PURCHASE AGREEMENT
RE: ANGELES PROPERTIES XIV PROJECT 41
THIS PURCHASE AGREEMENT (this "Agreement") is made as of January ______,
1998, (the "date of this Agreement") between ANGELES PROPERTIES XIV, a
California limited partnership ("Seller") and MID-STATES DEVELOPMENT COMPANY,
an Ohio general partnership ("Purchaser").
Section 1. Description of Property: Agreement of Purchase and Sale.
1.1 Purchase and Sale; Property. Seller agrees to sell and convey to
Purchaser, and Purchaser agrees to purchase and pay for, upon the terms and
conditions contained in this Agreement, the following:
1.1.1 The following real estate located in the City of Vandalia,
County of Montgomery, State of Ohio and commonly referred to as follows:
(a) Project 41 located at 3981 - 3983 Image Drive, Vandalia, Ohio.
The land respectively encompassed by said project is more fully described
on Exhibits A-1 and A-2 attached hereto and incorporated by reference herein.
All of the land described in Exhibits A-1 and A-2 is collectively hereafter
referred to as the Land. The Land shall include all of Seller's rights therein
and in any alleys, strips or gores, if any, adjoining the Land or any part
thereof.
1.1.2 Said project is improved with an office/industrial building
containing approximately 128,800 gross square footage area, and includes all
other buildings, structures, appurtenances, landscaping and other improvements
on the Land (collectively, the "Improvements") (all of the Land and Improvements
and the Personal Property, hereinafter defined, are referred to as the
"Premises."
1.1.3 Any building supplies, fuels, intangible rights wherever
located including, but not limited to, all plans and specifications, surveys,
studies and drawings related to the Premises, all transferable permits and
licenses and all warranties and guarantees of contractors, suppliers, and
manufacturers, all fixtures, machinery and equipment, heating, ventilating and
air conditioning equipment and systems, plumbing and electrical equipment and
systems, furnishings, furniture, alarm systems, sprinkler systems and all other
tangible and intangible personal property that is owned by Seller and attached
to, appurtenant to or located in or used in connection with the operation,
management or maintenance of the Premises (all of the foregoing being
collectively referred to as the "Personal Property");
1.1.4 All right, title and interest of Seller in and to any air
rights, riparian rights, easements, right-of-way, rights of ingress or egress,
licenses or other interests in or to any land, highway, street, road or avenue,
open or proposed, in, on, across, abutting or adjoining, the Land.
1.1.5 Any and all other rights, privileges and appurtenances owned
by Seller and in any way related to, or used in connection with, the operation,
management, or maintenance of the Premises and/or the Personal Property; and
1.1.6 All right, title and interest of Seller in and to any
condemnation award or proceeds of insurance made or to be made in respect of the
Premises or any of the other interests described above.
1.1.7 All right, title and interest of Seller in and to all rents,
income, revenues, issues and profits, leases and rental agreements affecting or
pertaining to the Premises or any part thereof.
1.2 The term "Property" as used in this Agreement shall mean all property,
whether real or personal, tangible or intangible, set out and described above.
1.3 Closing. The parties agree to consummate this purchase and sale and
the transactions contemplated hereby ("Closing") on or before February 27, 1998
at 1:00 p.m., Eastern Standard Time, in the offices of the Title Company
(hereinafter defined) in Dayton, Ohio, or at such other earlier date and time as
may be agreed upon by the parties ("Closing Date" or "Date of Closing").
Purchaser and Seller agree to work toward an earlier Closing if conditions
precedent to Closing can be reasonably accomplished by such earlier date.
Section 2. Purchase Price.
2.1 Purchase Price. The total purchase price for the Property shall be
One Million Nine Hundred Thousand Dollars ($1,900,000.00) payable on the Closing
Date by certified check, cashier's check, wire transfer or cash. The purchase
price shall be allocated between the Land and Improvements as set forth in
Exhibit B hereto (which, if not attached hereto at the time of execution, shall
thereafter be agreed to by the parties and then attached to this agreement and
shall become a part hereof).
2.2 Disbursement of Purchase Price. The Purchase Price after adjustment
for any prorations of taxes, assessments, rents, utilities or transfers of
security deposits as provided herein and other customary closing adjustments and
credits, shall be paid and disbursed at the Closing in the following manner:
2.2.1 First, to payment in full of all loans
secured by first mortgage liens on the Property or any part
thereof. If Purchaser assumes any such loan, then the
amount of the assumed loan shall be treated as a credit to
the payment of the purchase price.
2.2.2 Next to payment of all costs of sale to be
paid by Seller, including, but not limited to, real estate
commissions, pursuant to the terms hereof.
