)

 

Cherry Grove Commons (the “ Cherry Grove Property ”)

1100 David Street, North Myrtle Beach, SC 29582

HPI Hunterstone LLC (the “ Brunswick Point Seller ”)

 

Brunswick Point (the “ Brunswick Point Property ”)

1001 Hunterstone Dr., Leland, NC 28451

HPI Creekside LLC (the “ Creekside Seller ”)

 

Creekside Corners Apartments (the “ Creekside Property ”)

5301 West Fairington Pkwy., Lithonia, GA 30038

HPI Schirm Farms LLC (the “ Schirm Farms Property Owner ”)

 

Schirm Farms (the “ Schirm Farms Property ”)

5340 Saddler Way, Canal Winchester, OH 43110

HPI Hartshire LLC (the “ Hartshire Property Owner ”)

 

Hartshire Lakes (the “ Hartshire Property ”)

3170 Hartshire South Dr., Bargersville, IN 46106

HPI Kensington Commons LLC (the “Kensington Property Owner ”)

 

Kensington Commons Residences (the “ Kensington Property ”)

 

6300 Refugee Rd., Canal Winchester, OH 43110

HPI Riverchase LLC (the “ Riverchase Property Owner ”)

 

Riverchase Apartments  (the “ Riverchase Property ”)

2730 Riverchase Dr., Indianapolis, IN 46214

 

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Schedule 4 .9( c )

TRANSFER/DOCUMENTARY STAMP TAX, TITLE PREMIUM AND SEARCH AND EXAM FEE ALLOCATIONS

 

STATE

 

TRANSFER TAXES

OWNER’S POLICY PREMIUM

SEARCH AND EXAM FEES

INDIANA

NONE

SELLER PAYS

SELLER PAYS

OHIO

SELLER PAYS

DIVIDED EQUALLY BETWEEN BUYER AND SELLER

SELLER PAYS

NORTH CAROLINA

SELLER PAYS

BUYER PAYS

BUYER PAYS

SOUTH CAROLINA

SELLER PAYS

BUYER PAYS

BUYER PAYS

LOUISIANA

NONE

BUYER PAYS

BUYER PAYS

GEORGIA

SELLER PAYS

DIVIDED EQUALLY BETWEEN BUYER AND SELLER

BUYER PAYS

 

 

 

 

46


 

Schedule 5.1(c)

LIVE OAK REPAIRS

 

 

 

 

47


 

Schedule 5.9(b)

IN/OH PROPERTY OWNER’S ORGANIZATIONAL DOCUMENTS

 

[TO COME]

 

 

 

1


 

Schedule 5.9(h )

 

PENDING LITIGATION

 

 

 

1.

Khalil Johnson, individually and on behalf of other similarly situated individuals v Mike Williams, an individual and Fowler, Hein, Cheatwood & Williams, PA.

United States District Court, Northern District of Georgia Civil Action File No. 17-cv-00349-LMM-CMS. Notice of Lawsuit Seeking Damages pursuant to the Fair Debt Collection Practices Act (FDCPA) and seeking Class Action.

This is a former resident at the Creekside Property who defaulted on the lease, eviction proceedings were brought, and this resident has now suit. This is not a material suit and will be resolved prior to closing.


 

 

 

2


 

Schedule 5.9(k ) -1

 

RENT ROLL

 

 

 

 

 

 

 

3


 

Schedule 5.9(k ) -2

 

ARREARAGE REPORT

 

 

 

 

 

 

4


 

Schedule 5.9(l )

 

PROPERTY CONTRACTS

 

 

 


 

 

 

5


 

EXHIBIT “A-1”

LEGAL DESCRIPTION OF LIVE OAK PROPERTY

 

 


 

 

 

6


 

EXHIBIT “A-2”

LEGAL DESCRIPTION OF TIDES PROPERTY

 


 

 

 

7


 

EXHIBIT “A-3”

LEGAL DESCRIPTION OF TIDES VACANT LAND PROPERTY

 


 

 

 

8


 

EXHIBIT “A-4”

 

LEGAL DESCRIPTION OF CHERRY GROVE PROPERTY

 

 

 

 

 

 

 

 

 

 

 

 

 


 

 

 

9


 

EXHIBIT “A-5”

LEGAL DESCRIPTION OF BRUNSWICK POINT PROPERTY

 

 

 

 


 

 

 

10


 

 

 

 

 

 

 

 

 

 

EXHIBIT “A-6”

LEGAL DESCRIPTION OF CREEKSIDE PROPERTY

 


 

 

 

11


 

EXHIBIT “A-7”

LEGAL DESCRIPTION OF SCHIRM FARMS PROPERTY

 

 

 

 

 


 

 

 

12


 

 

EXHIBIT “A-8”

LEGAL DESCRIPTION OF HARTSHIRE PROPERTY

 

 


 

 

 

13


 

EXHIBIT “A-9”

LEGAL DESCRIPTION OF KENSINGTON PROPERTY

 


 

 

 

14


 

EXHIBIT “A-10”

LEGAL DESCRIPTION OF RIVERCHASE PROPERTY

 

 

 


 

 

 

15


 

 

Exhibit B-1

Loan Documents – Hartshire Property Owner

 

 

1.

Promissory Note dated December 19, 2014 from the Hartshire Property Owner to Rialto Mortgage Finance, LLC, as lender (“ Rialto ”), in the original principal amount of $16,000,000.00;

 

2.

Loan Agreement dated December 19, 2014 between the Hartshire Property Owner and Rialto;

 

3.

Mortgage, Assignment of Leases and Rents, Fixture Filing and Security Agreement, dated December 19, 2014 by Hartshire Seller to Rialto;

 

4.

Limited Warranty Deed dated December 17, 2014 between Hartshire Property Owner and Monty Titling Trust 1;

 

5.

Guaranty of Recourse Obligations dated as of December 19, 2014 by Matthew A. Sharp and J. David Kelsey (collectively, the “ Guarantor ”) for the benefit of Rialto;

 

6.

Environmental Indemnity Agreement dated as of December 19, 2014 by Hartshire Property Owner and Guarantor in favor of Rialto;

 

7.

Assignment of Leases and Rents dated December 19, 2014 by Hartshire Property Owner to Rialto;

 

8.

Assignment of Management Agreement and Subordination of Management Fees dated December 19, 2014 by Hartshire Property Owner to Rialto, consented and agreed to by Hamilton Point Property Management LLC;

 

9.

Restricted Account Agreement (Springing Cash Management Account) dated December 19, 2014 by and among Hartshire Property Owner, Rialto and Wells Fargo Bank, National Association;

 

10.

Deposit Account Control Agreement (Springing Lockbox) dated December 19, 2014 by and among Hartshire Property Owner, Rialto and Wells Fargo Bank, National Association;

 

11.

Borrower’s Certification dated December 19, 2014 by Hartshire Property Owner;

 

12.

(2) Two UCC-1 Financing Statements naming Hartshire Property Owner, as debtor and Rialto, as secured party;

 

13.

W-9; and

 

14.

Escrow Letter dated December 16, 2014.


 

 

 

16


 

Exhibit B-2

Loan Documents – Brunswick Point Seller

 

1.

Promissory Note dated May 1, 2015 from the Brunswick Point Seller to Rialto Mortgage Finance, LLC, as lender (“ Rialto ”), in the original principal amount of $19,000,000.00;

 

2.

Loan Agreement dated May 1, 2015 between the Brunswick Point Seller and Rialto;

 

3.

Deed of Trust, Assignment of Leases and Rents, Fixture Filing and Security Agreement, dated May 1, 2015 by Brunswick Point Seller to Harbor City Title Insurance Agency of NC, Inc., as trustee for the benefit of Rialto;

 

4.

Guaranty of Recourse Obligations dated as of May 1, 2015 by Matthew A. Sharp and J. David Kelsey (collectively, the “ Guarantor ”) for the benefit of Rialto;

 

5.

Environmental Indemnity Agreement dated as of May 1, 2015 by Brunswick Point Seller and Guarantor in favor of Rialto;

 

6.

Assignment of Leases and Rents dated May 1, 2015 by Brunswick Point Seller to Rialto;

 

7.

Assignment of Management Agreement and Subordination of Management Fees dated May 1, 2015 by Brunswick Point Seller to Rialto, consented and agreed to by Hamilton Point Property Management LLC;

 

8.

Assignment and Assumption of Leases and Contracts dated May 1, 2015 by and between Brunswick Point Seller and Hunterstone Apartments LLC (“ Hunterstone Apartments ”);

 

9.

Bill of Sale and Assignment dated May 1, 2015 from Hunterstone Apartments to Brunswick Point Seller;

 

10.

Certificate of Non-foreign Status of Transferor executed by Hunterstone Apartments;

 

11.

Certification (1099) Internal Revenue Service North Carolina Department of Revenue dated April 29, 2015 executed by Hunterstone Apartments;

 

12.

Estoppel Certificate dated April 28, 2015 by Westgate Master Multi-Family Association, Inc.;

 

13.

Cash Management Agreement dated May 1, 2015 between Brunswick Point Seller and Rialto;

 

14.

Restricted Account Agreement (Springing Cash Management Account) dated May 1, 2015 by and among Brunswick Point Seller, Rialto and Wells Fargo Bank, National Association;

 

15.

Deposit Account Control Agreement (Springing Lockbox) dated May 1, 2015 by and among Brunswick Point Seller, Rialto and Wells Fargo Bank, National Association;

 

16.

Borrower’s Certification dated May 1, 2015 by Brunswick Point Seller;

 

17.

Post-Closing Agreement dated May 1, 2015 by Brunswick Point Seller and Hunterstone Apartments;

 

18.

(2) Two UCC-1 Financing Statements naming Brunswick Point Seller as debtor and Rialto, as secured party;

 

 

 

17


 

 

19.

W-9;

 

20.

Escrow Letter dated April 30, 2015;

 

 

21.

Affidavit of Independent Director executed by Ephraim A. Stern; and

 

 

22.

Notice to Tenants dated May 1, 2015 executed by Hunterstone Apartments and Brunswick Point Seller.


 

 

 

18


 

Exhibit B-3

Loan Documents – Creekside Seller

 

1.

Promissory Note dated December 23, 2014 from the Creekside Seller to Rialto Mortgage Finance, LLC, as lender (“ Rialto ”), in the original principal amount of $23,500,000.00;

 

2.

Loan Agreement dated December 23, 2014 between Creekside Seller and Rialto;

 

3.

Deed to Secure Debt, Assignment of Leases and Rents, Fixture Filing and Security Agreement, dated December 23, 2014 by Creekside Seller to Rialto;

 

4.

Guaranty of Recourse Obligations dated as of December 23, 2014 by Matthew A. Sharp and J. David Kelsey (collectively, the “ Guarantor ”) for the benefit of Rialto;

 

5.

Environmental Indemnity Agreement dated as of December 23, 2014 by Creekside Seller and Guarantor in favor of Rialto;

 

6.

