Form 8-K - CURRENT REPORT
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) November 14, 2000
SHELTER PROPERTIES VI
(Exact name of registrant as specified in its charter)
South Carolina 0-13261 57-0755618
(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification Number)
incorporation)
55 Beattie Place
Post Office Box 1089
Greenville, South Carolina 29602
(Address of principal executive offices)
(Registrant's telephone number)
(864) 239-1000
N/A
(Former name or former address, if changed since last report)
<PAGE>
Item 5. Other Events
On November 14, 2000, the Partnership sold one of its investment properties,
Foxfire-Barcelona Apartments located in Durham, North Carolina.
Foxfire-Barcelona Apartments was sold to Lane Realty Advisors, Inc., an
unrelated third party for $14,150,000.00.
Item 7. Financial Statements and Exhibits
(c) Exhibits
10 (i) (iv) (b) Agreement of Purchase and Sale dated
November 14, 2000, between Shelter Properties VI and
Lane Realty Advisors, Inc., relating to
Foxfire-Barcelona Apartments.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
SHELTER PROPERTIES VI
By: Shelter Realty VI Corporation
Its Corporate General Partner
By: /s/Patrick J. Foye
Patrick J. Foye
Executive Vice President and Director
Date: December 14, 2000
<PAGE>
EXHIBIT 10 (I) (IV) (b)
PURCHASE AND SALE CONTRACT
BETWEEN
SHELTER PROPERTIES VI,
a South Carolina limited partnership
AS SELLER
AND
LANE REALTY ADVISORS, INC.,
a Georgia corporation
AS PURCHASER
<PAGE>
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT ("Purchase Contract" or the "Agreement")
is entered into as of the _____day of December, 2000 (the "Effective Date") by
and between SHELTER PROPERTIES VI, a South Carolina limited partnership, having
a principal address at 2000 South Colorado Boulevard, Tower Two, Suite 2-1000,
Denver, Colorado 80222 ("Seller") and LANE REALTY ADVISORS, INC., a Georgia
corporation, having a principal address at 5555 Glenridge Connector, Suite 700,
Atlanta, Georgia 30342 ("Purchaser").
NOW, THEREFORE WITNESSETH: That for and in consideration of mutual
covenants and agreements hereinafter set forth, Seller and Purchaser hereby
agree as follows:
RECITALS
R-1. Seller holds legal title to the real estate located in Durham County,
North Carolina, as more particularly described in Exhibit A attached hereto and
made a part hereof. Improvements have been constructed on the property described
in this Recital.
R-2. Purchaser desires to purchase and Seller has agreed to sell such
land, improvements and certain associated property, defined below as the
"Property" on the terms and conditions set forth below, (which terms and
conditions shall control in the event of any conflict with these Recitals), such
that on the Closing Date (as hereinafter defined) the Property will be conveyed
by limited warranty deed to Purchaser.
R-3. Purchaser has agreed to pay to Seller the Purchase Price for the
Property, and Seller has agreed to sell the Property to Purchaser, on the terms
and conditions set forth below.
R-4. Purchaser intends to make investigations regarding the Property, and
Purchaser's intended uses of each of the Property as Purchaser deems necessary
and desirable.
DEFINED TERMS
. Unless otherwise defined herein, terms with initial capital letters in this
Purchase Contract shall have the meanings set forth in this ARTICLE 1 below. .
"Business Day" means any day other than a Saturday or Sunday or Federal holiday
or legal holiday in the State of North Carolina.
. "Closing" means the consummation of the purchase and sale and related
transactions contemplated by this Purchase Contract in accordance with the terms
and conditions of this Purchase Contract.
. "Closing Date" means the date on which date the Closing of the conveyance of
the Property is required to be held under the terms and conditions of this
Purchase Contract and on which date full payment of the Purchase Price for the
Property shall have been paid to and received by Seller in immediately available
U.S. funds. . "Excluded Permits" means those Permits which, under applicable
law, are nontransferable and such other Permits as may be designated as Excluded
Permits on Exhibit 1.1.4, if any, attached hereto.
. Intentionally Omitted.
. "Fixtures and Tangible Personal Property" means all fixtures, furniture,
furnishings, fittings, equipment, machinery, computers (to the extent located on
the Property and owned by Seller), fax machines (to the extent located on the
Property and owned by Seller), copiers (to the extent located on the Property
and owned by Seller), apparatus, appliances and other articles of tangible
personal property now located on the Land or in the Improvements as of the date
of this Purchase Contract and used or usable in connection with any present or
future occupation or operation of all or any part of the Property. The term
"Fixtures and Tangible Personal Property" does not include (i) equipment leased
by Seller and the interest of Seller in any equipment provided to the Property
for use, but not owned or leased, by Seller, or (ii) property owned or leased by
Tenants and guests, employees or other persons furnishing goods or services to
the Property, or (iii) property and equipment owned by Seller, which in the
ordinary course of business of the Property is not used exclusively for the
business, operation or management of the Property or (iv) the property and
equipment, if any, expressly identified in Exhibit 1.1.7.
. "Improvements" means all buildings and improvements, located on the Land taken
"as is". . "Land" means all of those certain tracts of land located in the State
of North Carolina described on Exhibit "A" attached hereto, and all rights,
privileges and appurtenances pertaining thereto.
. "Lease(s)" means the interest of Seller in and to all leases, subleases and
other occupancy agreements, whether or not of record, which provide for the use
or occupancy of space or facilities on or relating to the Property and which are
in force as of the Effective Date for the applicable Property. . "Miscellaneous
Property Assets" means all contract rights, leases, concessions, warranties,
plans, drawings and other items of intangible personal property relating to the
ownership or operation of the Property and owned by Seller, excluding, however,
(i) receivables, (ii) Property Contracts, (iii) Leases, (iv) Permits, (v) cash
or other funds, whether in petty cash or house "banks," or on deposit in bank
accounts or in transit for deposit, (vi) refunds, rebates or other claims, or
any interest thereon, for periods or events occurring prior to the Closing Date,
(vii) utility and similar deposits, or (viii) insurance or other prepaid items
or (ix) Seller's proprietary books and records, except to the extent that Seller
receives a credit on the closing statement for any such item. The term
"Miscellaneous Property Assets shall also include the following, but only to the
extent owned by Seller and in Seller's possession: site plans, surveys, soil and
substrata studies, architectural renderings, plans and specifications,
engineering plans and studies, floor plans, tenant data sheets, landscape plans
and other plans or studies of any kind, if any, which relate to the Land and or
the Improvements or the Fixtures and Tangible Personal Property. The term
"Miscellaneous Property Assets" shall also include all of Seller's rights, if
any, in and to the name "Foxfire - Barcelona Apartments".
. "Permits" means all licenses and permits granted by governmental authorities
having jurisdiction over the Property in respect of the matter to which the
applicable license or permit applies and owned by Seller and used in or relating
to the ownership, occupancy or operation of the Property or any part thereof not
subject to a Lease.
. "Permitted Exceptions" means those exceptions or conditions permitted to
encumber the title to the Property in accordance with the provisions of Section
6.1. . "Property" means the Land and Improvements and all rights of Seller
relating to the Land and the Improvements, including without limitation, any
rights, title and interest of Seller, if any, in and to (i) any strips and gores
adjacent to the Land and any land lying in the bed of any street, road, or
avenue opened or proposed, in front of or adjoining the Land, to the center line
thereof; (ii) any unpaid award for any taking by condemnation or any damage to
the Property by reason of a change of grade of any street or highway; (iii) all
of the easements, rights, privileges, and appurtenances belonging or in any way
appertaining to the Property; together with all Fixtures and Tangible Personal
Property, the right, if any and only to the extent transferable, of Seller in
and to Property Contracts and Leases, Permits other than Excluded Permits and
the Miscellaneous Property Assets owned by Seller which are located on the
Property and used in its operation.
. "Property Contracts" means all purchase orders, maintenance, service, or
utility contracts and similar contracts, which relate to the ownership,
maintenance, construction or repair and/or operation of the Property and which
are not cancelable on 90 days' or shorter Notice, except Leases. A. "Purchase
Contract" means this Purchase and Sale Contract by and between Seller and
Purchaser.
B. "Purchase Price" means the total consideration to be paid by Purchaser to
Seller for the purchase of the Property.
C. "Survey" shall have the meaning ascribed thereto in Section 6.7.
D. "Tenant" means any person or entity entitled to occupy any portion of the
Property under a Lease.
E. "Title Commitment" or "Title Commitments" shall have the meaning ascribed
thereto in Section 6.1.
F. "Title Insurer" shall have the meaning set forth in Section 6.1.
PURCHASE AND SALE OF PROPERTY
G. Seller agrees to sell and convey the Property to Purchaser and Purchaser
agrees to purchase the Property from Seller, in accordance with the terms and
conditions set forth in this Purchase Contract.
PURCHASE PRICE & DEPOSIT
H. The total purchase price ("Purchase Price") for the Property shall be
Fourteen Million Two Hundred Fifty Thousand and No/100 Dollars ($14,250,000.00),
which shall be paid by Purchaser, as follows:
I. On the date hereof, Purchaser shall deliver to STEWART TITLE GUARANTY COMPANY
("Escrow Agent" or the "Title Insurer") a deposit in the sum of Fifty Thousand
and No/100 Dollars ($50,000.00), in cash, (such sum being hereinafter referred
to and held as the "Deposit"). Purchaser and Seller each approve the form of
Escrow Agreement attached as Exhibit B. At or before 5:00 p.m. Eastern time on
the date of expiration of the Feasibility Period, provided Purchaser has not
terminated this Purchase Contract pursuant to Section 5.2 below, Purchaser shall
deliver to Escrow Agent an additional deposit in the sum of Two Hundred
Thirty-Five Thousand and no/100 Dollars ($235,000.00), in cash (such sum being
hereinafter referred to as the "Additional Deposit"). The Additional Deposit,
when paid, shall be non-refundable, except in the event that Purchaser would
otherwise be entitled to receive a refund of the Deposit pursuant to the terms
of this Purchase Contract. J. The Escrow Agent shall hold the Initial Deposit,
the Additional Deposit (to the extent paid), and the Extension Deposit (as
hereinafter defined and to the extent paid) (collectively, the "Deposit") and
make delivery of the Deposit to the party entitled thereto under the terms
hereof. Escrow Agent shall invest the Deposit in such short-term, high-grade
securities, interest-bearing bank accounts, money market funds or accounts, bank
certificates of deposit or bank repurchase agreements as Escrow Agent, in its
discretion, deems suitable, (provided that Escrow Agent shall invest the Deposit
as jointly directed by Seller and Purchaser should Seller and Purchaser each in
their respective sole discretion determine to issue such joint investment
instructions to the Escrow Agent) and all interest and income thereon shall
become part of the Deposit and shall be remitted to the party entitled to the
Deposit, as set forth below.
K. If the sale of the Property is closed by the date fixed therefor (or any
extension date provided for herein), monies held as the Deposit shall be applied
to the Purchase Price on the Closing Date. If the sale of the Property is not
closed by the date fixed therefor (or any such extension date) owing to failure
of satisfaction of a condition precedent to Purchaser's obligations, the Deposit
and all interest and income earned thereon shall be returned and refunded to
Purchaser, and neither party shall have any further liability hereunder, subject
to and except for Purchaser's liability under Section 5.3.
L. If the sale of the Property is not closed by the date fixed therefor (or any
such extension date) owing to failure of performance by Seller, Purchaser shall
be entitled to the remedies set forth in ARTICLE 12 hereof. If the sale of the
Property is not closed by the date fixed therefor (or any such extension date)
owing to failure of performance by Purchaser, the Deposit shall be forfeited by
Purchaser and the sum thereof shall go to Seller forthwith as liquidated damages
for the lost opportunity costs and transaction expenses incurred by Seller, as
more fully set forth in ARTICLE 12 below, as Seller's sole and exclusive remedy.
M. The balance of the Purchase Price, subject to adjustment as provided in
Article 7 hereof, shall be paid at Closing by wire transfer or cashier's check.
FINANCING
N. Purchaser assumes full responsibility to expeditiously and diligently
initiate and pursue all steps necessary to obtain the funds required for
settlement, and Purchaser's acquisition of such funds shall not be a contingency
to the Closing.
FEASIBILITY PERIOD
O. Subject to the terms of Section 5.3 below, for a period of thirty (30)
calendar days following the Effective Date (the "Feasibility Period"),
Purchaser, and its agents, contractors, engineers, surveyors, attorneys, and
employees ("Consultants") shall have the right from time to time to enter onto
the Property: P. To conduct and make any and all customary studies, tests,
examinations and inspections, or investigations of or concerning the Property
(including without limitation, engineering and feasibility studies, evaluation
of drainage and flood plain, soil tests for bearing capacity and percolation and
surveys, including topographical surveys).
Q. To confirm any and all matters which Purchaser may reasonably desire to
confirm with respect to the Property.
R. To ascertain and confirm the suitability of the property for Purchaser's
intended use of the Property.
S. To review all Materials (as hereinafter defined) other than Seller's
proprietary information, including, Materials held by the Property Manager and
the Regional Property Manager (as defined in Section 8.1.4 of this Purchase
Contract). T. Purchaser shall have the right to terminate this Purchase Contract
for any reason, or no reason, by giving written Notice to Seller and Escrow
Agent on or before 5:00 p.m. EST on the date of expiration of the Feasibility
Period. If Purchaser exercises such right to terminate, this Purchase Contract
shall terminate and be of no further force and effect, subject to and except for
Purchaser's liability under Section 5.3, and Escrow Agent shall promptly return
the Deposit, and all interest and income earned thereon to Purchaser. If
Purchaser fails to provide Seller with written Notice of cancellation prior to
the end of the Feasibility Period in strict accordance with the Notice
provisions of this Purchase Contract, this Purchase Contract shall remain in
full force and effect and Purchaser's obligation to purchase the Property shall
be non-contingent and unconditional except only for satisfaction of the
conditions expressly stated in this Purchase Contract.
U. Purchaser shall indemnify and hold Seller harmless for any actions taken by
Purchaser and its Consultants on the Property. Purchaser shall indemnify, defend
(with attorneys selected by Seller) and hold Seller harmless from any and all
claims, damages, costs and liability which may arise due to such entries,
surveys, tests, investigations and the like. Seller shall have the right,
without limitation, to disapprove any and all entries, surveys, tests,
investigations and the like that in their reasonable judgment could result in
any injury to the Property or breach of any agreement, or expose Seller to any
liability, costs, liens or violations of applicable law, or otherwise adversely
affect the Property or Seller's interest therein. No consent by the Seller to
any such activity shall be deemed to constitute a waiver by Seller or assumption
of liability or risk by Seller. Purchaser hereby agrees to restore the Property
to the same condition existing immediately prior to Purchaser's exercise of its
rights pursuant to this ARTICLE 5 at Purchaser's sole cost and expense.
Purchaser shall maintain casualty insurance and comprehensive public liability
insurance with coverages of not less than $1,000,000.00 for injury or death to
any one person and $3,000,000.00 for injury or death to more than one person and
$500,000.00 with respect to property damage, by water or otherwise. The
provisions of this Section shall survive the Closing or termination of this
Purchase Contract.
V. Purchaser shall not permit any mechanic's or materialmen's liens or any other
liens to attach to the Property by reason of the performance of any work or the
purchase of any materials by Purchaser or any other party in connection with any
studies or tests conducted by or for Purchaser. Purchaser shall give notice to
Seller a reasonable time prior to entry onto the Property, shall deliver proof
of insurance coverage required above to Seller and shall permit Seller to have a
representative present during all investigations and inspections conducted with
respect to the Property. Purchaser shall take all reasonable actions and
implement all protections necessary to ensure that all actions taken in
connection with the investigations and inspections of the Property, and all
equipment, materials and substances generated, used or brought onto the Property
pose no material threat to the safety of persons or the environment and cause no
damage to the Property or other property of Seller or other persons. All
information made available by Seller to Purchaser in accordance with this
Purchase Contract or obtained by Purchaser in the course of its investigations
shall be treated as confidential information by Purchaser, and, prior to the
purchase of the Property by Purchaser, Purchaser shall use its best efforts to
prevent its Consultants, agents and employees from divulging such information to
any unrelated third parties except as reasonably necessary to third parties
engaged by Purchaser for the limited purpose of analyzing and investigating such
information for the purpose of consummating the transaction contemplated by this
Purchase Contract, including Purchaser's attorneys and representatives,
prospective lenders and engineers.
W. Seller shall deliver to Purchaser within ten (10) calendar days from the
Effective Date copies of all leases, contracts, engineering studies, surveys,
tax bills and assessments for the past two (2) years, tenant demographic
information, and other materials (the "Materials"), to the extent such items
exist and are in Seller's possession or control, relating to the Property (other
than proprietary information of Seller) including, but not limited to, the
following items: soils tests, written notices from governmental authorities, a
current rent roll, a recent survey, a current title policy, a report detailing
unit mix and market rent for each unit, a lease expiration report, a standard
lease form for the Property, copies of current service contracts and/or
operating agreements in place at the Property, operating statements for the
Property for the three (3) years preceding the year of this Purchase Contract,
month to month operating statements for the Property for the twelve (12) months
preceding this Agreement, a current year to date operating statement for the
Property, the current year's operating budget for the Property, tax bills and
assessments for the last two (2) years, monthly occupancy reports for the past
twelve (12) months, a list of improvements to the Property over the past five
(5) years, warranties and/or guaranties on all systems serving the Property,
bank statements for the past twelve (12) months for the Property, utility bills
for the past twelve (12) months for the Property, access to all leases for the
Property, a list of all tenant deposits, plans and specifications for the
improvements and any and all renovations thereof, all governmental and zoning
documents affecting the Property, a schedule of inventory and equipment located
at the Property, licenses and permits, information regarding existing financing
for the Property, demographic information regarding tenants, a list of current
on-site employees for the Property which includes salaries, commissions and
rental allowances, and property brochures. If the sale of the Property is not
closed by the date fixed therefor, Purchaser shall, within five (5) calendar
days, return all such Materials to Seller.
TITLE
X. At the shared equal cost and expense of both Purchaser and Seller, Purchaser
shall promptly obtain from STEWART TITLE GUARANTY COMPANY (the "Title Insurer")
a preliminary title report or commitment (the "Title Commitment") to issue a
standard coverage Owner's Policy of Title Insurance (the "Title Policy") with
all standard exceptions deleted therefrom pursuant to Section 7.2.1.5 below
insuring Purchaser's title to the Property to be good and indefeasible in the
amount of the Purchase Price, subject only to the Permitted Exceptions
(described below) and other liens and encumbrances not constituting objections
to title in accordance herewith. A copy of the Title Commitment and the
documents of record reflected therein and Seller's existing survey shall be
furnished to the Purchaser and attorney for Seller. On or before the expiration
of the Feasibility Period, Purchaser shall give written notice (the "Objection
Notice") to the attorneys for Seller of any conditions of title which Purchaser
is not obligated to take the Property subject to pursuant to the provisions of
this Agreement (the "Objections") separately specifying and setting forth each
of such Objections. In the event Seller elects to cure any or all Objections,
Seller will cure such Objections prior to the Closing Date, provided, however,
that Seller shall be entitled to reasonable adjournments of the Closing Date to
cure such Objections. If Purchaser gives Seller an Objection Notice within the
period set forth above, then all matters disclosed on the Title Commitment which
are not objected to in such Objection Notice shall be deemed to be Permitted
Exceptions. If Purchaser fails to give Seller an Objection Notice within the
period set forth above, then all matters disclosed on the Title Commitment shall
be deemed to be Permitted Exceptions. Y. If Seller gives Purchaser notice (the
"Response Notice") that Seller is unable or unwilling to convey title to the
Property as required by this Purchase Agreement, Purchaser may, as its exclusive
remedy, elect by written notice given to Seller within five (5) days after the
Response Notice is given, either (a) to accept such title as Seller is able to
convey without any reduction or abatement of the Purchase Price, or (b) to
terminate this Purchase Contract in which event the Deposit, and all interest
and income earned thereon, shall be returned to Purchaser. If Purchaser fails to
give notice of its election to terminate this Agreement within such five (5) day
period, Purchaser shall be deemed to have waived said objections and to have
elected to proceed to close the transactions contemplated by this Purchase
Contract.
Z. The existence of liens or encumbrances other than the Permitted Exceptions or
those which are permitted by this Purchase Contract shall be deemed to be
Permitted Exceptions if the Title Insurer will insure Purchaser's title clear of
the matter or will insure against the enforcement of such matter out of the
Property and if such lien or encumbrance is approved (or deemed approved, as
provided herein) by Purchaser. Unpaid liens for real estate and personal
property taxes for years prior to the fiscal year in which the Closing Date
occurs and any other matter which Seller is obligated to pay and discharge at
the Closing shall be deemed objections to title, whether Purchaser gives written
notice of such or not, and the amount thereof chargeable to Seller, plus
interest and penalties thereon, if any, shall be deducted from the Purchase
Price on the Closing Date and paid to the Title Insurer for the payment of such
matters, the same being a material obligation of Seller under this Purchase
Contract.
AA. Notwithstanding the foregoing, any deeds of trust and/or mortgages against
the Property (collectively, "Liens"), including any and all mortgages which
secure those certain loans on the Property in the original principal amounts of
$6,255,387.00 and $193,466.00 made by Bank of America, shall be deemed
objectionable exceptions to title, whether Purchaser gives written notice of
such or not, and shall be paid off, satisfied, discharged and/or cured by Seller
at or before Closing, the same being a material obligation of Seller under this
Purchase Contract.
BB. Intentionally Deleted.
CC. Seller covenants that it will not voluntarily create or cause any lien or
encumbrance to attach to the Property between the date of this Purchase Contract
and the Closing Date (other than Leases and Property Contracts in the ordinary
course of business); any such monetary lien or encumbrance so attaching by
voluntary act of Seller (hereinafter, a "Voluntary Intervening Lien") shall be
discharged by the Seller at or prior to Closing on the Closing Date or any
postponed Closing Date. Except as expressly provided above, Seller shall not be
required to undertake efforts to remove any other lien, encumbrance, security
interest, exception, objection or other matter, to make any expenditure of money
or institute litigation or any other judicial or administrative proceeding and
Seller may elect not to discharge the same; provided, however, if any lien or
encumbrance (other than a Voluntary Intervening Lien) attaches to the Property
between the date of this Purchase Contract and the Closing Date, Seller shall be
required to satisfy or discharge said lien or encumbrance at or prior to the
Closing, provided that Seller shall not be required to expend more than $100,000
in connection with such satisfaction or discharge. If the amount required to
satisfy or discharge such lien or encumbrance exceeds $100,000, Purchaser shall
have the option of either (a) paying the excess amount over $100,000 required to
satisfy or discharge such lien, and proceeding to the Closing, or (b)
terminating this Purchase Contract, in which case, the Deposit shall be returned
and refunded to Purchaser, Purchaser shall be entitled to reimbursement of its
actual out-of-pocket due diligence costs, acquisition costs and legal fees up to
but not exceeding $250,000, and neither party shall have any further liability
hereunder, subject to and except for Purchaser's liability under Section 5.3 of
this Purchase Contract. Seller shall have no option to terminate this Purchase
Contract if Purchaser has elected to pay the amount in excess of $100,000 to
satisfy or discharge such lien or encumbrance. DD. Purchaser, at the shared
equal cost and expense of Purchaser and Seller, may cause to be prepared a
survey for the Property ("Survey") to be delivered to Purchaser and Seller
within the Feasibility Period. The Survey (i) shall be prepared in accordance
with and shall comply with the minimum requirements of the ALTA; (ii) shall be
in a form, and shall be certified as of a date satisfactory to Title Insurer to
enable Title Insurer to delete standard survey exceptions from the title
insurance policy to be issued pursuant to the Title Commitments, except for any
Permitted Exceptions; (iii) shall specifically show all improvements, recorded
easements to the extent locatable, set back lines, and such other matters shown
as exceptions by the Title Commitments; (iv) shall specifically show the right
of way for all adjacent public streets; (v) shall specifically disclose whether
(and, if so, what part of) any of the Property is in an area designated as
requiring flood insurance under applicable federal laws regulating lenders; (vi)
shall contain a perimeter legal description of the Property which may be used in
the limited warranty deed or equivalent deed; (vii) shall be certified to
Purchaser, Purchaser's lender, Seller and Title Insurer as being true and
correct; and (viii) shall certify that the legal description set forth therein
describes the same, and comprises all of, the real estate comprising the
Property to be purchased by Purchaser pursuant to the terms of this Purchase
Contract. In the event the perimeter legal description of the Property contained
in the Survey differs from that contained in the deed or deeds by which Seller
took title to the Property, the latter description shall be used in the limited
warranty deed delivered to Purchaser at Closing, and the Survey legal shall be
used in a quitclaim deed to the Property which also shall be delivered to
Purchaser at Closing. Purchaser, at Purchaser's sole cost and expense, may also
cause to be prepared an environmental report for the Property ("Environmental
Report").