2.2.3 Next, to the payment in full of the mortgage
held by Miller-Valentine Realty, Inc. recorded at Microfiche
92-0650-D02 of the Montgomery County, Ohio mortgage records.
2.2.4 Next to the payment in full of the loan
secured by the mortgage held by Mid-States Development
Company, recorded at Microfiche 85-1840-E06 and amended by
document recorded at Microfiche 92-0651-B08 of the
Montgomery County, Ohio mortgage records.
2.2.5 Next, any remaining portion of the purchase
price shall be distributed in satisfaction of any other
liens and encumbrances on the Property.
2.2.6 Any remaining balance of the purchase price
shall be distributed as provided in the Property Operating
and Management Agreement between Seller and Miller-Valentine
Realty, Inc.
2.3 Minimum Payment to Seller. Notwithstanding anything to the contrary
provided herein, in no event shall Seller receive from the disbursement of the
purchase price less than Five Thousand Dollars ($5,000).
Section 3. Documents and Inspections.
3.1 Seller's Deliveries. Upon execution of this Agreement to the extent
not previously delivered, Seller shall deliver to Purchaser correct copies of
each of the following document and materials:
3.1.1 All of the agreements, oral or written, formal or informal,
actually known by Seller to pertain to the ownership, management, maintenance
and operation of the Property. The current manager of the Property, Miller-
Valentine Realty, Inc., is authorized by Seller to turn over all such documents
which it may possess to Purchaser and is further directed by Seller to cooperate
in the closing of the transaction contemplated hereby.
3.1.2 All plans, specifications and blueprints pertaining to the
Improvements that are in Seller's possession.
3.1.3 All certificates of occupancy, licenses, permits,
authorizations and approvals, issued by all governmental authorities having
jurisdiction over the Property, together with copies of all certificates issued
by any local board of fire underwriters (or other body exercising similar
functions), if available.
3.1.4 All leases and rental agreements relating or pertaining to
the Property or any part thereof in possession of Seller.
3.1.5 Copies of any environmental audits or other reports
concerning soil, ground water, underground tanks, subsurface conditions,
environmental conditions or other matters concerning the Premises or any part
thereof of which Seller is aware and in possession or control of such
information or data.
3.2 Entry for Inspection. Immediately upon the execution of this
Agreement and thereafter continuously through the date of Closing, Seller shall
make the Property available for inspection by Purchaser, and Purchaser's agents,
employees and contractors. During that time, Purchaser may, at Purchaser's sole
risk and expense, undertake a complete physical inspection of the Property as
Purchaser deems appropriate. Purchaser agrees to indemnify and save Seller
harmless against all liabilities, claims, damages, penalties, costs and expenses
incurred by or asserted against Seller in connection with or arising out of the
entry upon the Premises by Purchaser or Purchaser's employees, agents, or
contractors. This obligation shall survive the consummation or termination of
this Agreement.
3.3 Inspection Period. Purchaser shall have until the date of Closing
(the "Inspection Period"), in which to determine whether the condition and
suitability of the Property and all of the items delivered to Purchaser pursuant
to Section 3.1 are satisfactory to Purchaser. If the Property or any of such
items is not satisfactory to Purchaser, Purchaser may elect not to purchase the
Property by sending written notice of termination to Seller, postmarked not
later than the date of Closing. In such event, this Agreement shall terminate
and neither party shall have any further rights or obligations under this
Agreement other than those rights and/or obligations that are expressly stated
to survive expiration or termination of this Agreement.
Section 4. Title and Survey.
4.1 Title; Deed. Prior to Closing, Purchaser, at Purchaser's cost, shall
obtain a commitment for an Owner's Policy of Title Insurance (the "Commitment")
issued by Chicago Title Insurance Company (the "Title Company") and dated as of
a current date, pursuant to which the Title Company shall commit to issue to
Purchaser an ALTA Owner's Policy of Title Insurance in the amount of the
Purchase Price, with all printed General Exceptions of Schedule B of the title
policy form deleted, insuring in Purchaser marketable fee simple title to the
Premises, subject only to the "Permitted Exceptions" as defined below. From the
proceeds of sale, Seller shall pay for or reimburse Purchaser for the cost of
such policy at Closing. At the Closing, and as a condition to Purchaser's
obligations under this Agreement, the Title Company shall deliver or irrevocably
commit to delivery to Purchaser the policy of title insurance in accordance with
the Commitment. At Closing, Seller will convey the Premises to Purchaser by
transferable and recordable limited warranty deed, conveying marketable title to
Purchaser, or its nominee, free and clear of all defects, liens, claims
encumbrances, easements, restrictions, covenants, conditions, encroachments,
assessments (general or special) or any other exceptions, including but not
limited to the printed General Exceptions of Schedule B of the title policy
form, except for the following (the "Permitted Exceptions"):
(a) all legal highways.