Assignment of Leases and Rents dated December 23, 2014 by Creekside Seller to Rialto;

 

7.

Assignment of Management Agreement and Subordination of Management Fees dated December 23, 2014 by Creekside Seller to Rialto, consented and agreed to by Hamilton Point Property Management LLC;

 

8.

Assignment and Assumption of Leases dated December 23, 2014 by and between Creekside Seller and Turnberry Gardens Associates, LLC (“ Turnberry ”);

 

9.

Assignment and Assumption of Service Contracts dated December 23, 2014 by and between Creekside Seller and Turnberry;

 

10.

Bill of Sale  December 23, 2014 by Turnberry in favor of Creekside Seller;

 

11.

FIRPTA Certificate dated December 23, 2014 executed by Turnberry;

 

12.

Notice to Tenants dated December 23, 2014 executed by Turnberry;

 

13.

Seller’s Certificate Regarding Rent Roll executed by Turnberry (missing rent roll);

 

14.

Affidavit of Independent Director executed by Aaron Sheklin;

 

15.

Affidavit of Independent Director executed by Ephraim A. Stern;

 

16.

Cash Management Agreement dated December 23, 2014 between Creekside Seller and Rialto;

 

17.

Restricted Account Agreement (Springing Cash Management Account) dated December 23, 2014 by and among Creekside Seller, Rialto and Wells Fargo Bank, National Association;

 

18.

Deposit Account Control Agreement (Springing Lockbox) dated December 23, 2014 by and among Creekside Seller, Rialto and Wells Fargo Bank, National Association;

 

19.

Borrower’s Certification dated December 23, 2014 by Creekside Seller;

 

20.

Closing Certificate dated December 23, 2014 executed by Turnberry

 

 

 

19


 

 

21.

(2) Two UCC-1 Financing Statements naming Creekside Seller, as debtor and Rialto, as secured party;

 

22.

W-9;

 

23.

Escrow Letter dated December 23, 2014;

 

 

24.

Limited Warranty Deed from Turnberry to Creekside Seller; and

 

 

25.

Closing Statement dated December 23, 2014.

 


 

 

 

20


 

EXHIBIT C

Defeased Loans

 

Property Owner

Original Principal Amount

Original Lender

Origination Date

Maturity Date

Live Oak Trace Seller

 

 

$12,720,000.00

 

Rialto Mortgage Finance, LLC

 

July 12, 2013

 

August 6, 2018

Tides Seller

 

$6,850,000.00

Rialto Mortgage Finance, LLC

September 9, 2015

September 6, 2020

Kensington Property Owner

 

 

$12,000,000.00

 

Rialto Mortgage Finance, LLC

 

October 24, 2014

 

November 6, 2019

Schirm Farms Property Owner

 

 

$12,000,000.00

 

Starwood Mortgage Capital LLC

 

July 18, 2014

 

August 6, 2019

Cherry Grove Seller

 

 

$10,600,000.00

 

Rialto Mortgage Finance, LLC

 

July 31, 2014

 

August 6, 2019

Riverchase Property Owner

 

 

$12,000,000.00

 

Rialto Mortgage Finance, LLC

 

May 1, 2015

 

May 6, 2020

 


 

 

 

21


 

EXHIBIT D-1

DEED – BRUNSWICK POINT

 

NORTH CAROLINA SPECIAL WARRANTY DEED

Excise Tax:  $

 

Parcel Identifier No. _________    Verified by County on the day of ______, 2014

By:

 

 

Mail after recording to:

 

Prepared by:

 

 

THIS DEED made this day of _______, 2017 by and between

 

GRANTOR

 

 

GRANTEE

 

 

 

 

 

 

Enter in appropriate block for each party:  name, address, and, if appropriate, character of entity, e.g. corporation or partnership.

 

The designation Grantor and Grantee as used herein shall include said parties, their heirs, successors, and assigns, and shall include singular, plural, masculine, feminine or neuter as required by context.

WITNESSETH, that the Grantor, for a valuable consideration paid by the Grantee, the receipt and sufficiency of which are hereby acknowledged, has and by these presents does grant, bargain, sell and convey unto the Grantee in fee simple, all that certain lot or parcel of land situated in the City of Calabash , Brunswick County, North Carolina and more particularly described as follows:

SEE EXHIBIT A ATTACHED HERETO AND INCORPORATED HEREIN BY REFERENCE.

The property hereinabove described was acquired by Grantor by instrument recorded in Book [___], Page [___] .

TO HAVE AND TO HOLD the aforesaid lot or parcel of land and all privileges and appurtenances thereto belonging to the Grantee in fee simple.

And the Grantor covenants with the Grantee, that Grantor has done nothing to impair such title as Grantor received, and Grantor will warrant and defend the title against the lawful claims of all persons claiming by, under or through Grantor, other than the following exceptions:

SEE EXHIBIT B ATTACEHD HERETO AND INCORPORATED HEREIN BY REFERENCE.

IN WITNESS WHEREOF, the Grantor has duly executed the foregoing as of the day and year first above written.

 

 

 

 

 

 

 

22


 

 

 

 

 

 

 

By:

 

 

Print Name:

Title:

 

 

 

 

 

State of ______________

County of ______________

I, _______________________________the undersigned Notary Public of the County of Montgomery and State of Pennsylvania, certify that ________________, ____________ of __________________ a Delaware limited liability company,  personally appeared before me this day and acknowledged the due execution of the foregoing instrument for the purposes therein expressed. Witness my hand and Notarial stamp or seal this day of _________ _______, 2017.

 

(Seal) Notary’s Printed Name

My Commission Expires:


 

 

 

23


 

Exhibit A to Special Warranty Deed

 

Description of Land

 

Exhibit B to Special Warranty Deed

 

Permitted Exceptions

 

1.

Taxes for the current year that are not yet due and payable and subsequent years, and all applicable zoning and other land use regulations or restrictions of any political subdivision or agency in which the Property is situated; provided, however, that such reference shall not operate to reimpose same.

[INSERT PERMITTED EXCEPTIONS]


 

 

 

24


 

 

EXHIBIT D-2

DEED-CHERRY GROVE

 

 

STATE OF SOUTH CAROLINA ) TITLE TO REAL ESTATE

) (LIMITED WARRANTY DEED)

COUNTY OF ___________ )

KNOW ALL MEN BY THESE PRESENTS, that ____________________, a ________________ (hereinafter whether singular or plural referred to as the “Grantor”) in consideration of Five and No/100 Dollars ($5.00) and other valuable consideration, to the Grantor in hand paid at or before the sealing and delivery of these presents by _________________, a ________________ (hereinafter referred to as the “Grantee”) in the State aforesaid, the receipt and sufficiency whereof are hereby acknowledged, has granted, bargained, sold and released, and by these presents does grant, bargain, sell and release unto the Grantee, the real estate (the “Premises”) described as follows:

See Exhibit A attached hereto and incorporated herein by reference.

The conveyances made by each of the entities constituting Grantor are made to the extent of each of their applicable undivided interest in the Premises.  

For informational purposes only, the street address of the Premises is _________________________.

GRANTEE’S MAILING ADDRESS: For the purpose of this deed Grantee’s mailing address is:

____________________

____________________

TOGETHER with all and singular, the rights, members, hereditaments and appurtenances to the said Premises belonging or in any way incident or appertaining, including but not limited to all improvements of any nature located on the Premises and all easements and rights‑of‑way appurtenant to the Premises.

SUBJECT TO those matters listed on Exhibit B attached hereto (the “ Permitted Exceptions ”).

TO HAVE AND TO HOLD all and singular the Premises unto the Grantee, its Successors and Assigns forever.

And the Grantor does hereby bind itself, its successors and assigns, executors, administrators and other lawful representatives, to warrant and forever defend all and singular the Premises unto the Grantee, its

 

 

 

25


 

successors and assigns, against the Grantor and against the Grantor’s successors and assigns lawfully claiming, or to claim, the same or any part thereof, by and through each of the entities constituting Grantor, as applicable, but no others and not otherwise.

The masculine singular pronouns used throughout this document shall be read as the masculine, feminine or neuter form of pronoun (in singular or plural) as the context shall require.  In addition, the word “Heirs” shall be read as “Successors” in reference to any grantor or grantee which is not an individual.

(continued on next page)


 

 

 

26


 

 

WITNESS the Hand and Seal of the Grantor this          day of                        , 2017.

SIGNED, SEALED AND DELIVERED
IN THE PRESENCE OF:

 

 

_______________________________

WITNESS

 

Its:______________________________

_______________________________

WITNESS

 

 

GRANTOR:

 

___________________________,

a _________________________

 

By:________________________

________________________

             ________________________

 

 

 

 

 

State of _____________         )

§

County of ___________________ )

 

 

On this _____ day of _____________, 2017, personally appeared before me

____________, whose identity is personally known to me (or proven on the basis of satisfactory evidence) and who by me duly sworn/affirmed, did say he is the _______________ of __________________, a _________________ and that said document was signed by him/her on behalf of said ________________________.

 

 

_______________________________________

 

 

 


 

 

 

27


 

EXHIBIT D-3

DEED – CREEKSIDE

 

 

This Instrument prepared

without the benefit of a survey, or a title search, by

and after recording return to:

 

Neil O’Halloran

O’Halloran Ryan LLP

275 Madison Avenue, 36 th Floor

New York, New York 10016

 

STATE OF GEORGIA)

DEKALB COUNTY )

 

limited WARRANTY DEED

 

THIS INDENTURE, made this ___ day of __________, 2017, by HPI CREEKSIDE LLC , a Delaware limited liability company, whose address is c/o Hamilton Point Investments LLC, 2 Huntley Road, Old Lyme, CT 06371 (hereinafter referred to as "Grantor"), to INDEPENDENCE REALTY OPERATING PARTNERSHIP , a Delaware limited liability company, whose address is [______________________] (hereinafter referred to as "Grantee").

 

WITNESSETH that: Grantor, for and in consideration of the sum of TEN DOLLARS AND OTHER GOOD AND VLAUABLE CONSIDERATIONS ($10.00) DOLLARS in hand paid at and before the sealing and delivery of these presents, the receipt, adequacy and sufficiency whereof are hereby acknowledged, has granted, bargained, sold, aliened, conveyed and confirmed, and by these presents does grant, bargain, sell, alien, convey and confirm unto the said Grantee,

 

ALL THAT CERTAIN PARCEL OF LAND DESCRIBED ON ATTACHED EXHIBIT A, TOGETHER WITH ALL IMPROVEMENTS THEREON AND APPURTENANCES THEREUNTO BELONGING.

 

This conveyance is made subject to those matters listed on Exhibit "B" attached hereto (collectively, the "Permitted Encumbrances").

 

TO HAVE AND TO HOLD the said tract or parcel of land, with all and singular the rights, members, easements and appurtenances thereof, and all of Grantor’s right, title and interest in any public rights of way adjoining  such land, 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 persons holding by, through, or under the Grantor.

