AGREEMENT OF SALE
THIS AGREEMENT, entered into as of the 15 day of December, 1995, by and
between UNITED DOMINION REALTY TRUST, INC., a Virginia corporation
("Purchaser") and BROOKSEA ASSOCIATES, an Illinois Limited Partnership
("Seller").
WITNESSETH:
1. PURCHASE AND SALE. Purchaser agrees to purchase and Seller agrees to sell
at the price of Six Million Two Hundred Fifty Thousand and No/100 Dollars
($6,250,000.00) ("Purchase Price"), that certain property ("Property") in
Winter Park, Florida, more particularly described on Exhibit A attached hereto,
which Property is known as Seabrook Apartments. Included in the Purchase Price
is all of the personal property set forth on Exhibit B, which shall be
transferred to Purchaser at Closing (as hereinafter defined) by a Xxxx of Sale.
2. PURCHASE PRICE. The Purchase Price shall be paid as follows:
a. Within one (1) business day after Purchaser receives a fully executed
Agreement, the sum of $100,000.00 ("Xxxxxxx Money") to be held in escrow by the
Escrow Agent (as that term is defined in the Escrow Agreement), by and in
accordance with the provisions of the Escrow Agreement ("Escrow Agreement")
attached hereto as Exhibit C;
b. On the Closing Date (as hereinafter defined), $6,250,000.00
(inclusive of all Xxxxxxx Money) adjusted in accordance with the prorations by
federally wired "immediately available" funds delivered to the Title Insurer
(as hereinafter defined) no later than 12:00 Noon on the Closing Date. If the
funds are not received by 12:00 Noon, then, on the Closing Date, Purchaser
shall pay Seller an amount equal to any additional mortgage per diem interest
costs incurred by the Seller.
3. TITLE COMMITMENT AND SURVEY.
a. Attached hereto as Exhibit C is a title commitment with an effective
date of September 6, 1995 ("Title Commitment") for an owner's standard coverage
title insurance policy ("Title Policy") issued by Chicago Title Insurance
Company ("Title Insurer"). The owner's Title Policy issued at Closing will be
in the amount of the Purchase Price subject only to real estate taxes not yet
due and payable, the general printed exceptions contained in the policy and the
special title exceptions set forth in Schedule B approved by Purchaser in
writing prior to the expiration of the Approval Period. All of the above are
herein referred to as the "Permitted Exceptions". The Title Commitment shall
be conclusive evidence of good title as therein shown as to all matters insured
by the policy, subject only to the exceptions therein stated. On the Closing
Date, Seller shall cause the Title Insurer to issue the Title Policy or a
"marked up" commitment in conformity with the Title Commitment and the
Permitted Exceptions. Seller and Purchaser shall equally share the costs of
the Title Policy; however, Purchaser shall pay the costs of "extended coverage"
or any special endorsements which Purchaser requires.
b. Purchaser acknowledges receipt of a survey ("Survey") of the Property
prepared by Sears Surveying Company dated July 7, 1995, and Purchaser will
approve or disapprove the Survey and advise Seller of any objections prior to
the expiration of the Approval Period. If Purchaser requires any additional
survey work, Purchaser shall pay for the cost of such additional work.
4. CONDITION OF TITLE/CONVEYANCE. Seller agrees to convey fee simple title
to the Property by Special Warranty Deed ("Deed") in recordable form subject
only to the Permitted Exceptions. If Seller is unable to convey title to the
Property subject only to the Permitted Exceptions because of the existence of
an additional title exception ("Unpermitted Exception"), then Purchaser can
elect to take title to the Property subject to the Unpermitted Exception or
terminate this Agreement. If Purchaser elects to terminate this Agreement,
then the Xxxxxxx Money plus all accrued interest shall be delivered to the
Purchaser. Notwithstanding the aforesaid, Seller shall remove all liens of a
definite ascertainable amount, and Seller shall not create any new encumbrances
against the Property.
5. PAYMENT OF CLOSING COSTS. Seller and Purchaser shall equally share the
costs of the documentary stamps to be paid with reference to the Deed and all
other stamps, intangible, documentary, recording, sales tax and surtax imposed
by law with reference to any other documents delivered in connection with this
Agreement.
