EXHIBIT 10(iv)(a)
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (this "Agreement"), dated as of
June 2 , 1995, by and between SHELTER PROPERTIES VI LIMITED PARTNERSHIP, a
South Carolina limited partnership ("Seller") and UNITED DOMINION REALTY TRUST,
INC., a Virginia corporation ("United Dominion") recites and provides:
RECITALS
A. Seller is the fee simple owner of a certain parcel of real estate
referred to as The Marble Hill Apartments, a 253 unit apartment complex located
at 0000 Xxxxxx Xxxx Xxxxx, Xxxxxxx Xxxxxx, Virginia, on a site containing
approximately 17.092 acres of land and more particularly described in the
attached Exhibit A, together with all improvements thereon and appurtenances
thereto belonging, and all tangible and intangible personal property owned by
the Seller and used in the rental, operation, and maintenance of the apartment
property (collectively, the "Property").
B. United Dominion desires to purchase and Seller desires to sell the
Property on the terms and conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, for and in consideration of the premises, the mutual
covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Seller agrees to transfer the Property and United Dominion agrees to acquire the
Property upon the following terms and conditions:
1. Purchase Price. The total purchase price of the Property shall be
Five Million Nine Hundred Twenty-Five Thousand and No/100 Dollars
($5,925,000.00) ("Purchase Price"), which shall be payable in the following
manner:
(a) United Dominion shall receive a credit against the Purchase Price in
an amount equal to the "Deposit" (as hereinafter defined);
(b) United Dominion shall assume the note dated as of October 28 1992,
made by Seller, payable to First Commonwealth Realty Credit Corporation, in the
original principal amount of $3,440,463.00 (the "First Note") and United
Dominion shall receive a credit against the Purchase Price in an amount equal to
the outstanding principal balance of the First Note as of the date of
"Settlement" (as hereinafter defined). The outstanding principal balance of the
First Note, as of the date hereof, is approximately $3,263,839.84;
(c) United Dominion shall assume the note dated as of October 28 1992,
made by Seller, payable to First Commonwealth Realty Credit Corporation, in the
original principal amount of $106,406.00 (the "Second Note") and United Dominion
shall receive a credit against the Purchase Price in an amount equal to the
outstanding principal balance of the Second Note as of the date of Settlement.
The outstanding principal balance of the Second Note as of the date hereof, is
approximately $106,406.00;
(d) United Dominion shall pay the balance of the Purchase Price, as
adjusted in accordance with the terms of this Agreement, to the Seller at
Settlement, in cash by a cashier's check certified check or wire transfer in
immediately available funds.
2. Deposit. Upon acceptance of this Agreement by Seller, and receipt of
a fully executed original of this Agreement by United Dominion ("Seller's
Acceptance"), United Dominion shall promptly deposit Fifty Thousand Dollars
($50,000.00), as a good faith deposit (which shall be kept in an interest
bearing account with interest being added to the deposit for the benefit of
United Dominion) (the "Deposit") with a title insurance company selected by
United Dominion ("Escrow Agent") which shall either be applied by United
Dominion toward the payment of the Purchase Price or returned to United Dominion
if, as per the terms of this Agreement, this Agreement is terminated.
3. Settlement. Closing of the purchase and sale of the Property
("Settlement") shall take place within ten (10) days after the satisfaction of
the conditions precedent set forth in Section 4(i), but in no event later than
September 30, 1995, at United Dominion's offices in Richmond, Virginia.
4. Conditions Precedent and Additional Covenants.
(a) Seller shall, at Settlement, convey good and marketable fee simple
title to the Property by special warranty deed in the form attached as Exhibit
B, which a title insurance company acceptable to United Dominion (the "Title
Company") will insure as such at or below its standard rate, free and clear of
all liens, and subject to only such easements, restrictions, and other matters
acceptable to Dominion at its sole discretion, (the "Permitted Exceptions").