 

 

 

 

 

 

 

 

 

 

28


 

[SEE ATTACHED SIGNATURE PAGE]

 

IN WITNESS WHEREOF, Grantor has hereunto caused this Deed to be executed under seal by its duly authorized representative as of the date and year first above written.

GRANTOR:

 

HPI CREEKSIDE LLC , a Delaware limited liability company

 

By: ___________________________________

Name: ________ _______________

Title:  ________ _______________

 

 

Signed, sealed and delivered

in the presence of:

 

 

Unofficial Witness

 

 

 

Notary Public

My commission expires:

 

(NOTARIAL SEAL)

 

[Exhibit A and Exhibit B to be added]

 

 

 

 

 

29


 

 

 

 

EXHIBIT D-4

DEED – LIVE OAK

 

 

STATE OF LOUISIANA

 

PARISH OF [____________]

 

 

SPECIAL WARRANTY DEED

 

BE IT KNOWN , that before us, the undersigned Notaries Public, duly qualified and commissioned in and for the jurisdictions below mentioned, on the dates below described, and in the presence of the undersigned competent witnesses, personally came and appeared:

 

[___________________]

hereafter referred to as “ SELLER ,” who declared that for the price of [___________________________] DOLLARS, cash, receipt of which is acknowledged, Seller hereby sells, transfers, conveys, sets over and assigns unto:

[___________________]

hereafter referred to as “ BUYER ,” the possession of which Buyer acknowledges, the following described property located in Calcasieu Parish, Louisiana, to-wit:

 

[LEGAL TO BE ADDED]

 

TO HAVE AND TO HOLD the above described premises unto Buyer, its successors and assigns forever, and Seller does hereby bind itself, its successors and assigns to forever warrant and defend said premises unto Buyer, its successors and assigns , against the lawful claims of any person now claiming , or to claim the same , or any part thereof by through or under Seller, but not otherwise, but with full substitution and subrogation in and to all the rights and actions of warranty that Seller has or may have against all preceding owners and vendors, subject only to the Permitted Encumbrances.

In addition, Seller hereby conveys to Buyer, for the same consideration set forth above and subject to the same consideration set for the above and subject to the Permitted Encumbrances, all of Seller’s right, title and interest, if any, in and to adjacent streets, alleys, rights-of-way and strips and gores of land abutting or adjoining the Property .

THE PROPERTY, TOGETHER WITH ALL SERVITUDES, IMPROVEMENTS, STRUCTURES, AND FIXTURES SITUATED THEREIN OR THEREON, ARE CONVEYED TO BUYER “AS IS” AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, BUT FREE AND CLEAR OF ANY AND ALL ENCUMBRANCES. BUYER ACKNOLWEDGES THAT IN CONSIDERATION FOR THE PROPERTY BEING SOLD AND PURCHASED “AS IS,” BUYER DOES HEREBY RELIEVE AND RELEASE SELLER FOR ANY CLAIMS OR CAUSES OF ACTION FOR RESCISSION OR REDUCTION OF PURCHASE PRICE, OR FOR ANY OTHER ACTION IN REDHIBITION PURSUANT TO LOUISIANA CIVIL CODE ARTICLE 2520, ET SEQ ., AND LOUISIANA CIVIL CODE ARTICLE 2541, ET SEQ . ADDITIONALLY, BUYER ACKNOWLEDGES THAT THIS SALE IS MADE WITHOUT

 

 

 

1


 

WARRANTY OF FITNESS FOR ORDINARY OR PARTICULAR USE, PURSUANT TO LOUISIANA CIVIL CODE ARTICLE 2524.   HOWEVER, SELLER HEREBY SUBROGATES BUYER IN AND TO ALL RIGHTS AND ACTIONS IN WARRANTY THAT SELLER HAS OR MAY HAVE AGAINST PREVIOUS OWNERS AND VENDORS OF THE PROPERTY.

 

The Property is being transferred and conveyed subject to the “Permitted Encumbrances” described on Exhibit “A,” attached hereto and made a part hereof.

 

Taxes for the year [____] have been prorated between Buyer and Seller, as of the date of execution below, based on the assessments for the year [____] and may be adjusted by Buyer and Seller upon the filing of the current tax rolls.  Taxes for all prior years have been paid by Seller.

 

All parties signing the within instrument have declared themselves to be of full legal capacity.

 

Further, by signing this instrument, Buyer acknowledges that Buyer is not acting, directly or indirectly, for or on behalf of, any person, group, entity or nation names in the United States Treasury Department as an entity or nation designated in Presidential Executive Order 13224 as a person who commits, threatens to commit, or supports terrorism; and is not engaged in this transaction directly or indirectly on behalf of, or facilitating this transaction directly or indirectly on behalf of, any such person, group, entity or nation.

 

All agreements and stipulations herein, and all the obligations herein assumed shall inure to the benefit of and be binding upon the heirs, successors, and assigns of the respective parties, and the Buyer, his heirs and assigns shall have and hold the described property in full ownership forever.

 

This Special Warranty Deed is executed to be effective as of the ___day of [______], 2017.

 

THUS DONE AND SIGNED in the City of _________________________, State of _____________________, on this ______ day of ______, 2017 in the presence of me, Notary Public, and the following competent witnesses.

 

 

WITNESSES: SELLER:

 

[_____________________]

 

 

_________________________________________ ________________________________________

Print Name:___________________________ By:

Its:

 

 

_________________________________________

Print Name:___________________________

 

 

 

_________________________________________

NOTARY PUBLIC

 

 

 

 

2


 

 

 

THUS DONE AND SIGNED in the City of _________________________, State of _____________________, on this ______ day of ______, 2017, in the presence of me, Notary Public, and the following competent witnesses.

 

 

WITNESSES: BUYER:

 

 

 

 

_________________________________________ ________________________________________

Print Name:___________________________ By:

Its:

 

 

_________________________________________

Print Name:___________________________

 

 

 

_________________________________________

NOTARY PUBLIC

 

 

 

 

 

 

 

 

 

Exhibit “A”

Permitted Encumbrances

 


 

 

 

3


 

EXHIBIT D-5

DEED-TIDES AND TIDES VACANT LAND

 

 

NORTH CAROLINA SPECIAL WARRANTY DEED

Excise Tax:  $

 

Parcel Identifier No. _________    Verified by County on the day of ______, 2017

By:

 

 

Mail after recording to:

 

Prepared by:

 

 

THIS DEED made this day of _______, 2017 by and between

 

GRANTOR

 

 

GRANTEE

 

 

 

 

 

 

Enter in appropriate block for each party:  name, address, and, if appropriate, character of entity, e.g. corporation or partnership.

 

The designation Grantor and Grantee as used herein shall include said parties, their heirs, successors, and assigns, and shall include singular, plural, masculine, feminine or neuter as required by context.

WITNESSETH, that the Grantor, for a valuable consideration paid by the Grantee, the receipt of which is hereby acknowledged, has and by these presents does grant, bargain, sell and convey unto the Grantee in fee simple, all that certain lot or parcel of land situated in the City of Calabash , Brunswick County, North Carolina and more particularly described as follows:

SEE EXHIBIT A ATTACHED HERETO AND INCORPORATED HEREIN BY REFERENCE.

The property hereinabove described was acquired by Grantor by instrument recorded in Book [___], Page [___] .

TO HAVE AND TO HOLD the aforesaid lot or parcel of land and all privileges and appurtenances thereto belonging to the Grantee in fee simple.

 

 

 

4


 

And the Grantor covenants with the Grantee, that Grantor has done nothing to impair such title as Grantor received, and Grantor will warrant and defend the title against the lawful claims of all persons claiming by, under or through Grantor, other than the following exceptions:

SEE EXHIBIT B ATTACEHD HERETO AND INCORPORATED HEREIN BY REFERENCE.

IN WITNESS WHEREOF, the Grantor has duly executed the foregoing as of the day and year first above written.

 

 

 

 

 

 

 

 

 

By:

 

 

 

Print Name:

Title:

 

 

 

State of ______________

County of ______________

I, _______________________________the undersigned Notary Public of the County of Montgomery and State of Pennsylvania, certify that ________________, ____________ of __________________ a Delaware limited liability company,  personally appeared before me this day and acknowledged the due execution of the foregoing instrument for the purposes therein expressed. Witness my hand and Notarial stamp or seal this day of _________ _______, 2017.

 

(Seal) Notary’s Printed Name

My Commission Expires:


 

 

 

5


 

Exhibit A to Special Warranty Deed

 

Description of Land

 

Exhibit B to Special Warranty Deed

 

Permitted Exceptions

 

Taxes for the current year that are not yet due and payable and subsequent years, and all applicable zoning and other land use regulations or restrictions of any political subdivision or agency in which the Property is situated; provided, however, that such reference shall not operate to reimpose same.

[INSERT PERMITTED EXCEPTIONS]

 


 

 

 

6


 

EXHIBIT E

Form of Assignment of Leases

 

THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this “ Lease Assignment ”) is executed as of ________________, 2017 by and between , LLC, a Delaware limited liability company (“ Assignor ”), and _____________ (“ Assignee ”).

 

Background

 

Assignor has this day conveyed to the Assignee the real property located in ____________ [___________] and more particularly described in Exhibit A hereto (the “ Premises ”) pursuant to that certain Purchase and Sale Agreement, dated _________ __, 2017, by and between Assignor and Assignee (the “ Agreement ”), and, in connection with the conveyance of the Premises, Assignor and Assignee intend that Assignor’s right, title, interests, powers, and privileges in and under all leases and security deposits affecting the Premises and other matters stated herein be assigned and transferred to Assignee.

Agreement

In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

 

1. Leases .  Assignor hereby transfers and assigns to Assignee all of Assignor’s right, title and interest as landlord or otherwise in the leases with the tenants covering the Premises, as described on the  rent roll attached as Exhibit B hereto and made a part hereof and any guaranties of any such leases (the “ Leases ”).  By executing this Lease Assignment, Assignee hereby accepts, assumes and agrees to perform all of the terms, obligations, covenants and conditions of the Leases on the part of the landlord therein required to be performed, from and after the date hereof, but not prior thereto. Assignor has assigned or provided a credit to Assignee for all security deposits held by the Assignor relative to the Leases, and Assignee shall fund and hold such deposits as may be required by the Leases and by law (the “ Security Deposits ”).

 

2. Mutual Indemnification .  Assignor shall indemnify and hold Assignee harmless from and against any and all damages, claims, liabilities, costs (including reasonable attorney’s fees), expenses and causes of action which may arise and accrue from or under the Leases and that are attributable to a default by Assignor in the performance of its obligations under the Leases during the period of time Assignor owned the Premises that are discovered within nine (9) months following the date of this Lease Assignment, but only if Assignee files an action to enforce the foregoing indemnity within ninety (90) days after such discovery.  Assignee shall indemnify and hold Assignor harmless from and against any and all damages, claims, liabilities, costs (including reasonable attorney’s fees), expenses and causes of action which may arise and accrue from or under any of the Leases and that are attributable to periods of time on or after the date hereof, regardless of when same are discovered or asserted, but only if Assignor files an action to enforce the foregoing indemnity within ninety (90) days after such discovery.