6. DAMAGE, CASUALTY AND CONDEMNATION.
a. If the Property suffers damage as a result of any casualty prior to
the Closing Date and can be repaired or restored in the case of real property
for $100,000 or less, or in the case of Personal Property, for $10,000 or less,
then Purchaser shall accept the Property in its damaged condition together with
an assignment from Seller of all insurance proceeds and receive a credit at
Closing in the amount of the deductible. If the cost of repair or restoration
exceeds those amounts, then Purchaser can elect to either: (a) accept the
Property in its damaged condition together with an assignment from Seller of
all insurance proceeds and receive a credit at Closing in the amount of the
deductible; or (b) terminate this Agreement upon notice to Seller served within
twenty (20) business days of receipt of notice of such casualty.
b. If between the date of this Agreement and the Closing Date, any
condemnation or eminent domain proceedings are initiated which might result in
the taking of any part of the Property or the taking or closing of any right of
access to the Property, Seller shall immediately notify Purchaser of such
occurrence. In the event that the taking of any part of the Property shall:
(i) impair access to the Property; (ii) cause any non-compliance with any
applicable law, ordinance, rule or regulation of any federal, state or local
authority or governmental agencies having jurisdiction over the Property or any
portion thereof; or (iii) adversely impair the use of the Property as it is
currently being operated (hereinafter collectively referred to as a "Material
Event"), Purchaser may:
i. terminate this Agreement by written notice to Seller, in which event
the Xxxxxxx Money deposited by Purchaser, together with interest thereon,
shall be returned to Purchaser and all rights and obligations of the
parties hereunder with respect to the closing of this transaction will
cease, except for Purchaser's obligations to indemnify Seller and restore
the Property, as set forth more fully in Paragraph ; or
ii. proceed with the Closing, in which event Seller shall assign to
Purchaser all of Seller's right, title and interest in and to any award
made in connection with such condemnation or eminent domain proceedings.
Purchaser shall notify Seller within five (5) business days after Purchaser's
receipt of Seller's notice whether Purchaser elects to exercise its rights
under subparagraph (i) or subparagraph (ii) of this Paragraph b. The Closing
shall be delayed, if necessary, until Purchaser makes such election. If
Purchaser fails to make an election within such five (5) business day period,
Purchaser shall be deemed to have elected to terminate this Agreement.
If between the date of this Agreement and the Closing Date, any condemnation or
eminent domain proceedings are initiated which do not constitute a Material
Event, Purchaser shall be required to proceed with the Closing, in which event
Seller shall assign to Purchaser all of Seller's right, title and interest in
and to any award made in connection with such condemnation or eminent domain
proceedings.
c. If the Agreement is terminated pursuant to this Paragraph, then the
Xxxxxxx Money plus all accrued interest shall be delivered to the Purchaser.
7. AS-IS CONDITION.
a. Purchaser acknowledges and agrees that it will be purchasing the
Property based solely upon its inspection and investigations of the Property
and that Purchaser 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 and loss by fire or other
casualty or condemnation from the date of this Agreement until the Closing
Date. Without limiting the foregoing, Purchaser acknowledges that, except as
may otherwise be specifically set forth elsewhere in this Agreement, neither
Seller nor its consultants, brokers or agents have made any other
representations or warranties of any kind upon which Purchaser 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, lead in water, lead in paint, radon, underground or above ground
storage tanks, petroleum, toxic waste or any Hazardous Materials or Hazardous
Substances (as such terms are defined below), 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. Seller makes no representation that the Property
complies with Title III of the Americans With Disabilities Act or any fire
codes or building codes. Except for any breach of the representations set
forth in Paragraph x.xx. and vii., Purchaser hereby releases Seller from any
and all liability in connection with any claims which Purchaser may have
against Seller, and Purchaser hereby agrees not to assert any claims, for
damage, loss, compensation, contribution, cost recovery or otherwise, against
Seller, whether in tort, contract, or otherwise, relating directly or
indirectly to the existence of asbestos or Hazardous Materials or Hazardous
Substances on, or environmental conditions of, the Property, or arising under
the Environmental Laws (as such term is hereinafter defined), or relating in
any way to the quality of the indoor or outdoor environment at the Property.
