REAL ESTATE EXCHANGE CONTRACT
THIS REAL ESTATE EXCHANGE CONTRACT made and entered into as of this 6th day
of March, 1997 between:
BERKSHIRE: BROOKWOOD VILLAGE JOINT VENTURE, a Massachusetts joint
venture, having as its
joint venture partners,
XXXXX CASH PLUS - II, a
Massachusetts limited
partnership and BRI TEXAS
APARTMENTS LIMITED
PARTNERSHIP, a Delaware
limited partnership; and
CRLP:COLONIAL REALTY LIMITED PARTNERSHIP, a Delaware limited partnership.
The parties agree as follows:
1 . AGREEMENT OF EXCHANGE: In consideration of the mutual covenants
and promises contained herein, Berkshire and CRLP hereby agree to exchange
real property in a simultaneous like-kind exchange. The real estate to be
exchanged by CRLP is described on EXHIBIT "A", which is attached hereto and
incorporated herein by reference. The real estate to be exchanged by
Berkshire is described on Exhibit "B". The real estate to be exchanged by
CRLP is herein referred to as the "CRLP Property" and includes all
improvements, easements, appurtenances, rights-of-way, privileges, adjacent
strips, gores of land and other matters belonging to or appertaining to the
CRLP Property. The real estate to be exchanged by Berkshire is herein
referred to as the "Berkshire Property" and includes all improvements,
easements, appurtenances, rights-of-way, privileges, adjacent strips, gores
of land and other matters belonging to or appertaining to the Berkshire
Property. The Berkshire Property is commonly known as the Brookwood Mall.
The CRLP Property consists of four (4) apartment complexes known as
Sunchase, North Xxxxx Villas, Polos West and Polos at Ponte Vedra. In
addition to the CRLP and Berkshire Property and as additional consideration
for the payment of the purchase price, each party shall convey all personal
property, tradename of the property, furniture, fixtures and equipment
located on or used in connection with the Property. In no event shall
Berkshire acquire any interest in the names "Colonial", "Colonial Grand",
"Colonial Village", or "Colonial Realty". In no event shall CRLP acquire
any interest in the name "Berkshire". The CRLP Property and the Berkshire
Property shall be jointly referred to herein as the "Property".
2. PURCHASE PRICE:
(a) For CRLP Property: Berkshire shall exchange as full
consideration for the CRLP Property and the Cash Equivalent (as
defined below), the Berkshire Property.
b)For Berkshire Property: CRLP shall exchange the CRLP Property and One
Million Two Hundred Thirty-Three Thousand Six Hundred Ninety-Four and No/100
Dollars($1,233,694.00) (the "Cash Equivalent") asfull consideration for the
Berkshire Property.
(c)At Closing, provided no event of default has occurred hereunder, all
Xxxxxxx Money shall be returned to the party escrowing the same since no
cash,except the Cash Equivalent, is a part of this like-kind exchange
transaction.
(d)CRLP shall pay off, on or prior to Closing, any outstanding mortgage
indebtedness on the CRLP Property. Polos West has a mortgage loan with The
Lincoln National Life Insurance Company, and Polos at Ponte Vedra has a
mortgage loan with Nationwide Life Insurance Company.
(e)Berkshire shall pay off, on or prior to Closing, any outstanding mortgage
indebtedness on the Berkshire Property as well as any sums owed to the Xxxxxxx
family.
3.DEPOSIT: Twenty-Five Thousand and No/100 Dollars ($25,000.00) (the
"Initial Deposit") will be deposited by Berkshire and CRLP, respectively,
with Land Title Company of Alabama, an agent of Chicago Title Insurance
Corporation ("Escrow Agent") upon full execution of this Agreement. This
Initial Deposit is paid as evidence of each party's good faith intention to
review those materials provided in Paragraph 11 and such other matters as
each party deems appropriate in order to determine if the Property appears
to be suitable for its portfolio. If both parties are satisfied with the
results of their inspection and investigation, then at the end of the Due
Diligence Period [as defined in Paragraph 4(a)], both parties will deposit
the additional sum of Two Hundred Fifty Thousand and No/100 Dollars
($250,000.00) (the "Additional Deposit"). Both the Initial Deposit and this
Additional Deposit are herein referred to as the "Xxxxxxx Money." In the
event either party fails to make the Additional Deposit prior to the
expiration of the Due Diligence Period, this Agreement shall automatically,
and without further action, terminate, all Xxxxxxx Money shall be returned
to the respective parties, and neither party shall have any further
obligation to the other. Upon making the Additional Deposit, the Xxxxxxx
Money shall be held by the Escrow Agent and applied as set forth in this
Agreement. The Xxxxxxx Money shall be deposited in an interest bearing
account with all interest earned for the benefit of the party making such
deposit.
4. DUE DILIGENCE PERIOD AND OWNER'S OBLIGATIONS UNTIL CLOSING:
(a) Each Party shall have until April 18, 1997 (the "Due Diligence
Period") within which to satisfy itself as to all matters concerning its
acquisition, ownership and operations of the respective Property, including,
without limitation, matters concerning title, survey, zoning, subdivision
laws, environmental matters, review and approval of leases, contracts and
financial matters affecting the Property, existence of all required
licenses, permits and approvals, approval of the condition of the
improvements on the Property, all soil, landscaping and other physical
conditions of the Property, availability and sufficient quantities of all
utilities, and other matters in its discretion. From the date this
Agreement is executed until the Closing, each party hereby grants to the
other and its agents full access to the Property and all of the records
related thereto in order to conduct such inspections and tests as such party
deems necessary in order to reach its decision by the end of the Due
Diligence Period. The inspecting party agrees to indemnify and hold the
Property owner harmless from all costs, damages, losses and expenses which
are caused by the inspecting party or its agents, employees or contractors.
(b) At the end of the Due Diligence Period discussed in Paragraph 4(a)
above, in the event both parties make the Additional Deposit, then the
Xxxxxxx Money will be at risk and, as the other party's sole remedy, will be
forfeited as liquidated damages in the event a party fails to close, except
due to a default by the other or the failure of any condition to one party's
obligations, as set forth herein.
(c) Both parties hereby agree that between the date of this Agreement
and Closing, each will (i) maintain the Property it currently owns in good
repair and operating condition, (ii) prepare for rental any vacant space
that now exists or becomes vacant prior to Closing, (iii) maintain all
personal property and equipment in good working order, and (iv) Berkshire
shall use its best efforts to obtain the Estoppel Certificates attached
hereto as Exhibit "G" from all tenants of the Berkshire Property and other
estoppel forms provided under easement agreements pertaining to the
Property. Both parties will continue to use its best efforts to lease the
Property at current market rates and on current market terms. Berkshire
will not enter into any lease for more than 1,000 square feet or for a term
greater than two years without CRLP's consent. CRLP will not enter into a
lease for less than six (6) months or on less than fair market terms without
Berkshire's consent.
5. SURVEY AND TITLE COMMITMENT: PERMITTED EXCEPTIONS.
(i) For Berkshire:
(a) Preliminary Title Report. Berkshire, at it's sole cost and expense,
shall cause Lawyer's Title Insurance Company, or an agent thereof, ("Title
Company") to issue and deliver to Berkshire, an A.L.T.A. Form B title
commitment ("Title Commitment") in the amount of Thirty-Four Million Four
Hundred Seventy-Two Thousand Two Hundred Twenty and No/100 Dollars
($34,472,220.00), accompanied by one copy of all documents affecting the
CRLP Property and which constitute exceptions to the Title Commitment.