 

3. Further Assurances .   Assignor and Assignee agree to take all further actions and execute, acknowledge and deliver all further documents that are reasonably necessary or useful in carrying out the purposes hereof.

 

4. Successors and Assigns .   This Lease Assignment shall inure to the benefit of, and be binding upon, the successors, executors, administrators, legal representatives and assigns of the parties hereto.

 

 

 

7


 

 

5. Governing Law .  This Lease Assignment shall be construed and enforced in accordance with and governed by the internal laws of the State of [_____].

 

 

[The balance of this page is intentionally left blank]

 


 

 

 

8


 

IN WITNESS WHEREOF , this Lease Assignment has been duly signed and sealed by the parties as of the date set forth above.

 

ASSIGNOR :

 

 

By:

Title:

Date of Execution:

 

ASSIGNEE :

 

 

 

By:

 

Title:

 

Date:


 

 

 

9


 

EXHIBIT A
(to Assignment and Assumption of Leases)

EXHIBIT B
(to Assignment and Assumption of Leases)

 

 

 

 


 

 

 

10


 

EXHIBIT F

Form of Assignment of Contracts

ASSIGNMENT AND ASSUMPTION OF CONTRACTS

 

THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this “ Contract Assignment ”) is executed as of ________________, 2017 by and between _______________________ , LLC, a Delaware limited liability company (“ Assignor ”), and _____________ (“ Assignee ”).

Background

Assignor has this day conveyed to the Assignee the real property located in ____________ and more particularly described in Exhibit A hereto (the “ Premises ”) pursuant to that certain Purchase and Sale Agreement, dated ________ __, 2017, by and between Assignor and Assignee (the “ Agreement ”), and, in connection with the conveyance of the Premises, Assignor and Assignee intend that Assignor’s right, title, interests, powers, and privileges in and under certain service contracts affecting the Premises and other matters stated herein be assigned and transferred to Assignee.

Agreement

In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. Contracts .  Assignor hereby transfers and assigns to Assignee all of Assignor’s right, title and interest in the service contracts affecting the Premises that are listed on Exhibit B hereto and made a part hereof (the “ Contracts ”).  By executing this Contract Assignment, Assignee hereby accepts, assumes and agrees to perform all of the terms, obligations, covenants and conditions of the Contracts on the part of the Assignor therein required to be performed, from and after the date hereof, but not prior thereto.

 

2. Mutual Indemnification .  Assignor shall indemnify and hold Assignee harmless from and against any and all damages, claims, liabilities, costs (including reasonable attorney’s fees), expenses and causes of action which may arise and accrue from or under the Contracts and that are attributable to a default by Assignor in the performance of its obligations under the Contracts during the period of time Assignor owned the Premises that are discovered within nine (9) months following the date of this Assignment, but only if Assignee files an action to enforce the foregoing indemnity within ninety (90) days after such discovery.  Assignee shall indemnify and hold Assignor harmless from and against any and all damages, claims, liabilities, costs (including reasonable attorney’s fees), expenses and causes of action which may arise and accrue from or under any of the Contracts and that are attributable to periods of time on or after the date hereof, regardless of when same are discovered or asserted, but only if Assignor files an action to enforce the foregoing indemnity within ninety (90) days after such discovery.  

 

3. Further Assurances .   Assignor and Assignee agree to take all further actions and execute, acknowledge and deliver all further documents that are reasonably necessary or useful in carrying out the purposes hereof.

 

4. Successors and Assigns .  This Contract Assignment shall inure to the benefit of, and be binding upon, the successors, executors, administrators, legal representatives and assigns of the parties hereto.

 

5. Governing Law .  This Contract Assignment shall be construed and enforced in accordance with and governed by the internal laws of the State of [_________].

 

 

 

 

11


 

IN WITNESS WHEREOF , this Contract Assignment has been duly signed and sealed by the parties as of the date set forth above.

 

ASSIGNOR:

 

 

By:

Title:

Date of Execution:

 

ASSIGNEE :  

 

 

 

By:

 

Name:

 

Title:

 

Date:


 

 

 

12


 

EXHIBIT A
(to Assignment and Assumption of Contracts)

 

 

EXHIBIT B
(to Assignment and Assumption of Contracts)

 

 


 

 

 

13


 

EXHIBIT G

Form of Bill of Sale

 

BILL OF SALE, BLANKET CONVEYANCE

AND ASSIGNMENT

 

This Bill of Sale, Blanket Conveyance and Assignment (this “ Assignment ”) is executed by , LLC, a Delaware limited liability company (“ Assignor ”) to and for the benefit of _______________, a __________________ (“ Assignee ”).  

 

RECITALS

WHEREAS , concurrently herewith Assignor is conveying to Assignee by [Limited Warranty Deed] of even date herewith that certain real property (the “ Property ”), more particularly described on Exhibit A attached hereto and incorporated herein for all purposes, pursuant to that certain Purchase and Sale Agreement, dated ________ __, 2017, by and between Assignor and Assignee (the “ Agreement ”); and

 

WHEREAS , in connection with the conveyance of the Property, Assignor intends to sell, assign and convey unto Assignee the Assets (defined below).

 

NOW, THEREFORE , in consideration of the foregoing and Ten and No/100 Dollars ($10.00) and other good and valuable consideration in hand paid by Assignee to Assignor, the receipt and sufficiency of which are hereby acknowledged and confessed by Assignor, Assignor and Assignee hereby act and agree as follows:

 

1. Conveyance .  Assignor does hereby ASSIGN, TRANSFER, CONVEY, SET OVER and DELIVER to Assignee, its successors and assigns all personal property, inventory and supplies now owned by Seller and used exclusively in the maintenance and operation of the Property described on Exhibit A (the “ Assets ”).   ASSIGNOR SHALL AND WILL WARRANT AND DEFEND ASSIGNEE’S TITLE TO THE ASSETS AGAINST ALL AND EVERY PERSON WHOMSOEVER LAWFULLY CLAIMS ANY PORTION OF THE ASSETS BY, FROM OR UNDER ASSIGNOR BUT AGAINST NO OTHERS.  EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THE IMMEDIATELY PRECEDING SENTENCE, ASSIGNOR MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHATOSOEVER AS TO THE CONDITION, FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY OF THE ASSETS OR ANY OTHER WARRANTY WITH RESPECT TO THE ASSETS, EXPRESS OR IMPLIED.  ASSIGNEE IS HEREBY ACQUIRING THE ASSETS BASED SOLELY UPON ASSIGNEE’S OWN INDEPENDENT INVESTIGATIONS AND INSPECTIONS OF THE ASSETS AND NOT IN RELIANCE ON ANY INFORMATION PROVIDED BY ASSIGNOR OR ASSIGNOR’S AGENTS OR CONTRACTORS.  ASSIGNOR HAS MADE NO AGREEMENT TO ALTER, REPAIR OR IMPROVE ANY OF THE ASSETS. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, ASSIGNOR SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR REPRESENTATION, ORAL OR WRITTEN, PAST OR PRESENT, EXPRESS OR IMPLIED, CONCERNING THE ASSETS OR ASSIGNOR’S TITLE THERETO.  

 

2. Counterparts ; Governing Law; Successors and Assigns; Authority .  This Assignment may be executed in any number of counterparts, and each counterpart hereof shall be deemed to be an original instrument, but all such counterparts shall constitute but one instrument.  This Assignment shall be construed and enforced in accordance with and governed by the internal laws of the State of [___________].  This Assignment shall bind and inure to the benefit of Assignor and Assignee and their respective successors and assigns.  Each of Assignor and Assignee represents and warrants to the other that it is fully

 

 

 

14


 

empowered and authorized to execute and deliver this Assignment, and the individuals signing this Assignment each represent and warrant that he or she is fully empowered and authorized to do so.

 

IN WITNESS WHEREOF , this Assignment is executed as of this ____ day of _______________, 2017.  

 

 

ASSIGNOR:

 

 

By:

Title:

Date of Execution:

 

ASSIGNEE :  

 

 

 

By:

 

Title:

 

Date:

 


 

 

 

15


 

EXHIBIT H

Due Diligence Items

 

 

 

DELIVERABLES

 Utilities

Utility bills for the past 12 months

Utility Account List (names/addresses of provider, account numbers, contact names)

Utility billing program/detail for residents and vacant units

 Financial Statements & Reports

Current Rent Roll with charge breakdown by tenant (Excel)

Tenant concession schedule

Operating Statements for YTD and Past 3 Years (Excel)

General Ledgers YTD and Past 3 Years (Excel)

Capital Expenditure Summary for YTD and Past 3 Years

Accounts Payables schedule (Excel)

Accounts Receivables schedule by tenant and charge (Excel)

Payroll schedule (employee, concessions, role, etc.)

Bank statements for the past 12 months

Real Estate Tax Bills & Paid Receipts for the Past Three Years

Personal Property List

Personal Property Tax Returns Filed and supporting property detail

Operating Budgets, if available (Excel)

Property management contract

Market Reports

 Property Insurance

Property insurance certificates

Liability insurance certificates

Rent loss and other insurance certificates

Insurance Loss Runs for the Past Five Years - Liability

Insurance Loss Runs for the Past Five Years - Property

 Service/Operating Contracts

Vendor List (including name, address, phone number, and contact, etc.)

Service and Operating Contracts (cable, trash, laundry, marketing, etc.)

Service and Operating Invoices (cable, trash, laundry, marketing, etc.)

Termite Contracts along with all Treatment and Bond details

Termite Inspection Reports

Construction Contracts for significant repairs within the last 24 months

Construction Plan Drawings and Specification Books, to be available on site, if any

 

 

 

16


 

Warranties, if any

Commercial Leases, if any

 Tenant/Leasing Materials

Tenant Leases and occupancy agreements, to be available on site

Tenant Screening process and metrics

Leasing/Marketing Materials

Property Pictures

Standard form of apartment lease

 Third Party Reports/Site Plans

Engineering reports, if available

Environmental reports prepared for the Seller, including asbestos and environmental audits and analyses

ALTA/ACSM As-Built Survey

Site Plan with unit locations identified

Appraisals

Zoning Report

 Permits, Licenses & Other Local Government Inspections

Copies of permits and licenses related to or affecting the Property

Certificate of Occupancy, if any

City and Fire Inspection Reports, if any

 Legal Documents

Existing title policy and all documents and instruments referenced therein

List of all pending or threatened litigation relating to Seller or the Property

Master Lease, if any

Property Entity Docs, including IRS Form SS-4s for the IN/OH Property Owners

Existing Loan Documentation

 

 

 

 

 

17


 

 

 

EXHIBIT I

Inventory of Personal Property

 

 

 

 

 

1


 

EXHIBIT J

 

[INTENTIONALLY OMITTED]

 

 

 

 

1


 

EXHIBIT K

 

Form of Assignment and Assumption of Limited Liability Company Interest

 

[___________________], LLC

THIS ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP INTEREST (" Assignment ") is entered into as of __________, 201_ by and between HPI REAL ESTATE OPPORTUNITY FUND III, LLC , a Delaware limited liability company (“ Transferor "), and [_______________], a ____________________ (" Transferee ").