EE. Should such Survey disclose conditions that give rise to a title exception
other than a Permitted Exception or other matters that adversely affect the
Property, Purchaser shall have the right to object thereto within the
Feasibility Period in accordance with the procedures set forth in Section 6.1
above. FF. Purchaser and Seller agree to make payment in full of all costs of
obtaining the Survey as required by this Purchase Contract on or before Closing
or termination of this Purchase Contract.
CLOSING
GG. Dates, Places Of Closing, Prorations, Delinquent Rent and Closing Costs. HH.
The Closing shall occur no later than thirty (30) calendar days after the
expiration of the Feasibility Period, through an escrow with Escrow Agent,
whereby the Seller, Purchaser and their attorneys need not be physically present
at the Closing and may deliver documents by overnight air courier or other
means. Notwithstanding the foregoing, (a) Purchaser shall have the right to
close prior to the originally scheduled Closing Date on the condition that
Purchaser pay Seller's additional interest costs incurred in connection with
prepaying Seller's first mortgage on the Property prior to the originally
scheduled Closing Date, and (b) Purchaser shall have the right to extend the
Closing Date for up to thirty (30) calendar days on the condition that (i) on or
before 5 P.M. Eastern Time on the fifth (5th) calendar day prior to the
originally scheduled Closing Date, Purchaser shall deliver to Escrow Agent an
additional non-refundable deposit in the amount of $50,000.00 (the "Extension
Deposit"), which deposit shall be applied toward the Purchase Price, (ii)
Purchaser notifies Seller on or before 5 P.M. Eastern Time on the fifth (5th)
calendar day prior to the originally scheduled Closing Date that Purchaser is
exercising this extension option, and (iii) Purchaser pays Seller's additional
interest costs incurred in connection with prepaying Seller's first mortgage on
the Property after the originally scheduled Closing Date. II. The Closing Date
may be extended without penalty at the option of Seller to a date not later than
fourteen (14) days following the Closing Date specified above to satisfy a
condition to be satisfied by Seller, or such later date as is mutually
acceptable to Seller and Purchaser.
JJ. All normal and customarily proratable items, including, without limitation,
Rents (as defined below) actually received, operating expenses, personal
property taxes, other operating expenses and fees, shall be prorated as of the
Closing Date, Seller being charged or credited, as appropriate, for all of same
attributable to the period up to the Closing Date (and credited for any amounts
paid by Seller attributable to the period on or after the Closing Date, if
assumed by Purchaser) and Purchaser being responsible for, and credited or
charged, as the case may be, for all of same attributable to the period on and
after the Closing Date. All unapplied deposits under Tenant leases, if any,
shall be transferred by Seller to Purchaser at the Closing. Purchaser shall
assume at Closing the obligations under the Property Contracts assumed by
Purchaser, provided that any payments under the Property Contracts have been
prorated. Any real estate ad valorem or similar taxes for the Property, or any
installment of assessments payable in installments which installment is payable
in the calendar year of Closing, shall be prorated to the date of Closing, based
upon actual days involved. The proration of real property taxes or installments
of assessments shall be based upon the assessed valuation and tax rate figures
for the year in which the Closing occurs to the extent the same are available;
provided, that in the event that actual figures (whether for the assessed value
of the Property or for the tax rate) for the year of Closing are not available
at the Closing Date, the proration shall be made using figures from the
preceding year. The provisions of this Section 7.1.3 shall apply during the
Proration Period (as defined below). Rents and all related charges shall be
prorated based on actual collections as of the Closing Date. KK. If any of the
items subject to proration hereunder cannot be prorated at the Closing because
the information necessary to compute such proration is unavailable, or if any
errors or omissions in computing prorations at the Closing are discovered
subsequent to the Closing, then such item shall be reapportioned and such errors
and omissions corrected as soon as practicable after the Closing Date and the
proper party reimbursed, which obligation shall survive the Closing for a period
(the "Proration Period") from the Closing Date until one (1) year after the
Closing Date. Neither party hereto shall have the right to require a
recomputation of a Closing proration or a correction of an error or omission in
a Closing proration unless within the Proration Period one of the parties hereto
(i) has obtained the previously unavailable information or has discovered the
error or omission, and (ii) has given Notice thereof to the other party together
with a copy of its good faith recomputation of the proration and copies of all
substantiating information used in such recomputation. The failure of a party to
obtain any previously unavailable information or discover an error or omission
with respect to an item subject to proration hereunder and to give Notice
thereof as provided above within the Proration Period shall be deemed a waiver
of its right to cause a recomputation or a correction of an error or omission
with respect to such item after the Closing Date.
LL. If on the Closing Date any Tenant is in arrears in any Rent payment under
any Tenant lease (the "Delinquent Rent"), any Delinquent Rent received by
Purchaser and Seller from such Tenant after the Closing shall be applied to
amounts due and payable by such Tenant during the following periods in the
following order of priority: (i) first, to the period of time after the Closing
Date, and (ii) second, to the period of time before the Closing Date. If
Delinquent Rent or any portion thereof received by Seller or Purchaser after the
Closing are due and payable to the other party by reason of this allocation, the
appropriate sum, less a proportionate share of any reasonable attorneys' fees
and costs and expenses expended in connection with the collection thereof, shall
be promptly paid to the other party. Any monies received by Seller after closing
shall be forwarded to Purchaser for disbursement in accordance with the order of
payment provided herein above. After the Closing, Seller shall continue to have
the right, but not the obligation, in its own name, to demand payment of and to
collect Delinquent Rent owed to Seller by any Tenant, which right shall include,
without limitation, the right to continue or commence legal actions or
proceedings against any Tenant (provided, that Seller shall not commence any
legal actions or proceedings against any Tenant which continues as a Tenant at
the Property after Closing without the prior consent of Purchaser, which will
not be unreasonably withheld or delayed), and the delivery of the Assignment as
defined in Section 7.2.1.3 shall not constitute a waiver by Seller of such
right. Purchaser agrees to cooperate with Seller at no cost or liability to
Purchaser in connection with all efforts by Seller to collect such Delinquent
Rent and to take all steps, whether before or after the Closing Date, as may be
necessary to carry out the intention of the foregoing, including, without
limitation, the delivery to Seller, within seven (7) days after a written
request, of any relevant books and records (including, without limitation, rent
statements, receipted bills and copies of tenant checks used in payment of such
rent), the execution of any and all consents or other documents, and the
undertaking of any act reasonably necessary for the collection of such
Delinquent Rent by Seller; provided, however, that Purchaser's obligation to
cooperate with Seller pursuant to this sentence shall not obligate Purchaser to
terminate any Tenant lease with an existing Tenant or evict any existing Tenant
from the Property. The provisions of this Section 7.1.5 shall apply during the
Proration Period.
MM. Seller shall pay the cost of all transfer taxes (e.g., excise stamp taxes).
Purchaser shall pay the cost of all recording costs with respect to the Closing,
the cost of the Title Policy, and the cost of any lender's policy of title
insurance. Seller and Purchaser shall share equally in the costs of the Escrow
Agent for escrow fees.
NN. Items To Be Delivered Prior To Or At Closing.
OO. Seller. At Closing, Seller shall deliver to the Escrow Agent, each of the
following items, as applicable: PP. Limited Warranty Deed in the form attached
as Exhibit 7.2.1.1 and, if applicable a quitclaim deed as set forth in Section
6.7 hereof, to Purchaser. The acceptance of such deed at Closing, shall be
deemed to be full performance of, and discharge of, every agreement and
obligation on Seller's part to be performed under this Purchase Contract, except
for those that this Purchase Contract specifically provides shall survive
Closing.
QQ. A Bill of Sale in the form attached as Exhibit 7.2.1.2 covering all Property
Contracts, Leases, Permits (other than Excluded Permits) and Fixtures and
Tangible Personal Property required to be transferred to Purchaser with respect
to such Property. Purchaser shall countersign the same so as to effect an
assumption by Purchaser of, among other things, Seller's obligations thereunder.
RR. An Assignment (to the extent assignable and in force and effect) in the form
attached as Exhibit 7.2.1.3 of all of Seller's right, title and interest in and
to the Miscellaneous Property Assets, subject to any required consents.
Purchaser shall countersign the same so as to effect an assumption by Purchaser,
including, without limitation, of Seller's obligations thereunder.
SS. A closing statement executed by Seller.
TT. A title affidavit or at Seller's option an indemnity, as applicable, in the
customary form reasonably acceptable to Seller to enable Title Insurer to delete
the standard exceptions to the title insurance policy set forth in this Purchase
Contract (other than matters constituting any Permitted Exceptions and matters
which are to be completed or performed post-Closing) to be issued pursuant to
the Title Commitment; provided that such affidavit does not subject Seller to
any greater liability, or impose any additional obligations, other than as set
forth in this Purchase Contract; and UU. A certification of Seller's non-foreign
status pursuant to Section 1445 of the Internal Revenue Code of 1986, as
amended.
VV. Except for the items expressly listed above to be delivered at Closing,
delivery of any other required items shall be deemed made by Seller to
Purchaser, if Seller leaves such documents at the Property in their customary
place of storage or in the custody of Purchaser's representatives.
WW. Intentionally Deleted
XX. A list certified to the best of Seller's knowledge, disclosing any current
pending and/or threatened litigation affecting the Property.
YY. Evidence that the management agreement for Seller's manager has been
terminated.
ZZ. A rent roll for the Property certified by Seller, but limited to Seller's
knowledge, listing the monthly base rent payable, lease expiration date and
unapplied security deposit as of the Closing Date.
AAA. Resolutions, certificates of good standing, and such other organizational
documents as Title Insurer shall reasonably require evidencing Seller's
authority to consummate this transaction.
BBB. To the extent in Seller's possession or control, originals or copies of the
Leases and Property Contracts, permits, lease files, warranties, guaranties,
plans and specifications, operating manuals, keys to the property, Seller's
books and records (other than proprietary information) regarding the Property.
CCC. Purchaser. At Closing, Purchaser shall deliver to the Title Company (for
disbursement to Seller upon the Closing) the following items with respect to the
Property being conveyed at such Closing:
DDD. The full Purchase Price as required by ARTICLE 3 hereof plus or minus the
adjustments or prorations required by this Purchase Contract. If at Closing
there are any liens or encumbrances on the Property that Seller is obligated or
elects to pay and discharge, Seller may use any portion of the Purchase Price
for the Property(s) to satisfy the same, provided that Seller shall have
delivered to Title Company, on such Closing instruments in recordable form
sufficient to satisfy such liens and encumbrances of record (or, as to any
mortgages or deeds of trust, appropriate payoff letters, acceptable to the Title
Insurer), together with the cost of recording or filing such instruments.
EEE. A closing statement executed by Purchaser.
FFF. A countersigned counterpart of the Bill of Sale in the form attached as
Exhibit 7.2.1.2.
GGG. A countersigned counterpart of the Assignment in the form attached as
Exhibit 7.2.1.3.
HHH. Such other instruments, documents or certificates as are required to be
delivered by Purchaser to Seller in accordance with any of the other provisions
of this Purchase Contract.
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF SELLER AND PURCHASER
III. Representations, Warranties and Covenants Of Seller.
JJJ. For the purpose of inducing Purchaser to enter into this Purchase Contract
and to consummate the sale and purchase of the Property in accordance herewith,
Seller represents and warrants to Purchaser the following as of the Effective
Date and as of the Closing Date:
KKK. Seller is lawfully and duly organized, and in good standing under the laws
of the state of its formation set forth in the initial paragraph of this
Purchase Contract; and has or at the Closing shall have the power and authority
to sell and convey the Property and to execute the documents to be executed by
Seller and prior to the Closing will have taken as applicable, all corporate,
partnership, limited liability company or equivalent entity actions required for
the execution and delivery of this Purchase Contract, and the consummation of
the transactions contemplated by this Purchase Contract. The compliance with or
fulfillment of the terms and conditions hereof will not conflict with, or result
in a breach of, the terms, conditions or provisions of, or constitute a default
under, any purchase contract to which Seller is a party or by which Seller is
otherwise bound. Seller has not made any other purchase contract for the sale
of, or given any other person the right to purchase, all or any part of any of
the Property; LLL. Seller owns insurable, fee title to the Property, including
all real property contained therein required to be sold to Purchaser, subject
only to the Permitted Exceptions (provided, however, that if this representation
is or becomes untrue, Purchaser's remedies shall be limited to the remedies set
forth in Section 6.2 hereof and Seller shall have no other liability as a result
thereof, either before or after Closing); MMM. There are no adverse or other
parties in possession of the Property, except for occupants, guests and tenants
under the Leases (provided, however, that if this representation is or becomes
untrue, Purchaser's remedies shall be limited to the remedies set forth in
Section 6.2 hereof). NNN. The joinder of no person or entity other than Seller
is necessary to convey the Property, fully and completely, to Purchaser at
Closing, or to fulfill Seller's obligations and Seller has all necessary right
and authority to convey and assign to Purchaser all contract rights and
warranties required to be conveyed and assigned to Purchaser hereunder; OOO.
Purchaser has no duty to collect withholding taxes for Seller pursuant to the
Foreign Investors Real Property Tax Act of 1980, as amended; PPP. To Seller's
knowledge, there are no actions, proceedings, litigation or governmental
investigations or condemnation actions either pending or threatened against the
Property, as applicable; QQQ. Seller has no knowledge of any claims for labor
performed, materials furnished or services rendered in connection with
constructing, improving or repairing any of the Property, as applicable, caused
by Seller and which remain unpaid beyond the date for which payment was due and
in respect of which liens may or could be filed against any of the Property, as
applicable; RRR. To Seller's knowledge, Seller has not received any written
notice of any proposed taking, condemnation or special assessment with respect
to the Property; SSS. To Seller's knowledge, Seller has not received any written
notice of any uncured violations of any federal, state, county or municipal law,
ordinance, order, regulation or requirement affecting the Property; TTT. To
Seller's knowledge, Seller has not received any written notice of any default by
Seller under any of the Property Contracts that will not be terminated on the
Closing Date; UUU. Seller agrees to maintain its existing insurance policies
covering the Property in full force and effect through the Closing Date, to
continue to maintain the Property as Seller has been operating the Property
immediately prior to the Effective Date, and to cause any of the units on the
Property that are vacant as of two (2) days prior to the Closing Date to be in
"rent ready" condition on the Closing Date; and VVV. To Seller's knowledge, all
documents relating to the Property that were delivered by Seller to Purchaser in
connection with this Purchase Contract, are true, correct and complete in all
material respects, and none contain any untrue statement of a material fact or
omit to state a material fact. WWW. Except for the representations and
warranties expressly set forth above in Subsection 8.1.1, the Property is
expressly purchased and sold "AS IS," "WHERE IS," and "WITH ALL FAULTS." The
Purchase Price and the terms and conditions set forth herein are the result of
arm's-length bargaining between entities familiar with transactions of this
kind, and said price, terms and conditions reflect the fact that Purchaser shall
have the benefit of, and is not relying upon any information provided by Seller
or Broker or statements, representations or warranties, express or implied, made
by or enforceable directly against Seller or Broker, including, without
limitation, any relating to the value of the Property, the physical or
environmental condition of the Property, any state, federal, county or local
law, ordinance, order or permit; or the suitability, compliance or lack of
compliance of the Property with any regulation, or any other attribute or matter
of or relating to the Property (other than any covenants of title contained in
the deeds conveying the Property and the representations set forth above).
Purchaser represents and warrants that as of the date hereof and as of the
Closing Date, it has and shall have reviewed and conducted such independent
analyses, studies, reports, investigations and inspections as it deems
appropriate in connection with the Property. If Seller provides or has provided
any documents, summaries, opinions or work product of consultants, surveyors,
architects, engineers, title companies, governmental authorities or any other
person or entity with respect to the Property, including, without limitation,
the offering prepared by Broker, Purchaser and Seller agree that Seller has done
so or shall do so only for the convenience of both parties, Purchaser shall not
rely thereon and the reliance by Purchaser upon any such documents, summaries,
opinions or work product shall not create or give rise to any liability of or
against Seller, Seller's partners or affiliates or any of their respective
partners, officers, directors, participants, employees, contractors, attorneys,
consultants, representatives, agents, successors, assigns or
predecessors-in-interest. Purchaser shall rely only upon any title insurance
obtained by Purchaser with respect to title to the Property. Purchaser
acknowledges and agrees that no representation has been made and no
responsibility is assumed by Seller with respect to current and future
applicable zoning or building code requirements or the compliance of the
Property with any other laws, rules, ordinances or regulations, the financial
earning capacity or expense history of the Property, the continuation of
contracts, continued occupancy levels of the Property, or any part thereof, or
the continued occupancy by tenants of any Leases or, without limiting any of the
foregoing, occupancy at Closing. Prior to Closing, Seller shall have the right,
but not the obligation, to enforce its rights against any and all Property
occupants, guests or tenants. Except as otherwise set forth herein, or if
arising from a breach by Seller of any of its obligations hereunder including
those set forth in Section 8.1.5 and Section 9.1, Purchaser agrees that the
departure or removal, prior to Closing, of any of such guests, occupants or
tenants shall not be the basis for, nor shall it give rise to, any claim on the
part of Purchaser, nor shall it affect the obligations of Purchaser under this
Purchase Contract in any manner whatsoever; and Purchaser shall close title and
accept delivery of the deed with or without such tenants in possession and
without any allowance or reduction in the Purchase Price under this Purchase
Contract. Purchaser hereby releases Seller from any and all claims and
liabilities relating to the foregoing matters, except as provided in Section
8.1.3 below. XXX. Seller agrees that Purchaser shall be entitled to rely on the
foregoing representations and warranties made by Seller herein and that
Purchaser has so relied. Seller and Purchaser agree that those representations
and warranties contained in Section 8.1 shall survive Closing for a period of
one (1) year from the Closing Date (the "Survival Period"). Seller shall have no
liability after the Survival Period with respect to the representations and
warranties contained herein except to the extent that Purchaser has delivered
written notice ("Notice of Breach") to Seller specifying a breach of such
representations and warranties on or before the expiration of the Survival
Period. Seller shall have no liability for a matter specified in a Notice of
Breach for longer than three (3) months after the Survival Period unless
Purchaser has filed a lawsuit against Seller for the breach of any
representation or warranty specified in such Notice of Breach within that three
(3) month period. In the event that Seller breaches any representation contained
in Section 8.1 and Purchaser had knowledge of such breach prior to the Closing
Date, Purchaser shall be deemed to have waived any right of recovery, and Seller
shall not have any liability in connection therewith. YYY. Representations and
warranties above made to the knowledge of Seller shall not be deemed to imply
any duty of inquiry other than an inquiry by such Designated Representatives as
they deem reasonable under the circumstances. For purposes of this Purchase
Contract, the term Seller's "knowledge" shall mean and refer to only actual
knowledge of the Designated Representative (as hereinafter defined) of the
Seller and shall not be construed to refer to the knowledge of any other
partner, officer, director, agent, employee or representative of the Seller, or
any affiliate of the Seller, or to impose upon such Designated Representative
any duty to investigate the matter to which such actual knowledge or the absence
thereof pertains, or to impose upon such Designated Representative any
individual personal liability. As used herein, the term Designated
Representative shall refer to H. Smith of Apartment Investment & Management
Company ("AIMCO"), as the on-site property manager (the "Property Manager"), Ms.
Cindy Ducharme, the Regional Property Manager handling this Property at AIMCO
(the "Regional Property Manager") and Mr. Harry Alcock, as Executive Vice
President of the managing general partner of Seller. ZZZ. For the purpose of
inducing Purchaser to enter into this Purchase Contract and to consummate the
sale and purchase of the Property in accordance herewith, Seller hereby
covenants that, so long as this Purchase Contract remains in full force and
effect: AAAA. Seller will not assign, transfer, grant or in any way convey or
allow the conveyance of all or any part of the Property, or any interest
therein, or enter into any purchase and sale contract with respect to the
Property or any part thereof. BBBB. Seller will not, without the prior written
consent of Purchaser, enter into any new Lease, or renew, extend or amend any
existing Lease ("Lease Transaction"). Purchaser shall have three (3) business
days after receipt from Seller of a request for consent to a Lease Transaction,
in which to issue or refuse such consent, and if Purchaser fails or refuses to
act within such three (3) business day period, Purchaser shall be deemed to have
issued such consent. If during the Feasibility Period Purchaser unreasonably
disapproves of a Lease Transaction, Seller shall have the option to terminate
this Purchase Contract upon five (5) days written notice to Purchaser. Upon
Purchaser's receipt of such termination notice, Purchaser shall have the right
to either accept the termination (in which case the Deposit shall be returned to
Purchaser and neither party shall have any obligation to the other, except as
expressly set forth herein for provisions which survive termination), or
Purchaser may approve the Lease Transaction (which was previously disapproved),
and permit the Purchase Contract to continue. If notice of approval of the Lease
Transaction is not delivered to Seller within five (5) days after Purchaser's
receipt of the termination notice, Purchaser shall be deemed to have accepted
Seller's termination. Seller shall not have the foregoing right of termination
after the expiration of the Feasibility Period. Notwithstanding the foregoing
Seller shall have the right, without Purchaser's consent to enter into new
Leases of twelve (12) months or less in duration at rental rates that are
reasonably consistent with Seller's current practices at the Property or modify,
extend or amend existing Leases in the ordinary course of business provided such
modifications, amendments or extensions do not exceed twelve (12) months in
duration. CCCC. Seller will continue to operate, maintain and manage the
Property in a manner reasonably consistent with Seller's current practice. DDDD.
Seller will maintain any and all insurance policies including, but not limited
to, fire, hazard, liability and worker's compensation policies, if any, in
effect on or at the Property as of the Effective Date. EEEE. Seller shall not
enter into any new Property Contracts which are not terminable upon thirty (30)
days notice without payment of any penalty fees or charges, without the prior
written consent of Purchaser. FFFF. Representations And Warranties Of Purchaser
GGGG. For the purpose of inducing Seller to enter into this Purchase Contract
and to consummate the sale and purchase of the Property in accordance herewith,
Purchaser represents and warrants to Seller the following as of the Effective
Date and as of the Closing Date: HHHH. With respect to Purchaser and its
business, Purchaser represents and warrants, in particular, that: IIII.
Purchaser is a corporation duly organized, validly existing and in good standing
under the laws of Georgia. JJJJ. Purchaser, acting through any of its or their
duly empowered and authorized officers or members, has all necessary power and
authority to own and use its properties and to transact the business in which it
is engaged, and has full power and authority to enter into this Purchase
Contract, to execute and deliver the documents and instruments required of
Purchaser herein, and to perform its obligations hereunder; and no consent of
any of Purchaser's officers or members are required to so empower or authorize
Purchaser. KKKK. No pending or, to the knowledge of Purchaser, threatened
litigation exists which if determined adversely would restrain the consummation
of the transactions contemplated by this Purchase Contract or would declare
illegal, invalid or non-binding any of Purchaser's obligations or covenants to
Seller. LLLL. Purchaser is duly authorized to execute and deliver, acting
through its duly empowered and authorized officers and members, respectively,
and perform this Purchase Contract and all documents and instruments and
transactions contemplated hereby or incidental hereto, and such execution,
delivery and performance by Purchaser does not (i) violate any of the provisions
of their respective certificates of formation or bylaws, (ii) violate any
provision of any law, governmental rule or regulation currently in effect, (iii)
violate any judgment, decree, writ, injunction, award, determination or order
currently in effect that names or is specifically directed at Purchaser or its
property, and (iv) require the consent, approval, order or authorization of, or
any filing with or notice to, any court or other governmental authority. MMMM.