This release shall survive the Closing. As used herein, the term "Hazardous
Materials" or "Hazardous Substances" means (i) hazardous wastes, hazardous
materials, hazardous substances, hazardous constituents, toxic substances or
related materials, whether solids, liquids or gases, including but not limited
to substances defined as "hazardous wastes," "hazardous materials," "hazardous
substances," "toxic substances," "pollutants," "contaminants," "radioactive
materials," or other similar designations in, or otherwise subject to
regulation under, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA"), 42 U.S.C. Section 9601 et seq.;
the Toxic Substance Control Act ("TSCA"), 15 U.S.C. Section 2601 et seq.; the
Hazardous Materials Transportation Act, 49 U.S.C. Section 1802; the Resource
Conservation and Recovery Act ("RCRA"), 42 U.S.C. Section 9601, et seq.; the
Clean Water Act ("CWA"), 33 U.S.C. Section 1251 et seq.; the Safe Drinking
Water Act, 42 U.S.C. Section 300f et seq.; the Clean Air Act ("CAA"), 42 U.S.C.
Section 7401 et seq.; and in any permits, licenses, approvals, plans, rules,
regulations or ordinances adopted, or other criteria and guidelines promulgated
pursuant to the preceding laws or other similar federal, state or local laws,
regulations, rules or ordinance now or hereafter in effect relating to
environmental matters (collectively the "Environmental Laws"); and (ii) any
other substances, constituents or wastes subject to any applicable federal,
state or local law, regulation or ordinance, including any Environmental Law,
now or hereafter in effect, including but not limited to (A) petroleum,
(B) refined petroleum products, (C) waste oil, (D) waste aviation or motor
vehicle fuel, (E) asbestos, (F) lead in water, paint or elsewhere, (G) radon,
(H) Polychlorinated Biphenyls (PCB's) and (I) ureaformaldehyde.
b. Seller has provided to Purchaser certain unaudited historical
financial information regarding the Property relating to certain periods of
time in which Seller owned the Property. Except as may otherwise be
specifically set forth elsewhere in this Agreement, Seller makes no
representation or warranty that such material is complete or accurate or that
Purchaser will achieve similar financial or other results with respect to the
operations of the Property, it being acknowledged by Purchaser that Seller's
operation of the Property and allocations of revenues or expenses may be vastly
different than Purchaser may be able to attain. Purchaser acknowledges that it
is a sophisticated and experienced purchaser of real estate and further that
Purchaser has relied upon its own investigation and inquiry with respect to the
operation of the Property and except as may otherwise be specifically set forth
elsewhere in this Agreement releases Seller from any liability with respect to
such historical information.
8. CLOSING. The closing ("Closing") of this transaction shall be within
fifteen(15) days after the end of the Approval Period, prvided, however, in no
eventshall Seller be obligated to close earlier than (4) four business days
after Purchaser's ("Closing Date"), at the office of the Purchaser's attorney
in Tampa, Florida, at which xxxx Xxxxxx shall deliver possession of the
Property to Purchaser.
9. CLOSING DOCUMENTS.
a. On the Closing Date, Purchaser shall deliver to Seller an executed
closing statement, the balance of the Purchase Price, and such other documents
as may be reasonably required in order to consummate the transaction as set
forth in this Agreement.
b. On the Closing Date, Seller shall deliver to Purchaser possession of
the Property; the Deed (in the form of Exhibit E attached hereto) subject to
the Permitted Exceptions; a quitclaim deed conveying all of Seller's right,
title and interest, if any, in and to any strips, gores, hiatuses and/or other
property discrepancies reflected on the Survey which are not included within
the legal description of the Property; an assignment of any termite bond that
Seller has, provided such bond is assignable; an inventory of the Personal
Property and a Xxxx of Sale for the same (in the form of Exhibit F attached
hereto); an executed closing statement; an executed assignment and assumption
of all service contracts to be assumed by Purchaser (in the form of Exhibit G
attached hereto); an executed assignment and assumption of all leases and
security deposits (in the form of Exhibit H attached hereto); updated rent roll
(to be delivered two days prior to the Closing Date); a notice to the tenants
of the transfer of title and the assumption by Purchaser of the landlord's
obligations under the leases and the obligation to refund the security deposits
(in the form of Exhibit I attached hereto); a non-foreign affidavit (in the
form of Exhibit J attached hereto); an affidavit (in the form of Exhibit L
attached hereto) stating Purchaser's right to audit Seller's books and records
relating to the Property, at Purchaser's expense, at a time reasonably
convenient to Seller, but before March 31, 1996, if Purchaser is required to
submit to the Securities and Exchange Commission or any other regulatory body;
an executed assignment of intangible property (in the form of Exhibit M
attached hereto); an executed certificate as to representations and warranties
(in the form of Exhibit P attached hereto); an opinion letter from the in-house
counsel of The Balcor Company substantially in the form of Exhibit Q attached
hereto; and such other documents as may be reasonably required by the Title
Insurer in order to consummate the transaction as set forth in this Agreement.