RECITALS:

A. [__________________], a [______________] limited liability company (the " LLC "), was formed pursuant to a Limited Liability Company Agreement dated as of _______, 20__ (the " LLC Agreement "), executed by Transferor, as the sole member of the LLC.

B. Transferor desires to assign and transfer one hundred percent (100%) of its [ Limited Liability Company Interest] (as such term is defined in the LLC Agreement) in the LLC, as the sole Member (as such term is defined in the LLC Agreement) in the LLC to Transferee and to admit Transferee as a Member of the LLC (the " Transaction ").

C. Pursuant to Section [__] of the LLC Agreement, Transferee desires to designate a different principal office for the LLC.

D. Transferee desires to amend, correct, and/or modify certain definitions, references, provisions and/or exhibits to the LLC Agreement.

AGREEMENT:

NOW, THEREFORE, in consideration of the mutual covenants set forth in this Assignment and the LLC Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1. Definitions .  All terms used herein which have their initial letter capitalized which have been specially defined in the LLC Agreement shall have the same meaning herein as set forth in the LLC Agreement, unless expressly provided otherwise herein.

2. Assignment .  Transferor does hereby assign and transfer unto Transferee one hundred percent (100%) of its Limited Liability Company Interest in the LLC, which Limited Liability Company Interest constitutes the entire ownership interest outstanding in the LLC.  By execution of this Assignment, Transferee intends to become the sole Member of the LLC.  Transferee hereby accepts the assignment and transfer of such Limited Liability Company Interest in the LLC from Transferor, and such Transferee hereby assumes all obligations, responsibilities, duties, liabilities and costs of a Member accruing or becoming due from and after the date hereof.  Transferee is hereby admitted as a Member with respect to the Limited Liability Company Interest so transferred, and from and after the execution and delivery of this Assignment, Transferee shall be the sole Member of the LLC under the LLC Agreement.  

3. Principal Office .  Pursuant to Section [__] of the LLC Agreement, the Principal Office of the LLC is hereby relocated to the following address: [_____________________].

 

 

 

1


 

4 . Mutual Indemnification .   Transferor shall indemnify and hold Transferee harmless from and against any and all damages, claims, liabilities, costs (including reasonable attorney’s fees), expenses and causes of action which may arise out of the LLC or the Limited Liability Company Interests in connection with events occurring prior to the date hereof , for nine ( 9 ) months .   Transferee shall indemnify and hold Transferor harmless from and against any and all damages, claims, liabilities, costs (including reasonable attorney’s fees), expenses and causes of action which may arise out of the LLC or the Limited Liability Company Interests on or after the date hereof .   

5. Counterparts .  To facilitate execution, this Assignment may be executed in as many counterparts as may be convenient or required.  It shall not be necessary that the signature or acknowledgment of, or on behalf of, each party, or that the signature of all persons required to bind any party, or the acknowledgment of such party, appear on each counterpart.  All counterparts shall collectively constitute a single instrument.  It shall not be necessary in making proof of this Assignment to produce or account for more than a single counterpart containing the respective signatures of, or on behalf of, and the respective acknowledgments of, each of the parties hereto.  Any signature or acknowledgment page to any counterpart may be detached from such counterpart without impairing the legal effect of the signatures or acknowledgments thereon and thereafter attached to another counterpart identical thereto except having attached to it additional signature or acknowledgment pages.

6. Severability .  Any provision of this Assignment that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

7. Successors and Assigns .  All covenants and agreements contained herein shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and assigns.  

11. No Amendments .  Except as amended hereby, the LLC Agreement shall not be amended and shall remain in full force and effect in accordance with its terms.

12. Governing Law .  THIS ASSIGNMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO CONTRACTS TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, INCLUDING ALL MEANS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.

[SIGNATURES TO APPEAR ON THE FOLLOWING PAGES]


 

 

 

2


 

 

EXECUTED as of the date first above written.

 

TRANSFEROR:

 

 

HPI REAL ESTATE OPPORTUNITY FUND III, LLC , a Delaware limited liability company

 

 

By: ___________________________

Name:

Title:  

 

 

TRANSFEREE:

 

 

[_________________________________],

a [___________________]

 

 

By:

Name:

Its:

 

 

 

 

 

 

3


 

EXHIBIT L

Form of Survey Affidavit of No Change

 

[ATTACHED]

 

 

 

 

 

 

1


SURVEY AFFIDAVIT OF NO CHANGE

File No.

 

 

 

THE UNDERSIGNED, having been duly sworn on oath, makes the following representations to and for the benefit of Land Services USA, Inc. and its underwriter (the “Company”):

1.

That the undersigned owner (“Owner”) is the owner of the property commonly known as , and more fully described on Commitment File No. _________ issued by Land Services USA, Inc., (the “Property”).

 

2.

That attached hereto and made a part of this affidavit is An ALTA/ACSM Land Title Survey (the “Survey”) of the Property prepared on Owner’s behalf by _________________ dated __________________ which Owner obtained at the time of their purchase or last refinance of the property.

 

3.

That the Survey as presented has not been altered in any detail since its completion and delivery by the registered surveyor or professional land surveyors;

 

4.

That, to the knowledge of the undersigned, there have been no physical changes to the improvements on the Property that would create a variation from the improvements as shown on the Survey;

 

5.

That the Owner has not built or relocated any fence, fences, driveways, walkways, buildings or accessory structure on the Property since the date of the Survey;

 

6.

That, to the knowledge of the undersigned, adjoining property owners have not built or relocated any fence, fences, driveways, walkways, buildings or accessory structures along or adjacent to the Property since the date of the Survey;

 

7.

That no party is adversely holding or occupying any portion of the Property;

 

8.

That no party has made any claim against any portion of the Property or is maintaining that said party owns any portion of the Property;

 

9.

That there have been no physical changes in the boundary lines of the Property as shown on the Survey.

 

 

 

THIS AFFIDAVIT IS GIVE TO INDUCE LAND SERVICES USA, INC., FOR ITSELF AND ITS UNDERWRITER (the “Insurer”) TO ISSUE ITS COMMITMENT OF TITLE INSURANCE AND ITS FINAL LENDER’S POLICY OF TITLE INSURANCE WITHOUT A SURVEY EXCEPTION AND WITHOUT THE NECESSITY OF THE OWNER(S) OBTAINING A NEW SURVEY.

 

Owner hereby jointly and severally agree to indemnify and hold Company harmless of and from any and all loss, cost, damage, and expense of every kind, including attorney's fees, which said Company shall or may suffer or incur or become liable for under its said policy or policies directly or indirectly, due to its reliance on the accuracy of the foregoing statements or in connection with its enforcement of its rights under this agreement.

 

Sworn, subscribed and acknowledged before me this ____ day of ______________, 20__

 

 

,

 

 

 

 

 

By:

 

Notary Public

 

 

Name:

My Commission expires:

 

 

Title:

 

 

 

 

/-

.

-2-

 

 


 

 

EXHIBIT M

Form of Non-Imputation Affidavit

 

[ATTACHED]

 


 

 

 

1


 

Non-Imputation Affidavit - LLC

[This Non-Imputation Affidavit is used in membership acquisition transactions wherein an owner's title insurance policy is to be issued to the LLC subject to acquisition and the purchaser of its membership interest.]

Non-Imputation Affidavit - LLC

State of ]

]ss

County of ]

The undersigned, after being first duly sworn, states as follows:

 

1.

The undersigned are all of the members of ______________________, a ___________________ limited liability company, hereinafter referred to as "the LLC," which owns the properties described in Exhibit A hereof, hereinafter referred to as "the Properties."

 

2.

The undersigned have requested that First American Title Insurance Company, hereinafter referred to as "First American" include a non-imputation endorsement as part of a title insurance policy to be issued in connection with the acquisition of some or all of the membership interest of the LLC by ____________________________, hereinafter referred to as "the Membership Purchaser." The purpose of the non-imputation endorsement is to assure the LLC and the Membership Purchaser that First American will not deny liability under the title insurance policy on the grounds that the LLC and/or the Membership Purchaser had knowledge of any matter solely by reason of notice thereof being imputed to it through the undersigned by operation of law.

 

3.

To the best of the knowledge of the undersigned, there exists no unrecorded deed, land contract, lease, option to purchase, mortgage, deed of trust, judgment lien, tax lien, agreement or other instrument or encumbrance affecting title to any of the Properties, other than the following:

[List matters here or insert the word "none."]

 

4.

Neither the LLC nor its members, managers or officers have done anything to create any deed, land contract, lease, option to purchase, mortgage, deed of trust, judgment lien, tax lien, agreement or other instrument or encumbrance affecting title to any of the Properties, other than the following:

[List matters here or insert the word "none."]

 

 

 

2


 

 

5.

There exists no litigation nor threatened litigation against the LLC which purports to affect the Properties.

 

6.

An independent examination of the business records of the LLC would reveal that the records are complete and in good order and would not disclose or suggest the existence of any unrecorded legal or equitable interests in the Properties.

 

7.

The LLC has sufficient assets, excluding the value of the Properties, to satisfy all unrecorded debts, demands or equities created, suffered or permitted by the LLC and the transaction pursuant to which the Membership Purchaser acquires all or part of the membership interest of the LLC will not render the LLC insolvent nor is such membership transfer a fraudulent transfer under the bankruptcy laws of the United States or any similar creditors' rights law.

 

8.

The undersigned make this affidavit for the purpose of inducing First American to include the non-imputation endorsement as described in Paragraph 2 with the knowledge that First American would not issue such non-imputation endorsement without having first received this affidavit and will rely on the assurances and representations made herein.

 

9.

That the undersigned acknowledge that they have read the foregoing and fully understand the legal ramifications of any misrepresentation and/or untrue statements made herein and hereby indemnify and hold First American harmless against any liability occasioned by reason of its reliance on the statements made herein.

Each of the undersigned certify under penalty of perjury that the foregoing is true and correct.

______________________________ ______________________________

Name Date Name Date

______________________________ ______________________________

Name Date Name Date

______________________________ ______________________________

Name Date Name Date

______________________________ ______________________________

Name Date Name Date

Subscribed and sworn to before me this _____ day of ______________, 19_____.

______________________________

Notary Public

 

 

 

3


 

My Commission Expires:__________________

 

 

 

4


 

EXHIBIT N

Form of Auditor Representation Letter

 

[ Seller’s Letterhead ]

 

 

[Date]

 

CohnReznick LLP

1900 Avenue of the Stars

28 th Floor

Los Angeles, CA  90067

 

This representation letter is provided in connection with your audits of the Statement of Revenue and Certain Expenses (the “combined financial statement”) of the nine multi-family properties located in Georgia, Indiana, Louisiana, North Carolina, Ohio and South Carolina (the “HPI Portfolio”), for the year ended December 31, 2016, and the related notes to the combined financial statement, for the purpose of expressing an opinion as to whether the combined financial statement presents fairly, in all material respects, the results of operations of the HPI Portfolio in conformity with U.S. generally accepted accounting principles (“U.S. GAAP”) for the purpose of complying with Rule 3-14 of Regulation S-X of the Securities and Exchange Commission. We confirm that we are responsible for the fair presentation in the combined financial statement of the results of operations in conformity with U.S. GAAP.

 

Certain representations in this letter are described as being limited to matters that are material. Items are considered material, regardless of size, if they involve an omission or misstatement of accounting information that, in light of surrounding circumstances, makes it probable that the judgment of a reasonable person relying on the information would be changed or influenced by the omission or misstatement. An omission or misstatement that is monetarily small in amount could be considered material as a result of qualitative factors.

 

We confirm, to the best of our knowledge and belief, as of the date of this letter, the following representations made to you during your audit.

Financial Statements

 

1.

We have made available to you all financial records and related data.

 

2.

We acknowledge our responsibility for the design, implementation, and maintenance of internal control relevant to the preparation and fair presentation of the combined financial statement that are free from material misstatement, whether due to fraud or error.

 

3.

We acknowledge our responsibility for the design, implementation, and maintenance of internal control to prevent and detect fraud.

 

4.

Significant assumptions we used in making accounting estimates are reasonable.

 

5.

Related party relationships and transactions have been appropriately accounted for and disclosed in accordance with the requirements of U.S. GAAP.

 

6.

All events subsequent to the date of the combined financial statement and for which U.S. GAAP requires adjustment or disclosure have been adjusted or disclosed.

 

 

 

1


 

 

7.

The effects of all known actual or possible litigation, claims, and assessments have been accounted for and disclosed in accordance with U.S. GAAP.

 

8.

Material concentrations have been properly disclosed in accordance with U.S. GAAP.

 

9.

Guarantees, whether written or oral, under which the company is contingently liable, have been properly recorded or disclosed in accordance with U.S. GAAP.

Information Provided

 

10.

We have provided you with:

 

o

Access to all information, of which we are aware, that is relevant to the preparation and fair presentation of the combined financial statement, such as records, documentation, and other matters.

 

o

Additional information that you have requested from us for the purpose of the audit.

 

o

Unrestricted access to persons within the entity from whom you determined it necessary to obtain audit evidence.

 

11.

All material transactions have been recorded in the accounting records and are reflected in the combined financial statement.

 

12.

We have disclosed to you the results of our assessment of the risk that the combined financial statement may be materially misstated as a result of fraud.

 

13.

There have been no communications from regulatory agencies concerning noncompliance with, or deficiencies in, financial reporting practices pertaining to the HPI Portfolio.

 

14.

We have no knowledge of any fraud or suspected fraud that affects the entity and involves:

 

o

Management,

 

o

Employees who have significant roles in internal control, or

 

o

Others where the fraud could have a material effect on the financial statements.

 

15.

We have no knowledge of any allegations of fraud or suspected fraud affecting the entity’s combined financial statement communicated by employees, former employees, analysts, regulators, or others.

 

16.

We have no knowledge of any instances of noncompliance or suspected noncompliance with laws and regulations whose effects should be considered when preparing the combined financial statement.

 

17.

We have disclosed to you all known actual or possible litigation, claims, and assessments whose effects should be considered when preparing the combined financial statement.

 

18.

We have disclosed to you the identity of the entity’s related parties and all the related party relationships and transactions of which we are aware.

 

19.

The company has satisfactory title to all owned assets as of the date of the combined financial statement, and there are no liens or encumbrances on such assets nor has any asset been pledged as collateral.

 

 

 

 

2


 

 

 

   

Bart D. Giustina, CFO

 

 

   

Steve Montville, Controller

 

 

 

 

iii

 

 

 

 

3

Exhibit 10.2

 

 

FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT

THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT (this “ Amendment ”) is made as of the 25 th day of September, 2017, by and between THE ENTITIES LISTED ON SCHEDULE 1 ATTACHED HERETO , each a Delaware limited liability company, with an address c/o Hamilton Point Investments LLC, 2 Huntley Road, Old Lyme, Connecticut 06371 (individually and collectively as the context may require, “ Property Seller ”), HPI REAL ESTATE OPPORTUNITY FUND III, LLC , a Delaware limited liability company, with an address c/o Hamilton Point Investments LLC, 2 Huntley Road, Old Lyme, Connecticut 06371 (“ Entity Seller ” and collectively with the Property Seller as the context may require, “ Seller ”) and INDEPENDENCE REALTY OPERATING PARTNERSHIP, LP , a Delaware limited partnership, with an address c/o Independence Realty Trust, Two Liberty Place, 50 S. 16 th Street, Suite 3575, Philadelphia, Pennsylvania 19102 (“ Buyer ”).

 

RECITALS:

A. Seller and Buyer have entered that certain Purchase and Sale Agreement dated as of September 3, 2017 (the “ Purchase Agreement ”).

B. Seller and Buyer desire to amend the Purchase Agreement on the terms and conditions set forth herein.    

NOW, THEREFORE , in consideration of the mutual covenants and conditions contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller and Buyer hereby agree as follows:

 

 

1.

Defined Terms. Capitalized terms contained but not defined in this Amendment shall have the meaning ascribed to such terms in the Purchase Agreement.

 

 

2.

Individual Property Allocations .  Seller and Buyer agree that the Individual Property Allocations are as set forth on Exhibit A attached hereto and made a part hereof.

 

 

3.

Purchase Price .  

 

 

(a)

The following subsection (iii) is hereby added to Section 1.3(c) of the Purchase Agreement:

 

“(iii) Notwithstanding any provision to the contrary herein, the Individual Property Allocations with respect to the Tides Property and the Tides Vacant Land shall be paid at the Tides Closing (as defined below) and the Individual Property Allocation with respect to the Live Oak Property shall be paid at the Live Oak Closing (as defined below).”

 

 

(b)

The following subsection (iv) is hereby added to Section 1.3(c) of the Purchase Agreement:

 

“(iv) Notwithstanding any provision to the contrary herein, Buyer shall be entitled to a credit against the Purchase Price on account of rental income equal to One Hundred Thousand Dollars ($100,000.00) at the Tides Closing.”

 

 

 

4.

Closing Date . Section 2.2 is hereby deleted and replaced with the following:

 


 

“(a) The “ Defeasance Closing Date ” shall occur on or before the date that is ten (10) business days after the expiration of the Due Diligence Period or, at Buyer’s request, on such earlier date as mutually agreed upon between the parties and reasonably practical under the circumstances, each of Seller and Buyer hereby acknowledging that they will use commercially reasonable efforts to complete the Defeasance Closing on September 26, 2017 .   The terms “Defeasance Close of Escrow” and “Defeasance Closing” shall mean the date by which each of the parties is required to deliver to Escrow Holder all of the documents and funds required by this Agreement with respect to the Defeasance Property, and to notify the Escrow Holder that all conditions precedent to the release of such documents and funds from Escrow for delivery to the persons entitled thereto have occurred.  

(b) The “ Assumption Closing Date ” shall occur on the date that is fifteen (15) days after receipt of the Assumption Approval or, at Buyer’s request, on such earlier date after the Assumption Approval as mutually agreed upon between the parties and reasonably practical under the circumstances.   The terms “Assumption Close of Escrow” and “Assumption Closing” shall mean the date by which each of the parties is required to deliver to Escrow Holder all of the documents and funds required by this Agreement with respect to the Assumption Property and to notify the Escrow Holder that all conditions precedent to the release of such documents and funds from Escrow for delivery to the persons entitled thereto have occurred.   Buyer shall use commercially reasonable efforts to obtain the Assumption Approval within ninety (90) days after the Effective Date.  If, despite using commercially reasonable efforts, Buyer is unable to obtain the Assumption Approval within ninety (90) days after the Effective Date, Buyer shall be granted an additional thirty-five (35) days to obtain the Assumption Approval so long as Buyer continues to use commercially reasonable efforts to obtain the Assumption Approval.  Notwithstanding anything to the contrary set forth herein, in the event the Assumption Approval is not obtained within one hundred twenty-five (125) days after the Effective Date despite Buyer’s commercially reasonable efforts, Seller may terminate this Agreement, in which event Buyer shall be entitled to the return of the Deposit less the Non-Refundable Portion which shall be paid to Seller, and the parties shall have no further obligations hereunder other than those which expressly survive the termination of this Agreement.

(c) Notwithstanding subsection (a) above, the “ Tides Closing Date ” shall be the first (1 st ) business day following the date upon which the mortgage loan secured by the Tides Property can be defeased. The terms “Tides Close of Escrow” and “Tides Closing” shall mean the date by which each of the parties is required to deliver to Escrow Holder all of the documents and funds required by this Agreement with respect to the Tides Property and Tides Vacant Land, and to notify the Escrow Holder that all conditions precedent to the release of such documents and funds from Escrow for delivery to the persons entitled thereto have occurred.  

(d) Notwithstanding subsection (a) above, the “ Live Oak Closing Date ” shall be the date by which the Live Oak Closing shall occur pursuant to Section 5.1(c) hereof. The term “Live Oak Close of Escrow” and “Live Oak Closing” shall mean the date by which each of the parties is required to deliver to Escrow Holder all of the documents and funds required by this Agreement with respect to the Live Oak Property, if Buyer does not exercise its right to terminate this Agreement solely with respect to the Live Oak Property pursuant to Section 5.1(b) below, and to notify the Escrow Holder that all conditions precedent to the release of such documents and funds from Escrow for delivery to the persons entitled thereto have occurred.  

(e) As used herein, (i) the term “ Closing Date ” shall mean the Defeasance Closing Date, the Assumption Closing Date, the Tides Closing Date or the Live Oak Closing Date, as the context may require; (ii) the term “ Close of Escrow ” shall mean the Defeasance Close of Escrow, the Assumption Close of Escrow, the Tides Close of Escrow or the Live Oak Close of Escrow, as the context may require; and (iii) the term “ Closing ” shall mean the Defeasance Closing, the Assumption Closing, the Tides Closing or the Live Oak Closing, as the context may require.”

 


 

(f) Notwithstanding any provision to the contrary in subsection (b) above, the Assumption Closing Date may be held in stages in the event the Assumption Approval is received with respect to one or more Assumable Loans but remains pending on one or more Assumable Loans, it being the intent of Buyer and Seller that the Closing with respect to each Assumption Property shall occur on the date that is fifteen (15) days after receipt of the Assumption Approval as to such Assumption Property or, at Buyer’s request, on such earlier date as mutually agreed upon between the parties and reasonably practical under the circumstances.