(b) Zoning, building and other laws, ordinances, codes and
regulations that do not materially adversely affect the current use of
the Property.
(c) Easements, rights-of-way, covenants and restrictions of
record, to the extent that such easements, right-of-way, covenants and
restrictions do not interfere with, obstruct, or otherwise impair, in
Purchaser's sole judgment, Purchaser's current or intended future use
and enjoyment of the Property or Purchaser's plans for the future
development of the Property;
(d) Installments of real estate taxes and assessments which are
a lien upon the Premises, but not yet due and payable; and
(e) Any mortgage assumed by Purchaser.
Any mortgage or other monetary lien on the Property not assumed by Purchaser is
to be discharged and paid by Seller at the time of Closing. If funds are
disbursed as set forth in Section 2.2, it shall be Purchaser's obligation
hereunder to obtain releases of the security interests held on the Property or
any part thereof by Mid-States Development Company or Miller-Valentine Realty,
Inc.
4.2 Survey. Prior to Closing, Purchaser, at Purchaser's cost, shall
obtain such survey ("Survey") as is reasonably necessary to cause the title
insurer to delete the survey exception from the title insurance policy and to
satisfy the requirements of Purchaser's lender, if any, certified to Purchaser,
the Title Company and Purchaser's lender, if any, showing all improvements,
easements, roads, highways, and other restrictions affecting the Property.
4.3 U.C.C. Searches. Prior to Closing, Purchaser, at Purchaser's cost,
shall obtain current searches of all Uniform Commercial Code financing
statements filed with the Secretary of State of Ohio and the County Recorder's
Office in Montgomery County, Ohio against Seller and against all prior owners of
the Property during the past six (6) years. Such searches shall reveal that
there are no claims or liens against any of those parties encumbering the
Property. If claims or liens are revealed that do or could encumber the
Property, then the cure and termination election provisions set forth below
shall apply.
4.4 Defects and Cure.
4.4.1 The Commitment, the Survey and the Uniform Commercial Code
searches described in Section 4.1 through 4.3 are referred to as the "Title
Evidence." Prior to the Closing Date, Purchaser shall notify Seller of
Purchaser's disapproval of any matter contained in the Title evidence after
Purchaser's receipt of all of the Title Evidence and copies of the documents
referred to in the Title Evidence as exceptions or exclusions from coverage.
Except for real estate taxes that are to be prorated at Closing and mortgages
and other monetary liens which, in any event and notwithstanding anything
hereinafter to the contrary, shall be discharged and paid at Closing,
Purchaser's failure to so notify Seller of disapproval of any matter shall be
deemed approval of that matter. If the Title Evidence discloses, with respect
to the Survey, conditions that will adversely affect Purchaser's current or
future use or enjoyment of the Premises or Purchaser's plans for the future
development of the Premises, with respect to the Title Commitment, matters other
than the Permitted Exceptions, or with respect to the Uniform Commercial Code
searches, liens or claims (collectively, "Defects"), those Defects shall, as a
condition to Purchaser's obligations under this Agreement, be cured or removed
from the Title Evidence prior to or at Closing. If Seller fails to cure and
remove all Defects within fifteen (15) days after written notice, this Agreement
(1) may be terminated, at Purchaser's election, by written notice given to
Seller within ten (10) days after expiration of the period allowed for cure. If
necessary to allow the full time to cure or remove such defect, the date of
Closing shall be extended accordingly; or (2) Purchaser may, at its sole
election, proceed to close this transaction notwithstanding such defects. If
this agreement is terminated as above provided in this Section 4, neither party
shall have any further rights or obligations under this Agreement other than
those rights and/or obligations that are expressly stated to survive
consummation or termination of this Agreement.
Section 5. Purchaser's Conditions to Closing.
The obligation of Purchaser to close the transaction contemplated by this
Agreement is subject to the following conditions, inserted for Purchaser's
benefit and which may be waived by Purchaser at its sole option by notice to
Seller.
5.1 The representations and warranties of Seller contained in Section 6 of
this Agreement shall be true on the date of Closing in all material respects as
though those representations and warranties were made on that date.
5.2 Seller shall not have breached any material affirmative covenant
contained in this Agreement to be performed by Seller on or prior to the date of
Closing.