10. DEFAULT BY PURCHASER. ALL XXXXXXX MONEY DEPOSITED INTO THE ESCROW IS TO
SECURE THE TIMELY PERFORMANCE BY PURCHASER OF ITS OBLIGATIONS AND UNDERTAKINGS
UNDER THIS AGREEMENT, INCLUDING ITS OBLIGATIONS TO MAKE ALL DEPOSITS ON OR
BEFORE THE DATES PROVIDED FOR HEREIN. IF THE PURCHASER FAILS TO MAKE ITS
DEPOSITS INTO THE ESCROW ON OR BEFORE THE DATE SUCH DEPOSIT IS DUE AS PROVIDED
FOR HEREIN, OR IN THE EVENT OF ANY OTHER DEFAULT OF THE PURCHASER UNDER THE
PROVISIONS OF THIS AGREEMENT, THEN SELLER SHALL RETAIN ALL OF THE XXXXXXX MONEY
AND THE INTEREST THEREON AS SELLER'S SOLE RIGHT TO DAMAGES OR ANY OTHER REMEDY.
THE PARTIES HAVE AGREED THAT SELLER'S ACTUAL DAMAGES, IN THE EVENT OF A DEFAULT
BY PURCHASER, WOULD BE EXTREMELY DIFFICULT OR IMPRACTICAL TO DETERMINE.
THEREFORE, BY PLACING THEIR INITIALS BELOW, THE PARTIES ACKNOWLEDGE THAT THE
XXXXXXX MONEY HAS BEEN AGREED UPON, AFTER NEGOTIATION, AS THE PARTIES'
REASONABLE ESTIMATE OF SELLER'S DAMAGES.
11. SELLER'S DEFAULT. IF THIS SALE IS NOT COMPLETED BECAUSE OF SELLER'S
DEFAULT, PURCHASER'S SOLE REMEDY SHALL BE THE RIGHT TO RECOVER FROM THE SELLER
ACTUAL DAMAGES IN AN AMOUNT NOT TO EXCEED $100,000.00 AND THE RETURN OF ALL
XXXXXXX MONEY TOGETHER WITH ANY INTEREST ACCRUED THEREON, AND THIS AGREEMENT
SHALL TERMINATE AND THE PARTIES SHALL HAVE NO FURTHER LIABILITY TO EACH OTHER
AT LAW OR IN EQUITY. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE
CONTRARY, IF SELLER'S DEFAULT IS ITS REFUSAL TO DELIVER THE DEED, THEN
PURCHASER WILL BE ENTITLED TO XXX FOR SPECIFIC PERFORMANCE, PROVIDED THAT AT
THE TIME OF THE FILING OF THE COMPLAINT, PURCHASER SHALL DEPOSIT WITH THE
ESCROW AGENT THE AMOUNT OF THE PURCHASE PRICE INCLUSIVE OF THE XXXXXXX MONEY.