United Dominion shall give Seller notice of any defects in title within five (5)
days of receipt by United Dominion of a commitment to insure title to the
Property obtained by United Dominion from the Title Company. The failure by
United Dominion to deliver such notice shall constitute the acceptance by United
Dominion of the matters set forth in the commitment. In the event United
Dominion notifies Seller of a title defect, Seller shall have thirty (30) days
to cure same to United Dominion's reasonable satisfaction, and the date for
Settlement shall be extended for the period necessary to cure same. If the
title defect cannot be or is not cured within the thirty (30) days (it being
agreed that Seller shall have no obligation to effect any such cure), then
United Dominion may at its sole option either void this Agreement or waive the
title defect and proceed to Settlement;
(b) United Dominion shall obtain within the hereinafter defined
Inspection Period a current as-built survey of the Property delineating the
boundary lines of the Property, the location of the improvements, set-backs and
other zoning matters, physical encroachments, all rights-of-way and easements
thereon, contiguous public road, and on which the surveyor certifies that the
Property is not located in a designated floodplain. The survey shall be
adequate for the Title Company to delete any exception for survey in the owner's
title policy;
(c) Seller shall, at Settlement, convey the Property free and clear of
all management and leasing agreements, maintenance, trash removal, laundry,
cable television, directory advertising, or other maintenance or service
contract, obligations or agreements for the operation of the Property, except
for those which have been approved by United Dominion, in writing. Within ten
(10) days after Seller's delivery pursuant to paragraphs 6(m) and 6(n) hereof,
United Dominion agrees to designate which of such contracts, obligations, or
agreements United Dominion will approve and assume. Failure to deliver this
designation timely shall constitute disapproval and rejection of all such
contracts, obligations and agreements.
(d) United Dominion shall obtain a physical inspection of the Property,
performed at the risk and responsibility of United Dominion, including, but not
limited to a report from a professional engineer or architect on the condition
of the structures, roofs, siding, mechanical systems, electrical, plumbing,
utilities, drainage, site improvements, and the absence of hazardous or toxic
substances, and United Dominion being satisfied at its sole discretion with the
results of the inspection and the physical condition of the Property. Seller
shall deliver the Property to United Dominion at Settlement with all vacant
units in a ready-to-rent condition, which shall include, but not be limited to
clean carpets, no unrepaired damage to doors, walls, ceiling, floors or windows,
and freshly painted walls, and all units shall contain working kitchen
appliances, water heaters and HVAC, except for any units vacated by tenants
within 48 hours of the Settlement Date. Seller agrees to pay United Dominion a
credit of $300.00 for any apartment vacated by tenants within 48 hours of the
Settlement Date and which is not in ready-to-rent condition at Settlement.
(e) United Dominion shall obtain an inspection of the Property by a
certified bonded treatment company showing that there is not active infestation
or damage caused by termites or other wood destroying insects and United
Dominion being satisfied at its sole discretion with the results of the
inspection and the condition of the Property, and the issuance to United
Dominion of a wood replacement bond from a certified bonded treatment company at
Buyer's sole cost and expense, provided, however, Seller agrees to give Buyer a
Seven Thousand Dollar ($7,000) credit at Settlement towards such termite bond;
(f) United Dominion shall review the tenant leases, tenant files,
correspondence relating to the Property and books and records of the Property
including, but not limited to, operating statements for the past two (2)
calendar years and the current year to date, and review all existing contracts
and/or agreements for maintenance, and any other services provided to the
Property;
(f1) United Dominion, or any assignee, shall, within ten (10) days of the
Seller's Acceptance, submit an application to the beneficiaries under the Notes
with respect to the assumption of the Notes and related documents. In
connection with such assumption, any reserves deposited with First Commonwealth
Realty Credit Corporation ("First Commonwealth") by Seller shall be returned to
Seller by First Commonwealth, or if any reserves are assigned to Buyer, Buyer
shall reimburse Seller at Settlement in the amount of the assigned reserves;
(f2) United Dominion shall review the First Note, Second Note (the First
Note and Second Note are hereinafter referred to collectively as the "Notes")
and all documents executed or delivered in connection with the Notes, including
but not limited to any deeds of trust or mortgages and modifications thereof,
loan agreements and financing statements;
(f3) United Dominion shall receive the final approval by all required
parties of the transfer of the Property subject to the financing;
(g) United Dominion shall obtain the approval of the purchase by its
Investment Committee.