Berkshire shall give CRLP written notice (the "Title Notice") on or before
the expiration of the Due Diligence Period, whether such title is or is not
acceptable to Berkshire. In the event that the condition of title is not
acceptable to Berkshire, Berkshire shall state in the Title Notice which
exceptions to the Title Commitment are unacceptable and CRLP shall use good
faith efforts to eliminate those exceptions as set forth below; provided,
however, that at Closing, CRLP shall be obligated to satisfy and remove all
mortgages and other monetary liens as to the CRLP Property. Upon receipt of
the Title Notice, CRLP shall use good faith efforts to eliminate or modify
all unacceptable matters to the reasonable satisfaction of Berkshire.
Berkshire may at any time waive in writing its objection to title and accept
title to the CRLP Property subject to the exceptions objected to by
Berkshire. In the event Berkshire does not waive its objections (as set
forth in the Title Notice) and if CRLP is unwilling or unable, upon exercise
of due diligence, to remove the matters within thirty (30) days after
receipt of the Title Notice, Berkshire may, at its option (I) accept title
subject to the objections raised by Berkshire, in which event said
objection(s) shall be deemed waived for all purposes, or (ii) rescind this
Agreement, whereupon this Agreement shall terminate and all Xxxxxxx Money
with interest shall be returned to both parties.
(b) Current Survey. Berkshire shall, at its sole cost and election,
obtain a current as-built survey of the CRLP Property prepared by a duly
licensed land surveyor (the "Survey"). In the event the Survey shows any
encroachments or any improvements upon, from, or onto the CRLP Property, or
on or between any building setback line, property line, or any easement, or
any other matter objectionable to Berkshire, said encroachment or objection
shall be treated in the same manner as a title defect under the procedure
set forth in Paragraph 5(a) above. Notice of any such Survey encroachment
or objection must be provided by Berkshire to CRLP on or before the
expiration of the Due Diligence Period.
(c) Permitted Exceptions. The CRLP Property shall be conveyed to
Berkshire subject to ad valorem taxes for the current year, and any
exceptions or encumbrances on the Title Commitment not objected to by
Berkshire pursuant to Paragraph 5(a) above on or before the expiration of
the Due Diligence Period or which Berkshire thereafter agrees to accept (the
"Berkshire Permitted Exceptions").
(ii) For CRLP:
(a)Preliminary Title Report CRLP, at it's sole cost and expense, shall
cause Chicago Title Insurance Company, or an agent thereof, ("Title
Company") to issue and deliver to CRLP, an A.L.T.A. Form B title commitment
("Title Commitment") in the amount of Thirty-Four Million Four Hundred
Seventy-Two Thousand Two Hundred Twenty and No/100 Dollars ($34,472,220.00),
accompanied by one copy of all documents affecting the Berkshire Property
and which constitute exceptions to the Title Commitment. CRLP shall give
Berkshire written notice (the "Title Notice") on or before the expiration of
the Due Diligence Period, whether such title is or is not acceptable to
CRLP. In the event that the condition of title is not acceptable to CRLP,
CRLP shall state in the Title Notice which exceptions to the Title
Commitment are unacceptable and Berkshire shall use good faith efforts to
eliminate those exceptions as set forth below; provided, however, that at
Closing, Berkshire shall be obligated to satisfy and remove all mortgages
and other monetary liens as to the Berkshire Property. Upon receipt of the
Title Notice, Berkshire shall use good faith efforts to eliminate or modify
all unacceptable matters to the reasonable satisfaction of CRLP. CRLP may
at any time waive in writing its objection to title and accept title to the
Berkshire Property subject to the exceptions objected to by CRLP. In the
event CRLP does not waive its objections (as set forth in the Title Notice)
and if Berkshire is unwilling or unable, upon exercise of due diligence, to
remove the matters within thirty (30) days after receipt of the Title
Notice, CRLP may, at its option (i) accept title subject to the objections
raised by CRLP, in which event said objection(s) shall be deemed waived for
all purposes, or (ii) rescind this Agreement, whereupon this Agreement shall
terminate and all Xxxxxxx Money with interest shall be returned to both
parties.
(b) Current Survey. CRLP shall, at its sole cost and election, obtain
a current as-built survey of the Berkshire Property prepared by a duly
licensed land surveyor (the "Survey"). In the event the Survey shows any
encroachments or any improvements upon, from, or onto the Berkshire
Property, or on or between any building setback line, property line, or any
easement, or any other matter objectionable to CRLP, said encroachment or
objection shall be treated in the same manner as a title defect under the
procedure set forth in Paragraph 5(a) above. Notice of any such Survey
encroachment or objection must be provided by CRLP to Berkshire on or before
the expiration of the Due Diligence Period.
(c) Permitted Exceptions. The Berkshire Property shall be conveyed to
CRLP subject to ad valorem taxes for the current year, and any exceptions or
encumbrances on the Title Commitment not objected to by CRLP pursuant to
Paragraph 5(a) above on or before the expiration of the Due Diligence Period
or which CRLP thereafter agrees to accept (the "CRLP Permitted Exceptions").
6. PROVISIONS WITH RESPECT TO CLOSING.
(a) Closing Date. The consummation of the transaction contemplated by
this Agreement ("Closing") shall take place at the offices of Xxxxxxx,
Xxxxxx & Xxxxx, P.C., 000 Xxxxx 00xx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx
00000, on or before May 18, 1997, provided both parties have made the
Additional Deposit.
(b)Obligations at Closing. At Closing, both parties shall do the following:
(I)Execute, acknowledge, and deliver to the other a Limited Warranty
Deed conveying the Property subject only to the Berkshire or CRLP Permitted
Exceptions, which deed shall be in form attached hereto as Exhibit "C" which
is incorporated herein by reference. The legal description of the Property
contained in such deed shall be identical to the legal description of the
Property as contained in the Survey and the Title Commitment.
(ii)Deliver to Title Company evidence satisfactory to it of such party's
authority to execute and deliver the documents necessary or advisable to
consummate the transaction contemplated hereby in the form of resolutions
or minutes of such party.
(iii)Execute and deliver to the other party and Title Company a Lien Waiver
Affidavit so as to cause Title Company to remove the mechanics' lien and
parties in possession standard exceptions from the Title Commitment.
(iv)Execute and deliver to the other party and Title Company a FIRPTA
certificate concerning resident alien or non-alien status for IRS
withholding purposes in the form attached hereto as Exhibit "D".
(v) Execute and deliver to the other party a Xxxx of Sale as to the Tangible
Personal Property in the form attached hereto as Exhibit "E".
(vi)Execute an Assignment of any guaranties or warranties, including a
termite bond, if any, with respect to the Property in the form attached as
Exhibit "H".
(vii)Execute an Assignment of Leases and Security Deposits in the form
attached as Exhibit "I".
(viii) Execute and deliver an Assignment of Intangibles in the form attached
hereto as Exhibit "J".
(ix)Execute and deliver an Assignment and Assumption of Contracts in the
form attached hereto as Exhibit "K".
(x)Execute and deliver a bring-down certificate confirming that all
representations and warranties remain true and correct at the Closing.
(xi)Deliver to the other party audited consolidated balance sheets of each
at December 31, 1995 and December 31, 1996 and the related consolidated
statements of income and expense for each of the fiscal years then ended,
together with the report thereon of each party's independent certified
public accountants. Each part shall also deliver such other financial
information as the other may reasonably request, including monthly income
and expenses statements.
xii)Execute such other documents, resolutions, or instruments as may
reasonably be required by the other party or the Title Company required by
this Agreement to effectuate the agreement memorialized herein.
(xiii)Execute such documentation as may be necessary to qualify this
transaction as a like-kind exchange pursuant to Section 1031 of the Internal
Revenue Code of 1996,as amended.
(xiv) Execute and deliver to the other party certified financial statements,
including income and expense statements for the prior calendar year as well
as up-to-date for the year of Closing in order for the other party to file
various forms required of it with the Securities and Exchange Commission.