12. a. PRORATIONS. Rents (exclusive of delinquent rents, but including
prepaid rents); all security deposits and interest thereon if required by law
or under the leases (which will be assigned to and assumed by Purchaser and
credited to Purchaser at Closing); water and other utility charges; fuels;
service contracts; real and personal property taxes; and other similar items
shall be adjusted ratably as of 11:59 P.M. on the day prior to the Closing Date
("Proration Date"), and credited or debited to the balance of the cash due at
Closing. If the amount of any of the items to be prorated is not then
ascertainable, the adjustment thereof shall be on the basis of the most recent
ascertainable data. All prorations will be final except as to Delinquent Rents
referred to in b below. If special assessments have been levied against the
Property for completed improvements, then the amount of any installments which
are due prior to the Closing Date shall be paid by the Seller; and the amount
of installments which are due after the Closing Date shall be paid by the
Purchaser. Post-closing assessments for incomplete improvements shall be paid
by Purchaser.
b. DELINQUENT RENTS. If, as of the Closing Date, any rent is in arrears
("Delinquent Rent") for the calendar month in which the Closing occurs, then
the first rent collected by Purchaser will be delivered to Seller for the
Delinquent Rent. If Delinquent Rent is in arrears for a period prior to the
calendar month in which the Closing occurs, then rents collected by Purchaser
shall first be applied to current rent and then to Delinquent Rent. Purchaser
shall deliver Seller's pro rata share within 60 days after the Closing Date.
This subparagraph of this Agreement shall survive the Closing and the delivery
and recording of the Deed.
13. RECORDING. This Agreement shall not be recorded and the act of recording
by Purchaser or Seller shall be an act of default hereunder by such party and
shall be subject to the provisions of Paragraph or , as applicable.
14. ASSIGNMENT. Purchaser reserves the right to assign its rights under this
Agreement (but without release of its obligations herein) to a third party who
may purchase or sell and thereafter exchange the Property in accordance with
the provisions of Section 1031 of the Internal Revenue Code of 1986. Such
exchange shall be accomplished at no additional expense or delay to Seller and
Purchaser agrees to indemnify Seller against any claims or liabilities
resulting solely from structuring the transaction as an exchange, rather than a
direct purchase.
15. BROKER. The parties hereto acknowledge that Xxxxxxx & Wakefield of
Florida, Inc. ("Broker") is the only real estate broker involved in this
transaction. Seller agrees to pay Broker a commission or fee ("Fee") pursuant
to a listing agreement between Seller and Broker. However, this Fee is due and
payable only from the proceeds of the Purchase Price received by Seller.
Purchaser agrees to indemnify, defend and hold harmless the Seller and any
partner, affiliate, parent of Seller, and all shareholders, employees, officers
and directors of Seller or Seller's partner, parent or affiliate (each of the
above is individually referred to as a "Seller Indemnitee") from all claims,
including attorneys' fees and costs incurred by a Seller Indemnitee as a result
of anyone's claiming by or through Purchaser any fee, commission or
compensation on account of this Agreement, its negotiation or the sale hereby
contemplated. Purchaser does now and shall at all times consent to a Seller
Indemnitee's selection of defense counsel. Seller agrees to indemnify, defend
and hold harmless the Purchaser and all shareholders, employees, officers and
directors of Purchaser or Purchaser's parent or affiliate (each of the above is
individually referred to as a "Purchaser Indemnitee") from all claims,
including attorneys' fees and costs incurred by a Purchaser Indemnitee as a
result of anyone's claiming by or through Seller any fee, commission or
compensation on account of this Agreement, its negotiation or the sale hereby
contemplated. Seller does now and shall at all times consent to a Purchaser
Indemnitee's selection of defense counsel. This Paragraph shall survive the
Closing and the delivery and recording of the Deed.
16. DOCUMENTS, INSPECTION OF PROPERTY AND APPROVAL PERIOD.
a. Seller has delivered to Purchaser copies of the most recent available
tax bills, rent rolls, insurance premiums, and service contracts (collectively
the "Documents"). All of the Documents shall be subject to approval by
Purchaser by the close of business (5:00 P.M. Central Time) on January 25, 1996
("Approval Period"). During the Approval Period, upon reasonable notice to the
Seller, the Purchaser shall have the right, during normal business hours, to
inspect and approve the condition of the Property including the interior of the
apartments and review all files and leases located at the Property and related
locations. Purchaser, its engineers, architects, employees, contractors and
agents shall maintain public liability insurance policies insuring against
claims arising as a result of the inspections of the Property being conducted
by Purchaser. Purchaser agrees to indemnify, defend, protect and hold Seller
harmless from any and all loss, costs, including attorneys' fees, liability or
damages which Seller may incur or suffer as a result of Purchaser's conducting
its inspection and investigation of the Property including the entry of
Purchaser, its employees or agents and its lender onto the Property, including
without limitation, liability for mechanics' lien claims.