(h) United Dominion shall perform its undertaking and make its various
inspections and reviews under paragraphs 4(a), (b), (d), (e), (f), and (g)
within thirty (30) days of Seller's Acceptance (the "Inspection Period"). If,
during such Inspection Period, as a result of this work or for any other reason
or for no reason, United Dominion shall determine at its sole discretion that it
is not satisfied with the Property or the result of any of its inspections or
reviews in any respect, then United Dominion shall have the right to terminate
this Agreement by giving Seller written notice of termination, in which event
United Dominion's Deposit, including any interest thereon, shall promptly be
returned to Dominion;
(h1) United Dominion shall perform its undertaking and make its various
inspections and reviews under paragraphs 4(f2) and (f3) within ninety (90) days
of Seller's Acceptance (the "Review Period"). If, during such Review Period,
United Dominion shall not have satisfied the conditions or not be satisfied with
its review of paragraphs 4(f2) and (f3) then United Dominion shall have the
right to terminate this Agreement by giving Seller written notice of
termination, in which event United Dominion's Deposit, including any interest
thereon, shall promptly be returned to Dominion;
(i) The obligation of United Dominion to purchase the Property under
this Agreement is conditioned under the following: the representations and
warranties of Seller made in this Agreement shall be true and correct and in
effect as of the date of Settlement as if then made, there shall have occurred
no material adverse change in the physical and/or financial condition of the
Property since the date of expiration of its Inspection Period, Seller shall
have performed all of its covenants and other obligations required under this
Agreement, and the receipt of all estoppels of the beneficiaries and trustees of
the Notes and loan documents that United Dominion shall deem necessary, in its
sole discretion, for the assumption of the Notes;
(j) The obligation of Seller to sell the Property pursuant to this
Agreement shall be conditioned upon United Dominion's performance of each of its
covenants and other obligations required under this Agreement;
(k) If any condition set forth in this Agreement cannot or will not be
satisfied prior to Settlement, or upon the occurrence of any other event that
would entitle United Dominion to terminate this Agreement, and its obligations
hereunder, United Dominion, at its option may elect either:
(1) to terminate this Agreement, in which event the Deposit shall
be promptly returned to United Dominion and all rights and
obligations of the Seller and United Dominion hereunder shall
terminate immediately; or;
(2) to waive its right to terminate and, instead, proceed to
Settlement.
(l) If at Settlement, the Property has less than 233 Occupied Units (as
the term is defined herein), United Dominion shall receive a credit against the
Purchase Price of $1,335.00 for each non-occupied unit below the threshold of
233 units; if at Settlement the Property has 218, or less Occupied Units, United
Dominion shall receive a credit against the Purchase Price of $20,000 plus
$2,670.00 for each non-occupied unit blow the threshold of 218 units; if at
Settlement the Property has 206, or less Occupied Units, United Dominion, at its
option, shall either (i) receive a credit against the Purchase Price of $52,000
plus $4,005.00 for each non-occupied unit below the threshold of 206 units, or
(ii) terminate the Agreement.
For purposes of this Agreement, an Occupied Unit shall be defined as
follows:
(1) A unit occupied by a current resident whose current lease will not
expire before Settlement and whose rent is current or no more than
ten (10) days in arrears.
(2) A unit occupied by a current resident whose current lease will
expire and has been renewed, or converted to a month-to-month
tenancy, before Settlement at or above the Renewal Rent for the
corresponding unit type shown on Exhibit C attached hereto and whose
rent is current or no more than ten (10) days in arrears.
(3) A unit occupied by a new resident at or above the New Rent for the
corresponding unit type shown on Exhibit C who qualifies under the
Minimum Rental Standards, as shown on Exhibit C and whose rent is
current or not more than ten (10) days in arrears.
(4) A unit pre-leased for future occupancy at, or above the New Rent for
the corresponding unit type by a tenant who qualifies under the
Minimum Rental Standards, and who has paid the required security
deposit with respect to the lease which commences within thirty (30)
days of Settlement, and whose unit is in ready-to-rent condition,
provided, however, the number of units qualifying under this Section
4(l)(4) shall not exceed twelve (12).