The joinder of no person or entity other than Purchaser is necessary to
consummate the transactions to be performed by Purchaser and Purchaser has all
necessary right and authority to perform such acts as are required and
contemplated by this Purchase Contract. NNNN. Purchaser has not dealt with any
broker, finder or any other person, in connection with the purchase of or the
negotiation of the purchase of the Property that might give rise to any claim
for commission against Seller or lien or claim against the Property.
CONDITIONS PRECEDENT TO CLOSING
OOOO. Purchaser's obligation to close under this Purchase Contract, shall be
subject to and conditioned upon the fulfillment of each and all of the following
conditions precedent:
PPPP. All of the documents required to be delivered by Seller to Purchaser at
the Closing pursuant to the terms and conditions hereof shall have been
delivered and shall be in form and substance reasonably satisfactory to
Purchaser; QQQQ. Each of the representations, warranties and covenants of Seller
contained herein shall be true in all material respects as of the Closing Date
(and Purchaser shall be permitted to perform an inspection of the Property
immediately prior to the Closing Date to verify same); RRRR. Seller shall have
complied with, fulfilled and performed in all material respects each of the
covenants, terms and conditions to be complied with, fulfilled or performed by
Seller hereunder; SSSS. Neither Seller nor Seller's general partner shall be a
debtor in any bankruptcy proceeding or shall have been in the last 6 months a
debtor in any bankruptcy proceeding; TTTT. A taking of all or any part of the
Property must not have been commenced or threatened in writing; UUUU. The actual
occupancy level of the Property shall not have decreased by more than seven
percent (7%) from the actual occupancy level on the Effective Date; VVVV. Seller
shall have terminated any Property Contracts which are not being assumed by
Purchaser as of the Closing Date (and which are capable of being terminated by
Seller without penalty or cost to Seller). WWWW. Notwithstanding anything to the
contrary, there are no other conditions on Purchaser's obligation to Close
except as expressly set forth above. If any of the above conditions is not
satisfied, then notwithstanding anything to the contrary contained in this
Purchase Contract, Purchaser may, at its option (a) waive such condition and
proceed to Closing and accept title to the Property with an agreed upon offset
or deduction from the Purchase Price (assuming Seller and Purchaser can agree
upon such offset or deduction amount, and neither party has any obligation to
come to an agreement), (b) waive such condition and proceed to Closing and
accept title to the Property without any offset or deduction from the Purchase
Price, or (iii) notify Seller of Purchaser's election to terminate this Purchase
Contract and receive a return of the Deposit and all interest and income earned
thereon from the Escrow Agent. XXXX. Without limiting any of the rights of
Seller elsewhere provided for in this Purchase Contract, Seller's obligation to
close with respect to conveyance of a particular Property under this Purchase
Contract shall be subject to and conditioned upon the fulfillment of each and
all of the following conditions precedent: YYYY. Purchaser's representations and
warranties set forth in this Purchase Contract shall have been true and correct
in all material respects when made, and shall be true and correct in all
material respects on the Closing Date and as of the Effective Date as though
such representations and warranties were made at and as of such date and time.
ZZZZ. Purchaser shall have fully performed and complied with all covenants,
conditions, and other obligations in this Purchase Contract to be performed or
complied with by it at or prior to Closing including, without limitation,
payment in full of the Purchase Price. AAAAA. There shall not be pending or, to
the knowledge of either Purchaser or Seller, any litigation or threatened
litigation which, if determined adversely, would restrain the consummation of
any of the transactions contemplated by this Purchase Contract or declare
illegal, invalid or nonbinding any of the covenants or obligations of the
Purchaser.
BROKERAGE
BBBBB. Seller represents and warrants to Purchaser that it has dealt only with
CB Richard Ellis ("Broker") in connection with this Purchase Contract. Seller
and Purchaser each represents and warrants to the other that other than Broker,
it has not dealt with or utilized the services of any other real estate broker,
sales person or finder in connection with this Purchase Contract, and each party
agrees to indemnify the other party from and against all claims for brokerage
commissions and finder's fees arising from or attributable to the acts or
omissions of the indemnifying party.
CCCCC. Seller agrees to pay Broker a commission according to the terms of a
separate agreement. Broker shall not be deemed a party or third party
beneficiary of this Purchase Contract.
DDDDD. Broker assumes no responsibility for the condition of the Property or
representation for the performance of this Purchase Contract by the Seller or
Purchaser.
POSSESSION
EEEEE. Possession of the Property subject to the Permitted Exceptions shall be
delivered to Purchaser at the Closing, subject to Purchaser's right of entry for
inspection as set forth in ARTICLE 5.
DEFAULTS AND REMEDIES
FFFFF. In the event Purchaser terminates this Purchase Contract following the
Feasibility Period for any reason other than Seller's inability to convey title
as required by this Purchase Contract, or defaults hereunder on or prior to the
Closing Date and consummation of the Closing does not occur by reason of such
termination or default by Purchaser, Seller and Purchaser agree that it would be
impractical and extremely difficult to estimate the damages which Seller may
suffer. Therefore, Seller and Purchaser hereby agree that, except for the
Purchaser's obligations to Seller under Section 5.3, the reasonable estimate of
the total net detriment that Seller would suffer in the event that Purchaser
terminates this Purchase Contract or defaults hereunder on or prior to the
Closing Date is and shall be, as Seller's sole remedy (whether at law or in
equity), the right to receive from the Escrow Agent and retain the full amount
of the Deposit. The payment and performance of the above as liquidated damages
is not intended as a forfeiture or penalty within the meaning of applicable law
and is intended to settle all issues and questions about the amount of damages
suffered by Seller in the applicable event, except only for damages under
Section 5.3 above, irrespective of the time when the inquiry about such damages
may take place. Upon any such failure by Purchaser hereunder, this Purchase
Contract shall be terminated, and neither party shall have any further rights or
obligations hereunder, each to the other, except for the Purchaser's obligations
to Seller under Section 5.3 above, and the right of Seller to collect such
liquidated damages to the extent not theretofore paid by Purchaser.
GGGGG. Provided that Purchaser has not terminated this Purchase Contract and is
not otherwise in default hereunder, if the Closing does not occur as a result of
Seller's default hereunder, Purchaser's sole remedy shall be to elect to either
(a) terminate this Purchase Contract and receive reimbursement of the Deposit
and all interest and income earned thereon, or (b) enforce specific performance
of this Purchase Contract. In the event Purchaser is unable to enforce the
remedy of specific performance after using commercially reasonable efforts to
seek to enforce such remedy, then in lieu of obtaining specific performance,
Purchaser shall have the right to bring suit for damages against Seller in an
amount not to exceed $285,000.00 in addition to receiving reimbursement of the
Deposit.
RISK OF LOSS OR CASUALTY
HHHHH. In the event that the Property is damaged or destroyed by fire or other
casualty prior to Closing, and the cost of repair is more than $712,500.00, then
Seller will have no obligation to repair such damage or destruction and, at
Purchaser's option, this Agreement shall terminate. In the event Purchaser
elects not to terminate this Agreement, this transaction shall be closed in
accordance with the terms of this Agreement, notwithstanding any such damage or
destruction and Purchaser shall receive all insurance proceeds pertaining
thereto (plus a credit against the Purchase Price in the amount of any
deductible payable by Seller in connection therewith) at Closing.
IIIII. In the event that the Property is damaged or destroyed by fire or other
casualty prior to the Closing, and the cost of repair is less than $712,500.00,
this transaction shall be closed in accordance with the terms of this Agreement,
notwithstanding the damage or destruction; provided, however, Seller shall make
such repairs if they can be reasonably effected before the Closing. If Seller is
unable to effect such repairs, then Purchaser shall receive all insurance
proceeds pertaining thereto (plus a credit against the Purchase Price in the
amount of any deductible payable by Seller in connection therewith) at Closing.
RATIFICATION
JJJJJ. This Purchase Contract shall be null and void unless fully executed and
delivered by Purchaser and Seller on or before August 21, 2000.
EMINENT DOMAIN
KKKKK. In the event that at the time of Closing all or any part of the Property
is (or has previously been) acquired, or is about to be acquired, by authority
of any governmental agency in purchase in lieu thereof (or in the event that at
such time there is any notice of any such acquisition or intent to acquire by
any such governmental agency), Purchaser shall have the right, at Purchaser's
option, to terminate this Purchase Contract by giving written Notice within
Fifteen (15) days of Purchaser's receipt from Seller of the occurrence of such
event and recover the Deposit hereunder, and all interest and income earned
thereon, or to settle in accordance with the terms of this Purchase Contract for
the full Purchase Price and receive the full benefit of any condemnation award.
MISCELLANEOUS
LLLLL. Exhibits And Schedules
All Exhibits and Schedules, whether or not annexed hereto, are a part of this
Purchase Contract for all purposes.
MMMMM. Assignability
Subject to Section 16.18, this Purchase Contract is not assignable
without first obtaining the prior written approval of the non-assigning party.
Notwithstanding the foregoing Purchaser may assign all or an undivided interest
in this Purchaser Contract upon five (5) Business Days written notice to Seller
and Escrow Agent, but without Seller's consent, to (a) an affiliated entity
which controls or is controlled by Purchaser or which is under common control
with Purchaser; or (b) to a successor entity into which or with which Purchaser
is merged or consolidated, or which acquired substantially all of Purchaser's
assets in property, provided such entity assumes all of Purchaser's obligations
and liabilities; or (c) to an entity controlled by the principals of Purchaser;
so long as Purchaser is not released from its liability hereunder. For the
purpose of this Section 16.2, the term "control" shall mean ownership of not
less than fifty percent (50%) of all voting stock or legal and equitable
interest in such entity. NNNNN. Binding Effect
This Purchase Contract shall be binding upon and inure to the
benefit of Seller and Purchaser, and their respective successors, heirs and
permitted assigns.
OOOOO. Captions
The captions, headings, and arrangements used in this Purchase
Contract are for convenience only and do not in any way affect, limit, amplify,
or modify the terms and provisions hereof.
PPPPP. Number And Gender Of Words
Whenever herein the singular number is used, the same shall include
the plural where appropriate, and words of any gender shall include each other
gender where appropriate.
QQQQQ. Notices
All Notices, demands, requests and other communications required
pursuant to the provisions of this Purchase Contract ("Notice") shall be in
writing and shall be deemed to have been properly given or served for all
purposes (i) if sent by Federal Express or a nationally recognized overnight
carrier for next business day delivery, on the first business day following
deposit of such Notice with such carrier, or (ii) if personally delivered, on
the actual date of delivery or (iii) if sent by certified mail, return receipt
requested postage prepaid, on the Fifth (5th) business day following the date of
mailing, or (iv) if sent by telecopier, then on the actual date of delivery (as
evidenced by a telecopier confirmation) provided that a copy of the telecopy and
confirmation is also sent by U.S. mail or a nationally recognized overnight
carrier, addressed as follows:
If to Seller: If to Purchaser:
SHELTER PROPERTIES VI LANE REALTY ADVISORS, INC.
2000 South Colorado Boulevard 5555 Glenridge Connector, Suite
Tower Two, Suite 2-1000 700
Denver, Colorado 80222 Atlanta, Georgia 30342
Attn: Mr. Harry Alcock Attn: Scott J. Levitt
Facsimile No. (303) 692-0786 Facsimile No. (404) 459-6248
And With a copy to
SHELTER PROPERTIES VI Morris, Manning & Martin LLP
2000 South Colorado Boulevard 1600 Atlanta Financial Center
Tower Two, Suite 2-1000 3343 Peachtree Road, N.E.
Denver, Colorado 80222 Atlanta, Georgia 30326-1044
Attn: Mr. Pat Stucker and Attn: Bruce Wobek, Esq.
Mr. Mark Reoch Facsimile No. (404) 365-9532
Facsimile No. (303) 692-0786
With a copy to
Loeb & Loeb, LLP
1000 Wilshire Boulevard, Suite
1800
Los Angeles, California 90017
Attn: Andrew S. Clare, Esq. and
Karen Higgins, Esq.
Facsimile No. (213) 688-3460
Any of the parties may designate a change of address by Notice in writing
to the other parties. Whenever in this Purchase Contract the giving of Notice by
mail or otherwise is required, the giving of such Notice may be waived in
writing by the person or persons entitled to receive such Notice.
RRRRR. Governing Law And Venue
The laws of the State of North Carolina shall govern the validity,
construction, enforcement, and interpretation of this Purchase Contract, unless
otherwise specified herein except for the conflict of laws provisions thereof.
All claims, disputes and other matters in question arising out of or relating to
this Purchase Contract, or the breach thereof, shall be decided by proceedings
instituted and litigated in the United States District Court for the district in
which the Property is situated, and the parties hereto expressly consent to the
venue and jurisdiction of such court.
SSSSS. Entirety And Amendments
This Purchase Contract embodies the entire Purchase Contract between the
parties and supersedes all prior Purchase Contracts and understandings, if any,
relating to the Property, and may be amended or supplemented only by an
instrument in writing executed by the party against whom enforcement is sought.
TTTTT. Severability
If any provision of this Purchase Contract is held to be illegal,
invalid, or unenforceable under present or future laws, such provision shall be
fully severable. The Purchase Contract shall be construed and enforced as if
such illegal, invalid, or unenforceable provision had never comprised a part of
this Purchase Contract; and the remaining provisions of this Purchase Contract
shall remain in full force and effect and shall not be affected by the illegal,
invalid, or unenforceable provision or by its severance from this Purchase
Contract. In lieu of such illegal, invalid, or unenforceable provision, there
shall be added automatically as a part of this Purchase Contract a provision as
similar in terms to such illegal, invalid, or unenforceable provision as may be
possible to make such provision legal, valid, and enforceable.
UUUUU. Multiple Counterparts
This Purchase Contract may be executed in a number of identical
counterparts. If so executed, each of such counterparts is to be deemed an
original for all purposes and all such counterparts shall, collectively,
constitute one Purchase Contract. In making proof of this Purchase Contract, it
shall not be necessary to produce or account for more than one such
counterparts.
VVVVV. Further Acts
In addition to the acts and deeds recited herein and contemplated and performed,
executed and/or delivered by Seller and Purchaser, Seller and Purchaser agree to
perform, execute and/or deliver or cause to be performed, executed and/or
delivered any and all such further acts, deeds, and assurances as may be
necessary to consummate the transactions contemplated hereby.
WWWWW. Construction
No provision of this Purchase Contract shall be construed in favor of, or
against, any particular party by reason of any presumption with respect to the
drafting of this Purchase Contract; both parties, being represented by counsel,
having fully participated in the negotiation of this instrument.
XXXXX. Confidentiality
Purchaser shall not disclose the terms and conditions contained in
this Purchase Contract, shall keep the same confidential, provided that
Purchaser may disclose the terms and conditions of this Purchase Contract (i) as
required by law, (ii) to consummate the terms of this Purchase Contract, or any
financing relating thereto, or (iii) to Purchaser's or Seller's lenders,
engineers, surveyors, attorneys and accountants. Any information provided by
Seller to Purchaser under the terms of this Purchase Contract is for
informational purposes only. In providing such information to Purchaser, Seller
makes no representation or warranty, express, written, oral, statutory, or
implied, and all such representations and warranties are hereby expressly
excluded. Purchaser shall not in any way be entitled to rely upon the accuracy
of such information. Such information is also confidential and Purchaser shall
be prohibited from making such information public to any other person or entity
other than its agents and legal representatives, without Seller's prior written
authorization, which may be granted or denied in Seller's sole discretion.
YYYYY. Time Of The Essence
It is expressly agreed by the parties hereto that time is of the essence
with respect to this Purchase Contract.
ZZZZZ. Cumulative Remedies And Waiver
No remedy herein conferred or reserved is intended to be exclusive
of any other available remedy or remedies herein conferred or referred, but each
and every such remedy shall be cumulative and shall be in addition to every
other remedy given under this Purchase Contract. No delay or omission to
exercise any right or power accruing upon any default, omission, or failure of
performance hereunder shall impair any right or power or shall be construed to
be a waiver thereof, but any such right and power may be exercised from time to
time and as often as may be deemed expedient. No waiver, amendment, release, or
modification of this Purchase Contract shall be established by conduct, custom,
or course of dealing.
AAAAAA. Litigation Expenses
In the event either party hereto commences litigation against the
other to enforce its rights hereunder, the prevailing party in such litigation
shall be entitled to recover from the other party its reasonable attorneys' fees
actually incurred and reasonable expenses actually incurred which are incidental
to such litigation.
BBBBBB. Time Periods
Should the last day of a time period fall on a weekend or legal
holiday, the next Business Day thereafter shall be considered the end of the
time period.
CCCCCC. Exchange
At Seller's sole cost and expense, Seller may structure the sale of
the Property to Purchaser as a Like Kind Exchange under Internal Revenue Code
Section 1031 whereby Seller will acquire certain property (the "Like Kind
Exchange Property") in conjunction with the sale of the Property (the "Like Kind
Exchange"). Purchaser shall cooperate fully and promptly with Seller's conduct
of the Like Kind Exchange, provided that Seller uses a qualified intermediary to
effectuate such exchange, all costs and expenses generated in connection with
the Like Kind Exchange shall be borne solely by Seller, and Purchaser shall not
be required to take title to or contract for the purchase of any other property.
Seller's assignment of the rights or obligations of Seller hereunder to a
qualified intermediary shall not relieve, release or absolve Seller of its
obligations to Purchaser. In no event shall the Closing Date be delayed by the
Like Kind Exchange. Seller shall indemnify and hold harmless Purchaser from and
against any and all liability arising from and out of the Like Kind Exchange.
DDDDDD. No Personal Liability of Officers, Trustees or directors of Seller's
Partners
Purchaser acknowledges that this Agreement is entered into by Seller
which is a [State] limited partnership, and Purchaser agrees that no individual
officer, trustee, director or representative of the partners of Seller shall
have any personal liability under this Agreement or any document executed in
connection with the transactions contemplated by this Agreement.
EEEEEE. No Back-up Contracts or Contract Negotiations
Seller agrees during the term of this Purchase Contract not to
negotiate or execute any contract or binding agreement with a third party for
the sale of the Property.
[Remainder of Page Intentionally Left Blank]
<PAGE>
NOW WHEREFORE, the parties hereto have executed this Purchase
Contract under seal as of the date first set forth above.
Seller:
SHELTER PROPERTIES VI,
a South Carolina limited partnership
[Corporate Seal] By: Shelter Realty VI Corporation,
a South Carolina corporation,
Its Managing Partner
ATTEST:
______________________________ By: [SEAL]
Name:
______________________, Secretary Title:
Purchaser:
LANE REALTY ADVISORS, INC.,
a Georgia Corporation
[Corporate Seal] By: [SEAL]
Name:
Title:
ATTEST:
, Secretary
<PAGE>
ACKNOWLEDGEMENTS
STATE OF )
)
COUNTY OF )
On , before me, , a Notary Public, personally appeared , personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is/are subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their authorized capacity (ies),
and that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
-----------------------------------
Notary Public
STATE OF )
)
COUNTY OF )
On , before me, , a Notary Public, personally appeared , personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is/are subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their authorized capacity (ies),
and that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION FOR FOXFIRE - BARCELONA APARTMENTS
All that real property located in Durham County, North Carolina, and being more
particularly described as follows:
That certain tract or parcel of land situated, lying and being in the City of
Durham, Durham County, North Carolina and being more particularly described as
follows:
Tract 1
BEGINNING at a new iron rod on the northerly margin of Wylewood Road (60'
right-of-way) said iron being the intersection of the northerly margin of
Wylewood Road with the center line of the abandoned right-of-way of Broad
Street, said abandoned portion of Broad Street being described by deed recorded
in Deed Book 1201, Page 609 of the Durham County Public Registry, and runs
thence with the northerly margin of Wylewood Road the following six (6) courses
and distances: (1) with the arc of a circular curve to the right having a radius
of 20.00 feet an arc length of 8.61 feet, (chord: South 77-12-39 West 8.55 feet)
to a new iron rod; (2) with the arc of a circular curve to the left having a
radius of 801.29 feet an arc length of 379.60 feet, (chord: South 75-58-39 West
376.07 feet) to a new iron rod; (3) South 62-24-21 West 645.00 feet to a new
iron rod; (4) with the arc of a circular curve to the right having a radius of
406.62 feet an arc length of 440.00 feet, (chord: North 86-35-39 West 418.85
feet) to a new iron rod; (5) with the arc of a circular curve to the left having
a radius of 440.20 feet an arc length of 221.30 feet, (chord: North 69-59-47
West 218.98 feet) to a new iron rod; (6) North 84-23-54 West 180.91 feet to a
point in Run and Jump Creek, said point being on the easterly line of Lot 6,
Block D, Sedgefield Terrace, Section Two as recorded in Map Book 52, Page 82 of
said Registry, thence along Run and Jump Creek and with the easterly line of Lot
6, Block D, and continuing with the line of the City of Durham Property as
described in Deed Book 1499, Page 389 of said Registry the following fourteen
(14) courses and distances: (1) North 03-04-24 West 4.15 feet to a point; (2)
North 24-56-00 West 32.13 feet to a point; (3) North 17-33-00 East 37.63 feet to
a point; (4) North 03-21-00 West 50.52 feet to a point; (5) North 11-59-00 West
82.83 feet to a point; (6) North 01-44-07 West 71.03 feet to a point; (7) North
06-34-13 West 53.44 feet to a point; (8) North 03-31-54 West 69.18 feet to a
point; (9) North 02-40-18 West 37.25 feet to a point; (10) North 20-17-01 West
19.13 feet to a point; (11) North 19-02-12 West 65.12 feet to a point; (12)
North 18-34-12 West 43.10 feet to a point; (13) North 45-23-30 West 41.23 feet
to a point; (14) North 00-23-34 East 48.96 feet to a point at a southwest corner
of the Mary Jane Nye Property as recorded in Map Book 136, Page 211 of said
Registry, thence with the line of the Mary Jane Nye Property and continuing with
the line of Lots 37 through 47, Block 2, Village Green North, Section Two as
recorded in Map Book 104, Pages 144-A of said Registry and with the line of Lots
1, 9, 10, 11, 14, Block 2, Village Green North, Section Two as recorded in Map
Book 102, Page 97 of said Registry, South 83-54-31 East, passing a new iron rod
at 18.00 feet, for a total distance of 1797.30 feet to a new iron rod in the
center line of the abandoned right-of-way of Broad Street; thence with the
center line of the abandoned right-of-way of Broad Street the following two (2)
courses and distances: (1) South 37-47-46 East 9.62 feet to a new iron rod; (2)
with the arc of a circular curve to the right having a radius of 309.44 feet an
arc length of 171.00 feet (chord: South 21-57-54 East 168.83 feet) to the point
and place of BEGINNING; containing 898,529 square feet or 20.6274 acres of land
as shown on a survey prepared by R. B. Pharr & Associates, P.A. dated March 23,
2000 bearing file No. W-2527.
That certain tract or parcel of land situated, lying and being in the City of
Durham, Durham County, North Carolina and being more particularly described as
follows:
Tract 2
BEGINNING at a new iron rod on the southerly margin of Wylewood Road (60' public
right-of-way) said iron being the northwest corner of Edward H. Benson property
as described in Deed Book 1123, Page 191 of the Durham County Public Registry,
and runs thence with line of Edward Benson South 21-16-47 East 749.69 feet to an
existing iron pipe on the northerly margin of New Castle Road (60' public
right-of-way), thence with the northerly margin and continuing with the easterly
margin of New Castle Road the following six (6) courses and distances: (1) with
the arc of a circular curve to the left having a radius of 584.91 feet an arc
length of 124.50 feet, (chord: South 63-11-30 West 124.27 feet) to a new iron
rod; (2) South 57-05-29 West 142.00 feet to an existing iron pipe; (3) with the
arc of a circular curve to the right having a radius of 330.00 feet an arc
length of 637.73 feet, (chord: North 67-32-35 West 543.03 feet) to a new iron
rod; (4) with the arc of a circular curve to the right having a radius of 340.82
feet an arc length of 108.06 feet, (chord: North 03-05-40 West 107.61 feet) to
an existing iron pipe; (5) North 06-05-29 East 323.42 feet to a new iron rod;
(6) with the arc of a circular curve to the right having a radius of 20.00 feet
an arc length of 27.36 feet, (chord: North 45-16-55 East 25.28 feet) to a new
iron rod on the southerly margin of Wylewood Road (60' public right-of-way),
thence with the southerly margin of Wylewood Road the following two (2) courses
and distances: (1) with the arc of a circular curve to the left having a radius
of 466.62 feet an arc length of 179.72 feet, (chord: North 73-26-22 East 178.61
feet) to a new iron rod; (2) North 62-24-22 East 273.32 feet to the point and
place of BEGINNING; containing 445,257 square feet or 10.2217 acres of land as
shown on a survey prepared by R. B. Pharr & Associates, P.A. dated March 23,
2000 bearing file No. W-2527.