b. Purchaser agrees to defend and hold Seller harmless from any
injuries, damages or claims of any nature whatsoever which Purchaser's
servants, agents or employees may have as a result of Purchaser's inspection of
the Property. Purchaser further agrees to restore any damage to the Property
which may arise as a result of Purchaser's inspection of the Property.
c. If Purchaser disapproves the Documents or the condition of the
Property, for any reason or no reason, it must be by a notice ("Notice of
Disapproval") delivered to Seller and the Escrow Agent on or prior to the first
business day after the expiration of the Approval Period. Upon receipt of the
Notice of Disapproval, the Xxxxxxx Money plus the interest accrued thereon
shall be returned to the Purchaser. If Purchaser does not deliver a Notice of
Disapproval, then it shall be conclusively presumed that Purchaser has approved
the Documents and the condition of the Property and all Xxxxxxx Money plus the
interest accrued thereon shall belong to Seller unless Seller is in default
hereunder. Upon receipt by Seller of a Notice of Disapproval from Purchaser,
Seller shall instruct Escrow Agent to return the Xxxxxxx Money plus all accrued
interest thereon to Purchaser.
17. SURVIVAL OF PURCHASER'S INDEMNITY. Notwithstanding anything in this
Agreement to the contrary, Purchaser's obligation to indemnify, defend and hold
Seller harmless under various provisions of this Agreement shall forever
survive the termination of this Agreement or the Closing and delivery and
recording of the Deed.
18. SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS.
a. Any reference herein to Seller's knowledge, representation, warranty
or notice of any matter or thing, shall only mean such knowledge or notice that
has actually been received by Xxxxxxx Xxxxxxxxx or Xxxxxxx Xxxxxx (the asset
manager of the Property), and any representation or warranty of the Seller is
based upon those matters of which Xxxxxxx Xxxxxxxxx or Xxxxxxx Xxxxxx has
actual knowledge. Any knowledge or notice given, had or received by any of
Seller's agents, servants or employees shall not be imputed to Seller or the
individual partners or the general partner of Seller.
b. Subject to the limitations set forth in subparagraph a above, Seller
hereby makes the following representations, warranties and covenants, all of
which are made to the best of Seller's knowledge, which shall survive the
Closing and delivery of the Deed for a period of one hundred eighty (180) days:
i. The present use and occupancy of the Property conform with applicable
building and zoning laws and Seller has received no written notice that
any such laws, rules or regulations are being violated.
ii. The rent roll attached hereto as Exhibit N which will be updated as
of the Closing Date is true and accurate.
iii. Seller has no knowledge of any pending or threatened litigation,
claim, cause of action or administrative proceeding concerning the
Property.
iv. Seller has the power and authority to execute and deliver this
Agreement, the Deed and the other conveyance documents; the persons
executing the documents are duly authorized to do so, without further
consent of any other party and upon their execution, the documents shall
be binding upon Seller;
v. The management, operation, leasing and maintenance of the Property,
as presently conducted by the Seller, shall continue until the Closing
Date.
vi. Seller has not received written notice from any governmental
authorities that the Property contains Hazardous Materials or Hazardous
Substances or that the Property violates any Environmental Laws.
vii. Seller has no knowledge of the existence of Hazardous Materials or
Hazardous Substances on the Property.
viii. Except as otherwise set forth on the list of Service Contracts
attached hereto as Exhibit O, all of the Service Contracts are terminable
on thirty days' prior notice without premium or penalty.
ix. Seller has made available or will make available to the Purchaser, at
Purchaser's request, during the Approval Period, the books and records
concerning the Property which books and records are located at various
locations.
x. All representations and warranties made by Seller under this
Paragraph will be reviewed by Xxxxxxx Xxxxxx (the asset manager), Xxx
Xxxxx (the district manager of the management company) after inquiry of
the on-site manager and Xxxxx Xxxx, the in-house counsel of The Balcor
Company, with a requirement that they respond in writing to Xxxxxxx Xxxxxx
as to whether or not to the best of their knowledge any of the
representations and warranties is false or misleading.
c. If on or prior to the Closing Date, Seller discovers that a
representation or warranty is untrue, then upon notice to Purchaser, Purchaser
can elect to terminate this Agreement or take title to the Property subject to
the untrue representation or warranty.