(xv)Both parties agrees to provide to the other all financial statements and
other information necessary to permit each party and its independent
certified public accountants to prepare audited financial statements and
other financial information required by the rules and regulations of the
Securities and Exchange Commission, including but not limited to Rule 3.14
and Article XI of Regulation S-X, to be included in any report, registration
statement, or other document required to be filed with the Securities and
Exchange Commission by either party or its affiliates. Notwithstanding any
other provision of this Agreement, these obligations to provide such
information shall survive the Closing.
(c) Closing Costs. Closing costs shall be allocated as follows:
(i) Berkshire shall pay the following costs and expenses in connection with
the Closing:
(a) Berkshire's attorney's fees;
(b) The premium payable for the Title Commitment and Title Policy issued
pursuant thereto on the CRLP Property insuring Berkshire as well as all
other title costs on the CRLP Property;
(c) Recording tax, intangibles tax, documentary stamps and recording fees
on the deeds conveying the CRLP Property to Berkshire;
(d) All Survey costs on the CRLP Property; and
(e) All investigation, lease review, environmental, structural, or inspection
costs on the CRLP Property.
(ii) CRLP shall pay the following costs and expenses in connection with the
Closing:
(a) CRLP'S attorney's fees;
(b) The premium payable for the Title Commitment and Title Policy issued
pursuant thereto on the Berkshire Property insuring CRLP as well as all
other title costs on the Berkshire Property;
(c) Recording tax, intangibles tax, documentary stamps and recording fees on
the deed conveying the Berkshire Property to CRLP;
(d) All Survey costs on the Berkshire Property; and
(e) All investigation, lease review, environmental, structural, or inspection
costs on the Berkshire Property.
(e) Proration of Taxes. Taxes and all Property for the year of the Closing
shall be prorated to the date of Closing. If the Closing shall occur before
the tax rate is fixed for the then current year, the apportionment of taxes
shall be upon the basis of the tax rate of the preceding year applied to the
latest assessed valuation. Subsequent to the Closing, when the tax rate is
fixed for the year in which the Closing occurs, either party may adjust the
proration of taxes and, if necessary, to refund or pay, as the case may be,
on or before January 1 of the year following the Closing, an amount
necessary to effect such adjustments. These obligations survive Closing.
(f) Additional Prorations. All current rent and other income from the
Property and security deposits and all current assessments, utilities,
maintenance charges and similar expenses of the Property shall be prorated
between the parties as of the Closing Date and, to the extent of information
then available, such prorations shall be made at the Closing. For matters
which cannot be prorated at Closing, both parties shall create three (3)
accountings, (i) thirty (30) days, (ii) ninety (90) days, and (iii) at the
end of the calendar year 1997, to determine any shortfalls or over payments
due to the other. Any sums owed to the other shall be paid as determined at
each accounting period. These provisions survive Closing.
(g) If leases contain obligations ("Lease Obligations") on the part of
tenants for (i) CPI or similar adjustments, (ii) percentage rents, (iii)
additional rents for escalation payments for taxes, labor, operations, or
(iv) other additional rents, including Common Area Maintenance, and such
Lease Obligations have not been billed or collected by the transferee as of
the Closing, then as and when the Lease Obligations become due, the
transferee shall promptly xxxx tenants for the applicable Lease Obligations
and when all or any portion of such Lease Obligations have been collected by
either party from such tenants, subject to the provisions in the immediately
following paragraph hereunder, the receiving party shall remit to the other
party a fraction of such payments [after deduction of a pro rata share of
reasonable out-of-pocket collection charges, (including attorneys fees, if
any, incurred in such collection)], the denominator of which shall be the
number of days in the lease period for which such obligations are
attributable, and the numerator of which shall be (A) as to the transferor's
entitlement, the number of days in such lease period that have elapsed from
the commencement of such lease period through the Closing (the "Transferor
Pro-Rata Period"), and (B) as to transferee's entitlement, the number of
days in such lease period commencing with the day after the Closing and
ending on the last day of such lease period (the "Transferee Pro-Rata
Period"). In connection with the determination of any Lease Obligations,
transferor shall have the right to examine transferee's books and records
for the purpose and to the extent necessary to determine whether such Lease
Obligations have been properly computed and billed. To exercise this right
transferor must notify transferee thereof at least fifteen (15) days prior
thereto, and shall complete its investigation within thirty (30) days after
notifying transferee of the request for examination. Transferee will
cooperate with transferor in such examination by making the required books
and records available promptly in one location, either at the Property or as
otherwise mutually determined. The cost of such examination shall be the
sole responsibility of transferor.
If any of the Lease Obligations relate to amounts paid by
transferor prior to Closing which are properly recoverable over a period of
time extending beyond the lease period in which the Closing occurs,
transferor shall receive a credit at closing equal to the pro rata amount of
such payments made by transferor allocable to Transferee Pro-Rata Period and
when any such Lease Obligations are paid by the tenant to transferee, such
amounts when receive by transferee shall be equitable apportioned between
the parties, and the transferee shall pay to transferor Transferor's pro-
rata entitlement allocable to the Transferor Pro-Rata Period and transferee
shall retain transferee's pro-rata entitlement allocable to the Transferee
Pro-Rata Period.
7. REPRESENTATIONS AND WARRANTIES:
(a) Attached hereto and incorporated herein by reference designated
Exhibit "F- 1" is a list of matters concerning the legality and proper
operation of the CRLP Property which CRLP is making to Berkshire. Attached
hereto and incorporated herein by reference designated Exhibit "F-2" is a
list of matters concerning the legality and proper operation of the
Berkshire Property which Berkshire is making to CRLP.
(b) As-Is Condition. Except as expressly provided herein to the
contrary, both parties acknowledge and agree that they will be purchasing
the Property of the other based solely upon its inspection and
investigations of the Property and that each will be purchasing the Property
"AS-IS" and "WITH ALL FAULTS" based upon the condition of the Property as of
the date of this Agreement, subject to reasonable wear and tear from the
Effective date of this Agreement until the Closing. Without limiting the
foregoing, both parties acknowledge that, except as may otherwise be
specifically set forth elsewhere in this Agreement, neither the transferor
of any Property nor its consultants or agents have made any other
representations or warranties of any kind upon which the other is relying as
to any matters concerning the Property, including, but not limited to, the
condition of the land or any Improvements, the existence or nonexistence of
asbestos, toxic water or any hazardous material, the tenants of the Property
or the leases affecting the Property, economic projections or market studies
concerning the Property, any development rights, taxes, bonds, covenants,
conditions and restrictions affecting the Property, water or water rights,
topography, drainage, soil, subsoil of the Property, the utilities serving
the Property or any zoning, environmental or building laws, rules or
regulations affecting the Property. Neither party makes any representation
that the Property complies with title III of the Americans with Disabilities
Act or any fire code or building codes.
8. PROVISIONS WITH RESPECT TO DEFAULT.
(a) Default. In the event either party should fail to consummate the
transaction contemplated herein for any reason after expiration of the Due
Diligence Period, provided, however, that the Additional Deposit is made,
the non-defaulting party may, as its sole and exclusive remedy, terminate
this Agreement and retain the Xxxxxxx Money, with accrued interest, along
with a refund of the Xxxxxxx Money placed by the non-defaulting party, such
stun being agreed upon as liquidated damages for the failure of the other
party Purchaser to perform the duties and obligations imposed upon it by the
terms and provisions of this Agreement and because of the difficulty,
inconvenience, and uncertainty of ascertaining actual damages. No other
damages, rights or remedies shall in any case be collectible, enforceable or
available to either party other than as provided in this Paragraph 8(a).