That certain tract or parcel of land situated, lying and being in the City of
Durham, Durham County, North Carolina and being more particularly described as
follows:
Tract 3
BEGINNING at a new iron rod on the southerly margin of New Castle Road (60'
public right-of-way) said iron being the northwest corner of BW Equities
Corporation as recorded in Map Book 98, page 16 of the Durham County Public
Registry, and runs thence with the line of BW Equities Corporation line the
following five (5) courses and distances: (1) South 05-35-15 West 118.54 feet to
a new iron rod; (2) South 41-15-40 East 162.80 feet to a new iron rod; (3) South
49-44-44 West 170.40 feet to a new iron rod; (4) North 54-32-59 West 1.47 feet
to a new iron rod; (5) South 05-53-08 West passing thru a new iron at 26.38 feet
a total distance of 44.03 feet to a point in Run and Jump Creek said point being
on the line of Mary Dunnegan Belvin as described in Deed Book 198, Page 425 of
said Registry, thence along Run and Jump Creek and with the line of Mary
Dunnegan Belvin and with the line of Lot 6 thru Lot 12, Block D, Sedgefield
Terrace, Section Two as recorded in Map Book 52, Page 85 of said Registry the
following twenty one (21) courses and distances: (1) North 52-11-22 West 168.27
feet to a point; (2) North 84-02-32 West 89.50 feet to a point; (3) South
26-46-35 West 143.97 feet to a point; (4) South 73-34-47 West 118.70 feet to a
point; (5) North 44-40-04 West 83.89 feet to a point; (6) North 10-30-21 West
138.63 feet to a point; (7) North 66-34-34 West 43.27 feet to a point; (8) North
31-49-51 East 70.46 feet to a point; (9) North 69-52-45 West 139.78 feet to a
point; (10) North 43-16-14 West 218.76 feet to a point; (11) North 10-24-17 East
94.97 feet to a point; (12) North 07-15-09 East 30.38 feet to a point; (13)
North 18-57-00 West 83.57 feet to a point ; (14) North 00-53-30 East 41.53 feet
to a point; (15) North 05-19-30 West 124.77 feet to a point; (16) North 09-06-00
West 131.86 feet to a point; (17) North 04-24-30 East 56.92 to a point; (18)
North 12-52-15 West 97.03 feet to a point; (19) North 13-09-35 East 104.84 feet
to a point; (20) North 09-48-56 West 66.43 feet to a point; (21) North 03-04-27
West 65.45 feet to a point on the southerly margin of Wylewood Road (60' public
right-of-way) thence with the southerly margin of Wylewood Road the following
three (3) courses and distances: (1) South 84-23-54 East 171.75 feet to a new
iron rod; (2) with the arc of a circular curve to the right having a radius of
380.20 feet an arc length of 191.14 feet, (chord: South 69-59-47 East 189.13
feet) to a new iron rod; (3) with the arc of a circular curve to the left having
a radius of 466.62 feet an arc length of 228.67 feet, (chord: South 69-38-00
East 226.39 feet) to a new iron rod on the westerly margin of New Castle Road
(60' public right-of-way), thence with the westerly margin of New Castle Road
and continuing with the southerly margin of New Castle Road the following four
(4) courses and distances: (1) with the arc of a circular curve to the left
having a radius of 20.00 feet an arc length of 31.34 feet, (chord: South
38-47-26 East 28.23 feet) to a new iron rod; (2) South 06-05-30 West 312.84 feet
to a new iron rod; (3) with the arc of a circular curve to the left having a
radius of 400.82 feet an arc length of 127.80 feet, (chord: South 03-02-35 East
127.26 feet) to a new iron rod; (4) with the arc of a circular curve to the left
having a radius of 390.00 feet an arc length of 450.55 feet, (chord: South
45-16-31 East 425.91 feet) to the point and place of BEGINNING containing
703,200 square feet or 16.1432 acres of land as shown on a survey prepared by R.
B. Pharr & Associates, P.A. dated March 23, 2000 bearing file No. W-2527.
<PAGE>
EXHIBIT 1.1.4
LIST OF EXCLUDED PERMITS
[To Be Inserted, If Any]
<PAGE>
EXHIBIT 1.1.7
LIST OF EXCLUDED PERSONAL PROPERTY OR EQUIPMENT
1. Any Buyer's Access computer and software.
<PAGE>
EXHIBIT 7.2.1.1
FORM OF LIMITED WARRANTY DEED
Drawn by and Return after recording to:
SPECIAL WARRANTY DEED
THIS DEED made this _____ day of _____________, 2000, by Shelter
Properties VI, a South Carolina limited partnership, having a principal address
at Tower Two, 2000 South Colorado Boulevard, Suite 2-1000, Denver, Colorado
80222 ("GRANTOR") and _______________________________________ having an address
of
("GRANTEE") (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 Grantor, for a valuable consideration paid by the Grantee, the
receipt of which is hereby acknowledged, has granted and sold and by these
presents does grant, bargain, sell and convey unto the Grantee in fee simple
those certain lots or parcels of land situated in Durham County, North Carolina,
which are more particularly described as follows:
See Exhibit "A" attached hereto and incorporated herein.
TOGETHER with all and singular the hereditaments and appurtenances thereto
belonging, or in anywise appertaining, and the reversion and reversions,
remainder and remainders, rents, issues and profits thereof, and all the estate,
right, title interest, claim and demand whatsoever of Grantor, either in law or
equity, of, in and to the above bargained premises, with the hereditaments,
easements, rights of way and appurtenances, and with all of Grantor's interest,
if any, in and to any and all minerals, water, ditches, wells, reservoirs and
drains, and all water, ditch, well, reservoir and drainage rights which are
appurtenant to, located on, now or hereafter acquired under or above or used in
connection with the property.
The property hereinabove described was acquired by Grantor by instrument
recorded on _________, in Book _____, Page _____, Durham County, North Carolina
Public Registry (the "Registry").
TO HAVE AND TO HOLD the aforesaid lots or parcels 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 that Grantor will warrant and
defend the title against the lawful claims of all persons claiming by, under or
through Grantor, except for the exceptions hereinafter stated.
Title to the property hereinabove described is subject to the exceptions
set forth on Exhibit "B" attached hereto and incorporated herein.
IN WITNESS WHEREOF, the Grantors' managing partner has caused this
instrument to be duly executed by its duly authorized officers and its seal to
be hereunto affixed for and on behalf of and under seal of Grantor, the day and
year first above written.
Grantor: SHELTER PROPERTIES VI, a South Carolina limited
partnership
[Corporate Seal]
By: Shelter Realty VI Corporation, a South
ATTEST: Carolina corporation,
Its Managing Partner
By: [SEAL]
Secretary Name:
Title:
<PAGE>
Notarial Acknowledgement
[To Be Attached]
<PAGE>
Exhibit "A" to EXHIBIT 7.2.1.1
LEGAL DESCRIPTION
That certain tract or parcel of land situated, lying and being in the City of
Durham, Durham County, North Carolina and being more particularly described as
follows:
Tract 1
BEGINNING at a new iron rod on the northerly margin of Wylewood Road (60'
right-of-way) said iron being the intersection of the northerly margin of
Wylewood Road with the center line of the abandoned right-of-way of Broad
Street, said abandoned portion of Broad Street being described by deed recorded
in Deed Book 1201, Page 609 of the Durham County Public Registry, and runs
thence with the northerly margin of Wylewood Road the following six (6) courses
and distances: (1) with the arc of a circular curve to the right having a radius
of 20.00 feet an arc length of 8.61 feet, (chord: South 77-12-39 West 8.55 feet)
to a new iron rod; (2) with the arc of a circular curve to the left having a
radius of 801.29 feet an arc length of 379.60 feet, (chord: South 75-58-39 West
376.07 feet) to a new iron rod; (3) South 62-24-21 West 645.00 feet to a new
iron rod; (4) with the arc of a circular curve to the right having a radius of
406.62 feet an arc length of 440.00 feet, (chord: North 86-35-39 West 418.85
feet) to a new iron rod; (5) with the arc of a circular curve to the left having
a radius of 440.20 feet an arc length of 221.30 feet, (chord: North 69-59-47
West 218.98 feet) to a new iron rod; (6) North 84-23-54 West 180.91 feet to a
point in Run and Jump Creek, said point being on the easterly line of Lot 6,
Block D, Sedgefield Terrace, Section Two as recorded in Map Book 52, Page 82 of
said Registry, thence along Run and Jump Creek and with the easterly line of Lot
6, Block D, and continuing with the line of the City of Durham Property as
described in Deed Book 1499, Page 389 of said Registry the following fourteen
(14) courses and distances: (1) North 03-04-24 West 4.15 feet to a point; (2)
North 24-56-00 West 32.13 feet to a point; (3) North 17-33-00 East 37.63 feet to
a point; (4) North 03-21-00 West 50.52 feet to a point; (5) North 11-59-00 West
82.83 feet to a point; (6) North 01-44-07 West 71.03 feet to a point; (7) North
06-34-13 West 53.44 feet to a point; (8) North 03-31-54 West 69.18 feet to a
point; (9) North 02-40-18 West 37.25 feet to a point; (10) North 20-17-01 West
19.13 feet to a point; (11) North 19-02-12 West 65.12 feet to a point; (12)
North 18-34-12 West 43.10 feet to a point; (13) North 45-23-30 West 41.23 feet
to a point; (14) North 00-23-34 East 48.96 feet to a point at a southwest corner
of the Mary Jane Nye Property as recorded in Map Book 136, Page 211 of said
Registry, thence with the line of the Mary Jane Nye Property and continuing with
the line of Lots 37 through 47, Block 2, Village Green North, Section Two as
recorded in Map Book 104, Pages 144-A of said Registry and with the line of Lots
1, 9, 10, 11, 14, Block 2, Village Green North, Section Two as recorded in Map
Book 102, Page 97 of said Registry, South 83-54-31 East, passing a new iron rod
at 18.00 feet, for a total distance of 1797.30 feet to a new iron rod in the
center line of the abandoned right-of-way of Broad Street; thence with the
center line of the abandoned right-of-way of Broad Street the following two (2)
courses and distances: (1) South 37-47-46 East 9.62 feet to a new iron rod; (2)
with the arc of a circular curve to the right having a radius of 309.44 feet an
arc length of 171.00 feet (chord: South 21-57-54 East 168.83 feet) to the point
and place of BEGINNING; containing 898,529 square feet or 20.6274 acres of land
as shown on a survey prepared by R. B. Pharr & Associates, P.A. dated March 23,
2000 bearing file No. W-2527.
That certain tract or parcel of land situated, lying and being in the City of
Durham, Durham County, North Carolina and being more particularly described as
follows:
Tract 2
BEGINNING at a new iron rod on the southerly margin of Wylewood Road (60' public
right-of-way) said iron being the northwest corner of Edward H. Benson property
as described in Deed Book 1123, Page 191 of the Durham County Public Registry,
and runs thence with line of Edward Benson South 21-16-47 East 749.69 feet to an
existing iron pipe on the northerly margin of New Castle Road (60' public
right-of-way), thence with the northerly margin and continuing with the easterly
margin of New Castle Road the following six (6) courses and distances: (1) with
the arc of a circular curve to the left having a radius of 584.91 feet an arc
length of 124.50 feet, (chord: South 63-11-30 West 124.27 feet) to a new iron
rod; (2) South 57-05-29 West 142.00 feet to an existing iron pipe; (3) with the
arc of a circular curve to the right having a radius of 330.00 feet an arc
length of 637.73 feet, (chord: North 67-32-35 West 543.03 feet) to a new iron
rod; (4) with the arc of a circular curve to the right having a radius of 340.82
feet an arc length of 108.06 feet, (chord: North 03-05-40 West 107.61 feet) to
an existing iron pipe; (5) North 06-05-29 East 323.42 feet to a new iron rod;
(6) with the arc of a circular curve to the right having a radius of 20.00 feet
an arc length of 27.36 feet, (chord: North 45-16-55 East 25.28 feet) to a new
iron rod on the southerly margin of Wylewood Road (60' public right-of-way),
thence with the southerly margin of Wylewood Road the following two (2) courses
and distances: (1) with the arc of a circular curve to the left having a radius
of 466.62 feet an arc length of 179.72 feet, (chord: North 73-26-22 East 178.61
feet) to a new iron rod; (2) North 62-24-22 East 273.32 feet to the point and
place of BEGINNING; containing 445,257 square feet or 10.2217 acres of land as
shown on a survey prepared by R. B. Pharr & Associates, P.A. dated March 23,
2000 bearing file No. W-2527.
That certain tract or parcel of land situated, lying and being in the City of
Durham, Durham County, North Carolina and being more particularly described as
follows:
Tract 3
BEGINNING at a new iron rod on the southerly margin of New Castle Road (60'
public right-of-way) said iron being the northwest corner of BW Equities
Corporation as recorded in Map Book 98, page 16 of the Durham County Public
Registry, and runs thence with the line of BW Equities Corporation line the
following five (5) courses and distances: (1) South 05-35-15 West 118.54 feet to
a new iron rod; (2) South 41-15-40 East 162.80 feet to a new iron rod; (3) South
49-44-44 West 170.40 feet to a new iron rod; (4) North 54-32-59 West 1.47 feet
to a new iron rod; (5) South 05-53-08 West passing thru a new iron at 26.38 feet
a total distance of 44.03 feet to a point in Run and Jump Creek said point being
on the line of Mary Dunnegan Belvin as described in Deed Book 198, Page 425 of
said Registry, thence along Run and Jump Creek and with the line of Mary
Dunnegan Belvin and with the line of Lot 6 thru Lot 12, Block D, Sedgefield
Terrace, Section Two as recorded in Map Book 52, Page 85 of said Registry the
following twenty one (21) courses and distances: (1) North 52-11-22 West 168.27
feet to a point; (2) North 84-02-32 West 89.50 feet to a point; (3) South
26-46-35 West 143.97 feet to a point; (4) South 73-34-47 West 118.70 feet to a
point; (5) North 44-40-04 West 83.89 feet to a point; (6) North 10-30-21 West
138.63 feet to a point; (7) North 66-34-34 West 43.27 feet to a point; (8) North
31-49-51 East 70.46 feet to a point; (9) North 69-52-45 West 139.78 feet to a
point; (10) North 43-16-14 West 218.76 feet to a point; (11) North 10-24-17 East
94.97 feet to a point; (12) North 07-15-09 East 30.38 feet to a point; (13)
North 18-57-00 West 83.57 feet to a point ; (14) North 00-53-30 East 41.53 feet
to a point; (15) North 05-19-30 West 124.77 feet to a point; (16) North 09-06-00
West 131.86 feet to a point; (17) North 04-24-30 East 56.92 to a point; (18)
North 12-52-15 West 97.03 feet to a point; (19) North 13-09-35 East 104.84 feet
to a point; (20) North 09-48-56 West 66.43 feet to a point; (21) North 03-04-27
West 65.45 feet to a point on the southerly margin of Wylewood Road (60' public
right-of-way) thence with the southerly margin of Wylewood Road the following
three (3) courses and distances: (1) South 84-23-54 East 171.75 feet to a new
iron rod; (2) with the arc of a circular curve to the right having a radius of
380.20 feet an arc length of 191.14 feet, (chord: South 69-59-47 East 189.13
feet) to a new iron rod; (3) with the arc of a circular curve to the left having
a radius of 466.62 feet an arc length of 228.67 feet, (chord: South 69-38-00
East 226.39 feet) to a new iron rod on the westerly margin of New Castle Road
(60' public right-of-way), thence with the westerly margin of New Castle Road
and continuing with the southerly margin of New Castle Road the following four
(4) courses and distances: (1) with the arc of a circular curve to the left
having a radius of 20.00 feet an arc length of 31.34 feet, (chord: South
38-47-26 East 28.23 feet) to a new iron rod; (2) South 06-05-30 West 312.84 feet
to a new iron rod; (3) with the arc of a circular curve to the left having a
radius of 400.82 feet an arc length of 127.80 feet, (chord: South 03-02-35 East
127.26 feet) to a new iron rod; (4) with the arc of a circular curve to the left
having a radius of 390.00 feet an arc length of 450.55 feet, (chord: South
45-16-31 East 425.91 feet) to the point and place of BEGINNING containing
703,200 square feet or 16.1432 acres of land as shown on a survey prepared by R.
B. Pharr & Associates, P.A. dated March 23, 2000 bearing file No. W-2527.
<PAGE>
Exhibit "B" to EXHIBIT 7.2.1.1
PERMITTED EXCEPTIONS
[To Be Attached]
<PAGE>
EXHIBIT 7.2.1.2
FORM OF BILL OF SALE
This Bill of Sale ("Bill of Sale") is executed by SHELTER PROPERTIES VI, a
South Carolina limited partnership ("Seller"), in favor of , a ("Purchaser").
Seller and Purchaser, have entered into that certain Purchase and Sale
Contract and dated as of December ___, 2000 ("Purchase Contract"), in which
Seller has agreed to sell and Purchaser has agreed to purchase the real property
described in Exhibit A attached hereto and the improvements located thereon
(collectively, the "Project").
Pursuant to the Purchase Contract, Seller has agreed to assign to
Purchaser, without recourse or warranty except as set forth in Section 2 below,
all of Seller's right, title and interest, if any, in and to the Fixtures and
Tangible Personal Property (as hereinafter defined).
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows: 1. As used herein, the term "Fixtures and Tangible Personal Property"
shall mean, to the extent said property is owned by Seller and used in, held for
use in connection with, or necessary for the operation of the Project, all of
Sellers rights and interests in and to all fixtures, furniture, furnishings,
fittings, equipment, machinery, computers (to the extent located on the Property
and owned by Seller), fax machines (to the extent located on the Property and
owned by Seller), copiers (to the extent located on the Property and owned by
Seller), apparatus, appliances and other articles of tangible personal property
now located on the Project or in the improvements thereon and used in connection
with any present or future occupation or operation of all or any part of the
Project, including, but not limited to, those items listed on Exhibit B attached
hereto.
The term "Fixtures and Tangible Personal Property" shall not include
any of the foregoing: (i) to the extent the same are excluded or reserved to
Seller pursuant to the Purchase Contract to which Seller and Purchaser are
parties; and (ii) to the extent that the sale or transfer thereof requires
consent or approval of any third party, which consent or approval is not
obtained by Seller. Nothing herein shall create a transfer or assignment of
intellectual property or similar assets of Seller.
2. Sale and Transfer. Seller hereby assigns, sells and transfers to Purchaser,
without recourse or warranty except as set forth in this Section 2, all of
Seller's right, title and interest, if any, in and to the Fixtures and Tangible
Personal Property, subject to any rights of consent as provided therein. To
Seller's knowledge (as defined in Section 8.1.4 of the Purchase Contract),
Seller owns the Fixtures and Tangible Personal Property.
3. Assumption. Purchaser expressly agrees to assume and hereby assumes all
liabilities and obligations of the Seller in connection with the Fixtures and
Tangible Personal Property and agrees to perform all of the covenants and
obligations of Seller thereunder. Purchaser further agrees to indemnify, defend
and hold Seller harmless from and against any and all cost, loss, harm or damage
which may arise in connection with the Fixtures and Tangible Personal Property
subsequent to the date hereof.
4. Counterparts. This Bill of Sale may be executed in counterparts, each of
which shall be deemed an original, and both of which together shall constitute
one and the same instrument.
5. Attorneys' Fees. If any action or proceeding is commenced by either party to
enforce its rights under this Bill of Sale, the prevailing party in such action
or proceeding shall be entitled to recover all reasonable costs and expenses
incurred in such action or proceeding, including reasonable attorneys' fees and
costs, in addition to any other relief awarded by the court.
6. Applicable Law. This Bill of Sale shall be governed by and interpreted in
accordance with the laws of the State of North Carolina.
7. Titles and Section Headings. Titles of sections and subsections contained in
this Bill of Sale are inserted for convenience of reference only, and neither
form a part of this Bill of Sale or are to be used in its construction or
interpretation.
8. Binding Effect. This Bill of Sale shall be binding upon and inure to the
benefit of the parties hereto and their respective transferees, successors, and
assigns.
9. Entire Agreement; Modification. This Bill of Sale supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may not be altered or modified without the written consent of
all parties.
WITH RESPECT TO ALL MATTERS TRANSFERRED, WHETHER TANGIBLE OR INTANGIBLE,
PERSONAL OR REAL, SELLER EXPRESSLY DISCLAIMS A WARRANTY OF MERCHANTABILITY AND
WARRANTY FOR FITNESS FOR A PARTICULAR USE OR ANY OTHER WARRANTY EXPRESSED OR
IMPLIED THAT MAY ARISE BY OPERATION OF LAW OR UNDER THE UNIFORM COMMERCIAL CODE
FOR THE STATE IN WHICH THE PROPERTY IS LOCATED.
<PAGE>
WITNESS the signatures under seal of the undersigned.
Dated: , 2000
Seller:
SHELTER PROPERTIES VI,
a South Carolina limited partnership
By: Shelter Realty VI Corporation, a South
Carolina corporation,
Its Managing Partner
By: [SEAL]
Name:
Title:
Purchaser:
a
By:
[SEAL]
Name:
Title:
<PAGE>
Exhibit "A" to EXHIBIT 7.2.1.2
LEGAL DESCRIPTION
That certain tract or parcel of land situated, lying and being in the City of
Durham, Durham County, North Carolina and being more particularly described as
follows:
Tract 1
BEGINNING at a new iron rod on the northerly margin of Wylewood Road (60'
right-of-way) said iron being the intersection of the northerly margin of
Wylewood Road with the center line of the abandoned right-of-way of Broad
Street, said abandoned portion of Broad Street being described by deed recorded
in Deed Book 1201, Page 609 of the Durham County Public Registry, and runs
thence with the northerly margin of Wylewood Road the following six (6) courses
and distances: (1) with the arc of a circular curve to the right having a radius
of 20.00 feet an arc length of 8.61 feet, (chord: South 77-12-39 West 8.55 feet)
to a new iron rod; (2) with the arc of a circular curve to the left having a
radius of 801.29 feet an arc length of 379.60 feet, (chord: South 75-58-39 West
376.07 feet) to a new iron rod; (3) South 62-24-21 West 645.00 feet to a new
iron rod; (4) with the arc of a circular curve to the right having a radius of
406.62 feet an arc length of 440.00 feet, (chord: North 86-35-39 West 418.85
feet) to a new iron rod; (5) with the arc of a circular curve to the left having
a radius of 440.20 feet an arc length of 221.30 feet, (chord: North 69-59-47
West 218.98 feet) to a new iron rod; (6) North 84-23-54 West 180.91 feet to a
point in Run and Jump Creek, said point being on the easterly line of Lot 6,
Block D, Sedgefield Terrace, Section Two as recorded in Map Book 52, Page 82 of
said Registry, thence along Run and Jump Creek and with the easterly line of Lot
6, Block D, and continuing with the line of the City of Durham Property as
described in Deed Book 1499, Page 389 of said Registry the following fourteen
(14) courses and distances: (1) North 03-04-24 West 4.15 feet to a point; (2)
North 24-56-00 West 32.13 feet to a point; (3) North 17-33-00 East 37.63 feet to
a point; (4) North 03-21-00 West 50.52 feet to a point; (5) North 11-59-00 West
82.83 feet to a point; (6) North 01-44-07 West 71.03 feet to a point; (7) North
06-34-13 West 53.44 feet to a point; (8) North 03-31-54 West 69.18 feet to a
point; (9) North 02-40-18 West 37.25 feet to a point; (10) North 20-17-01 West
19.13 feet to a point; (11) North 19-02-12 West 65.12 feet to a point; (12)
North 18-34-12 West 43.10 feet to a point; (13) North 45-23-30 West 41.23 feet
to a point; (14) North 00-23-34 East 48.96 feet to a point at a southwest corner
of the Mary Jane Nye Property as recorded in Map Book 136, Page 211 of said
Registry, thence with the line of the Mary Jane Nye Property and continuing with
the line of Lots 37 through 47, Block 2, Village Green North, Section Two as
recorded in Map Book 104, Pages 144-A of said Registry and with the line of Lots
1, 9, 10, 11, 14, Block 2, Village Green North, Section Two as recorded in Map
Book 102, Page 97 of said Registry, South 83-54-31 East, passing a new iron rod
at 18.00 feet, for a total distance of 1797.30 feet to a new iron rod in the
center line of the abandoned right-of-way of Broad Street; thence with the
center line of the abandoned right-of-way of Broad Street the following two (2)
courses and distances: (1) South 37-47-46 East 9.62 feet to a new iron rod; (2)
with the arc of a circular curve to the right having a radius of 309.44 feet an
arc length of 171.00 feet (chord: South 21-57-54 East 168.83 feet) to the point
and place of BEGINNING; containing 898,529 square feet or 20.6274 acres of land
as shown on a survey prepared by R. B. Pharr & Associates, P.A. dated March 23,
2000 bearing file No. W-2527.