5.3 Purchaser shall have either affirmatively approved or shall have been
deemed (pursuant to the provisions of Section 3 and 4) to have approved all of
the matters set forth in Sections 3 and 4 in respect to which Purchaser has,
under provisions of this Agreement, a right of inspection and/or approval; or,
in the event Purchaser has delivered written objections to Seller in respect to
any of those matters, Seller has remedied Purchaser's objections prior to
Closing in the manner and within the time period provided in this Agreement, or
Purchaser has waived same in writing.
5.4 Seller shall have timely delivered to Purchaser in satisfactory form
the documents and all other items referred to in Section 7 below.
5.5 The Title Company shall at Closing have delivered or irrevocably
committed itself in writing to deliver the Title Policy described in Section
4.1.
5.6 Seller shall have obtained the agreement of holders of mortgages on
the Property to release their respective liens against the Property at Closing
in any case where such mortgage is not being paid in full, except that it shall
be Purchaser's obligation to obtain releases from Miller-Valentine Realty, Inc.
and Mid-States Development Company if liens held by either of them are not paid
in full, so long as the proceeds of sale are disbursed as provided in Section
2.2 hereof.
5.7 Purchaser, at its expense, shall determine that all legal highways do
not interfere with, obstruct, or otherwise impair, in Purchaser's sole judgment,
Purchaser's current or intended future use and enjoyment of the Property or
Purchaser's plans for future development of the Property.
5.8 Purchaser shall have received an environmental assessment satisfactory
to Purchaser, as Purchaser in its sole discretion shall determine, evidencing
that no condition of or concerning the Property causes or creates a situation or
matter which violates or is not in compliance with any law, rule or regulation
or ordinance which relates to protection of the environment or which, in
Purchaser's sole judgment, would cause Purchaser to incur significant costs to
correct any such matter, or to investigate such matter further to determine the
potential impact thereof.
5.9 Purchaser shall have obtained a commitment for financing in the amount
of not less than $1,000,000 on terms no less favorable than those generally
prevailing for commercial loans of similar size and on similar types to
commercial property as the Property to a borrower of similar creditworthiness as
Purchaser. The financing may include any combination of loans, loan
assumptions, and lenders as Purchaser may determine appropriate. Purchaser
agrees to promptly apply for and diligently proceed to obtain such financing.
The closing of this transaction is contingent upon Purchaser's lender funding
said loan commitment.
5.10 If any of the conditions provided in this Section 5 are not satisfied
or waived, or the time periods for satisfaction extended by Purchaser, then
Purchaser shall have the right, in addition to any other right which it may
have, to terminate this Agreement by notice delivered to Seller no later than
the date of Closing or such earlier time as may be provided above. In the event
of such termination, neither party shall have any further rights or obligations
under this Agreement other than those rights and/or obligations which are
expressly stated to survive consummation or termination of this Agreement.
Section 6. Representations, Warranties and Covenants.
6.1 Seller's Representations, Warranties and Covenants. Seller
represents, warrants and covenants to Purchaser as of the date hereof as to the
following matters, and shall be deemed to remake all of the following
representations, warranties and covenants as of the date of Closing without
further action on its part:
6.1.1 The execution and delivery of this Agreement by Seller, the
execution and delivery of every other document and instrument delivered pursuant
to this Agreement by or on behalf of Seller, and the consummation of the
transactions contemplated by this Agreement have been duly authorized and
validly executed and delivered by Seller, and will not (a) constitute or result
in the breach of or default under any written agreement to which Seller is a
party or which affects the Property; (b) constitute or result in a violation of
any order, decree or injunction with respect to which Seller and/or the Property
is bound; (c) cause or entitle any party to have a right to accelerate or
declare a default under any written agreement to which Seller is a party or
which affects the Property; and/or (d) violate any provision of any municipal,
state or federal law, statutory or otherwise, to which Seller or the Property
may be subject.
6.1.2 No attachments, execution proceedings, liens, assignments,
bankruptcy, or insolvency proceedings are pending or, to the actual knowledge of
Seller, threatened against Seller or the Property or contemplated by Seller,
except such liens as may be specifically disclosed in the Commitment issued by
the Title Company, which shall be released at Closing or assumed by Purchaser.
6.1.3 Seller is not a party to any collective bargaining agreement as
to any employees who are engaged by Seller with regard to the operation and
maintenance of the Property. Purchaser is assuming no responsibilities or
obligations whatsoever relative to any employees engaged by Seller with regard
to the operation and management of the Property, and Seller indemnifies
Purchaser from and against any and all obligations and other matters relative to
such employees, whether arising or accruing on, before or after the date of
Closing.
6.1.4 Between the date of this Agreement and the date of Closing,
no part of the Property will be sold, encumbered or transferred in favor of or
to any other party whatsoever.
6.1.5 There are no purchase contracts, options or any other agreements
of any kind, oral or written, by which any person or entity other than Seller
will have acquired or will have any basis to assert any right, title or interest
in, or right to possession, use, enjoyment or proceeds of, any part or all of
the Property other than tenants of the Property, the leases and rental
agreements which have been previously disclosed to Purchaser, and which do not
contain any option to purchase the Property or any part thereof.
6.1.6 Seller is a limited partnership duly organized and validly
existing under California law and qualified to own property and transact
business in Ohio, and the person(s) signing this Agreement on behalf of Seller
have the power and authority to enter into and perform this Agreement in
accordance with its terms; and at Closing Seller's execution and delivery of
this Agreement and the consummation of this transaction by its general partners
will have been duly authorized by all appropriate actions and proceedings.
Evidence by Seller of the foregoing representation reasonably satisfactory to
Purchaser's counsel shall be delivered at Closing, which evidence may include,
but not be limited to, an opinion of Seller's counsel with respect to such
matters.
6.1.7 Seller owns good record and marketable, fee simple title to the
Premises in recordable form, free and clear of any and all mortgages (except
mortgages to be assumed, paid or released at closing), liens, encumbrances,
claims, charges, equities, covenants, conditions, restrictions, easements,
rights-of-way, or other matters, whether or not of record, except for Permitted
Exceptions.
6.1.8 Seller is not a foreign person as such term is used in Section
1445 of the Internal Revenue Code.
6.1.9 Hazardous Materials. Seller represents and warrants to
Purchaser that it has not received written notice from any federal, state or
local governmental agency regarding Hazardous materials (as defined below) on,
in, under or affecting the Property. Seller further represents and warrants to
Purchaser that, to the best of Seller's knowledge, there has been no spill,
release, discharge or disposal of Hazardous Materials on, in, under or affecting
the Property. Seller further represents and warrants that, to the best of its
knowledge, the soil and groundwater are not contaminated with Hazardous
Materials. As used in this Agreement, the term "Hazardous Materials" means any
hazardous or toxic substance, materials or waste which is or become regulated by
any local governmental authority, any agency of the State of Ohio, or any agency
of the United States Government. The term "Hazardous Materials" includes
without limitation any material or substance which is (I) designated, defined
or listed as a "hazardous substance" pursuant to the Federal Water Pollution
Control Act (33 U.S.C. - 1251, et seq.), the Federal Resource Conservation and
Recovery Act (42 U.S.C. - 9601, et seq.), or the Hazardous Materials
Transportation Act (49 U.S.C. - 1801, et seq.); (ii) petroleum and any petroleum
by-products; (iii) asbestos; or (iv) polychlorinated biphenyls.
6.1.10 To the best knowledge of Seller, the Premises are not in
violation of any zoning, subdivision, building or fire code, or any other
applicable ordinance, statute, regulation or requirement of any governmental
authority having jurisdiction thereof, and Seller has received no notice or
order from any governmental authority as to such a violation.
6.3 No Other Representations. Except as is expressly provided in this
Agreement, Purchaser acknowledges that neither Seller nor any agent, attorney,
employee or representative of Seller has made any representations as to the
physical nature or condition of the Property.
6.4 Survival. All of the representations, warranties and covenants made
by Seller in Section 6.2 and elsewhere in this Agreement shall survive Closing
for a period of one (1) year, except for the environmental representations,
warranties and covenants which shall survive indefinitely. Unless Purchaser
delivers notice to Seller of a breach of representation, warranty or covenant
contained in Section 6.1 or elsewhere in this Agreement (other than a matter
which relates to an environmental representation or warranty) within one (1)
year of the date of Closing, the representation, warranty or covenant shall be
of no further force or effect. Notwithstanding the foregoing, the covenants of
limited warranty contained in Seller's deed shall survive indefinitely.
Section 7. Closing and Transfer of Title.
7.1 Seller's Documents; Other Deliveries. At Closing, Seller shall
execute and/or deliver to Purchaser the following:
7.1.2 A limited warranty deed to the Premises in accordance with
Section 4.1, conveying marketable title in recordable form to the Premises to
Purchaser (or its nominee) free, clear and unencumbered, subject, however, to
the Permitted Exceptions, and any mortgage assumed by Purchaser.
7.1.3 A Bill of Sale with full warranties of title, conveying the
Personal Property to Purchaser.
7.1.4 An assignment of all warranties and guarantees with respect
to the Property.
7.1.5 An assignment of all leases and rental agreements concerning
the Property or any portion thereof.
7.1.6 Releases of all mortgages liens which are liens against the
Premises. The parties recognize that the purchase price will not be sufficient
to satisfy all mortgage liens on the Premises, but anticipate that certain of
the lienholders will release their respective lien or liens for less than full
consideration. If funds are distributed as provided in Section 2.2 hereof, then
Purchaser shall be responsible for obtaining releases from Miller-Valentine
Realty, Inc. and Mid-States Development Company. If satisfactory arrangements
are not reached with any other lienholder who is not to be paid in full at
Closing, then either party hereto may terminate this agreement by giving written
notice to the other prior to Closing Date, and in such event. neither party
shall have any further rights or obligations under this agreement other than
those rights and/or obligations which are expressly stated to survive
consummation or termination of this agreement.
7.1.7 All other documents and instruments referred to in this
Agreement which are to be delivered to Purchaser.
7.1.8 An assignment of all permits, licenses and certificates and
authority granted to Seller for the ownership, occupation and operation of the
Property.
7.1.9 All of the Personal Property.
7.1.10 Documents satisfactory to Purchaser and the Title Company,
indemnifying Purchaser and the Title Company from all liability and expense,
including attorneys' fees, in connection with unfiled mechanics' liens in the
event of any work being completed or performed, or material being furnished, at,
on, or about the Property within ninety (90) days of the date of Closing.
7.1.11 The originals of all blueprints, construction plans,
specifications and plats for all of the Improvements or Seller's rights to any
of the foregoing that are held by third parties, if available.
7.1.12 An owner's affidavit as to mechanics' liens, parties in
possession of the Premises, unrecorded agreements, and such other matters
required by the Title Company as a condition to its deletion of the printed
General Exceptions relating to such matters from the title policy.
7.1.13 All consents that may be required from any third person or
entity in connection with the sale of the Property.
7.1.14 Such evidence of Seller's due authorization of this agreement
and the transactions as contemplated hereby in form and substance as shall
comply with the requirements set forth in Section 6.1.6.
7.1.15 Such other documents or instruments as may be reasonably
required by Purchaser or Purchaser's lender, if any, to cause such lender to
fund and disburse the loan obtained by Purchaser to finance the purchase
contemplated hereby or as may be reasonably necessary to effectuate Closing,
including, but not limited to, a closing statement and affidavit of non-foreign
status. All of the documents and instruments to be delivered by Seller shall be
in form and substance reasonably satisfactory to counsel for Purchaser.
7.2 Purchaser's Documents. At Closing, Purchaser shall execute and/or
deliver to Seller the following documents:
7.2.1 An assignment of leases and rental agreements, as described
in 7.1.4 hereof, which shall include Purchasers assumption of the obligations of
the Lessor thereunder.
7.2.2. Such other documents and instruments as Seller or the Title
Company shall reasonably request in order to consummate this transaction, or as
may be reasonably necessary to effectuate Closing, including, but not limited
to, a closing statement.
Section 8. Possession.
Seller shall deliver possession of the Property to Purchaser at Closing.
Section 9. Prorations and Expenses.
9.1 Proration of Real Estate Taxes and Assessments. At or prior to
Closing, Seller shall pay all real estate taxes and assessments on the Property,
including all penalties, which become due and payable prior to the date of
Closing. The Seller shall have paid the June, 1997 installment of real estate
taxes and assessments for the property. The December, 1997 installment of real
estate taxes (due and payable in approximately February, 1998) shall be prorated
as of the date of Closing, based upon the most recent tax bills issued by the
Treasurer of Montgomery County, Ohio in accordance with the "short form" method
of proration (as is the custom for property located in Montgomery County, Ohio).
Purchaser shall pay the December, 1997 installment of real estate taxes and all
installments thereafter. In computing the real estate tax proration, any
payment by Tenants of the Property pursuant to rental agreement and leases shall
be taken into account.
9.2 Utility Expenses and Other Expenses. Final reading on all gas, water
and electric meters which are the responsibility of the Seller shall be made as
of the date of Closing, if possible, and shall be transferred to Purchaser.
Seller shall be responsible for payment of all utility charges arising before
the Closing Date, Purchaser shall be responsible for payments of all such
utility charges from and after the date of Closing. Purchaser shall be
responsible for making all arrangements for the continuation of utility
services. Seller shall pay all operating expenses which relate to the Property
or any part thereof which relate to any period prior to the Closing and which
are Seller's responsibility to pay, and Purchaser shall be responsible for all
such expenses relating to any period on or after the Closing.