19. ENVIRONMENTAL REPORT. Attached to this Agreement as Exhibit K is a Phase
I Environmental Site Assessment dated March 13, 1995 prepared by Environmental
Management Group, Inc. ("Environmental Report") of the Property, which Seller
is delivering to Purchaser, at Purchaser's request. Seller makes no
representation or warranty that the Environmental Report is accurate or
complete. Purchaser hereby releases Seller from any liability whatsoever with
respect to the Environmental Report, including, without limitation, the matters
set forth in the Environmental Report or the accuracy and/or completeness of
the Environmental Report.
20. LIMITATION OF SELLER'S LIABILITY. No general or limited partner of
Seller, nor any of its respective beneficiaries, shareholders, partners,
officers, agents, employees, heirs, successors or assigns shall have any
personal liability of any kind or nature for or by reason of any matter or
thing whatsoever under, in connection with, arising out of or in any way
related to this Agreement and the transactions contemplated herein, and
Purchaser hereby waives for itself and anyone who may claim by, through or
under Purchaser any and all rights to xxx or recover on account of any such
alleged personal liability.
21. PURCHASER'S ORGANIZATIONAL DOCUMENTS. At least ten (10) days prior to the
Closing Date, Purchaser and Seller will provide the other party's attorney with
copies of their organizational documents, including a certified copy of the
recorded certificate of limited partnership and a true copy of its Partnership
Agreement or a certified copy of its Articles of Incorporation and corporate
resolutions authorizing the transaction, whichever is applicable.
22. TIME OF ESSENCE. Time is of the essence of this Agreement.
23. NOTICES. Any notice or demand which either party hereto is required or
may desire to give or deliver to or make upon the other party shall be in
writing and may be personally delivered or given or made by overnight courier
such as Federal Express or by facsimile or made by United States registered or
certified mail addressed as follows:
TO SELLER: c/o The Balcor Company
0000 Xxxxxxxx Xxxx
Xxxxx X000
Xxxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxx
with copies to: The Balcor Company
0000 Xxxxxxxx Xxxx
Xxxxx X000
Xxxxxxxxxxx, Xxxxxxxx 00000
Attn: Xx Xxxxxxxxx
708/267-1600
708/000-0000 (FAX)
and
Xxxxxx X. Xxxxxx
Xxxxxxxx & Xxxxxxx
Suite 1900
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
312/222-0800
312/000-0000 (FAX)
TO PURCHASER: United Dominion Realty Trust, Inc.
0000 Xxxxx Xxxx Xxxx.
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
407/856-0338
407/000-0000 (FAX)
with a copy to: United Dominion Realty Trust, Inc.
00 X. Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq. and
M.A. "Buddy" Xxxxx, Asst. V.P.
Acquisitions
804/780-2691
804/000-0000 (FAX)
subject to the right of either party to designate a different address for
itself by notice similarly given. Any notice or demand so given shall be
deemed to be delivered or made on the next business day if sent by overnight
courier, or on the same day if sent by facsimile before the close of business,
or the next day if sent by facsimile after the close of business, or on the 4th
business day after the same is deposited in the United States Mail as
registered or certified matter, addressed as above provided, with postage
thereon fully prepaid. Any such notice, demand or document not given,
delivered or made by registered or certified mail or by overnight courier or by
facsimile as aforesaid shall be deemed to be given, delivered or made upon
receipt of the same by the party to whom the same is to be given, delivered or
made. Copies of all notices shall be served upon the Escrow Agent. Hard
copies of all facsimiles will be sent by overnight courier no later than the
next business day after the facsimiles are sent.