That certain tract or parcel of land situated, lying and being in the City of
Durham, Durham County, North Carolina and being more particularly described as
follows:
Tract 2
BEGINNING at a new iron rod on the southerly margin of Wylewood Road (60' public
right-of-way) said iron being the northwest corner of Edward H. Benson property
as described in Deed Book 1123, Page 191 of the Durham County Public Registry,
and runs thence with line of Edward Benson South 21-16-47 East 749.69 feet to an
existing iron pipe on the northerly margin of New Castle Road (60' public
right-of-way), thence with the northerly margin and continuing with the easterly
margin of New Castle Road the following six (6) courses and distances: (1) with
the arc of a circular curve to the left having a radius of 584.91 feet an arc
length of 124.50 feet, (chord: South 63-11-30 West 124.27 feet) to a new iron
rod; (2) South 57-05-29 West 142.00 feet to an existing iron pipe; (3) with the
arc of a circular curve to the right having a radius of 330.00 feet an arc
length of 637.73 feet, (chord: North 67-32-35 West 543.03 feet) to a new iron
rod; (4) with the arc of a circular curve to the right having a radius of 340.82
feet an arc length of 108.06 feet, (chord: North 03-05-40 West 107.61 feet) to
an existing iron pipe; (5) North 06-05-29 East 323.42 feet to a new iron rod;
(6) with the arc of a circular curve to the right having a radius of 20.00 feet
an arc length of 27.36 feet, (chord: North 45-16-55 East 25.28 feet) to a new
iron rod on the southerly margin of Wylewood Road (60' public right-of-way),
thence with the southerly margin of Wylewood Road the following two (2) courses
and distances: (1) with the arc of a circular curve to the left having a radius
of 466.62 feet an arc length of 179.72 feet, (chord: North 73-26-22 East 178.61
feet) to a new iron rod; (2) North 62-24-22 East 273.32 feet to the point and
place of BEGINNING; containing 445,257 square feet or 10.2217 acres of land as
shown on a survey prepared by R. B. Pharr & Associates, P.A. dated March 23,
2000 bearing file No. W-2527.
That certain tract or parcel of land situated, lying and being in the City of
Durham, Durham County, North Carolina and being more particularly described as
follows:
Tract 3
BEGINNING at a new iron rod on the southerly margin of New Castle Road (60'
public right-of-way) said iron being the northwest corner of BW Equities
Corporation as recorded in Map Book 98, page 16 of the Durham County Public
Registry, and runs thence with the line of BW Equities Corporation line the
following five (5) courses and distances: (1) South 05-35-15 West 118.54 feet to
a new iron rod; (2) South 41-15-40 East 162.80 feet to a new iron rod; (3) South
49-44-44 West 170.40 feet to a new iron rod; (4) North 54-32-59 West 1.47 feet
to a new iron rod; (5) South 05-53-08 West passing thru a new iron at 26.38 feet
a total distance of 44.03 feet to a point in Run and Jump Creek said point being
on the line of Mary Dunnegan Belvin as described in Deed Book 198, Page 425 of
said Registry, thence along Run and Jump Creek and with the line of Mary
Dunnegan Belvin and with the line of Lot 6 thru Lot 12, Block D, Sedgefield
Terrace, Section Two as recorded in Map Book 52, Page 85 of said Registry the
following twenty one (21) courses and distances: (1) North 52-11-22 West 168.27
feet to a point; (2) North 84-02-32 West 89.50 feet to a point; (3) South
26-46-35 West 143.97 feet to a point; (4) South 73-34-47 West 118.70 feet to a
point; (5) North 44-40-04 West 83.89 feet to a point; (6) North 10-30-21 West
138.63 feet to a point; (7) North 66-34-34 West 43.27 feet to a point; (8) North
31-49-51 East 70.46 feet to a point; (9) North 69-52-45 West 139.78 feet to a
point; (10) North 43-16-14 West 218.76 feet to a point; (11) North 10-24-17 East
94.97 feet to a point; (12) North 07-15-09 East 30.38 feet to a point; (13)
North 18-57-00 West 83.57 feet to a point ; (14) North 00-53-30 East 41.53 feet
to a point; (15) North 05-19-30 West 124.77 feet to a point; (16) North 09-06-00
West 131.86 feet to a point; (17) North 04-24-30 East 56.92 to a point; (18)
North 12-52-15 West 97.03 feet to a point; (19) North 13-09-35 East 104.84 feet
to a point; (20) North 09-48-56 West 66.43 feet to a point; (21) North 03-04-27
West 65.45 feet to a point on the southerly margin of Wylewood Road (60' public
right-of-way) thence with the southerly margin of Wylewood Road the following
three (3) courses and distances: (1) South 84-23-54 East 171.75 feet to a new
iron rod; (2) with the arc of a circular curve to the right having a radius of
380.20 feet an arc length of 191.14 feet, (chord: South 69-59-47 East 189.13
feet) to a new iron rod; (3) with the arc of a circular curve to the left having
a radius of 466.62 feet an arc length of 228.67 feet, (chord: South 69-38-00
East 226.39 feet) to a new iron rod on the westerly margin of New Castle Road
(60' public right-of-way), thence with the westerly margin of New Castle Road
and continuing with the southerly margin of New Castle Road the following four
(4) courses and distances: (1) with the arc of a circular curve to the left
having a radius of 20.00 feet an arc length of 31.34 feet, (chord: South
38-47-26 East 28.23 feet) to a new iron rod; (2) South 06-05-30 West 312.84 feet
to a new iron rod; (3) with the arc of a circular curve to the left having a
radius of 400.82 feet an arc length of 127.80 feet, (chord: South 03-02-35 East
127.26 feet) to a new iron rod; (4) with the arc of a circular curve to the left
having a radius of 390.00 feet an arc length of 450.55 feet, (chord: South
45-16-31 East 425.91 feet) to the point and place of BEGINNING containing
703,200 square feet or 16.1432 acres of land as shown on a survey prepared by R.
B. Pharr & Associates, P.A. dated March 23, 2000 bearing file No. W-2527.
<PAGE>
EXHIBIT 7.2.1.3
GENERAL ASSIGNMENT
This General Assignment ("Assignment") is executed by SHELTER PROPERTIES
VI, a South Carolina limited partnership ("Seller"), in favor of , a
("Purchaser").
Seller and Purchaser, have entered into that certain Purchase and Sale
Contract and dated as of December __, 2000 ("Purchase Contract"), in which
Seller has agreed to sell and Purchaser has agreed to purchase the real property
described in Exhibit "A" attached hereto and the improvements located thereon
(collectively, the "Project"). Capitalized terms not otherwise defined herein
shall have the meaning ascribed to them in the Purchase Contract.
Pursuant to the Purchase Contract, Seller has agreed to assign to
Purchaser, without recourse or warranty except as set forth in Section 4 below,
all of Seller's right, title and interest, if any, in and to the Property (as
hereinafter defined) and the Miscellaneous Property Assets (as hereinafter
defined).
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows: 1. As used herein, the term "Property" shall mean the following
property to the extent said property is owned by Seller and used in, held for
use in connection with, or necessary for the operation of the Project:
o Property Contracts. All of Seller's rights and interests in
and to purchase orders, maintenance, service or utility
contracts or similar contracts which relate to the ownership,
maintenance, construction or repair or operation of the
Project.
o Leases. All of Seller's rights and interests in and to leases,
subleases, and other occupancy agreements, whether or not of
record, which provide for use or occupancy of space or
facilities on or relating to the Project.
o Licenses and Permits. All of Seller's rights and interests in
and to all licenses or permits granted by governmental
authorities having jurisdiction over the Project and utilized
with respect to the Project.
The term "Property" shall not include any of the foregoing: (i) to
the extent the same are excluded or reserved to Seller pursuant to the Purchase
Contract to which Seller and Purchaser are parties; and (ii) to the extent that
the sale or transfer thereof requires consent or approval of any third party,
which consent or approval is not obtained by Seller. Nothing herein shall create
a transfer or assignment of intellectual property or similar assets of Seller.
2. As used herein, the term "Miscellaneous Property Assets" shall mean all
contract rights, leases, concessions, warranties, plans, drawings, and other
items of intangible personal property to the extent said property is owned by
Seller and used in, held for use in connection with, or necessary for the
operation of the Project. The term "Miscellaneous Assets" shall also include the
following, but only to the extent owned by Seller and in Seller's possession:
site plans, surveys, soil and substrata studies, architectural renderings, plans
and specifications, engineering plans and studies, floor plans, tenant data
sheets, landscape plans and other plans or studies of any kind, if any, which
relate to the Land and or the Improvements or the Fixtures and Tangible Personal
Property. The term "Miscellaneous Property Assets" shall also include all of
Seller's rights, if any, in and to the name "Foxfire - Barcelona Apartments".
3. The term "Miscellaneous Property Assets" shall not include any of the
foregoing: (i) to the extent the same are excluded or reserved to Seller
pursuant to the Purchase Contract to which Seller and Purchaser are parties; and
(ii) to the extent that the sale or transfer thereof requires consent or
approval of any third party, which consent or approval is not obtained by
Seller. Nothing herein shall create a transfer or assignment of intellectual
property or similar assets of Seller.
4. Assignment. Seller hereby assigns, sells and transfers to Purchaser, without
recourse or warranty except as set forth in this Section 4 below, all of
Seller's right, title and interest, if any, in and to the Property and the
Miscellaneous Property Assets, subject to any rights of consent as provided
therein. To Seller's knowledge (as defined in Section 8.1.4 of the Purchase
Contract), Seller owns the Property and the Miscellaneous Property Assets.
5. Assumption. Purchaser expressly agrees to assume and hereby assumes all
liabilities and obligations of the Seller in connection with the Property and
the Miscellaneous Property Assets and agrees to perform all of the covenants and
obligations of Seller thereunder. Purchaser further agrees to indemnify, defend
and hold Seller harmless from and against any and all cost, loss, harm or damage
which may arise in connection with the Property and the Miscellaneous Property
Assets, pertaining to acts arising on and after the date hereof. Seller further
agrees to indemnify, defend and hold Purchaser harmless from and against any and
all cost, loss, harm or damage which may arise in connection with the
Miscellaneous Property Assets pertaining to acts arising prior to the date
hereof. 6. Counterparts. This Assignment may be executed in counterparts, each
of which shall be deemed an original, and both of which together shall
constitute one and the same instrument.
7. Attorneys' Fees. If any action or proceeding is commenced by either party to
enforce its rights under this Assignment, the prevailing party in such action or
proceeding shall be entitled to recover all reasonable costs and expenses
incurred in such action or proceeding, including reasonable attorneys' fees and
costs, in addition to any other relief awarded by the court.
8. Applicable Law. This Assignment shall be governed by and interpreted in
accordance with the laws of the State of North Carolina.
9. Titles and Section Headings. Titles of sections and subsections contained in
this Assignment are inserted for convenience of reference only, and neither form
a part of this Assignment or are to be used in its construction or
interpretation.
10. Binding Effect. This Assignment shall be binding upon and inure to the
benefit of the parties hereto and their respective transferees, successors, and
assigns.
11. Entire Agreement; Modification. This Assignment supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may not be altered or modified without the written consent of
all parties.
WITH RESPECT TO ALL MATTERS TRANSFERRED, WHETHER TANGIBLE OR INTANGIBLE,
PERSONAL OR REAL, SELLER EXPRESSLY DISCLAIMS A WARRANTY OF MERCHANTABILITY AND
WARRANTY FOR FITNESS FOR A PARTICULAR USE OR ANY OTHER WARRANTY EXPRESSED OR
IMPLIED THAT MAY ARISE BY OPERATION OF LAW OR UNDER THE UNIFORM COMMERCIAL CODE
FOR THE STATE IN WHICH THE PROPERTY IS LOCATED.
[Remainder of Page Intentionally Left Blank]
<PAGE>
WITNESS the signatures under seal of the undersigned.
Dated: , 2000
Seller:
SHELTER PROPERTIES VI,
a South Carolina limited partnership
By: Shelter Realty VI Corporation, a South
Carolina corporation,
Its Managing Partner
By: [SEAL]
Name:
Title:
Purchaser:
a
By:
[SEAL]
Name:
Title:
<PAGE>
Exhibit "A" to EXHIBIT 7.2.1.3
LEGAL DESCRIPTION
That certain tract or parcel of land situated, lying and being in the City of
Durham, Durham County, North Carolina and being more particularly described as
follows:
Tract 1
BEGINNING at a new iron rod on the northerly margin of Wylewood Road (60'
right-of-way) said iron being the intersection of the northerly margin of
Wylewood Road with the center line of the abandoned right-of-way of Broad
Street, said abandoned portion of Broad Street being described by deed recorded
in Deed Book 1201, Page 609 of the Durham County Public Registry, and runs
thence with the northerly margin of Wylewood Road the following six (6) courses
and distances: (1) with the arc of a circular curve to the right having a radius
of 20.00 feet an arc length of 8.61 feet, (chord: South 77-12-39 West 8.55 feet)
to a new iron rod; (2) with the arc of a circular curve to the left having a
radius of 801.29 feet an arc length of 379.60 feet, (chord: South 75-58-39 West
376.07 feet) to a new iron rod; (3) South 62-24-21 West 645.00 feet to a new
iron rod; (4) with the arc of a circular curve to the right having a radius of
406.62 feet an arc length of 440.00 feet, (chord: North 86-35-39 West 418.85
feet) to a new iron rod; (5) with the arc of a circular curve to the left having
a radius of 440.20 feet an arc length of 221.30 feet, (chord: North 69-59-47
West 218.98 feet) to a new iron rod; (6) North 84-23-54 West 180.91 feet to a
point in Run and Jump Creek, said point being on the easterly line of Lot 6,
Block D, Sedgefield Terrace, Section Two as recorded in Map Book 52, Page 82 of
said Registry, thence along Run and Jump Creek and with the easterly line of Lot
6, Block D, and continuing with the line of the City of Durham Property as
described in Deed Book 1499, Page 389 of said Registry the following fourteen
(14) courses and distances: (1) North 03-04-24 West 4.15 feet to a point; (2)
North 24-56-00 West 32.13 feet to a point; (3) North 17-33-00 East 37.63 feet to
a point; (4) North 03-21-00 West 50.52 feet to a point; (5) North 11-59-00 West
82.83 feet to a point; (6) North 01-44-07 West 71.03 feet to a point; (7) North
06-34-13 West 53.44 feet to a point; (8) North 03-31-54 West 69.18 feet to a
point; (9) North 02-40-18 West 37.25 feet to a point; (10) North 20-17-01 West
19.13 feet to a point; (11) North 19-02-12 West 65.12 feet to a point; (12)
North 18-34-12 West 43.10 feet to a point; (13) North 45-23-30 West 41.23 feet
to a point; (14) North 00-23-34 East 48.96 feet to a point at a southwest corner
of the Mary Jane Nye Property as recorded in Map Book 136, Page 211 of said
Registry, thence with the line of the Mary Jane Nye Property and continuing with
the line of Lots 37 through 47, Block 2, Village Green North, Section Two as
recorded in Map Book 104, Pages 144-A of said Registry and with the line of Lots
1, 9, 10, 11, 14, Block 2, Village Green North, Section Two as recorded in Map
Book 102, Page 97 of said Registry, South 83-54-31 East, passing a new iron rod
at 18.00 feet, for a total distance of 1797.30 feet to a new iron rod in the
center line of the abandoned right-of-way of Broad Street; thence with the
center line of the abandoned right-of-way of Broad Street the following two (2)
courses and distances: (1) South 37-47-46 East 9.62 feet to a new iron rod; (2)
with the arc of a circular curve to the right having a radius of 309.44 feet an
arc length of 171.00 feet (chord: South 21-57-54 East 168.83 feet) to the point
and place of BEGINNING; containing 898,529 square feet or 20.6274 acres of land
as shown on a survey prepared by R. B. Pharr & Associates, P.A. dated March 23,
2000 bearing file No. W-2527.
That certain tract or parcel of land situated, lying and being in the City of
Durham, Durham County, North Carolina and being more particularly described as
follows:
Tract 2
BEGINNING at a new iron rod on the southerly margin of Wylewood Road (60' public
right-of-way) said iron being the northwest corner of Edward H. Benson property
as described in Deed Book 1123, Page 191 of the Durham County Public Registry,
and runs thence with line of Edward Benson South 21-16-47 East 749.69 feet to an
existing iron pipe on the northerly margin of New Castle Road (60' public
right-of-way), thence with the northerly margin and continuing with the easterly
margin of New Castle Road the following six (6) courses and distances: (1) with
the arc of a circular curve to the left having a radius of 584.91 feet an arc
length of 124.50 feet, (chord: South 63-11-30 West 124.27 feet) to a new iron
rod; (2) South 57-05-29 West 142.00 feet to an existing iron pipe; (3) with the
arc of a circular curve to the right having a radius of 330.00 feet an arc
length of 637.73 feet, (chord: North 67-32-35 West 543.03 feet) to a new iron
rod; (4) with the arc of a circular curve to the right having a radius of 340.82
feet an arc length of 108.06 feet, (chord: North 03-05-40 West 107.61 feet) to
an existing iron pipe; (5) North 06-05-29 East 323.42 feet to a new iron rod;
(6) with the arc of a circular curve to the right having a radius of 20.00 feet
an arc length of 27.36 feet, (chord: North 45-16-55 East 25.28 feet) to a new
iron rod on the southerly margin of Wylewood Road (60' public right-of-way),
thence with the southerly margin of Wylewood Road the following two (2) courses
and distances: (1) with the arc of a circular curve to the left having a radius
of 466.62 feet an arc length of 179.72 feet, (chord: North 73-26-22 East 178.61
feet) to a new iron rod; (2) North 62-24-22 East 273.32 feet to the point and
place of BEGINNING; containing 445,257 square feet or 10.2217 acres of land as
shown on a survey prepared by R. B. Pharr & Associates, P.A. dated March 23,
2000 bearing file No. W-2527.
That certain tract or parcel of land situated, lying and being in the City of
Durham, Durham County, North Carolina and being more particularly described as
follows:
Tract 3
BEGINNING at a new iron rod on the southerly margin of New Castle Road (60'
public right-of-way) said iron being the northwest corner of BW Equities
Corporation as recorded in Map Book 98, page 16 of the Durham County Public
Registry, and runs thence with the line of BW Equities Corporation line the
following five (5) courses and distances: (1) South 05-35-15 West 118.54 feet to
a new iron rod; (2) South 41-15-40 East 162.80 feet to a new iron rod; (3) South
49-44-44 West 170.40 feet to a new iron rod; (4) North 54-32-59 West 1.47 feet
to a new iron rod; (5) South 05-53-08 West passing thru a new iron at 26.38 feet
a total distance of 44.03 feet to a point in Run and Jump Creek said point being
on the line of Mary Dunnegan Belvin as described in Deed Book 198, Page 425 of
said Registry, thence along Run and Jump Creek and with the line of Mary
Dunnegan Belvin and with the line of Lot 6 thru Lot 12, Block D, Sedgefield
Terrace, Section Two as recorded in Map Book 52, Page 85 of said Registry the
following twenty one (21) courses and distances: (1) North 52-11-22 West 168.27
feet to a point; (2) North 84-02-32 West 89.50 feet to a point; (3) South
26-46-35 West 143.97 feet to a point; (4) South 73-34-47 West 118.70 feet to a
point; (5) North 44-40-04 West 83.89 feet to a point; (6) North 10-30-21 West
138.63 feet to a point; (7) North 66-34-34 West 43.27 feet to a point; (8) North
31-49-51 East 70.46 feet to a point; (9) North 69-52-45 West 139.78 feet to a
point; (10) North 43-16-14 West 218.76 feet to a point; (11) North 10-24-17 East
94.97 feet to a point; (12) North 07-15-09 East 30.38 feet to a point; (13)
North 18-57-00 West 83.57 feet to a point ; (14) North 00-53-30 East 41.53 feet
to a point; (15) North 05-19-30 West 124.77 feet to a point; (16) North 09-06-00
West 131.86 feet to a point; (17) North 04-24-30 East 56.92 to a point; (18)
North 12-52-15 West 97.03 feet to a point; (19) North 13-09-35 East 104.84 feet
to a point; (20) North 09-48-56 West 66.43 feet to a point; (21) North 03-04-27
West 65.45 feet to a point on the southerly margin of Wylewood Road (60' public
right-of-way) thence with the southerly margin of Wylewood Road the following
three (3) courses and distances: (1) South 84-23-54 East 171.75 feet to a new
iron rod; (2) with the arc of a circular curve to the right having a radius of
380.20 feet an arc length of 191.14 feet, (chord: South 69-59-47 East 189.13
feet) to a new iron rod; (3) with the arc of a circular curve to the left having
a radius of 466.62 feet an arc length of 228.67 feet, (chord: South 69-38-00
East 226.39 feet) to a new iron rod on the westerly margin of New Castle Road
(60' public right-of-way), thence with the westerly margin of New Castle Road
and continuing with the southerly margin of New Castle Road the following four
(4) courses and distances: (1) with the arc of a circular curve to the left
having a radius of 20.00 feet an arc length of 31.34 feet, (chord: South
38-47-26 East 28.23 feet) to a new iron rod; (2) South 06-05-30 West 312.84 feet
to a new iron rod; (3) with the arc of a circular curve to the left having a
radius of 400.82 feet an arc length of 127.80 feet, (chord: South 03-02-35 East
127.26 feet) to a new iron rod; (4) with the arc of a circular curve to the left
having a radius of 390.00 feet an arc length of 450.55 feet, (chord: South
45-16-31 East 425.91 feet) to the point and place of BEGINNING containing
703,200 square feet or 16.1432 acres of land as shown on a survey prepared by R.
B. Pharr & Associates, P.A. dated March 23, 2000 bearing file No. W-2527.
<PAGE>
EXHIBIT B
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Escrow Agreement") made this _____day of December,
2000 by and among SHELTER PROPERTIES VI, a South Carolina limited partnership
("Seller"), and LANE REALTY ADVISORS, INC., a Georgia corporation ("Purchaser");
and STEWART TITLE GUARANTY COMPANY ("Escrow Agent");
WITNESSETH:
Whereas Purchaser and Seller are parties to a certain Purchase and Sale
Contract (the "Purchase Contract") made and dated as of the _____day of
December, 2000; and
Whereas, the Purchase Contract requires that Purchaser provide a deposit
in the amount of Fifty Thousand and No/100 Dollars ($50,000.00) in cash (the
"Initial Deposit"), to be held pursuant to an escrow agreement approved by
Purchaser and Seller; and
Whereas, the Purchase Contract requires that on or before 5:00 p.m.