5. Prorations. Rents and other income from the Property and real
estate and personal property ad valorem taxes, and other operating expenses from
the Property shall be prorated on the basis of a 365 day year through the day
preceding the day of Settlement. All maintenance and service contracts and
utility charges shall be determined to the day preceding Settlement and paid by
Seller and appropriate prorations shall be made in the event that United
Dominion assumes such contracts. If Settlement is extended by mutual agreement,
all adjustments shall be made as of the day prior to the extended date. All
prepaid rents shall be paid to United Dominion at Settlement. All other rents
and other income from the Property collected by Seller during the month of
Settlement shall first be applied to the month of Settlement for the purpose of
prorations. Delinquent rents shall not be credited to Seller at Settlement. Any
delinquent rent for the period of Seller's period of ownership collected by
United Dominion after Settlement shall be delivered to Seller after deducting
United Dominion's cost of collection. United Dominion shall have no affirmative
obligation to collect any delinquent rent owed to Seller. Each party shall pay
its own expenses in conjunction with Settlement and Seller and United Dominion
will share equally with the cost of the following: as-built survey; all
recording and transfer taxes and fees and documentary stamps; and title
research, binder, and insurance policy costs.
6. Delivery of Documents Upon Execution. Except as otherwise provided,
Seller shall deliver to United Dominion within five (5) days of the execution of
this Agreement, all of the following:
(a) A copy of Seller's latest title insurance policy on the Property;
(b) Copies of any "as-built" surveys and topographical surveys of the
Property in Seller's possession or control;
(c) Copies of any plans and specifications for the Property in Seller's
possession or control, including any and all plans and specifications, bid
packages, and proposals for Property renovations shall be made available
at the Property to Buyer for review. Buyer may temporarily remove any
plans and specifications for the purpose of copying, which copying shall
be done at its expense;
(d) Copies of any soil test for the Property in Seller's possession or
control;
(e) Copies of any termite inspection reports, termite repair bonds or
any other termite bond for the Property in Seller's possession or control;
(f) Copies of the Property's operating results for the past two (2)
calendar years and monthly operating statements for the current year to
date;
(g) Complete rent rolls for the Property, certified to be complete and
correct by Seller, for the most recent four (4) months;
(h) A copy of the standard lease form currently in use at the Property;
(i) Copies of the most recent and prior two (2) years of real estate and
personal property tax bills for the Property and any subsequent notices of
reassessment;
(j) A list of all utility accounts for all utilities serving the
Property, designating which are house meters and which are vacant units,
including any telephone directory advertisements and copies of bills for
each account for the past twelve (12) months;
(k) A list of all Property employees, their job titles and descriptions,
their present salaries or wages, benefits and term of their employment;
(l) A current schedule of tenant security deposits and interest thereon,
certified to be complete and correct by the Seller;
(m) Copies of all operating and maintenance agreements and service
contracts, including cable television agreements and easements in effect
at the Property and paid by Seller;
(n) A copy of any laundry lease or agreement in effect at the Property;
(o) A list of all tangible personal property to be transferred in this
transaction, excluding any proprietary software used by Seller in
connection with the management of the Property;
(p) A copy of any environmental reports with respect to the Property;
(q) Complete copies of the Notes and all related documents, including
but not limited to, any deeds of trust or mortgages, modifications
thereof, loan agreements and financial statements.
7. Delivery of Documents at Settlement and Possession.
(a) Possession, subject to existing leases, shall be given at
Settlement;
(b) Seller shall deliver to United Dominion at Settlement a special
warranty deed in form attached as Exhibit B, subject only to the Permitted
Exceptions;
(c) Seller shall also deliver to United Dominion on or before Settlement
the following in form and substance mutually satisfactory to counsel for Seller
and United Dominion:
(i) A xxxx of sale from Seller transferring all of the
tangible and intangible personal property that is owned by Seller
and used in rental, operation and maintenance of the Property.