The Property is currently being operated by Miller-Valentine Realty,
Inc. ("Manager") for the Seller pursuant to an operating agreement effective
March 2, 1992 ("Operating Agreement"). The parties will direct the Manager to
utilize any funds of Seller which were received by Manager in connection with
its management of the Property to satisfy any and all operating expenses which
are Seller's responsibility hereunder. After payment of all such items and any
other items under the Operating Agreement which are to be paid by Seller any
remaining funds shall be applied in partial satisfaction of any obligation owing
by Seller to Purchaser or Miller-Valentine Realty, Inc. Manager shall
disburse all funds of Seller which it is holding and provide an accounting of
all receipts and payments within 60 days after Closing. If any item which is
Seller's responsibility to pay cannot be exactly paid and determined, Manager
shall make a reasonable estimation thereof, which shall be conclusive as between
the parties hereto if exact determination cannot be made within such 60-day
period.
9.3 Security Deposits. Seller shall turn over to Purchaser all security
deposits which Seller holds in connection with the Property at Closing, and
Purchaser shall thereafter be responsible therefor and shall indemnify and hold
Seller harmless in connection therewith.
9.4 Rents. The parties will prorate as of the Closing all rents, and
other income items arising from the Property, or any part thereof.
Section 10. Condemnation or Casualty.
10.1 Condemnation. If between the date of this Agreement and the date of
Closing all or any portion of the Property is taken or is made subject to
condemnation, eminent domain or other governmental or quasi-governmental
acquisition proceedings, then the following provisions shall apply. In the
event Seller receives a written notice from any governmental or quasi-
governmental authority with powers of eminent domain to the effect that a
condemnation as to any portion or all of the Property is pending or
contemplated, Seller shall notify Purchaser promptly after receipt of the
notice. If the proposed or pending condemnation is one that could reasonably be
expected to render any portion of the Premises untenantable, then Purchaser may,
upon receipt of notice of the event, cancel this Agreement at any time prior to
Closing, in which event neither party shall have any further rights or
obligations under this Agreement other than those rights and/or obligations
which are expressly stated to survive expiration or termination of this
Agreement. In the event that Purchaser elects not to terminate, then this
Agreement shall remain in full force and effect, and Seller shall be entitled to
all monies received or collected prior to the Closing by reason of the
condemnation. In that event, this transaction shall close in accordance with
the terms and conditions of this Agreement except that there will be an
abatement of the Purchase Price equal to the amount of the gross proceeds
received by Seller, less reasonable out-of-pocket costs and reasonable
attorneys' fees expended by Seller. If, however, Seller has not received any
proceeds by reason of such condemnation prior to the Closing and Purchaser does
not elect to terminate Purchaser's obligations under this Agreement, then the
Closing shall take place without abatement of the Purchase price, and Seller
shall assign and transfer to Purchaser at Closing by written instrument all of
Seller's right, title and interest in any condemnation awards, less, however,
the amount required to reimburse Seller for any of the out-of-pocket costs and
reasonable attorneys' fees expended by Seller prior to the date of Closing.
10.2 Casualty. In the event of substantial loss or damage to the Property
prior to the Closing by fire or other casualty, Purchaser may, at any time after
receipt of notice or knowledge of that event, cancel this Agreement, in which
event neither party shall have any further rights or obligations under this
Agreement other than those rights and/or obligations which are expressly stated
to survive expiration or termination of this Agreement. In the event that
Purchaser shall not elect to terminate, or if the loss or damage is not
"substantial," then this Agreement shall remain in full force and effect and
Purchaser shall proceed to close and take the Property as damaged, in which
event Purchaser shall be entitled to receive the insurance proceeds payable on
account of such loss or damage plus a credit against the purchase price equal to
the amount of any deductible, co-insurance or self-insurance carried by Seller,
so that Purchaser shall receive, in effect, the full replacement cost of the
loss or damage, as the cost is determined in the settlement with the insurer, or
if there be no insurer, then based upon the actual costs or reasonable estimates
of actual costs, as the parties shall reasonably agree, to completely and fully
repair and replace such loss or damage. Seller and Purchaser shall each be
entitled to participate in the settlement. As used in this Section 10.2, the
term "substantial loss or damage" means any loss or damage resulting to the
Property which the parties reasonably estimate will cost $100,000 or more to
repair or restore.
Section 11. Default.
If the closing is not concluded due to failure of Purchaser to perform its
obligations under this Agreement, Seller may terminate this Agreement by written
notice to Purchaser, after which neither party shall have any further rights or
obligations under this Agreement other than such rights or obligations that are
expressly stated to survive consummation or termination of this Agreement.