Eastern time on the date of expiration of the Feasibility Period, Purchaser
shall provide an additional deposit in the amount of Two Hundred Forty Thousand
and No/100 Dollars ($240,000.00) in cash (the "Additional Deposit"), to be held
pursuant to an escrow agreement approved by Purchaser and Seller
Now, therefore, the parties agree to the following:
1. Establishment of Escrow. Escrow Agent hereby acknowledges receipt of Fifty
Thousand and No/100 Dollars ($50,000.00) in cash (constituting the Initial
Deposit), to be deposited, held, invested, and disbursed for the benefit of
Seller and Purchaser and their respective successors and assigns, as provided
herein and as provided in the Purchase Contract.
2. Investment of Escrow Fund. All funds received by Escrow Agent, including the
Initial Deposit and, to the extent paid, the Additional Deposit and the
Extension Deposit, (as defined in the Purchase Contract) (collectively, the
"Escrow Fund"), shall be held in insured accounts and invested in such
short-term, high-grade securities, money market funds or accounts, interest
-bearing bank accounts, bank certificates of deposit or bank repurchase
agreements as Escrow Agent, in its discretion, deems suitable (provided that
Escrow Agent shall invest the Escrow Fund as jointly directed by Seller and
Purchaser should Seller and Purchaser each in their respective sole discretion
determine to issue such joint investment instructions to the Escrow Agent) and
all interest and income thereon shall become part of the Escrow Fund and shall
be remitted to the party entitled to the Escrow Fund, as set forth below.
3. Application of Escrow Fund. Escrow Agent shall hold the Escrow Fund as
provided above and (a) if the sale of the Property is closed by the date fixed
therefor (or any extension date provided for by mutual written consent of the
parties hereto, given or withheld in their respective sole discretion), Escrow
Agent shall deliver the Escrow Fund to Seller in immediately available funds by
wire transfer in accordance with the instructions of Seller on the Closing Date
as set forth in the Purchase Contract, (b) if the sale of the Property is not
closed by the date fixed therefor (or any such extension date) owing to failure
of satisfaction of a condition precedent to Purchaser's obligations, the Escrow
Agent shall return and refund the Escrow Fund to Purchaser, (c) if the sale of
the Property is not closed by the date fixed therefor (or any such extension
date) owing to failure of performance by Seller, Purchaser shall give Notice to
the Escrow Agent and Seller and in such Notice shall state whether it elects as
its remedy return of the Escrow Fund or specific performance of the Purchase
Contract; if Purchaser elects return of the Escrow Fund, Escrow Agent shall
return and refund the Escrow Fund to Purchaser, (d) if the sale of the Property
is not closed by the date fixed therefor (or any such extension date) owing to
failure of performance by Purchaser, Escrow Agent shall forthwith deliver to
Seller the Escrow Fund in immediately available funds by wire transfer in
accordance with the instructions of Seller, and (e) if Purchaser shall have
canceled the Purchase Contract on or before the expiration of the Feasibility
Period (as defined in the Purchase Contract), the Escrow Agent shall return and
refund the Escrow Fund to Purchaser.
If on or prior to the termination of the Escrow Agreement, a party claims
to be entitled to payment of the Escrow Fund under the provisions referred to,
such party shall give Notice to the Escrow Agent and the other party of the
claim in writing, describing in such Notice the nature of the claim, and the
provisions of the Purchase Contract on which the claim is based. Unless the
other party sends the Escrow Agent a written objection to the claim, with a copy
concurrently to the claiming party, within ten (10) days after delivery of the
Notice of claim, the claim shall be conclusively presumed to have been approved.
In such case, or in the event of mutual written consent of the parties hereto,
given or withheld in their respective sole discretion, Escrow Agent shall,
within two (2) business days thereafter, pay the claim as demanded.
Notwithstanding the foregoing, Escrow Agent shall deliver the Escrow Fund to
Seller forthwith upon Closing in accordance with the terms of subpart (a) of the
immediately preceding paragraph.
When all monies held by Escrow Agent have been finally distributed in
accordance herewith, this Escrow Agreement shall terminate. 4. Liability. Escrow
Agent will be obligated to perform only the duties that are expressly set forth
herein. In case of conflicting demands upon Escrow Agent, it may (i) refuse to
comply therewith as long as such disagreement continues and make no delivery or
other disposition of any funds or property then held (and Escrow Agent shall not
be or become liable in any way for such failure or refusal to comply with such
conflicting or adverse claims or demands, except for its failure to exercise due
care, willful breach and willful misconduct); and (ii) continue to so refrain
and so refuse to act until all differences have been adjusted by agreement and,
Escrow Agent has been notified thereof in writing signed jointly by Seller and
Purchaser or (iii) to interplead the portion of Escrow Fund in dispute.
5. No Obligation to Take Legal Action. Escrow Agent shall not be under any
obligation to take any legal action in connection with this Escrow Agreement or
for its enforcement, or to appear in, prosecute, or defend any action or legal
proceeding which, in its opinion, would or might involve it in any costs,
expense, loss, or liability, unless and as often as required by it, it is
furnished with satisfactory security and indemnity against all such costs,
expenses, losses, or liabilities.
6. Status of Escrow Agent. Escrow Agent is to be considered and regarded as a
depository only, and shall not be responsible or liable (except for its failure
to exercise due care, willful breach or willful misconduct) for the sufficiency
or correctness as to form, manner of execution, or validity of any instrument
deposited pursuant to this Escrow Agreement, nor as to the identity, authority,
or rights of any person executing the same. Escrow Agent's duties hereunder
shall be limited to the safekeeping and investment of money, instruments, and
securities received by it as Escrow Agent and for their disbursement in
accordance with the written escrow instructions given it in accordance with this
Escrow Agreement. 7. Written Instructions of Parties. Notwithstanding any
contrary provision contained herein, Escrow Agent shall, at all times, have full
right and authority and the duty and obligation to pay over and disburse the
principal and interest of the Escrow Fund in accordance with the joint written
instructions signed by Seller and Purchaser.
8. Notices. Any required or permitted Notice or other communication under this
Escrow Agreement ("Notice") shall be given as follows. All Notices, requests,
demands and other communications hereunder shall be deemed to have been duly
given if the same shall be in writing and shall be delivered personally or sent
by federal express or other recognized national overnight courier service
maintaining records of delivery, or sent by registered or certified mail,
postage pre-paid, or sent by facsimile transmission (with a copy of the
facsimile confirmation and the facsimile transmission also sent by U.S. Mail)
and addressed as set forth below:
If to Seller: If to Purchaser:
SHELTER PROPERTIES VI LANE REALTY ADVISORS, INC.
2000 South Colorado Boulevard 5555 Glenridge Connector,
Tower Two, Suite 2-1000 Suite 700
Denver, Colorado 80222 Atlanta, Georgia 30342
Attn: Mr. Harry Alcock Attn: Mr. Scott J. Levitt
Facsimile No. (303) 692-0786 Facsimile No. (404) 459-6248
And With a copy to
SHELTER PROPERTIES VI Morris, Manning & Martin LLP
2000 South Colorado Boulevard 1600 Atlanta Financial Center
Tower Two, Suite 2-1000 3343 Peachtree Road, N.E.
Denver, Colorado 80222 Atlanta, Georgia 30326-1044
Attn: Mr. Pat Stucker Attn: Bruce Wobek, Esq.
Facsimile No. (303) 692-0786 Facsimile No. (404) 365-9532
With a copy to If to Escrow Agent:
Loeb & Loeb, LLP Stewart Title Guaranty Company
1000 Wilshire Boulevard, Suite 1980 Post Oak Boulevard, Suite
1800 610
Los Angeles, California 90017 Houston, Texas 77056
Attn: Andrew S. Clare, Esq. and Attn: Ms. Tammy Wagner
Karen Higgins, Esq. Facsimile no. (713) 552-1703
Facsimile No. (213) 688-3460
Any party may change the address to which Notices are to be addressed by
giving the other parties Notice in the manner herein set forth. All such
Notices, requests, demands and other communications shall be deemed to have been
delivered (i) as of the day of receipt, in the case of personal delivery, or
(ii) as of the day of receipt or attempted delivery date in the case of delivery
by air courier, or (iii) as of the date of receipt or first attempted delivery,
as evidenced by the return receipt card, in the case of mailing by certified or
registered United States mail.
9. Fee. Escrow Agent shall receive a fee of $500.00 for its services hereunder,
and be paid or reimbursed for all expenses, disbursements and advances,
including reasonable attorneys' fees, incurred or paid in connection with
carrying out its duties hereunder, the payment of all amounts to be shared
equally by Purchaser and Seller equally, and not out of the Escrow Fund.
Non-payment of such fee by Purchaser shall not entitle Escrow Agent to refuse or
fail to act as required by this Escrow Agreement.
10. Titles and Section Headings. Titles of sections and subsections contained in
this Escrow Agreement are inserted for convenience of reference only, and
neither form a part of this Escrow Agreement or are to be used in its
construction or interpretation.
11. Counterparts. This Escrow Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
12. Non-Waiver. No waiver by either party of any breach of any term or condition
of this Escrow Agreement shall operate as a waiver of any other breach of such
term or condition or of any other term or condition. No failure to enforce such
provision shall operate as a waiver of such provision or of any other provision
hereof, or constitute or be deemed a waiver or release of any other party for
anything arising out of, connected with, or based upon this Escrow Agreement.
13. Binding Effect. This Escrow Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective transferees, successors, and
assigns. The parties recognize and acknowledge that the powers and authority
granted Escrow Agent herein are each irrevocable and coupled with an interest.
Escrow Agent shall have no liability to Seller or Purchaser for any mistakes in
judgment in the performance of any function hereunder, except for failure to
exercise due care, willful breach and willful misconduct.
14. Nonlimitation of Liability. Nothing contained herein shall in any way limit
the liabilities, obligations and remedies of Seller and Purchaser as set forth
in the Purchase Contract.
15. Governing Law. This Escrow Agreement shall be governed by and construed in
accordance with the laws of the State of North Carolina.
16. Time of Essence. Time is of the essence of this Escrow Agreement.
17. Entire Agreement; Modification. This Escrow Agreement supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may not be altered or modified without the written consent of
all parties.
In witness whereof each of the parties hereto has caused this Escrow
Agreement to be executed under seal on its behalf by duly authorized persons,
all as of the day and year first above written.
Seller:
SHELTER PROPERTIES VI,
a South Carolina limited partnership
By: Shelter Realty VI Corporation, a South
Carolina corporation,
Its Managing Partner
By: [SEAL]
Name:
Title:
Purchaser:
LANE REALTY ADVISORS, INC.,
a Georgia corporation
By:
[SEAL]
Name:
Title:
Escrow Agent:
STEWART TITLE GUARANTY COMPANY
By:
[SEAL]
Name:
Title:
<PAGE>
TABLE OF CONTENTS
<PAGE>
ARTICLE 1 DEFINED TERMS...................................................4
ARTICLE 2 PURCHASE AND SALE OF PROPERTY...................................7
ARTICLE 3 PURCHASE PRICE & DEPOSIT........................................7
ARTICLE 4 FINANCING.......................................................8
ARTICLE 5 FEASIBILITY PERIOD..............................................8
ARTICLE 6 TITLE..........................................................10
ARTICLE 7 CLOSING........................................................12
ARTICLE 8 REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND
PURCHASER......................................................17
ARTICLE 9 CONDITIONS PRECEDENT TO CLOSING................................22
ARTICLE 10 BROKERAGE......................................................23
ARTICLE 11 POSSESSION.....................................................23
ARTICLE 12 DEFAULTS AND REMEDIES..........................................24
ARTICLE 13 RISK OF LOSS OR CASUALTY.......................................24
ARTICLE 14 RATIFICATION...................................................25
ARTICLE 15 EMINENT DOMAIN.................................................25
ARTICLE 16 MISCELLANEOUS..................................................25
<PAGE>
FIRST AMENDMENT TO
PURCHASE AND SALE CONTRACT
THIS FIRST AMENDMENT TO PURCHASE AND SALE CONTRACT (this "Amendment") is
made and entered into as of the 5th day of October, 2000, by and between SHELTER
PROPERTIES VI, a South Carolina limited partnership ("Seller") and LANE REALTY
ADVISORS, INC., a Georgia corporation ("Purchaser").
W I T N E S S E T H:
WHEREAS, Purchaser and Seller entered into that certain Purchase and Sale
Contract dated August 18, 2000 (the "Contract"), pursuant to which the parties
set forth their agreement with respect to the purchase and sale of the Property
(as defined in the Contract);
WHEREAS, the parties hereto desire to amend and modify the Contract in
certain respects, all as more particularly set forth below.
NOW, THEREFORE, for and in consideration of Ten Dollars in hand paid by
the parties one to the other and other good and valuable consideration, the
receipt, adequacy and sufficiency of which are hereby acknowledged, Purchaser
and Seller do hereby agree as follows:
All capitalized terms not otherwise defined in this Amendment shall have
the meaning given such terms in the Contract.
Purchaser and Seller hereby acknowledge that the Contract was effectively
terminated as of September 18, 2000 by that certain letter dated September 18,
2000 from Melissa A. Schnell, Purchaser's counsel, to Shelter Properties VI
effecting a termination of the Contract. Purchaser and Seller agree that the
Contract is hereby reinstated, and is in full force and effect as if never
terminated, as of the date of this Amendment without any further action on the
part of either party.
The Contract is hereby modified as follows:
The following language is hereby deleted from Paragraph 9.1 of the
Contract:
"The total purchase price ("Purchase Price") for the Property
shall be Fourteen Million Two Hundred Fifty Thousand and no/100
Dollars ($14,250,000.00), which shall be paid by Purchaser as
follows:
And the following language inserted in lieu thereof:
"The total purchase price ("Purchase Price") for the Property
shall be Fourteen Million One Hundred Fifty Thousand and no/100
Dollars ($14,150,000.00), which shall be paid by Purchaser, as
follows:"
The following language is hereby deleted from Paragraph 7.1.1 of the
Contract:
"The Closing shall occur no later than thirty (30) calendar
days after the expiration of the Feasibility Period, through an
escrow with Escrow Agent, whereby the Seller, Purchaser and their
attorneys need not be physically present at the Closing and may
deliver documents by overnight air courier or other means.
Notwithstanding the foregoing, (a) Purchaser shall have the right to
close prior to the originally scheduled Closing Date on the
condition that Purchaser pay Seller's additional interest costs
incurred in connection with prepaying Seller's first mortgage on the
Property prior to the originally scheduled Closing Date, and (b)
Purchaser shall have the right to extend the Closing Date for up to
thirty (30) calendar days on the condition that (i) on or before 5
P.M. Eastern Time on the fifth (5th) calendar day prior to the
originally scheduled Closing Date, Purchaser shall deliver to Escrow
Agent an additional non-refundable deposit in the amount of
$50,000.00 (the "Extension Deposit"), which deposit shall be applied
toward the Purchase Price, (ii) Purchaser notifies Seller on or
before 5 P.M. Eastern Time on the fifth (5th) calendar day prior to
the originally scheduled Closing Date that Purchaser is exercising
this extension option, and (iii) Purchaser pay Seller's additional
interest costs incurred in connection with prepaying Seller's first
mortgage on the Property after the originally scheduled Closing
Date."
And the following language inserted in lieu thereof:
"The Closing shall occur no later than November 14, 2000,
through an escrow with Escrow Agent, whereby the Seller, Purchaser
and their attorneys need not be physically present at the Closing
and may deliver documents by overnight air courier or other means.
Notwithstanding the foregoing, (a) Purchaser shall have the right to
close prior to the originally scheduled Closing Date on the
condition that Purchaser pay Seller's actual additional interest
cost incurred in connection with prepaying Seller's first and second
mortgages on the Property, not to exceed one month's interest, prior
to the originally scheduled Closing Date only if Purchaser's failure
to close on Seller's lender's designated date results in a situation
where Seller owes its Lender interest for a period between the
actual Closing Date and the originally schedule Closing Date as a
result of accelerating the Closing Date, and (b) Purchaser shall
have the right to extend the Closing Date for up to thirty (30)
calendar days on the condition (i) on or before 5 P.M. Eastern Time
on the third (3rd) calendar day prior to the originally scheduled
Closing Date, Purchaser shall deliver to Escrow Agent an additional
non-refundable deposit in the amount of $50,000.00 (the "Extension
Deposit"), which deposit shall be applied toward the Purchase Price,
(ii) Purchaser will endeavor in good faith to notify Seller on or
before November 1, 2000 as to the time frame within which Purchaser
intends to close the transaction, (iii) Purchaser notifies Seller on
or before 5 P.M. Eastern Time on the third (3rd) calendar day prior
to the originally scheduled Closing Date that Purchaser is
exercising this extension option, and (iv) Purchaser pay Seller's
actual additional interest cost incurred in connection with
prepaying Seller's first and second mortgages on the Property, not
to exceed one month's interest, after the originally scheduled
Closing Date only if Purchaser's failure to close on Seller's
lender's designated date results in a situation where Seller owes
its Lender interest for a period after the Closing Date, as so
extended, as a result of such extension of Closing."
Seller hereby acknowledges receipt of Purchaser's Objection Notice, by means of
those certain letters from Melissa A. Schnell, Purchaser's counsel, to Shelter
Properties VI, dated September 15, 2000 and September 18, 2000, detailing
Purchaser's objections to title for the Property. Purchaser and Seller hereby
agree that, within ten (10) days of the date hereof, Seller will deliver its
Response Notice to Purchaser detailing which title objections Seller elects to
cure prior to Closing.
This Amendment may be executed in any number of counterparts, each of which
shall be deemed to be an original as against any party whose signature appears
thereon, and all of such counterparts shall together constitute one and the same
instrument. This Amendment shall become binding when one or more counterparts
hereof, individually or taken together, shall bear the signatures of all of the
parties reflected hereon as the signatories. This Amendment may be executed and
delivered by fax (telecopier); any original signatures that are initially
delivered by fax shall be physically delivered with reasonable promptness
thereafter.
Except as expressly set forth herein, the Contract remains unmodified and
unchanged and the parties hereto ratify and confirm the Contract, as
amended hereby.
<PAGE>
IN WITNESS WHEREOF, Seller and Purchaser have executed this Amendment
effective the day and year first written above.
Seller:
SHELTER PROPERTIES VI, a South Carolina limited
partnership
By: Shelter Realty VI Corporation, a
South Carolina corporation,
Its Managing Partner
By:
Harry Alcock, Executive Vice President
Purchaser:
LANE REALTY ADVISORS, INC.,
a Georgia corporation
By:
Print Name:
Its:
<PAGE>
SECOND AMENDMENT TO
PURCHASE AND SALE CONTRACT
THIS SECOND AMENDMENT TO PURCHASE AND SALE CONTRACT (this "Amendment") is
made and entered into as of the 16th day of October, 2000, by and between
SHELTER PROPERTIES VI, a South Carolina limited partnership ("Seller") and LANE
REALTY ADVISORS, INC., a Georgia corporation ("Purchaser").
W I T N E S S E T H:
WHEREAS, Purchaser and Seller entered into that certain Purchase and Sale
Contract dated August 18, 2000, as amended by that certain First Amendment to
Purchase and Sale Contract dated October 5, 2000 (collectively the "Contract"),
pursuant to which the parties set forth their agreement with respect to the
purchase and sale of the Property (as defined in the Contract);
WHEREAS, the parties hereto, desire to amend and modify the Contract in
certain respects, all as more particularly set forth below.
NOW, THEREFORE, for and in consideration of Ten Dollars in hand paid by
the parties one to the other and other good and valuable consideration, the
receipt, adequacy and sufficiency of which are hereby acknowledged, Purchaser
and Seller do hereby agree as follows:
All capitalized terms not otherwise defined in this Amendment
shall have the meaning given such terms in the Contract.
Purchaser and Seller hereby acknowledge that, pursuant to the terms of the
Contract, Seller is required to deliver its Response Notice to Purchaser,
detailing which title objections Seller elects to cure prior to Closing, no
later than October 15, 2000. Purchaser and Seller hereby agree to extend the
period of time for Seller to deliver its Response Notice to Purchaser due to
Seller's ongoing efforts to cure such title objections such that Seller may
convey title to the Property to Purchaser in accordance with the requirements of
the Contract. Notwithstanding anything in the Contract to the contrary,
Purchaser and Seller hereby agree that, no later than 5:00 p.m. Eastern Standard
Time on October 23, 2000, Seller will deliver its Response Notice to Purchaser
detailing which title objections Seller elects to cure prior to Closing. By
granting the above-referenced extension for delivery of Seller's Response Notice
to Purchaser, Purchaser in no way waives, and hereby expressly reserves, all of
Purchaser's rights and remedies under the Contract in the event that Seller
fails to convey title to the Property to Purchaser in accordance with the
requirements of the Contract. This Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of such counterparts shall
together constitute one and the same instrument. This Amendment shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of all of the parties reflected hereon as the
signatories. This Amendment may be executed and delivered by fax (telecopier);
any original signatures that are initially delivered by fax shall be physically
delivered with reasonable promptness thereafter.
Except as expressly set forth herein, the Contract remains unmodified and
unchanged and the parties hereto ratify and confirm the Contract, as
amended hereby.
IN WITNESS WHEREOF, Seller and Purchaser have executed this Amendment
effective the day and year first written above.
Seller:
SHELTER PROPERTIES VI, a South Carolina limited
partnership
By: Shelter Realty VI Corporation, a
South Carolina corporation,
Its Managing Partner
By:
Harry Alcock, Executive Vice President
Purchaser:
LANE REALTY ADVISORS, INC.,
a Georgia corporation
By:
Print Name:
Its:
<PAGE>
THIRD AMENDMENT TO
PURCHASE AND SALE CONTRACT
THIS THIRD AMENDMENT TO PURCHASE AND SALE CONTRACT (this "Amendment") is
made and entered into as of the 25th day of October, 2000, by and between
SHELTER PROPERTIES VI, a South Carolina limited partnership ("Seller") and LANE
REALTY ADVISORS, INC., a Georgia corporation ("Purchaser").
W I T N E S S E T H:
WHEREAS, Purchaser and Seller entered into that certain Purchase and Sale
Contract dated August 18, 2000, as amended by that certain First Amendment to
Purchase and Sale Contract dated October 5, 2000, and that certain Second
Amendment to Purchase and Sale Contract dated October 16, 2000 (collectively the
"Contract"), pursuant to which the parties set forth their agreement with
respect to the purchase and sale of the Property (as defined in the Contract);
WHEREAS, the parties hereto desire to amend and modify the Contract in
certain respects, all as more particularly set forth below.
NOW, THEREFORE, for and in consideration of Ten Dollars in hand paid by
the parties one to the other and other good and valuable consideration, the
receipt, adequacy and sufficiency of which are hereby acknowledged, Purchaser
and Seller do hereby agree as follows:
All capitalized terms not otherwise defined in this Amendment
shall have the meaning given such terms in the Contract.
Purchaser and Seller hereby acknowledge that, pursuant to the terms of the
Contract, Purchaser is required to deliver its notice to Seller, regarding
Purchaser's election to terminate the Contract based on Seller's Response Notice
(as defined in the Contract), no later than October 25, 2000, which is the date
five (5) days after the issuance of Seller's Response Notice. Purchaser and
Seller hereby agree to extend the period of time for Purchaser to deliver the
above-described notice to Seller due to Purchaser's and Seller's ongoing efforts
to cure title objections such that Seller may convey title to the Property to
Purchaser in accordance with the requirements of the Contract. Notwithstanding
anything in the Contract to the contrary, Purchaser and Seller hereby agree
that, no later than 5:00 p.m. Eastern Standard Time on October 30, 2000 (the
"Response Deadline"), Purchaser will deliver the above described notice to
Seller informing Seller whether or not Purchaser elects to terminate the
Contract. By obtaining the above-referenced extension for delivery of
Purchaser's notice to terminate based on Seller's Response Notice (as defined in
the Agreement), Purchaser in no way waives, andhereby expressly reserves, all of
Purchaser's rights and remedies under the Contract in the event that Seller
fails to convey title to the Property to Purchaser in accordance with the
requirements of the Contract. This Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of such counterparts shall
together constitute one and the same instrument. This Amendment shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of all of the parties reflected hereon as the
signatories. This Amendment may be executed and delivered by fax (telecopier);
any original signatures that are initially delivered by fax shall be physically
delivered with reasonable promptly thereafter.
Except as expressly set forth herein, the Contract remains unmodified and
unchanged and the parties hereto ratify and confirm the Contract, as
amended hereby.
IN WITNESS WHEREOF, Seller and Purchaser have executed this Amendment
effective the day and year first written above.