Additionally the xxxx of sale shall contain language sufficient to
warrant special title of all major items of personal property
conveyed including and by way of example, appliances, motor
vehicles, office furniture, and equipment, maintenance hardware, and
pool equipment;
(ii) An affidavit in form acceptable to the Title Company
sufficient to remove any exception for mechanics' and materialmen's
liens and parties in possession except for tenants under unrecorded
leases;
(iii) An assignment of leases, a current operating statement and a
current rent roll showing apartment number, tenant, beginning term,
ending term, monthly rent, and the rent paid for the current month
certified to be complete and correct by the Seller plus the original
of each of the leases in effect at the Property as of the day of
Settlement (which leases shall remain at the Property site
throughout the transaction);
(iv) A schedule of all security deposits, the liability for
which United Dominion agrees to assume, showing apartment number,
tenant's name, tenant security deposit and accrued interest, if any,
on the security deposit as per applicable law and the applicable
lease, certified to be complete and correct by the Seller plus a
certified or xxxxxx'x check or a credit to the Purchase Price for
the amount of all security deposits an accrued interest thereon as
per the schedule;
(v) An assignment of all assignable permits, licenses,
authorizations and certifications necessary for the lawful use of
the Property as an apartment complex;
(vi) Such copies of Certificates of Occupancy, health permits
and any business licenses applicable to the Property as are in
possession of Seller, if any;
(vii) An assignment of any assignable termite bonds or warranties
and any assignable construction or fixture or equipment warranties
or guarantees in effect at the Property as are in possession of
Seller, if any;
(viii) An opinion of Seller's counsel, stating that Seller has
the power and authority to execute and deliver this Agreement, the
deed and relating documents, that the person executing the documents
are duly authorized to do so, without future consent of any other
party, and that upon their execution, the documents shall be binding
upon Seller;
(ix) An affidavit certifying that the Seller is not a foreign
entity under the Foreign Investment in Real Property Act and any
similar affidavits required by Virginia law;
(x) An affidavit stating United Dominion's right to have
audited Seller's books and records relating to the Property, at
United Dominion's expense, at a time reasonably convenient to
Seller, but before December 31, 1995, if United Dominion is advised
by its legal counsel to obtain as audit for submittal to the
Securities and Exchange Commission or any other regulatory body;
(xi) All such other documents that are normally transferred
at Settlement or are reasonably requested by United Dominion.
(d) United Dominion shall deliver at Settlement a cashier's check or
wired funds in immediately available funds made payable to Seller as per
Paragraph 1 of this Agreement.
(e) United Dominion shall also deliver to Seller on or before Settlement
the following, in form and substance mutually satisfactory to counsel for Seller
and United Dominion:
(i) A certified copy of the Resolution or action of United
Dominion's Investment Committee authorizing its purchase of the
Property under this Agreement;
(ii) An opinion of counsel for United Dominion stating that
United Dominion has the power and authority to execute and deliver
this Agreement, and to perform its obligations hereunder, that the
persons executing this Agreement and any documents required to be
delivered by United Dominion hereunder are duly authorized to do so,
without further consent of any other party, and that upon their
execution, the documents shall be binding upon United Dominion;
(iii) All such other documents that are normally transferred
or required at Settlement or are reasonably requested by Seller.
(f) Seller and United Dominion agree to cooperate for the purpose of
causing any and all loan assumption documents required to be executed in
connection with the assumption by United Dominion, or its assignee, of the
Notes and any related loan documents to be delivered on or before
Settlement.
8. Representations and Warranties of Seller.
(a) Seller warrants that to Seller's best knowledge all of the
information provided by Seller is correct and complete in all respects and does
not contain any untrue statement of a material fact;
(b) Seller warrants that it has received no notice of any has no
knowledge of any pending or threatened litigation or other judicial proceeding,
affecting the Property, including without limitation, condemnation or exercise
of the right of eminent domain;
(c) Seller warrants that it has received no notice of and has no
knowledge of any notice from any government agency that the Property is in
violation any zoning or other ordinances or regulations;
(d) Seller warrants that it has received no notice of any has no
knowledge of any pending or threatened rent strikes, tenant organizations,
tenant unions, or tenant interpleader actions;
(e) Except for information contained in the Phase I Site Assessment and
Bulk Asbestos Survey prepared by Dames and Xxxxx, dated May 6, 1992, Seller
warrants that it has no knowledge of any hazardous substance, pollutants or
containments, or hazardous waste, including, but not limited to asbestos, PCBs
and urea formaldehyde, having been generated, released, store or deposited over,
beneath or on the Property or forming any part of any improvement or structure
located on the Property, from any source whatsoever, by the Seller, its
predecessors in interest in the Property or any other person. To Seller's
knowledge, there has never been located on the Property an underground storage
tank used to store hazardous substances, pollutants, or contaminants, hazardous
waste or petroleum products. United Dominion acknowledges that Seller has made
no independent investigation of these matters;
(f) Seller both covenants and warrants that Seller will cooperate with
United Dominion in its inspection activities to be performed pursuant to
paragraph 4(h) above, that Seller will respond promptly and accurately to any
injuries made by United Dominion with regard to the Property and/or its
operation by Seller, and that Seller shall provide United Dominion with full
access to the Property and to Seller's records with regard thereto.