If the closing is not concluded due to failure of Seller to perform its
obligations under this Agreement, Purchaser, at its option, may (a) elect to
enforce the terms of this Agreement by action for specific performance or (b)
terminate this Agreement by written notice to Seller, after which neither party
shall have any further rights or obligations under this Agreement other than
such rights or obligations that are expressly stated to survive consummation or
termination of this Agreement.
Section 12. Broker.
Each party represents and warrants to the other that it has dealt with no
agent or broker who has in any way participated in the sale of the Property
other than Miller-Valentine Realty, Inc. Seller agrees to pay out of the
purchase price the brokerage commission due Miller-Valentine Realty, Inc. in the
amount of 2% of the purchase price. Any other fees or commissions that may be
claimed shall be the sole responsibility of the party breaching the preceding
warranty. Each party agrees to indemnify and hold harmless the other against
any and all claims, judgments, costs of suit, attorneys' fees and other
reasonable expenses that the other may incur by reason of any action or claim
made against the other by any agent, advisor or intermediary appointed by or
instructed by Seller or Purchaser as the case may be, arising out of this
Agreement or sale of the Property to Purchaser. The foregoing indemnity shall
survive Closing and delivery of the deed.
Section 13. Binding Effect/Assignment.
This Agreement shall be binding upon and shall inure to the benefit of the
parties and their respective heirs, personal representatives, successors and
assigns.
Section 14. Notices.
All notices permitted or required under this Agreement shall be in writing,
and shall be deemed properly delivered when deposited in the United States
regular mail, postage prepaid, addressed to the parties at their respective
addresses set forth below or as they may otherwise specify by written notice
delivered in accordance with this Section:
As to Purchaser: Mid-States Development Company
4000 Miller-Valentine Court
Dayton, Ohio 45439
Attention: Vern Oakley
As to Seller: Angeles Partners XIV
c/o Insignia Financial Group, Inc.
One Insignia Financial Plaza
P. O. Box 1089
Greenville, South Carolina 29602
Attention: Ken Cobler
Section 15. Expenses.
Seller shall pay from the proceeds of sale the transfer and conveyance fee
charged in connection with the conveyance of the Premises, provided that in no
event shall Seller's payment of such expenses cause it to receive less than the
amount specified in Section 2.3. Purchaser shall pay recording charges for the
deed and any mortgages Purchaser may place upon the Premises. Each party shall
pay for its own legal and accounting fees and incidental expenses.
Section 16. Miscellaneous.
16.1 Gender. Words of any gender used in this Agreement shall be held and
construed to include any other gender, any words in the singular number shall be
held to include the plural, and vice versa, unless the context requires
otherwise.
16.2 Captions. The captions in this Agreement are inserted only for the
purpose of convenient reference and in no way define, limit or prescribe the
scope or intent of this Agreement or any part of this Agreement.
16.3 Construction. No provisions of this Agreement shall be construed by
any Court or other judicial authority against any party by reason of that
party's being deemed to have drafted or structured the provisions.
16.4 Entire Agreement. This Agreement constitutes the entire contract
between the parties and supersedes all prior understandings, if any, there being
no other oral or written promises, conditions, representations, understanding or
terms of any kind as conditions or inducements to the execution of this
Agreement and none have been relied upon by either party. Any subsequent
conditions, representations, warranties or agreements shall not be valid and
binding upon the parties unless in writing and signed by both parties.
16.5 Time of Essence. Time is of the essence in this transaction.
16.6 Governing Law. This Agreement shall be construed and the rights
and obligations of Seller and Purchaser shall be determined, in accordance with
the laws of the State of Ohio.
16.7 Date of Agreement, Counterparts. The date of this Agreement shall be
the date first above written, regardless of the dates on which Purchaser and
Seller execute this Agreement. This Agreement may be executed in counterparts
each of which shall constitute an original but all of which taken together shall
constitute one and the same instrument.
WITNESS the execution hereof by Purchaser and Seller on the dates set forth
below their respective signatures.
PURCHASER:
MID-STATES DEVELOPMENT COMPANY
By:/s/William Schneider
Its General Partner
Date: June 12, 1998
SELLER:
ANGELES PROPERTIES XIV, a California Limited
Partnership
By: ANGELES REALTY CORPORATION II, INC., a
California corporation and general partner of
Angeles Properties XIV
By: /s/Robert D. Long, Jr.
Its: Vice President
Date: June 10, 1998
EXHIBIT A
PROJECT LEGAL DESCRIPTIONS
EXHIBIT B
PURCHASE PRICE ALLOCATION
PROJECT LAND BUILDING TOTAL
41 325,000 1,575,000 $1,900,000.00