Seller:
SHELTER PROPERTIES VI, a South Carolina limited
partnership
By: Shelter Realty VI Corporation, a
South Carolina corporation,
Its Managing Partner
By:
Harry Alcock, Executive Vice President
Purchaser:
LANE REALTY ADVISORS, INC.,
a Georgia corporation
By:
Print Name:
Its:
<PAGE>
FOURTH AMENDMENT TO
PURCHASE AND SALE CONTRACT
THIS FOURTH AMENDMENT TO PURCHASE AND SALE CONTRACT ("Amendment") is
entered into as of the November 14, 2000 by and between SHELTER PROPERTIES VI, a
South Carolina limited partnership ("Seller") and FOXFIRE APARTMENTS LLC, a
Delaware limited liability company ("Purchaser"), as assignee of Lane Realty
Advisors, Inc., a Georgia corporation ("Original Purchaser").
RECITALS
A. Seller and Original Purchaser entered into a Purchase and Sale
Contract dated as of August 18, 2000, as amended and assigned (collectively, the
"Agreement"), pursuant to which Seller agreed to sell to Purchaser, and
Purchaser agreed to buy from Seller, the premises located in Durham County,
North Carolina, commonly known as the "Foxfire-Barcelona Apartments," as more
particularly described in Exhibit A attached to the Agreement (the "Property").
B. Seller and Purchaser have agreed to modify the terms of the Agreement as
set forth in this Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Seller and Purchaser agree as
follows:
AGREEMENTS
1. Closing Date/Agreement to Pay Additional Interest Costs. The Closing
Date is hereby extended from November 14, 2000 to November 15, 2000 on the
condition that if funds are not received by Seller's lender by such lender's
required payoff time on November 15, 2000, and Seller's lender requires the
payment of an additional thirty (30) days interest to accept such prepayment,
then Purchaser agrees that it shall be solely liable for the payment of such
additional interest costs. Purchaser acknowledges that Seller has no obligation
to extend the Closing Date beyond November 15, 2000 and that Seller's agreement
to extend the Closing Date from November 14, 2000 to November 15, 2000 is based
on Purchaser's agreement to pay the additional interest charges mentioned above
if required by Seller's lender.
2. Effectiveness of Agreement. Except as modified by this Amendment, all
the terms of the Agreement shall remain unchanged and in full force and effect.
3. Counterparts. This Amendment may be executed in counterparts, and all
counterparts together shall be construed as one document.
4. Telecopied Signatures. A counterpart of this Amendment signed by one
party to this Amendment and telecopied to the other party to this Amendment or
its counsel (i) shall have the same effect as an original signed counterpart of
this Amendment, and (ii) shall be conclusive proof, admissible in judicial
proceedings, of such party's execution of this Amendment.
IN WITNESS WHEREOF, Seller and Purchaser have entered into this
Fourth Amendment as of the date first above stated.
Seller:
SHELTER PROPERTIES VI,
a South Carolina limited partnership
By: Shelter Realty VI Corporation,
a South Carolina corporation,
Its Managing Partner
By: __________________________
Harry Alcock, Its Executive Vice
President
Purchaser:
FOXFIRE APARTMENTS LLC, a Delaware limited
liability company
By:Foxfire Manager, L.L.C., a Georgia limited
liability company, its managing member
By: Foxfire Management I, Inc., a Georgia
corporation, its managing member
By:
Its Authorized Officer
<PAGE>
ASSIGNMENT OF PURCHASE AND SALE CONTRACT
THIS ASSIGNMENT OF PURCHASE AND SALE CONTRACT (this "Assignment") is
entered into by and between LANE REALTY ADVISORS, INC., a Georgia corporation
(hereinafter called "Assignor"), and FOXFIRE APARTMENTS LLC, a Delaware limited
liability company (hereinafter called "Assignee").
W I T N E S S E T H:
WHEREAS, Assignor, as Purchaser, entered into that certain Purchase and
Sale Contract between Shelter Properties VI, a South Carolina limited
partnership ("Seller") and Assignor dated August 18, 2000, as amended by that
certain First Amendment to Purchase and Sale Contract dated October 5, 2000,
that certain Second Amendment to Purchase and Sale Contract dated October 16,
2000, and that certain Third Amendment to Purchase and Sale Contract dated
October 25, 2000 (collectively the "Contract") regarding the purchase and sale
of the Foxfire Apartments, Durham, North Carolina (the "Property"); and
WHEREAS, Assignor desires to assign the Contract to Assignee so that
Assignee may acquire the Property.
NOW THEREFORE, in consideration of the foregoing recitals and other good
and valuable consideration, the parties agree as follows:
Assignor hereby assigns to Assignee the Purchaser's rights under the
Contract for the purchase of the Property.
Assignee hereby assumes the Assignor's rights under the Contract to
acquire the Property from Seller, however, Assignor is not released from
liability under the Contract.
This Assignment may be executed in any number of counterparts, each of
which shall be deemed to be an original as against any party whose signature
appears thereon, and all of such counterparts shall together constitute one and
the same instrument. This Assignment shall become binding when one or more
counterparts hereof, individually or taken together, shall bear the signatures
of all of the parties reflected hereon as the signatories. This Assignment may
be executed and delivered by fax (telecopier); any original signatures that are
initially delivered by fax shall be physically delivered with reasonable
promptness thereafter.
[Signatures on Next Page]
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Assignment as their
free and voluntary act and deed, on the date indicated by each signature
ASSIGNOR: ASSIGNEE:
LANE REALTY ADVISORS, INC., FOXFIRE APARTMENTS LLC,
A Georgia Corporation a Delaware limited liability company
By: By: Foxfire Manager, L.L.C., a
Georgia
Name: limited liability company,
its managing member
Title:
By: Foxfire Management I,
Inc., a
Georgia Corporation, its
managing member
By:
Name:
Title:
<PAGE>
ACKNOWLEDGMENT OF SELLER
By signing below, Seller hereby acknowledges the assignment of Buyer's interest
under the Assignment of Purchase and Sale Contract.
SHELTER PROPERTIES VI,
a South Carolina limited partnership
By: Shelter Realty VI Corporation,
a South Carolina corporation,
its managing partner
By:________________________________
Harry Alcock, Executed Vice President
<PAGE>
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Escrow Agreement") made this _____day of December,
2000 by and among SHELTER PROPERTIES VI, a South Carolina limited partnership
("Seller"), and LANE REALTY ADVISORS, INC., a Georgia corporation ("Purchaser");
and STEWART TITLE GUARANTY COMPANY ("Escrow Agent");
WITNESSETH:
Whereas Purchaser and Seller are parties to a certain Purchase and Sale
Contract (the "Purchase Contract") made and dated as of the _____day of
December, 2000; and
Whereas, the Purchase Contract requires that Purchaser provide a deposit
in the amount of Fifty Thousand and No/100 Dollars ($50,000.00) in cash (the
"Initial Deposit"), to be held pursuant to an escrow agreement approved by
Purchaser and Seller; and
Whereas, the Purchase Contract requires that on or before 5:00 p.m.
Eastern time on the date of expiration of the Feasibility Period, Purchaser
shall provide an additional deposit in the amount of Two Hundred Forty Thousand
and No/100 Dollars ($240,000.00) in cash (the "Additional Deposit"), to be held
pursuant to an escrow agreement approved by Purchaser and Seller
Now, therefore, the parties agree to the following:
1. Establishment of Escrow. Escrow Agent hereby acknowledges receipt of Fifty
Thousand and No/100 Dollars ($50,000.00) in cash (constituting the Initial
Deposit), to be deposited, held, invested, and disbursed for the benefit of
Seller and Purchaser and their respective successors and assigns, as provided
herein and as provided in the Purchase Contract.
2. Investment of Escrow Fund. All funds received by Escrow Agent, including the
Initial Deposit and, to the extent paid, the Additional Deposit and the
Extension Deposit, (as defined in the Purchase Contract) (collectively, the
"Escrow Fund"), shall be held in insured accounts and invested in such
short-term, high-grade securities, money market funds or accounts, interest
-bearing bank accounts, bank certificates of deposit or bank repurchase
agreements as Escrow Agent, in its discretion, deems suitable (provided that
Escrow Agent shall invest the Escrow Fund as jointly directed by Seller and
Purchaser should Seller and Purchaser each in their respective sole discretion
determine to issue such joint investment instructions to the Escrow Agent) and
all interest and income thereon shall become part of the Escrow Fund and shall
be remitted to the party entitled to the Escrow Fund, as set forth below.
3. Application of Escrow Fund. Escrow Agent shall hold the Escrow Fund as
provided above and (a) if the sale of the Property is closed by the date fixed
therefor (or any extension date provided for by mutual written consent of the
parties hereto, given or withheld in their respective sole discretion), Escrow
Agent shall deliver the Escrow Fund to Seller in immediately available funds by
wire transfer in accordance with the instructions of Seller on the Closing Date
as set forth in the Purchase Contract, (b) if the sale of the Property is not
closed by the date fixed therefor (or any such extension date) owing to failure
of satisfaction of a condition precedent to Purchaser's obligations, the Escrow
Agent shall return and refund the Escrow Fund to Purchaser, (c) if the sale of
the Property is not closed by the date fixed therefor (or any such extension
date) owing to failure of performance by Seller, Purchaser shall give Notice to
the Escrow Agent and Seller and in such Notice shall state whether it elects as
its remedy return of the Escrow Fund or specific performance of the Purchase
Contract; if Purchaser elects return of the Escrow Fund, Escrow Agent shall
return and refund the Escrow Fund to Purchaser, (d) if the sale of the Property
is not closed by the date fixed therefor (or any such extension date) owing to
failure of performance by Purchaser, Escrow Agent shall forthwith deliver to
Seller the Escrow Fund in immediately available funds by wire transfer in
accordance with the instructions of Seller, and (e) if Purchaser shall have
canceled the Purchase Contract on or before the expiration of the Feasibility
Period (as defined in the Purchase Contract), the Escrow Agent shall return and
refund the Escrow Fund to Purchaser.
If on or prior to the termination of the Escrow Agreement, a party claims
to be entitled to payment of the Escrow Fund under the provisions referred to,
such party shall give Notice to the Escrow Agent and the other party of the
claim in writing, describing in such Notice the nature of the claim, and the
provisions of the Purchase Contract on which the claim is based. Unless the
other party sends the Escrow Agent a written objection to the claim, with a copy
concurrently to the claiming party, within ten (10) days after delivery of the
Notice of claim, the claim shall be conclusively presumed to have been approved.
In such case, or in the event of mutual written consent of the parties hereto,
given or withheld in their respective sole discretion, Escrow Agent shall,
within two (2) business days thereafter, pay the claim as demanded.
Notwithstanding the foregoing, Escrow Agent shall deliver the Escrow Fund to
Seller forthwith upon Closing in accordance with the terms of subpart (a) of the
immediately preceding paragraph.
When all monies held by Escrow Agent have been finally distributed in
accordance herewith, this Escrow Agreement shall terminate. 4. Liability. Escrow
Agent will be obligated to perform only the duties that are expressly set forth
herein. In case of conflicting demands upon Escrow Agent, it may (i) refuse to
comply therewith as long as such disagreement continues and make no delivery or
other disposition of any funds or property then held (and Escrow Agent shall not
be or become liable in any way for such failure or refusal to comply with such
conflicting or adverse claims or demands, except for its failure to exercise due
care, willful breach and willful misconduct); and (ii) continue to so refrain
and so refuse to act until all differences have been adjusted by agreement and,
Escrow Agent has been notified thereof in writing signed jointly by Seller and
Purchaser or (iii) to interplead the portion of Escrow Fund in dispute.
5. No Obligation to Take Legal Action. Escrow Agent shall not be under any
obligation to take any legal action in connection with this Escrow Agreement or
for its enforcement, or to appear in, prosecute, or defend any action or legal
proceeding which, in its opinion, would or might involve it in any costs,
expense, loss, or liability, unless and as often as required by it, it is
furnished with satisfactory security and indemnity against all such costs,
expenses, losses, or liabilities.
6. Status of Escrow Agent. Escrow Agent is to be considered and regarded as a
depository only, and shall not be responsible or liable (except for its failure
to exercise due care, willful breach or willful misconduct) for the sufficiency
or correctness as to form, manner of execution, or validity of any instrument
deposited pursuant to this Escrow Agreement, nor as to the identity, authority,
or rights of any person executing the same. Escrow Agent's duties hereunder
shall be limited to the safekeeping and investment of money, instruments, and
securities received by it as Escrow Agent and for their disbursement in
accordance with the written escrow instructions given it in accordance with this
Escrow Agreement. 7. Written Instructions of Parties. Notwithstanding any
contrary provision contained herein, Escrow Agent shall, at all times, have full
right and authority and the duty and obligation to pay over and disburse the
principal and interest of the Escrow Fund in accordance with the joint written
instructions signed by Seller and Purchaser.
8. Notices. Any required or permitted Notice or other communication under this
Escrow Agreement ("Notice") shall be given as follows. All Notices, requests,
demands and other communications hereunder shall be deemed to have been duly
given if the same shall be in writing and shall be delivered personally or sent
by federal express or other recognized national overnight courier service
maintaining records of delivery, or sent by registered or certified mail,
postage pre-paid, or sent by facsimile transmission (with a copy of the
facsimile confirmation and the facsimile transmission also sent by U.S. Mail)
and addressed as set forth below:
If to Seller: If to Purchaser:
SHELTER PROPERTIES VI LANE REALTY ADVISORS, INC.
2000 South Colorado Boulevard 5555 Glenridge Connector,
Tower Two, Suite 2-1000 Suite 700
Denver, Colorado 80222 Atlanta, Georgia 30342
Attn: Mr. Harry Alcock Attn: Mr. Scott J. Levitt
Facsimile No. (303) 692-0786 Facsimile No. (404) 459-6248
And With a copy to
SHELTER PROPERTIES VI Morris, Manning & Martin LLP
2000 South Colorado Boulevard 1600 Atlanta Financial Center
Tower Two, Suite 2-1000 3343 Peachtree Road, N.E.
Denver, Colorado 80222 Atlanta, Georgia 30326-1044
Attn: Mr. Pat Stucker Attn: Bruce Wobek, Esq.
Facsimile No. (303) 692-0786 Facsimile No. (404) 365-9532
With a copy to If to Escrow Agent:
Loeb & Loeb, LLP Stewart Title Guaranty Company
1000 Wilshire Boulevard, Suite 1980 Post Oak Boulevard, Suite
1800 610
Los Angeles, California 90017 Houston, Texas 77056
Attn: Andrew S. Clare, Esq. and Attn: Ms. Tammy Wagner
Karen Higgins, Esq. Facsimile no. (713) 552-1703
Facsimile No. (213) 688-3460
Any party may change the address to which Notices are to be addressed by
giving the other parties Notice in the manner herein set forth. All such
Notices, requests, demands and other communications shall be deemed to have been
delivered (i) as of the day of receipt, in the case of personal delivery, or
(ii) as of the day of receipt or attempted delivery date in the case of delivery
by air courier, or (iii) as of the date of receipt or first attempted delivery,
as evidenced by the return receipt card, in the case of mailing by certified or
registered United States mail.
9. Fee. Escrow Agent shall receive a fee of $500.00 for its services hereunder,
and be paid or reimbursed for all expenses, disbursements and advances,
including reasonable attorneys' fees, incurred or paid in connection with
carrying out its duties hereunder, the payment of all amounts to be shared
equally by Purchaser and Seller equally, and not out of the Escrow Fund.
Non-payment of such fee by Purchaser shall not entitle Escrow Agent to refuse or
fail to act as required by this Escrow Agreement.
10. Titles and Section Headings. Titles of sections and subsections contained in
this Escrow Agreement are inserted for convenience of reference only, and
neither form a part of this Escrow Agreement or are to be used in its
construction or interpretation.
11. Counterparts. This Escrow Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
12. Non-Waiver. No waiver by either party of any breach of any term or condition
of this Escrow Agreement shall operate as a waiver of any other breach of such
term or condition or of any other term or condition. No failure to enforce such
provision shall operate as a waiver of such provision or of any other provision
hereof, or constitute or be deemed a waiver or release of any other party for
anything arising out of, connected with, or based upon this Escrow Agreement.
13. Binding Effect. This Escrow Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective transferees, successors, and
assigns. The parties recognize and acknowledge that the powers and authority
granted Escrow Agent herein are each irrevocable and coupled with an interest.
Escrow Agent shall have no liability to Seller or Purchaser for any mistakes in
judgment in the performance of any function hereunder, except for failure to
exercise due care, willful breach and willful misconduct.
14. Nonlimitation of Liability. Nothing contained herein shall in any way limit
the liabilities, obligations and remedies of Seller and Purchaser as set forth
in the Purchase Contract.
15. Governing Law. This Escrow Agreement shall be governed by and construed in
accordance with the laws of the State of North Carolina.
16. Time of Essence. Time is of the essence of this Escrow Agreement.
17. Entire Agreement; Modification. This Escrow Agreement supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may not be altered or modified without the written consent of
all parties.
In witness whereof each of the parties hereto has caused this Escrow
Agreement to be executed under seal on its behalf by duly authorized persons,
all as of the day and year first above written.
Seller:
SHELTER PROPERTIES VI,
a South Carolina limited partnership
By: Shelter Realty VI Corporation, a South
Carolina corporation,
Its Managing Partner
By: [SEAL]
Name:
Title:
Purchaser:
LANE REALTY ADVISORS, INC.,
a Georgia corporation
By:
[SEAL]
Name:
Title:
Escrow Agent:
STEWART TITLE GUARANTY COMPANY
By:
[SEAL]
Name:
Title:
<PAGE>
FIRST AMENDMENT TO
PURCHASE AND SALE CONTRACT
THIS FIRST AMENDMENT TO PURCHASE AND SALE CONTRACT (this "Amendment") is
made and entered into as of the 5th day of October, 2000, by and between SHELTER
PROPERTIES VI, a South Carolina limited partnership ("Seller") and LANE REALTY
ADVISORS, INC., a Georgia corporation ("Purchaser").
W I T N E S S E T H:
WHEREAS, Purchaser and Seller entered into that certain Purchase and Sale
Contract dated August 18, 2000 (the "Contract"), pursuant to which the parties
set forth their agreement with respect to the purchase and sale of the Property
(as defined in the Contract);
WHEREAS, the parties hereto desire to amend and modify the Contract in
certain respects, all as more particularly set forth below.
NOW, THEREFORE, for and in consideration of Ten Dollars in hand paid by
the parties one to the other and other good and valuable consideration, the
receipt, adequacy and sufficiency of which are hereby acknowledged, Purchaser
and Seller do hereby agree as follows:
1. All capitalized terms not otherwise defined in this Amendment shall have the
meaning given such terms in the Contract.
2. Purchaser and Seller hereby acknowledge that the Contract was effectively
terminated as of September 18, 2000 by that certain letter dated September 18,
2000 from Melissa A. Schnell, Purchaser's counsel, to Shelter Properties VI
effecting a termination of the Contract. Purchaser and Seller agree that the
Contract is hereby reinstated, and is in full force and effect as if never
terminated, as of the date of this Amendment without any further action on the
part of either party.
3. The Contract is hereby modified as follows:
a. The following language is hereby deleted from Paragraph 9.1 of the Contract:
"The total purchase price ("Purchase Price") for the Property
shall be Fourteen Million Two Hundred Fifty Thousand and no/100
Dollars ($14,250,000.00), which shall be paid by Purchaser as
follows:
And the following language inserted in lieu thereof:
"The total purchase price ("Purchase Price") for the Property
shall be Fourteen Million One Hundred Fifty Thousand and no/100
Dollars ($14,150,000.00), which shall be paid by Purchaser, as
follows:"
b. The following language is hereby deleted from Paragraph 7.1.1 of the
Contract:
"The Closing shall occur no later than thirty (30) calendar
days after the expiration of the Feasibility Period, through an
escrow with Escrow Agent, whereby the Seller, Purchaser and their
attorneys need not be physically present at the Closing and may
deliver documents by overnight air courier or other means.
Notwithstanding the foregoing, (a) Purchaser shall have the right to
close prior to the originally scheduled Closing Date on the
condition that Purchaser pay Seller's additional interest costs
incurred in connection with prepaying Seller's first mortgage on the
Property prior to the originally scheduled Closing Date, and (b)
Purchaser shall have the right to extend the Closing Date for up to
thirty (30) calendar days on the condition that (i) on or before 5
P.M. Eastern Time on the fifth (5th) calendar day prior to the
originally scheduled Closing Date, Purchaser shall deliver to Escrow
Agent an additional non-refundable deposit in the amount of
$50,000.00 (the "Extension Deposit"), which deposit shall be applied
toward the Purchase Price, (ii) Purchaser notifies Seller on or
before 5 P.M. Eastern Time on the fifth (5th) calendar day prior to
the originally scheduled Closing Date that Purchaser is exercising
this extension option, and (iii) Purchaser pay Seller's additional
interest costs incurred in connection with prepaying Seller's first
mortgage on the Property after the originally scheduled Closing
Date."
And the following language inserted in lieu thereof:
"The Closing shall occur no later than November 14, 2000,
through an escrow with Escrow Agent, whereby the Seller, Purchaser
and their attorneys need not be physically present at the Closing
and may deliver documents by overnight air courier or other means.
Notwithstanding the foregoing, (a) Purchaser shall have the right to
close prior to the originally scheduled Closing Date on the
condition that Purchaser pay Seller's actual additional interest
cost incurred in connection with prepaying Seller's first and second
mortgages on the Property, not to exceed one month's interest, prior
to the originally scheduled Closing Date only if Purchaser's failure
to close on Seller's lender's designated date results in a situation
where Seller owes its Lender interest for a period between the
actual Closing Date and the originally schedule Closing Date as a
result of accelerating the Closing Date, and (b) Purchaser shall
have the right to extend the Closing Date for up to thirty (30)
calendar days on the condition (i) on or before 5 P.M. Eastern Time
on the third (3rd) calendar day prior to the originally scheduled
Closing Date, Purchaser shall deliver to Escrow Agent an additional
non-refundable deposit in the amount of $50,000.00 (the "Extension
Deposit"), which deposit shall be applied toward the Purchase Price,
(ii) Purchaser will endeavor in good faith to notify Seller on or
before November 1, 2000 as to the time frame within which Purchaser
intends to close the transaction, (iii) Purchaser notifies Seller on
or before 5 P.M. Eastern Time on the third (3rd) calendar day prior
to the originally scheduled Closing Date that Purchaser is
exercising this extension option, and (iv) Purchaser pay Seller's
actual additional interest cost incurred in connection with
prepaying Seller's first and second mortgages on the Property, not
to exceed one month's interest, after the originally scheduled
Closing Date only if Purchaser's failure to close on Seller's
lender's designated date results in a situation where Seller owes
its Lender interest for a period after the Closing Date, as so
extended, as a result of such extension of Closing."
4. Seller hereby acknowledges receipt of Purchaser's Objection Notice, by means
of those certain letters from Melissa A. Schnell, Purchaser's counsel, to
Shelter Properties VI, dated September 15, 2000 and September 18, 2000,
detailing Purchaser's objections to title for the Property. Purchaser and Seller
hereby agree that, within ten (10) days of the date hereof, Seller will deliver
its Response Notice to Purchaser detailing which title objections Seller elects
to cure
prior to Closing.
5. This Amendment may be executed in any number of counterparts, each of which
shall be deemed to be an original as against any party whose signature appears
thereon, and all of such counterparts shall together constitute one and the same
instrument. This Amendment shall become binding when one or more counterparts
hereof, individually or taken together, shall bear the signatures of all of the
parties reflected hereon as the signatories. This Amendment may be executed and
delivered by fax (telecopier); any original signatures that are initially
delivered by fax shall be physically delivered with reasonable promptness
thereafter.
6. Except as expressly set forth herein, the Contract remains unmodified and
unchanged and the parties hereto ratify and confirm the Contract, as amended
hereby.
<PAGE>
IN WITNESS WHEREOF, Seller and Purchaser have executed this Amendment
effective the day and year first written above.