(g) Seller both covenants and warrants that Seller is not in default
under the Notes or any other documents related thereto and has filed with the
beneficiaries of the Notes all reports and certifications required pursuant to
the Notes or any other documents related thereto.
9. Risk of Loss. Until Settlement, all risk of any loss or damage to
all or part of the Property, including eminent domain, shall be and remain on
Seller. In the event that such loss or damage shall occur, Seller shall give
United Dominion written notice pursuant to this Agreement of such loss or damage
along with its estimate of the amount of the loss or damage, within five (5)
calendar days of such event occurring. In the event of any such loss due to
eminent domain or damage xxx to casualty in which the estimate of the loss is
greater than One Hundred Thousand Dollars ($100,000.00), then within five (5)
calendar days after receipt of Seller's written notice, Dominion, at its option
by written notice to Seller, may elect to void this Agreement in which event its
Deposit shall be promptly returned. In the event that Dominion does not elect
to void this Agreement or in the event that the loss is One Hundred Thousand
Dollars ($100,000.00) or less, at Settlement, Seller shall assign to Dominion
all of its rights, title and interest to the proceeds of any insurance or award
covering such loss or damage, and credit the Purchase Price at Settlement with
the amount of any deductible of such insurance. Dominion shall provide its own
insurance on the Property at Settlement.
10. Notice. Whenever any notice may be given or is required to be given
under the terms of this Agreement, the same shall be deemed given if in writing
and either sent by certified mail, return receipt requested, postage prepaid or
by a national overnight delivery service, delivery prepaid or delivered by hand
with written receipt acknowledged. For purposes of giving notice hereunder the
addresses of the respective parties are:
United Dominion: United Dominion Realty Trust, Inc.
00 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000-0000
ATTN: Xxxxxxx Xxxxx Xxxxx
with a copy to: United Dominion Realty Trust, Inc.
00 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000-0000
ATTN: Xxxxx X. Xxxxxxxxx, Esquire
Seller: Shelter Properties VI Limited Partnership
c/o Xxxx Xxxxxxxx
Insignia Financial Group
One Insignia Financial Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
with a copy to: Xxxxx Xxxxxxxx
Insignia Mortgage and Investment Company
The Woodmont Centre II, 000 Xxxxxxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
and Xxxxxxx X. Xxxxx, Esq.
P.O. Box 1089
One Insignia Financial Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
11. Contract Period. Prior to Settlement, Seller and Dominion agree:
(a) Seller shall not cause any new liens or encumbrances to be created
by Seller against the Property, nor will Seller enter into contracts with
respect to the Property other than in the ordinary course of business;
(b) Seller shall continue to lease and renew leases on the Property
using lease agreements now being used and rental rates now being quoted to new
or renewal tenants, and leases shall be written for terms not greater than one
year;
(c) Seller shall continue to comply with all of the landlord's duties
and obligations as set forth in the tenant leases;
(d) Seller shall continue to operate, repair, and maintain the Property
in the same manner as it has prior to the date of this Agreement.