 

5.

Conveyance of Title .  The following subsection (c) is hereby added to Section 2.4 of the Purchase Agreement:

“(c) Notwithstanding any provision to the contrary herein, the deeds to the Tides Property and the Tides Vacant Land shall be delivered at least one (1) business day prior to the Tides Closing Date, and the Live Oak Deed shall be delivered at least one (1) business day prior to the Live Oak Closing Date.”

 

6.

Conditions to Seller’s Obligation to Sell .  

 

(a)

Section 2.6(b)(v)(B) of the Purchase Agreement is hereby deleted.

 

(b)

The following subsections (ix) and (x) are hereby added to Section 2.6(b) of the Purchase Agreement”

“(ix) With respect to the Tides Closing Date, the Individual Property Allocation for the Tides Property and the Tides Vacant Land, plus all costs, fees and expenses of Buyer set forth in Section 1.3(d) hereof relating to the Tides Property and the Tides Vacant Land, to be released upon the confirmation that the deliveries required by both the Buyer and Seller under this Agreement have been received; and

(x) With respect to the Live Oak Closing Date, if Buyer does not exercise its right to terminate this Agreement solely with respect to the Live Oak Property pursuant to Section 5.1(b) below, the Individual Property Allocation for the Live Oak Property plus all costs, fees and expenses of Buyer set forth in Section 1.3(d) hereof, to be released upon the confirmation that the deliveries required by both the Buyer and Seller under this Agreement have been received.”

7. Due Diligence Period .  Notwithstanding any provision to the contrary in the Agreement, including Section 3.2 thereof, Buyer and Seller agree that (a) the Due Diligence Period shall be deemed to have expired upon execution of this Amendment and Buyer shall have no further right to terminate the Agreement pursuant to Section 3.2 and (b) the Deposit is nonrefundable to Buyer except as expressly set forth in the Agreement.

8. Approval of Title .  Reference is made to that certain letter dated September 14, 2017 from Buyer’s counsel to Seller (“ Buyer’s Title Notice ”).  With respect to objections #15, 20, 59 and 60 in Buyer’s Title Notice, Seller agrees to deliver at Closing an estoppel from Entity Seller in form and substance reasonably acceptable to Buyer and Seller.  With respect to objection #35, Seller shall use commercially reasonable efforts to obtain an estoppel from the Association (as defined in Buyer’s Title Notice) in form and substance reasonably satisfactory to Buyer.

 


 

9. Live Oak Termination .  Section 5.1(b) is hereby amended to replace the words “the expiration of the Due Diligence Period” in the seventh line thereof with “October 3, 2017” .

10.   Live Oak Repairs .  Buyer and Seller agree that the requirement in Section 5.1(c) for Live Oak Escrow Funds is hereby waived.  Section 5.1(c) is hereby deleted and replaced with the following:

“(c) Seller hereby agrees to complete all such repairs as set forth on Schedule 5.1(c) (the “ Live Oak Repairs ”) in a good and workmanlike manner prior to the Live Oak Closing.  Buyer agrees to inspect the Live Oak Property on or before October 3, 2017.  If, following such inspection, Buyer agrees that the Live Oak Repairs have been completed in a good and workmanlike manner, the parties shall conduct the Live Oak Closing within (5) business days after such determination.  Buyer shall notify Seller of its determination within two (2) business days after completion of its inspection.  If Buyer does not agree that the Live Oak Repairs have been completed in a good and workmanlike manner, the Live Oak Inspector (as defined below) shall inspect the Live Oak Property.  If, following its inspection of the Live Oak Property, the Live Oak Inspector determines that the Live Oak Repairs have been completed in a good and workmanlike manner, the parties shall conduct the Live Oak Closing within (5) business days after such determination.  If the Live Oak Inspector determines that the Live Oak Repairs have not been completed in a good and workmanlike manner, the parties shall cause the Live Oak Inspector to provide a detailed list of repairs that remain to be completed (the “ Outstanding Repairs ”) and Seller shall promptly complete all such Outstanding Repairs in a good and workmanlike manner.  In such event, the Live Oak Inspector shall re-inspect the Live Oak Property upon notice from Seller that all such Outstanding Repairs have been completed in a good and workmanlike manner and the process for re-inspections shall continue until the Live Oak Inspector determines that the Live Oak Repairs (including the Outstanding Repairs) have been completed in a good and workmanlike manner.  The parties shall conduct the Live Oak Closing within five (5) business days following the Live Oak Inspector’s determination that the Live Oak Repairs (including the Outstanding Repairs) have been completed in a good and workmanlike manner.  The cost of any inspection or re-inspection of the Live Oak Repairs by the Live Oak Inspector pursuant to this Section 5.1(c) shall be divided equally between Buyer and Seller.  As used herein, the term “ Live Oak Inspector ” shall mean an independent third-party engineer or similar professional licensed in the State of Louisiana selected by Buyer.

 

11.

Miscellaneous .This Amendment may be executed by the parties hereto individually or in combination, in one or more counterparts, each of which shall be an original and all of which will constitute one and the same Amendment and may be delivered by facsimile or PDF via electronic mail in a legally binding manner.  

 

12.

No Further Modification . In the event of any inconsistency between the Agreement and this Amendment, the terms of this Amendment shall control.  Except as otherwise modified herein, all terms and conditions in the Agreement shall remain in full force and effect.

 

IN WITNESS WHEREOF, Buyer and Seller have executed this Amendment as of the date first above written.

 

 


 

PROPERTY SELLER:

 

HPI LIVE OAK TRACE LLC , a Delaware limited liability company

 

 

By: /s/ J. David Kelsey

Name: J. David Kelsey

Title:   Authorized Signatory

 

 

HPI TIDES LLC , a Delaware limited liability company

 

 

By: /s/ J. David Kelsey

Name: J. David Kelsey

Title:   Authorized Signatory

 

 

HPI TIDES LAND LLC , a Delaware limited liability company

 

By: /s/ J. David Kelsey

Name: J. David Kelsey

Title:   Authorized Signatory

 

 

HPI HUNTERSTONE LLC , a Delaware limited liability company

 

 

By: /s/ J. David Kelsey

Name: J. David Kelsey

Title:   Authorized Signatory

 


 


 

HPI CHERRY GROVE LLC , a Delaware limited liability company

 

 

By: /s/ J. David Kelsey

Name: J. David Kelsey

Title:   Authorized Signatory

 

HPI CREEKSIDE LLC , a Delaware limited liability company

 

 

By: /s/ J. David Kelsey

Name: J. David Kelsey

Title:   Authorized Signatory

 

 

ENTITY SELLER :

 

HPI REAL ESTATE OPPORTUNITY FUND III, LLC , a Delaware limited liability company

 

 

By: /s/ J. David Kelsey

Name: J. David Kelsey

Title:   Authorized Signatory


 


 

BUYER:

 

INDEPENDENCE REALTY OPERATING PARTNERSHIP, LP , a Delaware limited partnership

 

 

By:  

Independence Realty Trust, Inc., its general partner  

 

By:       /s/ Farrell Ender

Name:  Farrell Ender

Title:    President



 


 


 

 

SCHEDULE 1

 

Property Owner

 

Property Name

Address

HPI Live Oak Trace LLC (the “ Live Oak Seller ”)

 

Live Oak Trace (the “ Live Oak Property ”)

7615 Magnolia Beach Rd., Denham Springs, LA 70726

HPI Tides LLC

(the “ Tides Seller ”)

 

Tides At Calabash (the “ Tides Property ”)

 

7112 Town Center Rd., Sunset, NC 26468

HPI Tides Land LLC (the “ Tides Vacant Land Seller ”)

 

Tides Vacant Land

N/A

HPI Cherry Grove LLC (the “ Cherry Grove Seller ”)

 

Cherry Grove Commons (the “ Cherry Grove Property ”)

1100 David Street, North Myrtle Beach, SC 29582

HPI Hunterstone LLC (the “ Brunswick Point Seller ”)

 

Brunswick Point (the “ Brunswick Point Property ”)

1001 Hunterstone Dr., Leland, NC 28451

HPI Creekside LLC (the “ Creekside Seller ”)

 

Creekside Corners Apartments (the “ Creekside Property ”)

5301 West Fairington Pkwy., Lithonia, GA 30038

HPI Schirm Farms LLC (the “ Schirm Farms Property Owner ”)

 

Schirm Farms (the “ Schirm Farms Property ”)

5340 Saddler Way, Canal Winchester, OH 43110

HPI Hartshire LLC (the “ Hartshire Property Owner ”)

 

Hartshire Lakes (the “ Hartshire Property ”)

3170 Hartshire South Dr., Bargersville, IN 46106

HPI Kensington Commons LLC (the “Kensington Property Owner ”)

 

Kensington Commons Residences (the “ Kensington Property ”)

 

6300 Refugee Rd., Canal Winchester, OH 43110

HPI Riverchase LLC (the “ Riverchase Property Owner ”)

 

Riverchase Apartments  (the “ Riverchase Property ”)

2730 Riverchase Dr., Indianapolis, IN 46214

 


 


 

EXHIBIT A

 

Property Name

Individual Property Allocation

 

Creekside Property

$43,900,822.00

Riverchase Property

$18,898,622.00

Hartshire Property

$27,597,222.00

Live Oak Property

$28,501,222.00

Tides Property (inclusive of Tides Vacant Land)

$14,269,222.00

Brunswick Property

$30,661,222.00

Schirm Farms Property

$23,749,222.00

Kensington Commons Property

$24,409,222.00

Cherry Grove Commons

$16,157,224.00

 

TOTAL

 

$228,144,000.00

 

 

 

Exhibit 10.3

 

 

SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT

THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT (this “ Amendment ”) is made as of October 24, 2017, by and between THE ENTITIES LISTED ON SCHEDULE 1 ATTACHED HERETO , each a Delaware limited liability company, with an address c/o Hamilton Point Investments LLC, 2 Huntley Road, Old Lyme, Connecticut 06371 (individually and collectively as the context may require, “ Property Seller ”), HPI REAL ESTATE OPPORTUNITY FUND III, LLC , a Delaware limited liability company, with an address c/o Hamilton Point Investments LLC, 2 Huntley Road, Old Lyme, Connecticut 06371 (“ Entity Seller ” and collectively with the Property Seller as the context may require, “ Seller ”) and INDEPENDENCE REALTY OPERATING PARTNERSHIP, LP , a Delaware limited partnership, with an address c/o Independence Realty Trust, Two Liberty Place, 50 S. 16 th Street, Suite 3575, Philadelphia, Pennsylvania 19102 (“ Buyer ”).

 

RECITALS:

A. Seller and Buyer have entered that certain Purchase and Sale Agreement dated as of September 3, 2017, as amended by a certain First Amendment to Purchase and Sale Agreement dated as of September 25, 2017 (collectively, the “ Purchase Agreement ”).