24. EXECUTION OF AGREEMENT AND ESCROW AGREEMENT. Purchaser will execute three
(3) copies of this Agreement and three (3) copies of the Escrow Agreement and
forward them to Seller for execution. Seller will forward one (1) copy of the
executed Agreement to Purchaser and will forward the following to the Escrow
Agent:
a. One (1) fully executed copy of this Agreement; and
b. Three (3) copies of the Escrow Agreement signed by the parties with a
direction to execute two (2) copies of the Escrow Agreement and deliver a fully
executed copy to the Purchaser and the Seller upon receipt of the Xxxxxxx
Money.
Purchaser will wire transfer the Xxxxxxx Money to the Escrow Agent within one
(1) business day after Purchaser receives a fully executed Agreement of Sale.
25. GOVERNING LAW. The provisions of this Agreement shall be governed by the
laws of the State of Florida.
26. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
the parties and supersedes all other negotiations, understandings and
representations made by and between the parties and the agents, servants and
employees.
27. COUNTERPARTS. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original but all of which shall constitute one
and the same instrument.
28. CAPTIONS. Paragraph titles or captions contained herein are inserted as a
matter of convenience and for reference, and in no way define, limit, extend or
describe the scope of this Agreement or any provision hereof.
29. RADON GAS. Radon is a naturally occurring radioactive gas that, when it
has accumulated in a building in sufficient quantities, may present health
risks to persons who are exposed to it over time. Levels of radon that exceed
federal and state guidelines have been found in buildings in Florida.
Additional information regarding radon and radon testing may be obtained from
your county public health unit.
30. CONFIDENTIALITY. Purchaser and Seller each hereby agree to reasonably
endeavor to keep the terms and conditions of this Agreement confidential,
provided that either party may reveal such information regarding the terms and
provisions of this Agreement as may be necessary in their reasonable discretion
to comply with the provisions of this Agreement, the reasonable operation and
conduct of their respective businesses or any provision of any law, ordinance
or governmental regulation.
31. VACANT APARTMENTS. If, as of the Closing Date, any of the apartment units
has been vacant for more than five (5) days, then Purchaser shall receive a
credit of $200.00 for each of those vacant units which is not in a "rent ready
condition".
32. MISCELLANEOUS. Seller agrees that it will not terminate its partnership
agreement prior to a date which is 180 days after the Closing Date and it will
withhold $250,000.00 from its distribution of the net proceeds of this sale to
its partners until a date which is 180 days after the Closing Date.
IN WITNESS WHEREOF, the parties hereto have put their hand and seal as of the
date set forth above.
Executed by Purchaser on PURCHASER:
15 December, 1995.
UNITED DOMINION REALTY TRUST, INC.,
a Virginia corporation
By:
--------------------------------
Executed by Seller on SELLER:
December 19, 1995.
BROOKSEA ASSOCIATES, an Illinois
limited partnership
By: Seabrook Associates, an Illinois
limited partnership, its sole
general partner
By: Balcor Realty Associates VIII, an
Illinois general partnership, general
partner
By: The Balcor Company, a Delaware
corporation, a general partner
By: /s/Xxxxxxx Xxxxxxxxx
--------------------------------
Authorized Agent
Seabrook
Xxxxxxx & Xxxxxxxxx of Florida, Inc. ("Broker") executes this Agreement in its
capacity as a real estate broker and acknowledges that the fee or commission
("Fee") due to it as a result of the transaction described in this Agreement is
the amount as set forth in the listing agreement between Broker and Seller.
Broker also acknowledges that payment of the aforesaid Fee is conditioned upon
the Closing and the receipt of the Purchase Price by the Seller. Broker agrees
to deliver a receipt to the Seller at the Closing for the Fee and a release
stating that no other fees or commissions are due to Broker from Seller or
Purchaser.
XXXXXXX & WAKEFIELD OF FLORIDA,
INC.
By:
----------------------------
Associate Director
EXHIBITS
A - Legal
B - Personal Property
C - Escrow Agreement
D - Title Commitment
E - Deed
F - Xxxx of Sale
G - Assignment of Service Contracts
H - Assignment of Leases and Security Deposits
I - Notice to Tenants
J - Non-Foreign Affidavit
K - Environmental Report
L - Affidavit As To Audit
M - Assignment of Intangible Property
N - Rent Roll
O - List of Service Contracts
P - Certificate as to Representations and Warranties
Q - Opinion Letter