12. Remedies. If United Dominion terminates this Agreement as a
consequence or a misrepresentation or breach of warranty or covenant by the
Seller, or failure by the Seller to perform its obligations hereunder, United
Dominion shall retain as its sole remedy the right to specific performance of
this Agreement and the recovery of the cost of enforcing this remedy. If, prior
to Settlement, United Dominion defaults in performing any of its obligations
under his Agreement, including its obligation to purchase the Property, (unless
United Dominion's termination is the result of Seller's actions noted above in
this paragraph), the Seller's sole remedy for such default shall be to terminate
this Agreement and be paid Fifty Thousand Dollars ($50,000.00). Seller and
United Dominion agree that, in the event of such a default, the damages that the
Seller would sustain as a result thereof would be difficult if not impossible to
ascertain. Therefore, Seller and United Dominion agree that, Seller shall be
paid Fifty Thousand Dollars ($50,000.00) as full and complete liquidated
damages, and not as a penalty or forfeiture, as the Seller's sole remedy. All
limitations of this paragraph apply only to claims brought by either party prior
to Settlement.
13. Successors and Assigns. All rights and obligations of Seller and
United Dominion under this Agreement shall inure to and be binding on their
respective successors and assigns.
14. Severability. If any provision of this Agreement shall be in
violation of any applicable law or unenforceable for any reason, the invalidity
or unenforcebility of any provision shall not invalidate or render unenforceable
any other provision hereof, which other provisions shall remain in full force
and effect.
15. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the transactions contemplated hereby
and supersedes all prior discussions, understandings, agreements and
negotiations between the parties hereto. This Agreement may be modified only by
a written instrument duly executed by the parties hereto.
16. Incorporation by Reference. All of the exhibits attached hereto
are by this reference incorporated herein and made a part hereof.
17. Survival. All warranties, representations and agreements made in
Paragraph 8 herein shall survive Settlement for a period of nine (9) months.
Claims brought by either party after Settlement are not subject to the
limitations of paragraph 12 above.
18. Real Estate Commission. United Dominion warrants that in connection
with this transaction it has dealt with no real estate agents or brokers.
Seller warrants that in connection with this transaction it has dealt with no
real estate agents or brokers other than Insignia Mortgage & Investment Company
(the "Broker"). Seller shall be responsible for any payment due to the Broker
and shall hold United Dominion harmless from claims for such payments. The
parties further warrant and represent to each other respectively that they will
pay any and all brokerage fees for which they are responsible as a result of the
purchase and sale of the Property pursuant to this Agreement, and agree to
indemnify and hold the other harmless against, and with respect to, any such
obligation or liability, or claim of liability.
19. Time is of the Essence. Time is of the essence with respect to
every provision of this Agreement.
20. Expiration. If this Agreement is not executed by all parties and
two (2) fully executed originals are not received by the offices of United
Dominion on or before 5:00 P.M., June 2, 1995, then this Agreement shall expire
and become null and void.
21. Applicable Law. This Agreement including the determination of the
statute of limitations for bringing any claims, shall be construed, performed
and enforced in accordance with the laws of the Commonwealth of Virginia.
22. Like-Kind Exchange. United Dominion reserves the right to assign
its rights under this Agreement (but without release of its obligations herein)
to a third party who may purchase and thereafter exchange the Property with
United Dominion in accordance with the provisions of Section 1031 of the
Internal Revenue Code. Such exchange shall be accomplished at no additional
expense or delay to Seller and United Dominion agrees to indemnify Seller
against any claims or liabilities resulting solely from structuring the
transaction as an exchange, rather than a direct purchase.
23. Assignment. This Agreement may be assigned by United Dominion to an
affiliate or subsidiary of United Dominion without the consent of the Seller.
IN WITNESS WHEREOF, this Agreement has been executed by the duly authorized
representatives of the parties hereto as of the date designated below.
Seller:
SHELTER PROPERTIES VI LIMITED PARTNERSHIP,
a South Carolina limited partnership
By: SHELTER REALTY VI CORPORATION,
a South Carolina Corporation
By: Xxxxxxx X. Xxxxxxx, Xx.
Its: President
Date: 6/2/95
United Dominion:
UNITED REALTY TRUST, INC.,
a Virginia corporation
By: Xxxxxxx Xxxxx
Its: Vice President
Date: May 31, 1995
Acknowledgment of Good Faith Deposit: Chicago Title Insurance Co.
acknowledges receipt of a good faith deposit in the amount of Fifty Thousand
Dollars ($50,000.00) from United Dominion on 6/8/95
for the purchase of the Marble Hill Apartments.
ESCROW AGENT:
By: Xxxxx Xxxxxx
Its: National Accounts Mgr/NBU