B. Seller and Buyer desire to amend the Purchase Agreement on the terms and conditions set forth herein.    

NOW, THEREFORE , in consideration of the mutual covenants and conditions contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller and Buyer hereby agree as follows:

 

 

1.

Defined Terms. Capitalized terms contained but not defined in this Amendment shall have the meaning ascribed to such terms in the Purchase Agreement.

 

 

2.

Purchase Price .  The following subsection (v) is hereby added to Section 1.3(c) of the Purchase Agreement:

 

“(v) Notwithstanding any provision to the contrary herein, Buyer shall be entitled to a credit against the Purchase Price on account of rental income equal to One Hundred Fifty Thousand Dollars ($150,000.00) at the Live Oak Closing.”

 

 

3.

Closing Date . Section 2.2(d) is hereby deleted and replaced with the following:

“(d) Notwithstanding subsection (a) above, the “ Live Oak Closing Date ” shall be October 26, 2017 or such earlier date as may be mutually agreed upon between the parties.  The term “Live Oak Close of Escrow” and “Live Oak Closing” shall mean the date by which each of the parties is required to deliver to Escrow Holder all of the documents and funds required by this Agreement with respect to the Live Oak Property, and to notify the Escrow Holder that all conditions precedent to the release of such documents and funds from Escrow for delivery to the persons entitled thereto have occurred.”

4.    Live Oak Termination Waiver .  Section 5.1(b) is hereby deleted.  

1


 

5 .   Live Oak Repairs .  Section 5.1(c) is hereby deleted. Buyer confirms that it has inspected the Live Oak Property and determined that the Live Oak Repairs have been completed in a good and workma nlike manner for purposes of the Agreement.  

6. Miscellaneous . This Amendment may be executed by the parties hereto individually or in combination, in one or more counterparts, each of which shall be an original and all of which will constitute one and the same Amendment and may be delivered by facsimile or PDF via electronic mail in a legally binding manner.  

7. No Further Modification . In the event of any inconsistency between the Agreement and this Amendment, the terms of this Amendment shall control.  Except as otherwise modified herein, all terms and conditions in the Agreement shall remain in full force and effect.

 

 

 

[SIGNATURE PAGES TO FOLLOW]

2


 

IN WITNESS WHEREOF, Buyer and Seller have executed this A mendment as of the date first above written.

 

PROPERTY SELLER:

 

HPI LIVE OAK TRACE LLC , a Delaware limited liability company

 

 

By: /s/Matt Sharp

Name: Matt Sharp

Title:   Authorized Signatory

 

 

HPI TIDES LLC , a Delaware limited liability company

 

 

By: /s/Matt Sharp

Name: Matt Sharp

Title:   Authorized Signatory

 

 

HPI TIDES LAND LLC , a Delaware limited liability company

 

By: /s/Matt Sharp

Name: Matt Sharp

Title:   Authorized Signatory

 

 

HPI HUNTERSTONE LLC , a Delaware limited liability company

 

 

By: /s/Matt Sharp

Name: Matt Sharp

Title:   Authorized Signatory

 


3


 

HPI CHERRY GROVE LLC , a Delaware limited liability company

 

 

By: /s/Matt Sharp

Name: Matt Sharp

Title:   Authorized Signatory

 

HPI CREEKSIDE LLC , a Delaware limited liability company

 

 

By: /s/Matt Sharp

Name: Matt Sharp

Title:   Authorized Signatory

 

 

ENTITY SELLER :

 

HPI REAL ESTATE OPPORTUNITY FUND III, LLC , a Delaware limited liability company

 

 

By: /s/Matt Sharp

Name: Matt Sharp

Title:  Authorized Signatory


4


 

BUYER:

 

INDEPENDENCE REALTY OPERATING PARTNERSHIP, LP , a Delaware limited partnership

 

 

By:  

Independence Realty Trust, Inc., its general partner  

 

By:       /s/ Farrell Ender

Name:  Farrell Ender

Title:    President



 


5


 

 

SCHEDULE 1

 

Property Owner

 

Property Name

Address

HPI Live Oak Trace LLC (the “ Live Oak Seller ”)

 

Live Oak Trace (the “ Live Oak Property ”)

7615 Magnolia Beach Rd., Denham Springs, LA 70726

HPI Tides LLC

(the “ Tides Seller ”)

 

Tides At Calabash (the “ Tides Property ”)

 

7112 Town Center Rd., Sunset, NC 26468

HPI Tides Land LLC (the “ Tides Vacant Land Seller ”)

 

Tides Vacant Land

N/A

HPI Cherry Grove LLC (the “ Cherry Grove Seller ”)

 

Cherry Grove Commons (the “ Cherry Grove Property ”)

1100 David Street, North Myrtle Beach, SC 29582

HPI Hunterstone LLC (the “ Brunswick Point Seller ”)

 

Brunswick Point (the “ Brunswick Point Property ”)

1001 Hunterstone Dr., Leland, NC 28451

HPI Creekside LLC (the “ Creekside Seller ”)

 

Creekside Corners Apartments (the “ Creekside Property ”)

5301 West Fairington Pkwy., Lithonia, GA 30038

HPI Schirm Farms LLC (the “ Schirm Farms Property Owner ”)

 

Schirm Farms (the “ Schirm Farms Property ”)

5340 Saddler Way, Canal Winchester, OH 43110

HPI Hartshire LLC (the “ Hartshire Property Owner ”)

 

Hartshire Lakes (the “ Hartshire Property ”)

3170 Hartshire South Dr., Bargersville, IN 46106

HPI Kensington Commons LLC (the “Kensington Property Owner ”)

 

Kensington Commons Residences (the “ Kensington Property ”)

 

6300 Refugee Rd., Canal Winchester, OH 43110

HPI Riverchase LLC (the “ Riverchase Property Owner ”)

 

Riverchase Apartments  (the “ Riverchase Property ”)

2730 Riverchase Dr., Indianapolis, IN 46214

 

 

 

6

Exhibit 12.1

RATIO OF EARNINGS TO FIXED CHARGES

Our ratio of earnings to fixed charges for the periods indicated are set forth below. For purposes of calculating the ratios set forth below, earnings represent net income from our consolidated statements of operations, as adjusted for fixed charges; fixed charges represent interest expense.

The following table presents our ratio of earnings to fixed charges for the nine-month period ended September 30, 2017 and for the five years ended December 31, 2016, 2015, 2014, 2013 and 2012 (dollars in thousands):

 

 

For the Nine

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Months Ended

 

 

For the Years Ended December 31,

 

 

September 30, 2017

 

 

2016

 

 

 

 

2015

 

 

2014

 

 

2013

 

 

2012

 

Net income (loss)

$

24,922

 

 

$

(9,555

)

 

 

 

$

30,156

 

 

$

2,944

 

 

$

1,274

 

 

$

427

 

Add back fixed charges:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Interest expense

 

21,573

 

 

 

35,535

 

 

 

 

 

23,553

 

 

 

8,469

 

 

 

3,659

 

 

 

3,305

 

Earnings before fixed charges and preferred share dividends

$

46,495

 

 

$

25,980

 

 

 

 

$

53,709

 

 

$

11,413

 

 

 

4,933

 

 

 

3,732

 

Fixed charges and preferred share dividends:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Interest expense

 

21,573

 

 

 

35,535

 

 

 

 

 

23,553

 

 

 

8,469

 

 

 

3,659

 

 

 

3,305

 

Preferred share dividends

 

-

 

 

 

-

 

 

 

 

 

-

 

 

 

-

 

 

 

10

 

 

 

15

 

Total fixed charges and preferred share dividends

$

21,573

 

 

$

35,535

 

 

 

 

$

23,553

 

 

$

8,469

 

 

$

3,669

 

 

$

3,320

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Ratio of earnings to fixed charges

 

2.2

x

 

 

-

 

 

(1

)

 

2.3

x

 

1.3x

 

 

1.3x

 

 

1.1x

 

Ratio of earnings to fixed charges and preferred share dividends

 

2.2

x

 

 

-

 

 

(1

)

 

2.3

x

 

1.3x

 

 

1.3x

 

 

1.1x

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(1)

The dollar amount of the deficiency for the year ended December 31, 2016 was $9.6 million.

 

Exhibit 31.1

Certification of Chief Executive Officer Pursuant to

Section 302 of the Sarbanes-Oxley Act of 2002

I, Scott F. Schaeffer, certify that:

1.

I have reviewed this quarterly report on Form 10-Q of Independence Realty Trust, Inc.;

2.

Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3.

Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4.

The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

a.

Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

b.

Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

c.

Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

d.

Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5.

The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

a.

All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

b.

Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: October 31, 2017

 

By:

 

/s/ Scott f. Schaeffer  

 

 

Scott F. Schaeffer

 

 

Chairman of the Board and Chief Executive Officer

 

 

(Principal Executive Officer)

 

 

 

Exhibit 31.2

Certification of Chief Financial Officer Pursuant to

Section 302 of the Sarbanes-Oxley Act of 2002

I, James J. Sebra, certify that:

1.

I have reviewed this quarterly report on Form 10-Q of Independence Realty Trust, Inc.;

2.

Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3.

Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4.

The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

a.

Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

b.

Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

c.

Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

d.

Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5.

The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

a.

All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

b.

Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: October 31, 2017

 

By:

 

/s/ James J. Sebra

 

 

James J. Sebra

 

 

Chief Financial Officer and Treasurer

 

 

(Principal Financial Officer and Principal Accounting Officer)

 

 

 

Exhibit 32.1

CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350,

AS ADOPTED PURSUANT TO SECTION 906 OF THE

SARBANES-OXLEY ACT OF 2002

Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 and in connection with the Quarterly Report on Form 10-Q of Independence Realty Trust, Inc. (the “Company”) for the period ended September 30, 2017, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), the undersigned, the Chairman of the Board, Chief Executive Officer and President of the Company, certifies, to his knowledge, that:

 

(1)

The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and

 

(2)

The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

Date: October 31, 2017

 

By:

 

/s/ Scott f. Schaeffer  

 

 

Scott F. Schaeffer

 

 

Chairman of the Board and Chief Executive Officer

 

 

(Principal Executive Officer)

 

 

 

Exhibit 32.2

CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350,

AS ADOPTED PURSUANT TO SECTION 906 OF THE

SARBANES-OXLEY ACT OF 2002

Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 and in connection with the Quarterly Report on Form 10-Q of Independence Realty Trust, Inc. (the “Company”) for the period ended September 30, 2017, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), the undersigned, the Chief Financial Officer and Treasurer of the Company, certifies, to his knowledge, that:

 

(1)

The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and

 

(2)

The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

Date: October 31, 2017

 

By:

 

/s/ James J. Sebra

 

 

James J. Sebra

 

 

Chief Financial Officer and Treasurer

 

 

(Principal Financial Officer and Principal Accounting Officer)