(b) Attorney's Fees, etc. Should either party employ an attorney or
attorneys to enforce any, of the provisions hereof, or to protect its
interest in any matter arising under this Agreement, or to specifically
enforce or to recover the Xxxxxxx Money for the breach of this Agreement,
the party prevailing shall be entitled to recover from the other party all
reasonable costs, charges and expenses, including attorney's fees, expended
or incurred in connection therewith, including fees and expenses incurred in
arbitration, on appeal or in any bankruptcy action.
9. COMMISSIONS. Both parties acknowledge that no broker or agent is
involved in this transaction. CRLP and Berkshire agree to indemnify and
hold each other harmless from and against any and all claims or demands with
respect to any brokerage fees or agents' commissions or other compensation
asserted against the other party by any persons, firm or corporation
claiming through the indemnifying party in connection with this Agreement or
the transaction contemplated hereby. The provisions of this paragraph shall
survive closing.
10. EMINENT DOMAIN AND CASUALTY DAMAGE.
(a) Eminent Domain. If, before Closing, proceedings are commenced for
the taking by exercise of the power of eminent domain of all or a part of
the Property which would render the Property unacceptable to acquiring party
or unsuitable for CRLP's or Berkshire's intended use, the acquiring party
shall have the right, by giving notice to the either within thirty (30) days
after selling party gives written notice of the commencement of such
proceedings to the acquiring party, to terminate this Agreement, in which
event this Agreement shall terminate and all Xxxxxxx Money, including
interest thereon shall be refunded to both parties. If, before the Closing
Date, the acquiring party has the right to terminate this Agreement pursuant
to the preceding sentence but the acquiring party does not exercise such
right, then this Agreement shall remain in full force and effect and, at
Closing, the condemnation award (or, if not theretofore received, the right
to receive such award) payable on account of the taking shall be transferred
to the acquiring party. The selling party shall give written notice to the
acquiring party promptly after receiving notice of the commencement of any
proceedings for the taking by exercise of the power of eminent domain of all
or any part of the Property. The acquiring party shall have a period of
(30) days after the owner has given the notice to the acquiring party
required by this Paragraph 10(a) to evaluate the extent of the taking and
make the determination as to whether to terminate this Agreement. If
necessary, the Closing Date shall be postponed until the owner has given the
notice to the acquiring party required by this Paragraph 10(a) and the
period of (30) days described in this Paragraph 10(a) has expired.
(b) Casualty Damage. If, before the Closing Date, all or any part of
the Property are damaged or destroyed by any casualty, the acquiring party
shall have the right, by giving notice to the owner within thirty (30) days
after the owner gives written notice of the occurrence of such casualty to
the acquiring party, to terminate this Agreement, in which event this
Agreement shall terminate, and all Xxxxxxx Money, including interest thereon
shall be refunded to both parties. If, before the Closing Date, all or any
part of the Property are damaged by any casualty or if the acquiring party
has the right to terminate this Agreement pursuant to the preceding sentence
but the acquiring party does not exercise such right, then this Agreement
shall remain in full force and effect and, at Closing, any insurance
proceeds and insurance claims shall be assigned by the owner to the
acquiring entity and the acquiring party shall receive a credit equal to any
deductible amount under the insurance policy. The owner shall give written
notice to the acquiring party promptly after the occurrence of any damage to
the improvements on the Property by any casualty. The acquiring party shall
have a period of thirty (30) days after the owner has given the notice to
the acquiring required by this Paragraph 10(b) to evaluate the extent of the
damage and make the determination as to whether to terminate this Agreement.
If necessary, the Closing shall be postponed until the owner has given the
notice to the acquiring party required by this Paragraph 10(b) and the
period of thirty (30) days described in this Paragraph 10(b) has expired.
11. INFORMATION: Within five (5) days from the date this Agreement is
executed, both parties shall furnish such items as the other party shall
reasonably request but in any event including the following with respect to
each property being exchanged herein:
(a) Real estate tax bills for the current and two preceding
years;
(b) Owner's title insurance policy;
(c) Current survey;
(d) Environmental reports made or known to you with respect to
the Property;
(e) List of pending litigation and status report;
(f) Copies of covenants or restrictions pertaining to the
Property;
(g) Utility bills for the current year-,
(h) Copies of all contracts, if any, in effect such as
janitorial, maintenance, cable company, utility company,
management, leasing or other, as well as copies of any
guaranties or warranties, including a termite bond;
(i) Operating income and expenses for the current year;
(j) True and correct copies of all leases and any
amendments or modifications thereto and information
on all pending lease negotiations;
(k) Current rent roll and a gross sales report on each tenant;
(l) Copies of insurance policies and Loss Run regarding
insurance;
(m) Engineering/structural reports on the Property;
(n) As-built constructions plans and site plans and drawings,
certificates of occupancy and building permits; and
(o) List of all inventory, personal property, furniture,
fixtures and equipment located on or used in connection
with the Property.
Note: Any management or leasing obligations must be satisfied and released
prior to Closing.
12. CONDITIONS PRECEDENT. This transaction shall be null and void and
the Xxxxxxx Money and all interest thereon shall be refunded to both parties
unless the following conditions shall occur or be found to exist
satisfactory to CRLP prior to Closing:
Execution of the form estoppel letter attached hereto as Exhibit "G" which
is incorporated herein by reference by all tenants of the Berkshire Property
who occupy property in excess of 5,000 square feet, and seventy-five percent
(75%) of the balance of the tenants.
13. LIKE-KIND EXCHANGE. Both parties hereto desire this transaction be
structured as a like-kind exchange, under Section 1031 of the Internal
Revenue Code. In the event either party terminates this Contract pursuant
to a provision herein permitting such termination, funds shall be refunded
to the party making a deposit of the same, and this Contract shall
automatically terminate, provided no event of default has occurred
hereunder. In no event shall any cash be exchanged by any party except the
Cash Equivalent to Berkshire upon Closing.
14. OTHER CONTRACTUAL PROVISIONS.
(a) Notices. Any notice to be given or to be served upon any party
hereto in connection with this Agreement must be in writing, and may be
given by certified mail, or overnight receipt delivery service, and shall be
deemed to have been given and received when a certified letter containing
such notice, properly addressed, with postage prepaid, is deposited in the
United States mail; and, if given otherwise than by certified mail, it shall
be deemed to have been given when delivered to and received by the party to
whom it is addressed. Such notices shall be given to the parties hereto at
the following addresses:
FOR CRLP: Colonial Realty Limited Partnership
c/o Colonial Properties Holding Company, Inc.
0000 0xx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxxx X. XxXxxxx
FOR BERKSHIRE: Brookwood Village Joint Venture
c/o Berkshire Realty Company, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Mr. Xxxxx Xxxxx
Any party hereto may, at any time by given written notice to the other party
hereto, designate any other address in substitution of the foregoing address
to which such notice shall be given and other parties to whom copies of all
notices hereunder shall be sent.
(b) Confidence. Both parties agree not to disclose the existence of
thisAgreement, or discussions about or the terms hereof (except to its
attorneys, accountants, other advisors and partners, provided that they
agree not to disclose such information) without the other party's consent,
unless required by law or unless such information is otherwise publicly
available.
(c) Entire Agreement: Modifications. This Agreement embodies and
constitutes the entire understanding between the parties with respect to the
transaction contemplated herein. All prior or contemporaneous agreements,
understandings, representations, and statements, oral or written, are merged
into this Agreement. Neither this Agreement nor any provisions hereof may
be waived, modified, amended, discharged, or terminated except by an
instrument in writing signed by the party against whom the enforcement of
such waiver, modification, amendment, discharge or termination is sought,
and then only to the extent set forth in such instrument.
(d) Applicable Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Alabama.
(e) Binding. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their successors and assigns.
(f) Severability. In case any one or more of the provisions contained
in this Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision hereof, and this
Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
(g) Effective Date of Agreement. For all purposes herein, the "date" of
this Agreement shall be that date upon which the last of CRLP or Berkshire
executes this Agreement.
(h) Gender. Whenever the context permits, singular shall include plural
and one gender shall include all.
(I) Time of the Essence. Time is of the essence of this Agreement.
Time periods herein of less than six (6) days, unless otherwise noted, shall
in the computation exclude Saturdays, Sundays and state or national legal
holidays, and any time period provided for herein which shall end on
Saturday, Sunday or legal holiday shall extend to 5:00 p.m. of the next
business day.
(j) Risk of Loss. Except as otherwise set forth in this Agreement, the
owner of each Property shall bear the risk of any loss to the Property prior
to Closing.
(k) Construction. The parties hereby agree that each has played an
equal part in the negotiations and drafting of this Agreement, and in the
event any ambiguities should be realized in the construction or
interpretation of this Agreement, the result of those ambiguities shall be
equally assumed and realized by each of the parties to this Agreement.
(1) Counterparts. This Agreement may be executed in counterparts, each
of which shall be an original, but all of which shall constitute one and the
same Agreement.
(m) Survival. All provisions hereof which are executory in nature or
otherwise by their context are intended to survive Closing shall be deemed
to survive such Closing.
(n) Designation. At least five (5) days prior to Closing, Berkshire
shall deliver to CRLP a designation schedule pursuant to which Berkshire
shall designate how the CRLP Property and Cash Equivalent shall be allocated
between the two joint venture partners in Berkshire such that each of the
joint venture partners of Berkshire shall receive its fifty (50%) share of
the CRLP Property and Cash Equivalent, and CRLP shall deed and deliver the
CRLP Property and Cash Equivalent in accordance with the designation
schedule.
14. ACCEPTANCE: The offer made in this Agreement shall expire and be
null and void unless accepted, signed by both parties on or before March
, 1997. This offer supersedes any and all other offers made by either
party with respect to the Property.
CRLP:
COLONIAL REALTY LIMITED PARTNERSHIP,a Delaware limited partnership
By: Colonial Properties Holding Company, Inc., an Alabama corporation
Its: General Partner
By:
Xxxxxxx X. XxXxxxx
Its: Senior Vice President
Date:
BERKSHIRE:
BROOKWOOD VILLAGE JOINT VENTURE, a Massachusetts joint venture
By: Xxxxx Cash Plus - II, a Massachusetts limited partnership
Its: Co-Joint Venture Partner
By: The Xxxxx Corporation, a Massachusetts corporation
Its: General Partner
By: Xxxxxx X. Xxxxxxx
Its: Vice President
By: BRI Texas Apartments Limited Partnership, a Delaware limited
partnership
Its: Co-Joint Venture Partner
By: BRI Texas Apartments - II, Inc., an Alabama corporation
Its: General Partner
By: Xxxxx X. Xxxxx
Its: Vice President
FIRST AMENDMENT TO REAL ESTATE EXCHANGE CONTRACT
THIS FIRST AMENDMENT TO REAL ESTATE EXCHANGE CONTRACT ("First
Amendment") is made and entered into on this 4 day of April, 1997 between:
BERKSHIRE: BROOKWOOD VILLAGE JOINT VENTURE, a Massachusetts joint
venture, having as its Joint venture partners, XXXXX CASH
PLUS- II, a Massachusetts limited partnership and BRI
TEXAS APARTMENTS LIMITED PARTNERSHIP, a Delaware limited
partnership; and
CRLP:COLONIAL REALTY LIMITED PARTNERSHIP, a Delaware limited partnership .
RECITALS:
A. Berkshire and CRLP entered into that certain Real Estate Exchange
Contract (the "Real Estate Exchange Contract") dated March 6, 1997,
for the exchange of real property between Berkshire and CRLP.
B. Berkshire and CRLP desire to amend the Real Estate Exchange
Contract according to the terms of this First Amendment.
NOW, THEREFORE, for good and valuable consideration, the
parties agree as follows:
1 . AMENDMENTS.
(a) Paragraph 1 is hereby amended to provide that the CRLP Property is
hereby amended by deleting the legal descriptions for North Xxxxx Villas and
Polos at Ponte Vedra from the definition of CRLP Property.
(b) Paragraph 2(b) is deleted in its entirety and the following is
substituted therefore:
(b) For Berkshire Property: CRLP shall exchange the CRLP Property and
Twenty-Four Million One Hundred Ninety-One Thousand Four Hundred Fifty-Seven
and No/100 Dollars ($24,191,457.00) (the "Cash Equivalent") as full
consideration for the Berkshire Property. Berkshire acknowledges that the
Polos West portion of the CRLP Property shall be subject to a loan from The
Lincoln National Life Insurance Company which, as of May 1, 1997, will have
a principal balance of Five Million Seven Hundred Nineteen Thousand Two
Hundred Thirty-Seven and No/100 Dollars ($5,719,237.00). The Lincoln
National Life Insurance Company loan shall be assumed by Berkshire."
(c) Paragraph 2(d) is deleted in its entirety and the following is
substituted therefor:
(d) CRLP shall pay off, on or prior to closing, any outstanding mortgage
indebtedness on the CRLP Property, other than Polos West, which has, and
will have at closing, an outstanding mortgage with The Lincoln National Life
Insurance Company which is being assumed by Berkshire."
(d) Paragraph 3 is hereby amended to provide that the Additional Deposit
shall be placed with the Escrow Agent within two (2) days following the
complete execution of this First Amendment. Both parties acknowledge that
they have completed all inspections of the respective Property other than
those items specifically set forth in Paragraph 4(a) below. Both parties
may terminate this Contract and receive a refund of all Xxxxxxx Money and
interest thereon in the event either is not satisfied with or approves the
Inspection Items (as defined below).
(e) Paragraph 4(a) is hereby deleted in its entirety and the following
is substituted therefor:
"(a) Each party shall have until April 25, 1997 (the "Due Diligence Period")
within which to satisfy itself as to the following matters concerning its
acquisition regarding the purchase of the respective Property being
purchased hereunder:
(i) title and survey review of the Property;
(ii) approval of the environmental aspects of purchasing the Property;
and
(iii) approval of zoning and compliance with laws; and
(iv) review and approval of the leases on the Property. (All of the
above shall be called "Inspection Items.")
From the date this Agreement is executed until the Closing, each party
hereby grants to the other and its agents full access to the Property and
all of the records related thereto in order to conduct such inspections and
tests as such party deems necessary in order to reach its decision by the
end of the Due Diligence Period. The inspecting party agrees to indemnify
and hold the property owner harmless from all costs, damages, losses and
expenses which are caused by the inspecting party or its agents, employees
or contractors."
(f) Paragraph 4 is hereby amended by adding the following as Subparagraph
(d):
"(d) CRLP shall use its best efforts to obtain an estoppel letter dated
within thirty (30) days of the Closing (the "Lender Estoppel Letter")from
Lincoln National consenting to the conveyance of the Polos West portion of
the CRLP Property to Berkshire, as contemplated herein, subject to the
Lincoln National Note and other Loan Documents, subject to any exculpation
from liability provisions therein, and setting forth with respect thereto:
(i) the Note and other Loan Documents are in full force and effect; (ii) to
the lender's knowledge, no default exists, nor is lender aware of any state
of facts which the passage of time or the giving of notice would give rise
to a default, under any of the Loan Documents; (iii) the amount of the
outstanding unpaid principal balance of the Note, the interest rate and
amount of the monthly payments due thereunder, the maturity date thereof and
the date to which interest and principal have been paid on the Note; and
(iv) the amount of any real estate tax escrow, insurance escrow and other
escrows or reserves held by lender.
CRLP shall (a) make all payments of interest and principal and, if
applicable, tax escrow, insurance escrow and other amounts required under
the Lincoln National Note and other Loan Documents coming due thereunder
prior to the Closing, in accordance with the terms thereof, (b) otherwise
comply with all of the terms and provisions of the Loan Documents up to the
Closing, and (c) not alter or amend the Loan Documents, or seek or accept
any waivers or extensions of time for payment or performance thereunder."
(g) Paragraph 6(a) is hereby amended by deleting "May 18, 1997" and
inserting in lieu thereof: "May 12, 1997."
(h) Paragraph 6(c)(ii) is hereby amended by adding the following as an
additional subparagraph (f):
"(f) The assumption fee for the transfer of the Lincoln National loan
West."
(i) Paragraph 11 is hereby amended by adding the following:
"LOAN DOCUMENTS. Prior to the date of this First Amendment, CRLP has
delivered to Berkshire true, correct and complete copies of all notes,
instruments, agreements, mortgages, deeds of trust and other documents in
connection with the Lincoln National Loan, together with any and all
modifications and amendments thereto (collectively, the "Loan Documents").
Any other documents in CRLP's files related to the Lincoln National Loan are
available for Berkshire's review,
Berkshire and CRLP shall use best efforts to obtain the consent of Lincoln
National to the conveyance of Polos West to Berkshire subject to the Note
and the other Loan Documents and to obtain the Lender Estoppel Letter.
CRLP, with Berkshire's cooperation, shall immediately commence to obtain the
consent of Lincoln National necessary to permit the conveyance of Polos West
to Berkshire subject to the Note and other Loan Documents. Berkshire shall
supply any and all documentation and additional information required by
Lincoln National in order to promptly complete the request for the consent
of Lincoln National to the transactions contemplated hereunder. CRLP shall
request that Lincoln National state in writing any terms and requirements,
including the amount of any loan assumption fees, to be imposed by Lincoln
National in connection with its consent to the transactions contemplated
hereby. CRLP agrees that CRLP shall be obligated to pay the Loan Assumption
Fees, if any, required by Lincoln National. It shall be a condition of
Closing that prior to the Closing, Lincoln National shall have granted its
consent to the transactions contemplated hereunder on terms and requirements
satisfactory to Berkshire and shall have issued the Lender Estoppel Letter.
In the event that any of the terms or requirements required by Lincoln
National for its consent are not approved by Berkshire, in its sole
discretion, Berkshire may terminate this Agreement by written notice given
to CRLP within seven (7) days after Berkshire has received in writing the
terms and requirements of Lincoln National for its consent. In the event
either (a) the consent of Lincoln National is not obtained prior to the
Closing or (b) Berkshire does not approve the terms and conditions of
Lincoln National and gives timely notice of termination hereunder to CRLP,
this Agreement shall terminate without further action by any party, at which
time, the Deposit shall be promptly returned to Berkshire, and, thereafter
this Agreement shall be void and without recourse to all parties, except for
provisions which are expressly stated to survive termination of this
Agreement. Notwithstanding the foregoing to the contrary, if Berkshire
elects to terminate this Agreement as provided hereunder, CRLP, at its
election, may elect to pay in full, on or before Closing, with any in
penalties, the Lincoln National Loan and convey the Polos West property to
Berkshire free and clear of the Lincoln National Loan Documents, in which
event (i) the termination of this Agreement by Berkshire under this Section
12 shall be void and (ii) the Cash Equivalent payable by CRLP shall be
reduced by an amount equal to the outstanding principal balance of the
Lincoln National Note (but excluding any accrued interest or prepayment
penalties)."
(j) Exhibit F-1 is hereby amended by adding the following:
"20. True and complete copies of the Loan Documents, including
each modification and amendment thereof, have been furnished
heretofore to Berkshire. As of the date of this Agreement, there
are no notes, instruments, agreements, mortgages, deeds of trust or
other documents evidencing any agreement or obligation of CRLP to
Lincoln National or any other lender for which Berkshire shall be
responsible with respect to the Polos West portion of the CRLP
Property other than the Loan Documents delivered to Berkshire by
CRLP. The Loan Documents are in full force and effect and none of
the Loan Documents have been modified, amended or extended except
as shown thereon. All payments of principal, interest, and, if
applicable, real estate tax escrow, insurance escrow and any other
payments required under the Loan Documents which are due and
payable, through the Closing, have been, and will be, paid in full.
No default exists and CRLP has not received any written notice of
default under any of the Loan Documents. To CRLP's knowledge,
Lincoln National is the sole holder of the Note. The outstanding
principal balance of the Loan as May 1, 1997 shall be Five Million
Seven Hundred Nineteen Thousand Two Hundred Thirty-Seven and No/100
Dollars ($5,719,237.00). The only security taken or held in
connection with the Note are the Loan Documents. The Loan
Documents secure no other indebtedness but the Lincoln National
Loan."
2. FULL FORCE AND EFFECT. Except as amended hereby, the Real Estate
Exchange Contract shall remain in full force and effect in accordance with
its terms.
CRLP:
COLONIAL REALTY LIMITED PARTNERSHIP,a Delaware limited partnership
By: Colonial Properties Holding Company, Inc.,
an Alabama corporation
Its: General Partner
By:
Xxxxxxx X. XxXxxxx
Its:Senior Vice President
BERKSHIRE:
BROOKWOOD VILLAGE JOINT VENTURE, a
Massachusetts joint venture
By: Xxxxx Cash Plus - II, a Massachusetts limited partnership
Its: Co-Joint Venture Partner
By: The Xxxxx Corporation, a Massachusetts corporation
Its: General Partner
By:
Xxxxxxxx Xxxxxx
Its: President
By: BRI Texas Apartments Limited Partnership, a Delaware limited
partnership
Its: Co-Joint Venture Partner
By: BRI Texas Apartments - II, Inc., an Alabama corporation
Its: General Partner
By: Xxxxx X. Xxxxx
Its: Vice President
SECOND AMENDMENT TO REAL ESTATE EXCHANGE CONTRACT
THIS SECOND AMENDMENT TO REAL ESTATE EXCHANGE CONTRACT ("Second Amendment")
is made and entered into on this 25th day of April, 1997 between:
BERKSHIRE: BROOKWOOD VILLAGE JOINT VENTURE, a Massachusetts joint
venture, having as its joint venture partners, XXXXX CASH PLUS - II, a
Massachusetts limited partnership and BRI TEXAS APARTMENTS LIMITED
PARTNERSHIP, a Delaware limited partnership; and
CRLP: COLONIAL REALTY LIMITED PARTNERSHIP, a Delaware limited partnership.
RECITALS
A. Berkshire and CRLP entered into that certain Real Estate Exchange
Contract (the "Real Estate Exchange Contract") dated March 6, 1997,
for the exchange of real property between Berkshire and CRLP.
B. On April 4, 1997, Berkshire and CRLP executed that certain First
Amendment to Real Estate Exchange Contract (the "First Amendment").
C. Berkshire and CRLP desire to amend the Real Estate Exchange
Contract and the First Amendment according to the terms of this
Second Amendment.
NOW, THEREFORE, for good and valuable consideration, the parties agree as
follows:
1. AMENDMENTS:
(a) Paragraph 4(a) is hereby amended by deleting "April 25, 1997" and
inserting "April 28, 1997" therefor.
2. FULL FORCE AND EFFECT. Except as amended hereby, the Real Estate
Exchange Contract, as amended by the First Amendment, shall remain in full
force and effect in accordance with its terms.
CRLP:
COLONIAL REALTY LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Colonial Properties Holding Company, Inc.,
an Alabama corporation
Its: General Partner
By: Xxxxxxx X. XxXxxxx
Its:Senior Vice President
BERKSHIRE:
BROOKWOOD VILLAGE JOINT VENTURE, a
Massachusetts joint venture
By: Xxxxx Cash Plus - II, a Massachusetts limited partnership
Its: Co-Joint Venture Partner
By: The Xxxxx Corporation, a Massachusetts corporation
Its: General Partner
By: Xxxxxxxx Xxxxxx
Its: President
By: BRI Texas Apartments Limited Partnership, a Delaware limited
partnership
Its: Co-Joint Venture Partner
By: BRI Texas Apartments - II, Inc., an Alabama corporation
Its: General Partner
By: Xxxxx X. Xxxxx
Its: Vice President
XXXXXXX, XXXXXX & XXXXX, P.C.
000 Xxxxx 00xx Xxxxxx, Xxxxx 000
Land Title Building
Xxxxxxxxxx, Xxxxxxx 00000
CLOSING STATEMENT
CRLP: COLONIAL REALTY LIMITED PARTNERSHIP
a Delaware limited partnership
Tax Identification Number: 00-0000000
BVJV: BROOKWOOD VILLAGE JOINT VENTURE
Tax Identification Number: 00-0000000
CRLP PROPERTY: POLOS WEST APARTMENTS/SUNCHASE APARTMENTS
("APT")
BERKSHIRE BROOKWOOD MALL/BROOKWOOD VILLAGE
PROPERTY: CONVENIENCE CENTER ("MALL")
See Exhibit "A" for legal descriptions
DATE: Effective May 12, 1997
CRLP's Statement.
Exchange Price: $34,472,220.00
Less:
,(a) Exchange of Polos West (See Note 3) $ 9,800,000.00
(b) Exchange of Sunchase (See Note 4) $ 6,200,000.00
Balance $18,472,220.00
Less: Credits to CRLP:
1. Property Tax Proration (Mall)
10/l/96 - 05/12/97
Est. Annual Tax 1997 =
$373,558.30 (approximately
$1,023.45 per day - 224 days) $229,252.22
0.Xxxx Proration = Total Rent for
May X 19/31 on Mall
(See Note 5) $265,501.84
3.Mozzarela Lease Credit
(See Note 6) $275,000.00
4.Merchant's Association Dues
Owed by Berkshire (See Note 7) $ 9,205.73
0.Xxx Escrow Balance - Lincoln National
Loan (See Note 8) $ 88,985.40
0.Xxxxxxxx Deposits - Mall (See
Note 9) $ 23,063.20
7.Water Deposit - Polos West $ 100.00
8.Water Income - Sunchase $ 3,219.12
9.Eckerd's Adjustrnent
(See Note 10 ) $ 70,732.50
10.Tenant Build-Out on Mall $ 38,000.00
11.May Service Contracts - Mall $ 1,793.80
Total Credits to CRLP $ 1,004,853.81
Balance: $ 17,467,366.19
Plus: Credits to Berkshire
1. Tax Credit (Income) for
Tenants on Mall (See Note 13) $ 65,585.15
2. Common Area Maintenance -
Income on Mall (See Note 14) $ 5,357.70
3. Interest Prorated for May on
Lincoln National Loan (See
Note 15) $ 9,468.48
4.Principal Balance - Lincoln
National Loan (See Note 16) $ 5,719,236.79
0.Xxxxxxxx Tax Proration (Sunchase)
1/1/97 - 5/12/97 Est. Annual
Tax 1997 = $114,355.28
(approximately $313.30 per
day - 132 days) $ 41,355.88
0.Xxxxxxxx Tax Proration (Polos
West) 1/1/97 - 5/12/97 Est.
Annual Tax = $155,107.93
(Approximately $424.95
per day - 132 days) $ 56,093.83
0.Xxxx Proration - Sunchase =
Total Rent for May X 19/31
(See Note 17) $ 58,379.28
0.Xxxx Proration - Polos West =
Total Rent for May X 19/31
(See Note 18) $ 73,615.49
0.Xxxxxxxx Deposits - Sunchase $ 37,337.00
00.Xxxxxxxx Deposits - Polos West $ 60,650.00
11.Prepaid Rent - Sunchase $ 2,170.60
12.Prepaid Rent - Polos West $ 3,083.42
13.Service Contracts - Sunchase
(See Note 19) $ 1,057.94
14.Service Contacts - Polos West
(See Note 20) $ 2,788.73
15.Utility Expense Credit - Sunchase
(See Note 21) $ 3,935.52
16.Utility Expensc Credit - Polos
West (See Note 22) $ 992.88
17.Lender Survey Satisfaction - Polos
West (See Note 23) $ 2,250.00
18.Percentage Rent Credit - Mall
(See Note 24) $ 346,951.00
19.Water Expense Credit - Mall
(See Note 25) $ 5,686.81
Total Credits to BVJV: $ 6,495,996.50
Balance: $23,963,362.69
Add: Expenses to CRLP:
1. Recording Fees and Taxes - Deed
to CRLP: $ 34,523.00
2. Loan Transfer Fee - Lincoln
National $ 143,980.93
3. Attorney's Fees - Lincoln
National Attomey - Akerman,
Senterfitt (See Note 26) P.O.C.
4. Title Insurance (Land Title
Company of Alabama) $ 34,473.00
5. Recording Fees and Document
Stamps - Loan Assumption
Documents (See Note 27) $ 20,020.00
6. Miscellaneous Recording Fees
(Quitclaim) $ 500.00
Total Expenses to CRLP: $ 233,496.93
Amount Payable in cash by CRLP
on Closing $ 24,196,859.62
B. BVJV's Statement. Exchange Price $34,472,220.00
Less: Property Exchange: $16,000,000.00
Balance: $18,472,220.00
Less: Credits to
CRLP (see above) $ 1,004,853.81
Balance: $17,467,366.19
Plus: Credits to BVJV
(see above) $ 6,495,996.50
Balance $23,963,362.69
Less: Expenses of
BVJV:
1. Title Insurance Fees and
Charges - Lawyers Title $ 56,923.00
2. Recording Fees and Documentary
Stamps - Deeds to BVJV or
designee $ 112,000.00
3. Miscellaneous Recording Fees $ 500.00
4. Xxxx & Xxxx (Legal Fees) $ 55,000.00
5. Lincoln National Escrow Hold
Back $ 218,750.00
Total Expenses of BVJV $ 443,173.00
Net Amount Payable To BVJV
on Closing (See Note 28) $ 23,520,189.69
C. Disbursements.
Net Amount Payable in cash by
CRLP $24,196,859.62
Less Net Amount Payable to BVJV $23,520,189.69
Total Disbursements $ 676,669.93
D. Disbursements Paid at Closing.
1. Office of Judge of Probate
of Jefferson County, Alabama
(recording fees - Deed to CRLP,
Quitclaim Deeds) $ 35,023.00
2. Clerk of Court of Orange County,
Florida (Polos West Deed) and
Loan Assumption Documents $ 88,870.00
3. CIerk of Court of Manatee County,
Florida (Sunchase Deed) $ 43,650.00
4. Title Policy - Land Title Company
of Alabama $ 34,473.00
5. Title Policies and Charges -
Lawyers Title Insurance Company $ 56,923.00
6. Lincoln National Life Insurance
Company (Transfer Fee) $ 143,980.93
7. Xxxx & Xxxx $ 55,000.00
8. Lincoln National Escrow Hold Back $ 218,750.00
Total $ 676,669.93
APPROVED AND ACCEPTED this 7 day of May, 1997.
CRLP:
COLONIAL REALTY LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Colonial Properties Holding Company, Inc.,
an Alabama corporation
Its: General Partner
By: Xxxxxxx X. XxXxxxx
Its: Senior Vice President
BVJV:
BROOKWOOD VILLAGE JOINT VENTURE, a Massachusetts joint
venture
By: Xxxxx Cash Plus - II, a Massachusetts limited partnership
Its: Co-Joint Venture Partner
By: The Xxxxx Corporation, a
Massachusetts corporation
Its: General Partner
By: Xxxxxxx X. Xxxxxxx
Its: Duly Authorized Agent
By: BRI Texas Apartments Limited Partnership, a Delaware limited
partnership
Its: Co-Joint Venture Partner
By: BRI Texas Apartments - II, Inc., an Alabama
corporation
Its: General Partner
By: Xxxxx X. Xxxxx
Its: Vice President
Notes:
1. All Xxxxxxx Money and interest thereon shall be returned to
CRLP and BVJV by Land
Title Company of Alabama.
2. CRLP hereby agrees that within twenty (20) days following the
Closing, that it shall determine the amount of non-refundable pet
deposits for current tenants existing as of the date of Closing,
Any such pet deposit shall be forwarded by check from CRLP to BRI
OP Limited Partnership with a reconciliation statement showing any
such amounts of pet deposits.
3. This value represents the agreed-upon exchange value
attributable to Polos West Apartments.
4. This value represents the agreed-upon exchange value for
Sunchase Apartments.
Attached hereto and incorporated herein by reference are certain exhibits.
For purposes of this Closing Statement, certain income and expense items are
marked with a *. References to these *'s shall be referenced for the
majority of these Notes.
5. The item marked as *1 represents the total tenant charges for
the month of May for the Mall. CRLP has received a credit in an
amount equal to 19/31 X this total charge of $433,187.22. Any receipt for
May income received by CRLP from and after the closing shall be
forwarded to BVJV immediately upon receipt.
6. This item represents an agreed-upon credit CRLP is receiving
in exchange for the cost for tenant improvements for the Mozzarela space
which was not completed as of the Closing as previously agreed between BVJV
and CRLP.
7. The item marked as *2 shows a credit being given by BVJV to CRLP
for its pro rata share of Merchants Association dues.
8. This sum represents the current escrow balance being held by
Lincoln National Life Insurance Company being held by Lincoln National as
tax escrow for the calendar year 1997. This sum is being transferred and
assumed by BRI OP Limited Partnership, as successor to BVJV.
9. The items attached hereto and marked as *3 represent the security
deposits being transferred from BVJV to CRLP. CRLP has received a credit in
the amount of the outstanding security deposits as shown by the *3 reports.
CRLP is entitled to all security deposits for the Mall.
10. The item marked as *4 represents the credit being given to CRLP for
overpayments by Eckerd, a tenant of the Convenience Center, of
percentage rent. The breakdown of this overpayment is shown on the
attached letter.
11. The item marked as *5 shows the current outstanding tenant
improvements allowances owed for various tenants. Seller has received
a credit from these amounts which BVJV has certified are the only sums owed
for tenant improvement costs which are outstanding as of the date of
closing. This item is marked as Item No. 10 under the total credits to
CRLP.
12. The item marked as *6 and shown as Item No. 11 under the credits
to CRLP, represents the total credits being given to CRLP for costs and
expenses in connection with service contracts for the Mall. Any adjustments
to these sums based upon invoices shall be handled after Closing.
13. Attached hereto as *7 are the various income receipts paid and
expected to be paid by the tenants of the Mall for real property
taxes for the calendar year 1997. These sums have been prorated
and CRLP has agreed to give a credit to BVJV in an amount equal to
the expected income receipts from tenants, whether paid or to be
paid for the calendar year 1997 based upon the period of ownership
from October 1, 1996 through May 12, 1997. The actual sums
attributableto each of BVJV and CRLP shall be readjusted after
Closing when actual numbers are determined.
14. Attached hereto as *8 are the total collected and expected receipts
from common area maintenance receipts for the Mall fbr the calendar
year 1997. CRLP has agreed to give a credit to BVJV in an amount
equal to the collected and expected pro rata receipts fro m common
area maintenance for the calendar year 1997 based upon the items
shown on *8. The actual sums attributable to each of BVJV and CRLP
shall be readjusted after Closing when actual number are
determined.
15. Attached hereto as *9 is an interest calculation showing the
amount of interest owed by CRLP for the principal and interest
payment which will be paid by BVJV on the Lincoln National loan
effective June 5, 1997.
16. This item represents the outstanding principal balance of the
loan cffective May 5, 1997,after the May 5, 1997 payment has been
made,
17. Attached hereto as *10 is the total charged revenue to tenants
for May, 1997. BVJV is receiving a credit in an amount equal to 19/31 X the
total charge. Any receipts for May charges shall be forwarded to CRLP upon
receipt by BVJV or its successor.
18. Attached hereto as *11 is the total charged revenue to tenants for
May, 1997. BVJV is receiving a credit in an amount equal to 19/31
X the total charge. Any receipts for May charges shall be
forwarded to CRLP upon receipt by BVJV or its successor.
19. Attached hereto as *12 are the service contract amounts for
Sunchase Apartments. These amounts have been prorated based upon
monthly or annualized invoices. Any adjustments to these amounts
based upon invoices shall be handled after Closing.
20. Attached hereto as *13 are the service contract amounts for Polos
West Apartinents. These amounts have been prorated based upon
monthly or annualized invoices. Any adjustments to these amounts
based upon invoices shall be handled after Closing.
21. Attached hereto as *14 are the estimated utilities for the
billing period which includes the date of closing on the Sunchase
Apartments. CRLP and BVJV shall reconcile any discrepancy between
the amount shown hereon as a credit to BVJV and the actual invoice
when it is received.
22. Attached hereto as *15 are the estimated utilities for the billing
period which includes the date of closing on the Polos West
Apartments. CRLP and BVJV shall reconcile any discrepancy
between the amount shown hereon as a credit to BVJV and the
actual invoice when it is received.
23. This payment is for a report by Law Engineering with respect to the
siding which was ordered by Lincoln National Life Insurance Company in
connection with the loan assumption. CRLP has agreed to pay for the cost of
this and has given a credit to BVJV so that when the invoice is received,
BVJV shall be responsible for the payment thereof.
24. Attached hereto as *16 is a Proration Statement showing the
proration of percentage rent based upon sales and expected
sales of those tenants shown on the sheet represented by * 16.
CRLP has given a credit to BVJV for expected percentage rents to
be made by the tenants shown thereon. CRLP and BVJV hereby
agree that upon the payment in full by the tenants shown on
the proration schedule marked as *00, XXXX and CRLP shall
reconcile any discrepancy between the credit given to BVJV
hereon and the sum for which BVJV should actually been entitled.
25. This sum, marked as *17 on the attached schedules represents water
bills which have been forwarded for reimbursements to tenants.
Since CRLP is expecting reimbursement from the tenants of the Mall
on or after closing, BVJV has received a credit for this sum
hereunder. This water xxxx represents invoices for water for the
month of April, 1997. Any shortfall shall be reconciled after
Closing.
26. This sum is to be paid by CRLP and represents the attorney's
fees for Lincoln National Life Insurance Company in connection with
the loan assumption. CRLP shall wire transfer to Lawyers title
Insurance Company, Boston,Massachusetts, the sums necessary to pay
these fees.
27. These sums represent the documentary stamps at $3.50 per $1,000
which are payable upon the recordation of the Loan Assumption
Agreement with Lincoln National Life Insurance Company. CRLP has
agreed to pay these costs. In the event these charges are not
collectible or due in connection with the recording of the Loan
Assumption Agreement, such sums shall be refunded to CRLP.
28. Attached hereto as *18 is a Disbursement Schedule showing the
various disbursements based upon the sums set forth in this Closing
Statement. The total sums being paid by CRLP, in cash, are being
represented by a portion being forwarded in connection with a previous like-
kind exchange, and the balance being paid in cash as shown on the attached
Disbursement Schedule.