Seller:
SHELTER PROPERTIES VI, a South Carolina limited
partnership
By: Shelter Realty VI Corporation, a
South Carolina corporation,
Its Managing Partner
By:
Harry Alcock, Executive Vice President
Purchaser:
LANE REALTY ADVISORS, INC.,
a Georgia corporation
By:
Print Name:
Its:
<PAGE>
SECOND AMENDMENT TO
PURCHASE AND SALE CONTRACT
THIS SECOND AMENDMENT TO PURCHASE AND SALE CONTRACT (this "Amendment") is
made and entered into as of the 16th day of October, 2000, by and between
SHELTER PROPERTIES VI, a South Carolina limited partnership ("Seller") and LANE
REALTY ADVISORS, INC., a Georgia corporation ("Purchaser").
W I T N E S S E T H:
WHEREAS, Purchaser and Seller entered into that certain Purchase and Sale
Contract dated August 18, 2000, as amended by that certain First Amendment to
Purchase and Sale Contract dated October 5, 2000 (collectively the "Contract"),
pursuant to which the parties set forth their agreement with respect to the
purchase and sale of the Property (as defined in the Contract);
WHEREAS, the parties hereto, desire to amend and modify the Contract in
certain respects, all as more particularly set forth below.
NOW, THEREFORE, for and in consideration of Ten Dollars in hand paid by
the parties one to the other and other good and valuable consideration, the
receipt, adequacy and sufficiency of which are hereby acknowledged, Purchaser
and Seller do hereby agree as follows:
1. All capitalized terms not otherwise defined in this Amendment shall have the
meaning given such terms in the Contract.
2. Purchaser and Seller hereby acknowledge that, pursuant to the terms of the
Contract, Seller is required to deliver its Response Notice to Purchaser,
detailing which title objections Seller elects to cure prior to Closing, no
later than October 15, 2000. Purchaser and Seller hereby agree to extend the
period of time for Seller to deliver its Response Notice to Purchaser due to
Seller's ongoing efforts to cure such title objections such that Seller may
convey title to the Property to Purchaser in accordance with the requirements of
the Contract. Notwithstanding anything in the Contract to the contrary,
Purchaser and Seller hereby agree that, no later than 5:00 p.m. Eastern Standard
Time on October 23, 2000, Seller will deliver its Response Notice to Purchaser
detailing which title objections Seller elects to cure prior to Closing. By
granting the above-referenced extension for delivery of Seller's Response Notice
to Purchaser, Purchaser in no way waives, and hereby expressly reserves, all of
Purchaser's rights and remedies under the Contract in the event that Seller
fails to convey title to the Property to Purchaser in accordance with the
requirements of the Contract.
3. This Amendment may be executed in any number of counterparts, each of which
shall be deemed to be an original as against any party whose signature appears
thereon, and all of such counterparts shall together constitute one and the same
instrument. This Amendment shall become binding when one or more counterparts
hereof, individually or taken together, shall bear the signatures of all of the
parties reflected hereon as the signatories. This Amendment may be executed and
delivered by fax (telecopier); any original signatures that are initially
delivered by fax shall be physically delivered with reasonable promptness
thereafter.
4. Except as expressly set forth herein, the Contract remains unmodified and
unchanged and the parties hereto ratify and confirm the Contract, as amended
hereby.
IN WITNESS WHEREOF, Seller and Purchaser have executed this Amendment
effective the day and year first written above.
Seller:
SHELTER PROPERTIES VI, a South Carolina limited
partnership
By: Shelter Realty VI Corporation, a
South Carolina corporation,
Its Managing Partner
By:
Harry Alcock, Executive Vice President
Purchaser:
LANE REALTY ADVISORS, INC.,
a Georgia corporation
By:
Print Name:
Its:
<PAGE>
THIRD AMENDMENT TO
PURCHASE AND SALE CONTRACT
THIS THIRD AMENDMENT TO PURCHASE AND SALE CONTRACT (this "Amendment") is
made and entered into as of the 25th day of October, 2000, by and between
SHELTER PROPERTIES VI, a South Carolina limited partnership ("Seller") and LANE
REALTY ADVISORS, INC., a Georgia corporation ("Purchaser").
W I T N E S S E T H:
WHEREAS, Purchaser and Seller entered into that certain Purchase and Sale
Contract dated August 18, 2000, as amended by that certain First Amendment to
Purchase and Sale Contract dated October 5, 2000, and that certain Second
Amendment to Purchase and Sale Contract dated October 16, 2000 (collectively the
"Contract"), pursuant to which the parties set forth their agreement with
respect to the purchase and sale of the Property (as defined in the Contract);
WHEREAS, the parties hereto desire to amend and modify the Contract in
certain respects, all as more particularly set forth below.
NOW, THEREFORE, for and in consideration of Ten Dollars in hand paid by
the parties one to the other and other good and valuable consideration, the
receipt, adequacy and sufficiency of which are hereby acknowledged, Purchaser
and Seller do hereby agree as follows:
1. All capitalized terms not otherwise defined in this Amendment shall have the
meaning given such terms in the Contract.
2. Purchaser and Seller hereby acknowledge that, pursuant to the terms of the
Contract, Purchaser is required to deliver its notice to Seller, regarding
Purchaser's election to terminate the Contract based on Seller's Response Notice
(as defined in the Contract), no later than October 25, 2000, which is the date
five (5) days after the issuance of Seller's Response Notice. Purchaser and
Seller hereby agree to extend the period of time for Purchaser to deliver the
above-described notice to Seller due to Purchaser's and Seller's ongoing efforts
to cure title objections such that Seller may convey title to the Property to
Purchaser in accordance with the requirements of the Contract. Notwithstanding
anything in the Contract to the contrary, Purchaser and Seller hereby agree
that, no later than 5:00 p.m. Eastern Standard Time on October 30, 2000 (the
"Response Deadline"), Purchaser will deliver the above described notice to
Seller informing Seller whether or not Purchaser elects to terminate the
Contract. By obtaining the above-referenced extension for delivery of
Purchaser's notice to terminate based on Seller's Response Notice (as defined in
the Agreement), Purchaser in no way waives, and hereby expressly reserves, all
of Purchaser's rights and remedies under the Contract in the event that Seller
fails to convey title to the Property to Purchaser in accordance with the
requirements of the Contract.
3. This Amendment may be executed in any number of counterparts, each of which
shall be deemed to be an original as against any party whose signature appears
thereon, and all of such counterparts shall together constitute one and the same
instrument. This Amendment shall become binding when one or more counterparts
hereof, individually or taken together, shall bear the signatures of all of the
parties reflected hereon as the signatories. This Amendment may be executed and
delivered by fax (telecopier); any original signatures that are initially
delivered by fax shall be physically delivered with reasonable promptly
thereafter.
4. Except as expressly set forth herein, the Contract remains unmodified and
unchanged and the parties hereto ratify and confirm the Contract, as amended
hereby.
IN WITNESS WHEREOF, Seller and Purchaser have executed this Amendment
effective the day and year first written above.
Seller:
SHELTER PROPERTIES VI, a South Carolina limited
partnership
By: Shelter Realty VI Corporation, a
South Carolina corporation,
Its Managing Partner
By:
Harry Alcock, Executive Vice President
Purchaser:
LANE REALTY ADVISORS, INC.,
a Georgia corporation
By:
Print Name:
Its:
<PAGE>
FOURTH AMENDMENT TO
PURCHASE AND SALE CONTRACT
THIS FOURTH AMENDMENT TO PURCHASE AND SALE CONTRACT ("Amendment") is
entered into as of the November 14, 2000 by and between SHELTER PROPERTIES VI, a
South Carolina limited partnership ("Seller") and FOXFIRE APARTMENTS LLC, a
Delaware limited liability company ("Purchaser"), as assignee of Lane Realty
Advisors, Inc., a Georgia corporation ("Original Purchaser").
RECITALS
A. Seller and Original Purchaser entered into a Purchase and Sale
Contract dated as of August 18, 2000, as amended and assigned (collectively, the
"Agreement"), pursuant to which Seller agreed to sell to Purchaser, and
Purchaser agreed to buy from Seller, the premises located in Durham County,
North Carolina, commonly known as the "Foxfire-Barcelona Apartments," as more
particularly described in Exhibit A attached to the Agreement (the "Property").
B. Seller and Purchaser have agreed to modify the terms of the Agreement as
set forth in this Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Seller and Purchaser agree as
follows:
AGREEMENTS
5. Closing Date/Agreement to Pay Additional Interest Costs. The Closing Date is
hereby extended from November 14, 2000 to November 15, 2000 on the condition
that if funds are not received by Seller's lender by such lender's required
payoff time on November 15, 2000, and Seller's lender requires the payment of an
additional thirty (30) days interest to accept such prepayment, then Purchaser
agrees that it shall be solely liable for the payment of such additional
interest costs. Purchaser acknowledges that Seller has no obligation to extend
the Closing Date beyond November 15, 2000 and that Seller's agreement to extend
the Closing Date from November 14, 2000 to November 15, 2000 is based on
Purchaser's agreement to pay the additional interest charges mentioned above if
required by Seller's lender.
6. Effectiveness of Agreement. Except as modified by this Amendment, all
the terms of the Agreement shall remain unchanged and in full force and effect.
7. Counterparts. This Amendment may be executed in counterparts, and all
counterparts together shall be construed as one document.
8. Telecopied Signatures. A counterpart of this Amendment signed by one party to
this Amendment and telecopied to the other party to this Amendment or its
counsel (i) shall have the same effect as an original signed counterpart of this
Amendment, and (ii) shall be conclusive proof, admissible in judicial
proceedings, of such party's execution of this Amendment.
IN WITNESS WHEREOF, Seller and Purchaser have entered into this
Fourth Amendment as of the date first above stated.
Seller:
SHELTER PROPERTIES VI,
a South Carolina limited partnership
By: Shelter Realty VI Corporation,
a South Carolina corporation,
Its Managing Partner
By: __________________________
Harry Alcock, Its Executive Vice
President
Purchaser:
FOXFIRE APARTMENTS LLC, a Delaware limited
liability company
By: Foxfire Manager, L.L.C., a Georgia limited
liability company, its managing member
By: Foxfire Management I, Inc., a Georgia
corporation, its managing member
By:
Its Authorized Officer
<PAGE>
ASSIGNMENT OF PURCHASE AND SALE CONTRACT
THIS ASSIGNMENT OF PURCHASE AND SALE CONTRACT (this "Assignment") is
entered into by and between LANE REALTY ADVISORS, INC., a Georgia corporation
(hereinafter called "Assignor"), and FOXFIRE APARTMENTS LLC, a Delaware limited
liability company (hereinafter called "Assignee").
W I T N E S S E T H:
WHEREAS, Assignor, as Purchaser, entered into that certain Purchase and
Sale Contract between Shelter Properties VI, a South Carolina limited
partnership ("Seller") and Assignor dated August 18, 2000, as amended by that
certain First Amendment to Purchase and Sale Contract dated October 5, 2000,
that certain Second Amendment to Purchase and Sale Contract dated October 16,
2000, and that certain Third Amendment to Purchase and Sale Contract dated
October 25, 2000 (collectively the "Contract") regarding the purchase and sale
of the Foxfire Apartments, Durham, North Carolina (the "Property"); and
WHEREAS, Assignor desires to assign the Contract to Assignee so that
Assignee may acquire the Property.
NOW THEREFORE, in consideration of the foregoing recitals and other good
and valuable consideration, the parties agree as follows:
Assignor hereby assigns to Assignee the Purchaser's rights under the
Contract for the purchase of the Property.
Assignee hereby assumes the Assignor's rights under the Contract to
acquire the Property from Seller, however, Assignor is not released from
liability under the Contract.
This Assignment may be executed in any number of counterparts, each of
which shall be deemed to be an original as against any party whose signature
appears thereon, and all of such counterparts shall together constitute one and
the same instrument. This Assignment shall become binding when one or more
counterparts hereof, individually or taken together, shall bear the signatures
of all of the parties reflected hereon as the signatories. This Assignment may
be executed and delivered by fax (telecopier); any original signatures that are
initially delivered by fax shall be physically delivered with reasonable
promptness thereafter.
[Signatures on Next Page]
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Assignment as their
free and voluntary act and deed, on the date indicated by each signature
ASSIGNOR: ASSIGNEE:
LANE REALTY ADVISORS, INC., FOXFIRE APARTMENTS LLC,
A Georgia Corporation a Delaware limited liability company
By: By: Foxfire Manager, L.L.C., a
Georgia
Name: limited liability company,
its managing member
Title:
By: Foxfire Management I,
Inc., a
Georgia Corporation, its
managing member
By:
Name:
Title:
<PAGE>
ACKNOWLEDGMENT OF SELLER
By signing below, Seller hereby acknowledges the assignment of Buyer's interest
under the Assignment of Purchase and Sale Contract.
SHELTER PROPERTIES VI,
a South Carolina limited partnership
By: Shelter Realty VI Corporation,
a South Carolina corporation,
its managing partner
By:________________________________
Harry Alcock, Executed Vice President
<PAGE>
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Escrow Agreement") made this _____day of December,
2000 by and among SHELTER PROPERTIES VI, a South Carolina limited partnership
("Seller"), and LANE REALTY ADVISORS, INC., a Georgia corporation ("Purchaser");
and STEWART TITLE GUARANTY COMPANY ("Escrow Agent");
WITNESSETH:
Whereas Purchaser and Seller are parties to a certain Purchase and Sale
Contract (the "Purchase Contract") made and dated as of the _____day of
December, 2000; and
Whereas, the Purchase Contract requires that Purchaser provide a deposit
in the amount of Fifty Thousand and No/100 Dollars ($50,000.00) in cash (the
"Initial Deposit"), to be held pursuant to an escrow agreement approved by
Purchaser and Seller; and
Whereas, the Purchase Contract requires that on or before 5:00 p.m.
Eastern time on the date of expiration of the Feasibility Period, Purchaser
shall provide an additional deposit in the amount of Two Hundred Forty Thousand
and No/100 Dollars ($240,000.00) in cash (the "Additional Deposit"), to be held
pursuant to an escrow agreement approved by Purchaser and Seller
Now, therefore, the parties agree to the following:
18. Establishment of Escrow. Escrow Agent hereby acknowledges receipt of Fifty
Thousand and No/100 Dollars ($50,000.00) in cash (constituting the Initial
Deposit), to be deposited, held, invested, and disbursed for the benefit of
Seller and Purchaser and their respective successors and assigns, as provided
herein and as provided in the Purchase Contract.
19. Investment of Escrow Fund. All funds received by Escrow Agent, including the
Initial Deposit and, to the extent paid, the Additional Deposit and the
Extension Deposit, (as defined in the Purchase Contract) (collectively, the
"Escrow Fund"), shall be held in insured accounts and invested in such
short-term, high-grade securities, money market funds or accounts, interest
-bearing bank accounts, bank certificates of deposit or bank repurchase
agreements as Escrow Agent, in its discretion, deems suitable (provided that
Escrow Agent shall invest the Escrow Fund as jointly directed by Seller and
Purchaser should Seller and Purchaser each in their respective sole discretion
determine to issue such joint investment instructions to the Escrow Agent) and
all interest and income thereon shall become part of the Escrow Fund and shall
be remitted to the party entitled to the Escrow Fund, as set forth below.
20. Application of Escrow Fund. Escrow Agent shall hold the Escrow Fund as
provided above and (a) if the sale of the Property is closed by the date fixed
therefor (or any extension date provided for by mutual written consent of the
parties hereto, given or withheld in their respective sole discretion), Escrow
Agent shall deliver the Escrow Fund to Seller in immediately available funds by
wire transfer in accordance with the instructions of Seller on the Closing Date
as set forth in the Purchase Contract, (b) if the sale of the Property is not
closed by the date fixed therefor (or any such extension date) owing to failure
of satisfaction of a condition precedent to Purchaser's obligations, the Escrow
Agent shall return and refund the Escrow Fund to Purchaser, (c) if the sale of
the Property is not closed by the date fixed therefor (or any such extension
date) owing to failure of performance by Seller, Purchaser shall give Notice to
the Escrow Agent and Seller and in such Notice shall state whether it elects as
its remedy return of the Escrow Fund or specific performance of the Purchase
Contract; if Purchaser elects return of the Escrow Fund, Escrow Agent shall
return and refund the Escrow Fund to Purchaser, (d) if the sale of the Property
is not closed by the date fixed therefor (or any such extension date) owing to
failure of performance by Purchaser, Escrow Agent shall forthwith deliver to
Seller the Escrow Fund in immediately available funds by wire transfer in
accordance with the instructions of Seller, and (e) if Purchaser shall have
canceled the Purchase Contract on or before the expiration of the Feasibility
Period (as defined in the Purchase Contract), the Escrow Agent shall return and
refund the Escrow Fund to Purchaser.
If on or prior to the termination of the Escrow Agreement, a party claims
to be entitled to payment of the Escrow Fund under the provisions referred to,
such party shall give Notice to the Escrow Agent and the other party of the
claim in writing, describing in such Notice the nature of the claim, and the
provisions of the Purchase Contract on which the claim is based. Unless the
other party sends the Escrow Agent a written objection to the claim, with a copy
concurrently to the claiming party, within ten (10) days after delivery of the
Notice of claim, the claim shall be conclusively presumed to have been approved.
In such case, or in the event of mutual written consent of the parties hereto,
given or withheld in their respective sole discretion, Escrow Agent shall,
within two (2) business days thereafter, pay the claim as demanded.
Notwithstanding the foregoing, Escrow Agent shall deliver the Escrow Fund to
Seller forthwith upon Closing in accordance with the terms of subpart (a) of the
immediately preceding paragraph.
When all monies held by Escrow Agent have been finally distributed in
accordance herewith, this Escrow Agreement shall terminate. 21. Liability.
Escrow Agent will be obligated to perform only the duties that are expressly set
forth herein. In case of conflicting demands upon Escrow Agent, it may (i)
refuse to comply therewith as long as such disagreement continues and make no
delivery or other disposition of any funds or property then held (and Escrow
Agent shall not be or become liable in any way for such failure or refusal to
comply with such conflicting or adverse claims or demands, except for its
failure to exercise due care, willful breach and willful misconduct); and (ii)
continue to so refrain and so refuse to act until all differences have been
adjusted by agreement and, Escrow Agent has been notified thereof in writing
signed jointly by Seller and Purchaser or (iii) to interplead the portion of
Escrow Fund in dispute.
22. No Obligation to Take Legal Action. Escrow Agent shall not be under any
obligation to take any legal action in connection with this Escrow Agreement or
for its enforcement, or to appear in, prosecute, or defend any action or legal
proceeding which, in its opinion, would or might involve it in any costs,
expense, loss, or liability, unless and as often as required by it, it is
furnished with satisfactory security and indemnity against all such costs,
expenses, losses, or liabilities.
23. Status of Escrow Agent. Escrow Agent is to be considered and regarded as a
depository only, and shall not be responsible or liable (except for its failure
to exercise due care, willful breach or willful misconduct) for the sufficiency
or correctness as to form, manner of execution, or validity of any instrument
deposited pursuant to this Escrow Agreement, nor as to the identity, authority,
or rights of any person executing the same. Escrow Agent's duties hereunder
shall be limited to the safekeeping and investment of money, instruments, and
securities received by it as Escrow Agent and for their disbursement in
accordance with the written escrow instructions given it in accordance with this
Escrow Agreement. 24. Written Instructions of Parties. Notwithstanding any
contrary provision contained herein, Escrow Agent shall, at all times, have full
right and authority and the duty and obligation to pay over and disburse the
principal and interest of the Escrow Fund in accordance with the joint written
instructions signed by Seller and Purchaser.
25. Notices. Any required or permitted Notice or other communication under this
Escrow Agreement ("Notice") shall be given as follows. All Notices, requests,
demands and other communications hereunder shall be deemed to have been duly
given if the same shall be in writing and shall be delivered personally or sent
by federal express or other recognized national overnight courier service
maintaining records of delivery, or sent by registered or certified mail,
postage pre-paid, or sent by facsimile transmission (with a copy of the
facsimile confirmation and the facsimile transmission also sent by U.S. Mail)
and addressed as set forth below:
If to Seller: If to Purchaser:
SHELTER PROPERTIES VI LANE REALTY ADVISORS, INC.
2000 South Colorado Boulevard 5555 Glenridge Connector,
Tower Two, Suite 2-1000 Suite 700
Denver, Colorado 80222 Atlanta, Georgia 30342
Attn: Mr. Harry Alcock Attn: Mr. Scott J. Levitt
Facsimile No. (303) 692-0786 Facsimile No. (404) 459-6248
And With a copy to
SHELTER PROPERTIES VI Morris, Manning & Martin LLP
2000 South Colorado Boulevard 1600 Atlanta Financial Center
Tower Two, Suite 2-1000 3343 Peachtree Road, N.E.
Denver, Colorado 80222 Atlanta, Georgia 30326-1044
Attn: Mr. Pat Stucker Attn: Bruce Wobek, Esq.
Facsimile No. (303) 692-0786 Facsimile No. (404) 365-9532
With a copy to If to Escrow Agent:
Loeb & Loeb, LLP Stewart Title Guaranty Company
1000 Wilshire Boulevard, Suite 1980 Post Oak Boulevard, Suite
1800 610
Los Angeles, California 90017 Houston, Texas 77056
Attn: Andrew S. Clare, Esq. and Attn: Ms. Tammy Wagner
Karen Higgins, Esq. Facsimile no. (713) 552-1703
Facsimile No. (213) 688-3460
Any party may change the address to which Notices are to be addressed by
giving the other parties Notice in the manner herein set forth. All such
Notices, requests, demands and other communications shall be deemed to have been
delivered (i) as of the day of receipt, in the case of personal delivery, or
(ii) as of the day of receipt or attempted delivery date in the case of delivery
by air courier, or (iii) as of the date of receipt or first attempted delivery,
as evidenced by the return receipt card, in the case of mailing by certified or
registered United States mail.
26. Fee. Escrow Agent shall receive a fee of $500.00 for its services hereunder,
and be paid or reimbursed for all expenses, disbursements and advances,
including reasonable attorneys' fees, incurred or paid in connection with
carrying out its duties hereunder, the payment of all amounts to be shared
equally by Purchaser and Seller equally, and not out of the Escrow Fund.
Non-payment of such fee by Purchaser shall not entitle Escrow Agent to refuse or
fail to act as required by this Escrow Agreement.
27. Titles and Section Headings. Titles of sections and subsections contained in
this Escrow Agreement are inserted for convenience of reference only, and
neither form a part of this Escrow Agreement or are to be used in its
construction or interpretation.
28. Counterparts. This Escrow Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
29. Non-Waiver. No waiver by either party of any breach of any term or condition
of this Escrow Agreement shall operate as a waiver of any other breach of such
term or condition or of any other term or condition. No failure to enforce such
provision shall operate as a waiver of such provision or of any other provision
hereof, or constitute or be deemed a waiver or release of any other party for
anything arising out of, connected with, or based upon this Escrow Agreement.
30. Binding Effect. This Escrow Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective transferees, successors, and
assigns. The parties recognize and acknowledge that the powers and authority
granted Escrow Agent herein are each irrevocable and coupled with an interest.
Escrow Agent shall have no liability to Seller or Purchaser for any mistakes in
judgment in the performance of any function hereunder, except for failure to
exercise due care, willful breach and willful misconduct.
31. Nonlimitation of Liability. Nothing contained herein shall in any way limit
the liabilities, obligations and remedies of Seller and Purchaser as set forth
in the Purchase Contract.
32. Governing Law. This Escrow Agreement shall be governed by and construed in
accordance with the laws of the State of North Carolina.
33. Time of Essence. Time is of the essence of this Escrow Agreement.
34. Entire Agreement; Modification. This Escrow Agreement supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may not be altered or modified without the written consent of
all parties.
In witness whereof each of the parties hereto has caused this Escrow
Agreement to be executed under seal on its behalf by duly authorized persons,
all as of the day and year first above written.
Seller:
SHELTER PROPERTIES VI,
a South Carolina limited partnership
By: Shelter Realty VI Corporation, a South
Carolina corporation,
Its Managing Partner
By: [SEAL]
Name:
Title:
Purchaser:
LANE REALTY ADVISORS, INC.,
a Georgia corporation
By:
[SEAL]
Name:
Title:
Escrow Agent:
STEWART TITLE GUARANTY COMPANY
By:
[SEAL]
Name:
Title:
