EXHIBIT 10.17
PURCHASE AND SALE CONTRACT
BETWEEN
ANGELES INCOME PROPERTIES, LTD. IV
AS SELLER
AND
PEARCE-WOODFIELD DEVELOPMENT CO., LLC
AS PURCHASER
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINED TERMS 2
ARTICLE 2 PURCHASE AND SALE OF PROPERTY 5
ARTICLE 3 PURCHASE PRICE & DEPOSIT 4
ARTICLE 4 FINANCING 6
ARTICLE 5 TITLE 6
ARTICLE 6 CLOSING 11
ARTICLE 7 REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND
PURCHASER
ARTICLE 8 CONDITIONS PRECEDENT TO CLOSING 22
ARTICLE 9 BROKERAGE 23
ARTICLE 10 POSSESSION 24
ARTICLE 11 DEFAULTS AND REMEDIES 24
ARTICLE 12 RISK OF LOSS OR CASUALTY 25
ARTICLE 13 RATIFICATION 26
ARTICLE 14 EMINENT DOMAIN 26
ARTICLE 15 MISCELLANEOUS 26
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT ("Purchase Contract") is entered into as of
the 23rd day of April, 1999 (the "Effective Date") by and among Angeles Income
Properties, Ltd. IV, a California limited partnership, having a principal
address at 1873 South Bellaire Street, 17th Floor, Denver, Colorado 80222
("Seller") and Pearce-Woodfield Development Co., LLC, a Washington limited
liability company, having a principal address at 615 Abbott Road, Walla Walla,
Washington 99362 ("Purchaser").
NOW, THEREFORE WITNESSETH: That for and in consideration of mutual
covenants and agreements herein after set forth, Seller and Purchaser hereby
agree as follows:
RECITALS
R-1. Seller holds legal title to a parcel of real estate more particularly
described in Exhibit A attached hereto and made a part hereof located in the
City of Walla Walla, Washington on each of which improvements have been
constructed.
R-2. Purchaser desires to purchase and Seller has agreed to sell such land,
improvements and certain associated property, defined below as the "Property" on
the terms and conditions set forth below, (which terms and conditions shall
control in the event of any conflict with these Recitals), such that on the
Closing Date as defined in this Purchase Contract the Property will be conveyed
by special warranty or equivalent deed to Pearce-Woodfield Development Co., LLC;
R-3. Purchaser has agreed to pay to Seller the Purchase Price for the Property,
and Seller has agreed to sell the Property to Purchaser on the terms and
conditions set forth below.
R-4. Purchaser has made such investigations regarding the Property, and
Purchaser's intended uses of each of the Property as Purchaser has deemed
necessary and desirable, has approved the same in all respects, subject only to
the representations, warranties and covenants set forth in this Purchase
Contract and does hereby agree to consummate the transactions contemplated by
this Purchase Contract as set forth below.
ARTICLE 1
DEFINED TERMS
1.1 Terms with initial capital letters in this Purchase Contract shall have the
meanings set forth in this Article 1 below.
1.1.1 "BUSINESS DAY" means any day other than a Saturday or Sunday or
Federal holiday or legal holiday in the State of Washington.
1.1.2 "CLOSING" means the consummation of the purchase and sale and related
transactions contemplated by this Purchase Contract in accordance with the
terms and conditions of this Purchase Contract.
1.1.3 "CLOSING DATE" means the date on which date the Closing of the
conveyance of the Property is required to be held under the terms and
conditions of this Purchase Contract and on which date full payment of the
Purchase Price for the Property shall have been paid to and received by
Seller in immediately available U.S. funds.
1.1.4 "COMMERCIAL LEASE(S)" means the interest of Seller in and to all
leases, subleases and other occupancy agreements, whether or not of record,
which provide for the use or occupancy of space or facilities on or
relating to the Property and which are in force as of the Opening Date for
the applicable Property.
1.1.5 "PURCHASE CONTRACT" means this Purchase and Sale Purchase Contract by
and between Seller and Purchaser.
1.1.6 "EXCLUDED PERMITS" means those Permits which, under applicable law,
are nontransferable and such other Permits as may be designated as Excluded
Permits on Exhibit 1.1.6, if any, attached hereto.
1.1.7 "FIXTURES AND TANGIBLE PERSONAL PROPERTY" means all fixtures,
furniture, furnishings, fittings, equipment, machinery, apparatus,
appliances and other articles of personal property now located on the Land
or in the Improvements as of the date of this Purchase Contract and used or
usable in connection with any present or future occupation or operation of
all or any part of the Property. The term "Fixtures and Tangible Personal
Property" does not include (i) equipment leased by Seller and the interest
of Seller in any equipment provided to the Property for use, but not owned
or leased by Seller, or (ii) property owned or leased by Tenants and
guests, employees or other persons furnishing goods or services to the
Property or (iii) property and equipment owned by Seller, which in the
ordinary course of business of the Property is not used exclusively for the
business, operation or management of the Property or (iv) the property and
equipment, if any, expressly identified in Exhibit 1.1.7.
1.1.8 "LAND" means all of that certain tract of land located in the County
of Walla Walla, Washington, commonly known as Eastgate Marketplace, 420 N.
Wilbur Avenue, Walla Walla, Washington 99362, more particularly described
in Exhibit 1.1.8 attached hereto and made a part hereof and all rights,
privileges and appurtenances pertaining thereto.
1.1.9 "PROPERTY" means the Land and Improvements described in the Recitals
and all rights of Seller relating to the Land and the Improvements,
including without limitation, any rights, title and interest of Seller, if
any, in and to (i) any strips adjacent to the Land and any land lying in
the bed of any street, road, or avenue opened or proposed, in front of or
adjoining the Land, to the center line thereof; (ii) any unpaid award for
any taking by condemnation or any damage to the Property by reason of a
change of grade of any street or highway; (iii) all of the easements,
rights, privileges, and appurtenances belonging or in any way appertaining
to the Property; together with all Fixtures and Tangible Personal Property,
the right, if any and only to the extent transferable, of Seller to
Property Contracts and Commercial Leases, Permits other than Excluded
Permits and the Miscellaneous Property Assets owned by Seller which are
located on the Property and used in its operation.
1.1.10 "PROPERTY CONTRACTS" means all purchase orders, maintenance, service,
or utility contracts and similar contracts, which relate to the ownership,
maintenance, construction or repair and/or operation of the Property and
which are not cancelable on 90 days' or shorter Notice, except Commercial
Leases.
1.1.11 "IMPROVEMENTS" means all buildings and improvements, located on the
Land taken "as is."
1.1.12 "MISCELLANEOUS PROPERTY ASSETS" means all contract rights, leases,
concessions, warranties, plans, drawings and other items of intangible
personal property relating to the ownership or operation of the Property
and owned by Seller, excluding, however, (i) receivables, (ii) Property
Contracts, (iii) Commercial Leases, (iv) Permits, (v) cash or other funds,
whether in petty cash or house "banks," or on deposit in bank accounts or
in transit for deposit, (vi) refunds, rebates or other claims, or any
interest thereon, for periods or events occurring prior to the Closing
Date, (vii) utility and similar deposits, (viii) insurance or other prepaid
Items or (ix) books and records, except to the extent that Seller receives
a credit on the Closing Statement for any such item.
1.1.13 "PERMITS" means all licenses and permits granted by governmental
authorities having jurisdiction over the Property in respect of the matter
to which the applicable license or permit applies and owned by Seller or
used in or relating to the ownership, occupancy or operation of the
Property or any part thereof not subject to a Commercial Lease.
1.1.14 "PERMITTED EXCEPTIONS" means those exceptions or conditions permitted
to encumber the title to the Property in accordance with the provisions of
Section 5.2.
1.1.15 "PURCHASE PRICE" means the total consideration to be paid by Purchaser
to Seller for the purchase of the Property.
1.1.16 "SURVEY" shall have the meaning ascribed thereto in Section 5.10.
1.1.17 "TENANT" means any person or entity entitled to occupy any portion of
the Property under a Commercial Lease.
1.1.18 "TITLE COMMITMENT" or "Title Commitments" shall have the meaning
ascribed thereto in Section 5.1.
1.1.19 "TITLE INSURER" shall have the meaning set forth in Section 5.1.
ARTICLE 2
PURCHASE AND SALE OF PROPERTY
2.1 Seller agrees to sell and convey the Property to Purchaser and Purchaser
agrees to purchase the Property from Seller, in accordance with the terms
and conditions set forth in this Purchase Contract.
ARTICLE 3
PURCHASE PRICE & DEPOSIT
3.1 The total purchase price ("Purchase Price") for the Property shall be Four
Million Eight Hundred Thousand Dollars ($4,800,000.00), which shall be paid
by Purchaser, as follows:
3.1.1 On the date hereof, Purchaser shall deliver to Fidelity Title or its
designated agent ("Escrow Agent" or the "Title Company") a deposit in the
sum of One Hundred Thousand Dollars ($100,000.00) in cash, (such sum, the
"Deposit"). The Deposit shall be non-refundable and deemed earned by
Seller (except in the event of a failure to close as a result of a default
hereunder by Seller) but shall be applied to the Purchase Price at Closing,
as set forth below. Purchaser shall also deliver a quitclaim deed to the
Escrow Agent in the form attached as Exhibit 3.1.1. Purchaser and Seller
each approve the form of Escrow Agreement attached as Exhibit B.
3.1.2 The Escrow Agent shall hold the Deposit and make delivery of the
Deposit to the party entitled thereto under the terms hereof. Escrow Agent
shall invest the Deposit in such short-term, high-grade securities,
interest-bearing bank accounts, money market funds or accounts, bank
certificates of deposit or bank repurchase agreements as Escrow Agent, in
its discretion, deems suitable, (provided that Escrow Agent shall invest
the Deposit as jointly directed by Seller and Purchaser should Seller and
Purchaser each in their respective sole discretion determine to issue such
joint investment instructions to the Escrow Agent) and all interest and
income thereon shall become part of the Deposit and shall be remitted to
the party entitled to the Deposit, as set forth below.
3.1.3 If the sale of the Property is closed by the date fixed therefor (or
any extension date provided for by the mutual written consent of the
parties hereto, given or withheld in their respective sole discretion),
monies held as the Deposit shall be applied (and paid over to the Seller)
on the Date of Closing.
3.1.4. If the sale of the Property is not closed by the date fixed therefor
(or any such extension date) owing to failure of performance by Seller,
Purchaser shall be entitled to the remedies set forth in ARTICLE 11 hereof.
If the sale of the Property is not closed by the date fixed therefor (or
any such extension date) other than a default by Seller hereunder, the
Deposit shall be forfeited by Purchaser and the sum thereof shall go to
Seller forthwith as liquidated damages for the lost opportunity costs and
transaction expenses incurred by Seller, as more fully set forth in ARTICLE
11 below.
ARTICLE 4
FINANCING
4.1 Purchaser assumes full responsibility to expeditiously and diligently
initiate and pursue all steps necessary to obtain the funds required for
settlement.
ARTICLE 5
TITLE
5.1 Seller has received a commitment for title insurance for the Property in an
amount equal to the Purchase Price ("Title Commitment,") issued by Pioneer
Title Company of Walla Walla for Chicago Title Insurance Company ("CTIC"),
as Commitment No. Y- 37976 issued March 9, 1999. The Title Commitment
shall be reissued by Fidelity National Title through its designated agent
in Walla Walla, Washington (the "Title Insurer"). Seller agrees that it
shall be solely responsible for payment of all costs and cancellation fees
relating to procurement of the Title Commitment and the Owner's title
policy (standard coverage only). Purchaser shall pay all premium costs for
any extended coverages desired by Purchaser.
5.2 Purchaser agrees to accept title to the Land and Improvements, so long as
the same is insurable at ordinary rates and any conveyance by special
warranty or equivalent deed pursuant to this Purchase Contract shall be
subject to the following, all of which shall be deemed "Permitted
Exceptions" and Purchaser agrees to accept the deed and title subject
thereto:
5.2.1 All exceptions shown in the Title Commitment (other than mechanics'
liens and taxes due and payable in respect of the period preceding Closing)
and all exceptions noted in Section 5.3; and
5.2.2 Such exceptions and matters as the Title Company shall be willing to
omit as exceptions to coverage; and
5.2.3 All Commercial Leases and any other occupancy, residency, lease,
tenancy and similar agreements entered into in the ordinary course of
business; and
5.2.4 All Property Contracts and any other existing contracts created in the
ordinary course of business by Seller, which are not identified for
termination by Purchaser; and
5.2.5 Real estate and property taxes to the extent not due and payable; and
5.2.6 Defects and exceptions which do not materially and adversely affect
the condition of title to the Property and its use as of the Effective
Date.
5.3 Purchaser is purchasing the Property subject to all special exceptions in
the Title Commitment including all deeds of trust, but excluding Special
Exception No. 3 and 17, which shall be insured over at Closing by the Title
Insurer. Special Exceptions No. 12, 13, 14, 15, 19, 20, and 21 shall be
removed from the Title Commitment at or prior to Closing.
5.4 Unpaid liens for taxes, charges, and assessments shall not be objections to
title, but the amount thereof plus interest and penalties thereon shall be
deducted from the Purchase Price to be paid for the applicable Property
hereunder and allowed to Purchaser, subject to the provisions for
apportionment of taxes and charges contained herein.
5.5 Unpaid franchise or business corporation taxes of any corporations in the
chain of title shall not be an objection to title, provided that the Title
Insurer agrees to insure against collection out of the Property or
collection against Purchaser or its affiliates, and provided further that
the Title Insurer agrees to omit such taxes as exceptions to coverage with
respect to any lender's mortgagee insurance policy.
5.6 If on the Closing Date, the state of title is other than in accordance with
the requirements set forth in this Purchase Contract or if any condition to
be fulfilled by Seller shall not be satisfied, Purchaser shall provide
Seller with written Notice thereof at such time, or such title objection or
unfulfilled condition shall be deemed waived by Purchaser in which case
Purchaser and Seller shall proceed to consummate the Closing on the Closing
Date. If Purchaser timely gives Seller such Notice, Seller at its sole
option and within Seven (7) calendar days following receipt of such Notice
may elect to cure such objection or unfulfilled condition for up to Ninety
(90) calendar days. Should Seller be able to cure such title objection or
condition, or should Seller be able to cause title insurance over the same
by the Closing Date or any postponed Closing Date, or should Purchaser
waive such objection or condition within such period for cure, then the
Closing shall take place on or before thirty (30) calendar days after
Notice of such cure or waiver.
5.7 If during the period of cure Seller is unable or unwilling, in its sole
discretion or opinion, to eliminate such title objection or cause a title
insurance company to insure over such matter or satisfy such unfulfilled
condition, Seller shall give Purchaser written Notice thereof, and if
Purchaser does not waive such objection by written Notice delivered to
Seller and the title company issuing the Title Commitment on or before
Seven (7) calendar days following the date Seller gives such Notice, then
this Purchase Contract shall automatically terminate, in which event
Purchaser shall release and quitclaim all of Purchaser's right and interest
in such Property to Seller, and the parties hereto shall have no further
obligations to each other.
5.8 Seller covenants that it will not voluntarily create or cause any lien or
encumbrance (other than Commercial Leases and Property Contracts in the
ordinary course of business) to attach to the Property between the date of
this Purchase Contract and the Closing Date; any such monetary lien or
encumbrance so attaching by voluntary act of Seller shall be discharged by
the Seller at or prior to Closing on the Closing Date or any postponed
Closing Date. Except as expressly provided above, Seller shall not be
required to undertake efforts to remove any other lien, encumbrance,
security interest, exception, objection or other matter, to make any
expenditure of money or institute litigation or any other judicial or
administrative proceeding and Seller may elect not to discharge the same.
5.9 Anything herein to the contrary notwithstanding, Purchaser shall not have
any right to terminate this Purchase Contract or object to any lien,
encumbrance, exception or other matter that is a Permitted Exception, that
has been waived or deemed to have been waived by Purchaser.
5.10 Purchaser shall have the right, at Purchaser's sole cost and expense, to
cause a survey for the Property ("Survey") to be prepared and delivered to
Purchaser and Seller. In the event the perimeter legal description of the
Property contained in the Survey differs from that contained in the deed or
deeds by which Seller took title to the Property, the latter description
shall be used in the special warranty deed delivered to Purchaser at
Closing, and the Survey legal shall be used in a quitclaim deed to the
Property which also shall be delivered to Purchaser at Closing.
5.10.1 Should the Survey disclose conditions that give rise to a title
exception other than a Permitted Exception, Purchaser shall have the right
to object thereto in accordance with the procedures set forth in this
ARTICLE 5.
5.10.2 Purchaser agrees to make payment in full of all costs of obtaining
Surveys required by this Purchase Contract on or before Closing or
termination of this Purchase Contract.
5.11 Purchaser shall indemnify and hold Seller harmless for any actions taken by
Purchaser and its Consultants on the Property. Purchaser shall indemnify,
defend (with attorneys selected by Seller) and hold Seller harmless from
any and all claims, damages, costs and liability which may arise due to
such entries, surveys, tests, investigations and the like. Seller shall
have the right, without limitation, to disapprove any and all entries,
surveys, tests, investigations and the like that in their reasonable
judgment could result in any injury to the Property or breach of any
agreement, or expose Seller to any liability, costs, liens or violations of
applicable law, or otherwise adversely affect the Property or Seller's
interest therein. No consent by the Seller to any such activity shall be
deemed to constitute a waiver by Seller or assumption of liability or risk
by Seller. Purchaser hereby agrees to restore the Property to the same
condition existing immediately prior to Purchaser's exercise of its rights
pursuant to this Article 5 at Purchaser's sole cost and expense. Purchaser
shall maintain casualty insurance and comprehensive public liability
insurance with broad form contractual and personal injury liability
endorsements with respect to the Property and Purchaser's activities
carried on therein, in amounts (including deductible amounts) and with such
insurance carriers as shall be approved by Seller and naming Seller and its
affiliates as Loss Payees or Additional Insureds (at the option of Seller),
with endorsements acceptable to Seller, including a waiver of defenses of
the insurer based on the actions or inaction of Purchaser. Such liability
insurance shall provide coverages of not less than $1,000,000.00 for injury
or death to any one person and $3,000,000.00 for injury or death to more
than one person and $500,000.00 with respect to property damage, by water
or otherwise). The provisions of this Section shall survive the Closing or
termination of this Purchase Contract.
5.12 Purchaser shall not permit any mechanic.s or materialman.s liens or any
other liens to attach to the Property by reason of the performance of any
work or the purchase of any materials by Purchaser or any other party in
connection with any studies or tests conducted by or for Purchaser.
Purchaser shall give notice to Seller a reasonable time prior to entry onto
the Property and shall permit Seller to have a representative present
during all investigations and inspections conducted with respect to the
Property. All information made available by Seller to Purchaser in
accordance with this Purchase Contract or obtained by Purchaser in the
course of its investigations shall be treated as confidential information
by Purchaser, and, prior to the purchase of the Property by Purchaser,
Purchaser shall use its best efforts to prevent its agents and employees
from divulging such information to any unrelated third parties except as
reasonably necessary to third parties engaged by Purchaser for the limited
purpose of analyzing and investigating such information for the purpose of
consummating the transaction contemplated by this Purchase Contract,
including Purchaser.s attorneys and representatives, prospective lenders
and engineers.
ARTICLE 6
CLOSING
6.1 DATES, PLACES OF CLOSING, PRORATIONS, AND DELINQUENT RENT.
6.1.1 The Closing shall take place sixty (60) calendar days after the
Effective Date in the offices of Purchaser's lender, if in the jurisdiction
of the Land, or at the offices of the Title Insurer or its designated agent
in Walla Walla, Washington, or such other place as the parties shall
mutually agree upon at a time mutually agreed upon on the Closing Date. If
requested by Seller, Purchaser shall agree to conduct closing through a
pre-closing, an escrow or other arrangement reasonably requested by Seller,
whereby the Seller and its attorneys need not be physically present at the
Closing and may deliver documents by overnight air courier or other means.
6.1.2 The Closing Date may be extended without penalty at the option of
Seller to a date not later than Thirty (30) Days following the Closing Date
specified above to satisfy a condition to be satisfied by Seller, or such
later date as is mutually acceptable to Seller and Buyer.
6.1.3. All normal and customarily proratable items, including, without
limitation, Rents (as defined below), operating expenses, personal property
taxes, other operating expenses and fees, shall be prorated as of the
Closing Date, Seller being charged and credited for all of same
attributable to the period up to the Closing Date (and credited for any
amounts paid by Seller attributable to the period on or after the Closing
Date) and Purchaser being responsible for, and credited or charged, as the
case may be, for all of same attributable to the period on and after the
Closing Date. All unapplied deposits under Tenant leases, if any, shall be
transferred by Seller to Purchaser at the Closing. Purchaser shall assume
at Closing the obligation to make future payments due parties to other
agreements affecting the Property which survive Closing. Any real estate
ad valorem or similar taxes for the Property, or any installment of
assessments payable in installments which installment is payable in the
year of Closing, shall be prorated to the date of Closing, based upon
actual days involved. The proration of real property taxes or installments
of assessments shall be based upon the assessed valuation and tax rate
figures for the year in which the Closing occurs to the extent the same are
available; provided, that in the event that actual figures (whether for the
assessed value of the Property or for the tax rate) for the year of Closing
are not available at the Closing Date, the proration shall be made using
figures from the preceding year. The proration shall be final and
unadjustable except as provided in the following paragraph. For purposes
of this Section 6.1.3. and Section 6.1.4. and 6.1.5. the terms "Rent" and
"Rents" shall include, without limitation, base rents, additional rents,
percentage rents and common area maintenance charges. The provisions of
this Section 6.1.3. shall apply during the Proration Period (as defined
below).
6.1.4. If any of the items subject to proration hereunder cannot be prorated
at the Closing because the information necessary to compute such proration
is unavailable, or if any errors or omissions in computing prorations at
the Closing are discovered subsequent to the Closing, then such item shall
be reapportioned and such errors and omissions corrected as soon as
practicable after the Closing Date and the proper party reimbursed, which
obligation shall survive the Closing for a period (the "Proration Period")
from the Closing Date until one (1) year after the Closing Date. Neither
party hereto shall have the right to require a recomputation of a Closing
proration or a correction of an error or omission in a Closing proration
unless within the Proration Period one of the parties hereto (i) has
obtained the previously unavailable information or has discovered the error
or omission, and (ii) has given Notice thereof to the other party together
with a copy of its good faith recomputation of the proration and copies of
all substantiating information used in such recomputation. The failure of
a party to obtain any previously unavailable information or discover an
error or omission with respect to an item subject to proration hereunder
and to give Notice thereof as provided above within the Proration Period
shall be deemed a waiver of its right to cause a recomputation or a
correction of an error or omission with respect to such item after the
Closing Date. Any Rents that have accrued, but have not yet been paid
shall be prorated in accordance with estimates based upon the prior years'
information (or reasonable estimates of Seller if no such prior years'
information is available), and shall be subsequently readjusted and
reapportioned upon receipt.
6.1.5. If on the Closing Date any Tenant is in arrears in any Rent payment
under any Tenant lease (the "Delinquent Rent"), any Delinquent Rent
received by Purchaser and Seller from such Tenant after the Closing shall
be applied to amounts due and payable by such Tenant during the following
periods in the following order of priority: (i) first, to the period of
time before the Closing Date, and (ii) second, to the period of time after
the Closing Date. If Delinquent Rent or any portion thereof received by
Seller or Purchaser after the Closing are due and payable to the other
party by reason of this allocation, the appropriate sum, less a
proportionate share of any reasonable attorneys' fees and costs and
expenses expended in connection with the collection thereof, shall be
promptly paid to the other party. After the Closing, Seller shall continue
to have the right, but not the obligation, in its own name, to demand
payment of and to collect Delinquent Rent owed to Seller by any Tenant,
which right shall include, without limitation, the right to continue or
commence legal actions or proceedings against any Tenant (provided, that
Seller shall not commence any legal actions or proceedings against any
Tenant which continues as a Tenant at the Property after Closing without
the prior consent of Purchaser, which will not be unreasonably withheld or
delayed), and the delivery of the Assignment as defined in Section 6.2.1.3
shall not constitute a waiver by Seller of such right. Purchaser agrees to
cooperate with Seller at no cost or liability to Purchaser in connection
with all efforts by Seller to collect such Delinquent Rent and to take all
steps, whether before or after the Closing Date, as may be necessary to
carry out the intention of the foregoing, including, without limitation,
the delivery to Seller, upon demand, of any relevant books and records
(including, without limitation, rent statements, receipted bills and copies
of tenant checks used in payment of such rent), the execution of any and
all consents or other documents, and the undertaking of any act reasonably
necessary for the collection of such Delinquent Rent by Seller; provided,
however, that Purchaser's obligation to cooperate with Seller pursuant to
this sentence shall not obligate Purchaser to terminate any Tenant lease
with an existing Tenant or evict any existing Tenant from the Property.
The provisions of this Section 6.1.5. shall apply during the Proration
Period.
6.2 ITEMS TO BE DELIVERED PRIOR TO OR AT CLOSING.
6.2.1 SELLER. At Closing, Seller shall deliver to Purchaser, each of the
following items, as applicable:
6.2.1.1Special or limited warranty or equivalent deed for the State of
Washington on the standard form of the Title Insurer not inconsistent
with the requirements of this Purchase Contract to Pearce-Woodfield
Development Co., LLC. The acceptance of the deed at Closing, shall be
deemed to be full performance of, and discharge of, every agreement and
obligation on Seller's part to be performed under this Purchase
Contract, except for those that this Purchase Contract specifically
provides shall survive Closing.
6.2.1.2A Bill of Sale without recourse or warranty in the form attached as
Exhibit 6.2.1.2 covering all Property Contracts, Commercial Leases,
Permits (other than Excluded Permits) and Fixtures and Tangible Personal
Property required to be transferred to Purchaser with respect to such
Property. Purchaser shall countersign the same so as to effect an
assumption by Purchaser, including, without limitation, of Seller's
obligations thereunder.
6.2.1.3An Assignment (to the extent assignable and in force and effect) without
recourse or warranty in the form attached as Exhibit 6.2.1.3 of all of
Seller's right, title and interest in and to the Miscellaneous Property
Assets, subject to any required consents. Purchaser shall countersign
the same so as to effect an assumption by Purchaser, including, without
limitation, of Seller's obligations thereunder.
6.2.1.4A closing statement executed by Seller.
6.2.1.5A vendor's affidavit or at Seller's option an indemnity, as applicable,
in the customary form reasonably acceptable to Seller to enable Title
Insurer to delete the standard exceptions, (other than matters
constituting any Permitted Exceptions to the title insurance policy set
forth in this Purchase Contract and matters which are to be completed or
performed post-Closing) to be issued pursuant to the Title Commitments;
provided that such affidavit does not subject Seller to any greater
liability, or impose any additional obligations, other than as set forth
in this Purchase Contract; and
6.2.1.6A certification of Seller's non-foreign status pursuant to Section 1445
of the Internal Revenue Code of 1986, as amended.
6.2.1.7Except for the items expressly listed above to be delivered at Closing,
delivery of any other required items shall be deemed made by Seller to
Purchaser, if Seller leaves such documents in the custody of Purchaser's
representatives.
6.2.1.8Between the Effective Date and the Closing, Seller shall give Purchaser
and its authorized representatives within ten (10) business days after
Purchaser's request and during Seller's regular business hours, copies
of or reasonable access to Seller's books, records and information
relating to the Property, if and to the extent such items are in the
Seller's or its agents' possession, including, but not limited to, the
following:
(a) All appraisals of the Property;
(b) Complete financial records and information pertaining to the Property for
the last three (3) years (e.g. rent rolls, capital expenditures, management
fees, ect.);
(c) All Leases between Seller and the current tenants of the
Property;
(d) Any and all Property inspection reports or analyses pertaining to
the property (e.g., pest, structural, parking lot, ect.);
(e) Any and all Phase I and II Environmental Assessments and any and
all asbestos or lead-based paint reports or analyses pertaining to
the Property;
(f) All written correspondence and summaries of any and all oral
communications between Seller and its tenants Rite Aid and
Albertson's, Inc. with respect to the status of their current leases,
expansion or relocation plans;
(g) Copies of all leases pertaining to the Property;
(h) A copy of the blueprints for the Property;
(i) All surveys of the Property in the possession of Seller or its
agents;
(j) All service or maintenance contracts pertaining to the Property;
and;
(k) A list of all personal property (equipment, tools, ect.) used in
the management of the Property and to be included in the sale.
6.2.1.9 At Closing, Purchaser shall receive a certificate of Seller
certifying the accuracy of the rent roll delivered to Purchaser as of
Closing and further certifying that the leases delivered to Purchaser
constitute all leases affecting the Property and that such leases are
true and complete.
6.2.2 PURCHASER. At Closing, Purchaser shall deliver to Seller the
following items with respect to each Property being conveyed or
transferred by merger at such Closing:
6.2.2.1The full Purchase Price as required by ARTICLE 3 hereof plus or minus
the adjustments or prorations required by this Purchase Contract. If at
Closing there are any liens or encumbrances on the Property that Seller
is obligated or elects to pay and discharge, Seller may use any portion
of the Purchase Price for the Property(s) to satisfy the same, provided
that Seller shall have delivered to Purchaser, or to Purchaser's
designee, on such Closing instruments in recordable form sufficient to
satisfy such liens and encumbrances of record (or, as to any mortgages
or deeds of trust, appropriate payoff letters, acceptable to the Title
Insurer), together with the cost of recording or filing such
instruments. Purchaser, if request is made within a reasonable time
prior to Closing, agrees to provide at Closing separate certified or
cashier's checks as requested, aggregating not more than the amount of
the balance of the portion of Purchase Price, to facilitate the
satisfaction of any such liens or encumbrances. The existence of any
such liens or encumbrances shall not be deemed objections to title if
Seller shall comply with the foregoing requirements.
6.2.2.2A closing statement executed by Purchaser.
6.2.2.3A countersigned counterpart of the Bill of Sale in the form attached as
Exhibit 6.2.1.2.
6.2.2.4A countersigned counterpart of the Assignment in the form attached as
Exhibit 6.2.1.3.
6.2.2.5Such other instruments, documents or certificates as are required to be
delivered by Purchaser to Seller in accordance with any of the other
provisions of this Purchase Contract.
6.3 CLOSING COSTS. Except as otherwise provided in this Purchase Contract,
each party shall pay its own costs to close the purchase and sale of the
Property and one-half the expenses of the Escrow Agent. Each party shall
pay the fees and costs of its own attorneys and agents. Purchaser shall
pay all recording costs and Seller shall pay the State excise tax payable
by sellers of real property in the State of Washington.
ARTICLE 7
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER
7.1 REPRESENTATIONS AND WARRANTIES OF SELLER.
7.1.1 For the purpose of inducing Purchaser to enter into this Purchase
Contract and to consummate the sale and purchase of the Property in
accordance herewith, Seller represents and warrants to Purchaser the
following as of the Effective Date and as of the Closing Date:
7.1.1.1Seller identified in the Recitals is lawfully and duly organized, and in
good standing under the laws of the state of its formation set forth in
the initial paragraph of this Purchase Contract; and has or at Closing
shall have the power and authority to sell and convey the Property and
to execute the documents to be executed by Seller and prior to Closing
will have taken as applicable, all corporate, partnership, limited
liability company or equivalent entity actions required for the
execution and delivery of this Purchase Contract, and the consummation
of the transactions contemplated by this Purchase Contract. The
compliance with or fulfillment of the terms and conditions hereof will
not conflict with, or result in a breach of, the terms, conditions or
provisions of, or constitute a default under, any Purchase Contract to
which Seller is a party or by which Seller or any Subsidiary Owner is
otherwise bound. Seller has not made any other Purchase Contract for
the sale of, or given any other person the right to purchase, all or any
part of any of the Property applicable to the foregoing representation;
7.1.1.2Seller owns insurable, fee title to the Property, including all real
property contained therein required to be sold to Purchaser, subject
only to the Permitted Exceptions;
7.1.1.3There are no adverse or other parties in possession of the Property,
except for occupants, guests and tenants under the Commercial Leases or
otherwise as set forth in Exhibit 7.1.1.3 .
7.1.1.4The joinder of no person or entity other than Seller is necessary to
convey the Property, fully and completely to Purchaser at Closing, or to
fulfill Seller's obligations and Seller has all necessary right and
authority to convey and assign to Purchaser all contract rights and
warranties required to be conveyed and assigned to Purchaser hereunder;
7.1.1.5Purchaser has no duty to collect withholding taxes for Seller pursuant
to the Foreign Investors Real Property Tax Act of 1980, as amended;
7.1.1.6To Seller's knowledge, there are no actions, proceedings, litigation or
governmental investigations or condemnation actions either pending or
threatened against the Property, as applicable;
7.1.1.7Seller has no knowledge of any claims for labor performed, materials
furnished or services rendered in connection with constructing,
improving or repairing any of the Property, as applicable, caused by
Seller and which remain unpaid beyond the date for which payment was due
and in respect of which liens may or could be filed against any of the
Property, as applicable;
7.1.1.8The Rent Roll delivered to Purchaser is true, accurate and complete
copies of the rent roll for the Property.
7.1.2 Except for the representations and warranties expressly set forth
above in Subsection 7.1.1, the Property is expressly purchased and sold
"AS IS," "WHERE IS," and "WITH ALL FAULTS." The Purchase Price and the
terms and conditions set forth herein are the result of arm's-length
bargaining between entities familiar with transactions of this kind, and
said price, terms and conditions reflect the fact that Purchaser shall
have the benefit of, and is relying upon, no information provided by
Seller and no statements, representations or warranties, express or
implied, made by or enforceable directly against Seller, including,
without limitation, any relating to the value of the Property, the
physical or environmental condition of the Property, the state, federal,
county or local law, ordinance, order, permit or suitability, compliance
or lack of compliance of the Property with any regulation, or any other
attribute or matter of or relating to the Property (other than any
covenants of title contained in the deeds conveying the Property and the
representations set forth above). Purchaser represents and warrants that
as of the date hereof and as of the Closing Date, it has and shall have
reviewed and conducted such independent analyses, studies, reports,
investigations and inspections as it deems appropriate in connection with
the Property. Except for the Leases and Rent Roll provided by Seller to
Purchaser, if Seller provides or has provided any documents, opinions or
work product of consultants, surveyors, architects, engineers, title
companies, governmental authorities or any other person or entity with
respect to the Property, Purchaser and Seller agree that Seller has done
so or shall do so only for the convenience of both parties, Purchaser
shall not rely thereon and the reliance by Purchaser upon any such
documents, opinions or work product shall not create or give rise to any
liability of or against Seller, Seller's partners or affiliates or any of
their respective partners, officers, directors, participants, employees,
contractors, attorneys, consultants, representatives, agents, successors,
assigns or predecessors-in-interest. Purchaser shall rely only upon any
title insurance obtained by Purchaser with respect to title to the
Property. Purchaser acknowledges and agrees that no representation has
been made and no responsibility is assumed by Seller with respect to
current and future applicable zoning or building code requirements or the
compliance of the Property with any other laws, rules, ordinances or
regulations, the financial earning capacity or expense history of the
Property, the continuation of contracts, continued occupancy levels of the
Property, or any part thereof, or the continued occupancy by tenants of
any Commercial Leases or, without limiting any of the foregoing,
occupancy at Closing. Prior to Closing, Seller shall have the right, but
not the obligation, to enforce its rights against any and all Property
occupants, guests or tenants. Purchaser agrees that the departure or
removal, prior to Closing, of any of such guests, occupants or tenants
shall not be the basis for, nor shall it give rise to, any claim on the
part of Purchaser, nor shall it affect the obligations of Purchaser under
this Purchase Contract in any manner whatsoever; and Purchaser shall close
title and accept delivery of the deed with or without such tenants in
possession and without any allowance or reduction in the Purchase Price
under this Purchase Contract. Purchaser hereby releases Seller from any
and all claims and liabilities relating to the foregoing matters, except
as provided in Section 7.1.3 below.
7.1.3 Seller and Purchaser agree that those representations contained in
Section 7.1 shall survive Closing for a period of One (1) year (that is,
any proceeding based on the breach of a representation contained in Section
7.1 that survives Closing must be commenced within One (1) year subsequent
to the date of such representation). In the event that Seller breaches any
representation contained in Section 7.1 and Purchaser had knowledge of such
breach, Purchaser shall be deemed to have waived any right of recovery and
Seller shall not have any liability in connection therewith.
7.1.4 Representations and warranties above made to the knowledge of Seller
shall not be deemed to imply any duty of inquiry.
7.2 REPRESENTATIONS AND WARRANTIES OF PURCHASER
7.2.1 For the purpose of inducing Seller to enter into this Purchase
Contract and to consummate the sale and purchase of the Property in
accordance herewith, Purchaser represents and warrants to Seller the
following as of the Effective Date and as of the Closing Date:
7.2.2 With respect to Purchaser and its business, Purchaser represents and
warrants, in particular, that:
7.2.2.1 Pearce-Woodfield Development Co., LLC is a limited liability company
duly organized, validly existing and in good standing under the laws of
the State of Washington.
7.2.2.2 Purchaser, acting through any of its or their duly empowered and
authorized officers or members, has all necessary power and authority to
own and use its properties and to transact the business in which it is
engaged, and has full power and authority to enter into this Purchase
Contract, to execute and deliver the documents and instruments required
of Purchaser herein, and to perform its obligations hereunder; and no
consent of any of Purchaser's officers or members are required to so
empower or authorize Purchaser.
7.2.2.3 No pending or, to the knowledge of Purchaser, threatened litigation
exists which if determined adversely would restrain the consummation of
the transactions contemplated by this Purchase Contract or would declare
illegal, invalid or non-binding any of Purchaser's obligations or
covenants to Seller.
7.2.2.4 Purchaser is duly authorized to execute and deliver, acting through its
duly empowered and authorized officers and members, respectively, and
perform this Purchase Contract and all documents and instruments and
transactions contemplated hereby or incidental hereto, and such
execution, delivery and performance by Purchaser does not (i) violate
any of the provisions of its articles of organization or bylaws, (ii)
violate any provision of any law, governmental rule or regulation
currently in effect, (iii) violate any judgment, decree, writ,
injunction, award, determination or order currently in effect that names
or is specifically directed at Purchaser or its property, and (iv)
require the consent, approval, order or authorization of, or any filing
with or notice to, any court or other governmental authority.
7.2.2.5 The joinder of no person or entity other than Purchaser is necessary to
consummate the transactions to be performed by Purchaser and Purchaser
has all necessary right and authority to perform such acts as are
required and contemplated by this Purchase Contract.
7.2.3 Purchaser has not dealt with any broker, finder or any other person,
in connection with the purchase of or the negotiation of the purchase of
the Property that might give rise to any claim for commission against
Seller or lien or claim against the Property except for Insignia
Commercial Group, whose commission shall be paid by Purchaser.
ARTICLE 8
CONDITIONS PRECEDENT TO CLOSING
8.1 Purchaser's obligation to close under this Purchase Contract, shall be
subject to and conditioned upon the fulfillment of each and all of the
following conditions precedent:
8.1.1 All of the documents required to be delivered by Seller to Purchaser
at each Closing pursuant to the terms and conditions hereof shall have been
delivered and shall be in form and substance reasonably satisfactory to
Purchaser;
8.1.2 Each of the representations and warranties of Seller contained herein
shall be true in all material respects as of the Closing Date;
8.1.3 Seller shall have complied with, fulfilled and performed in all
material respects each of the covenants, terms and conditions to be
complied with, fulfilled or performed by Seller hereunder;
8.1.4 Notwithstanding anything to the contrary, there are no other
conditions on Purchaser's obligation to Close except as expressly set forth
above.
8.2 Without limiting any of the rights of Seller elsewhere provided for in this
Purchase Contract, Seller's obligation to close with respect to conveyance
of a particular Property under this Purchase Contract shall be subject to
and conditioned upon the fulfillment of each and all of the following
conditions precedent:
8.2.1 Purchaser's representations and warranties set forth in this Purchase
Contract shall have been true and correct in all material respects when
made, and shall be true and correct in all material respects on the Closing
Date and as of the Effective Date as though such representations and
warranties were made at and as of such date and time.
8.2.2 Purchaser shall have fully performed and complied with all covenants,
conditions, and other obligations in this Purchase Contract to be performed
or complied with by it at or prior to Closing including, without
limitation, payment in full of the Purchase Price.
8.2.3 There shall not be pending or, to the knowledge of either Purchaser or
Seller, any litigation or threatened litigation which, if determined
adversely, would restrain the consummation of any of the transactions
contemplated by this Purchase Contract or declare illegal, invalid or
nonbinding any of the covenants or obligations of the Purchaser.
ARTICLE 9
BROKERAGE
9.1 Seller represents and warrants to Purchaser that it has dealt only with
Pinnacle Realty Management Company and Insignia Commercial Group
("Brokers") in connection with this Purchase Contract. Seller and
Purchaser each represents and warrants to the other that other than
Pinnacle Realty Management Company and Insignia Commercial Group, it has
not dealt with or utilized the services of any other real estate broker,
sales person or finder in connection with this Purchase Contract, and each
party agrees to indemnify the other party from and against all claims for
brokerage commissions and finder's fees arising from or attributable to the
acts of omissions of the indemnifying party.
9.2 Purchaser shall be responsible for any broker fees associated with the
representation of Purchaser by Insignia Commercial Group. Seller agrees to
pay Pinnacle Realty Management Company a commission according to the terms
of a separate agreement. Broker shall not be deemed a party or third party
beneficiary of this Purchase Contract.
9.3 Broker assumes no responsibility for the condition of the Property or
representation for the performance of this Purchase Contract by the Seller
or Purchaser.
ARTICLE 10
POSSESSION
10.1 Possession of the Property subject to the Permitted Exceptions shall be
delivered to Purchaser at the Closing.
ARTICLE 11
DEFAULTS AND REMEDIES
11.1 In the Event Purchaser defaults hereunder prior to the Closing Date and
consummation of the Closing does not occur by reason of such termination or
default by Purchaser, Seller and Purchaser agree that it would be
impractical and extremely difficult to estimate the damages which Seller
may suffer. Therefore, Seller and Purchaser hereby agree that the
reasonable estimate of the total net detriment that Seller would suffer in
the event that Purchaser terminates this Purchase Contract or defaults
hereunder prior to the Closing Date is and shall be, as Seller's sole
remedy (whether at law or in equity), the right to receive from the Escrow
Agent and retain the full amount of the Deposit. The payment and
performance of the above as liquidated damages is not intended as a
forfeiture or penalty within the meaning of applicable law and is intended
to settle all issues and questions about the amount of damages suffered by
Seller in the applicable event irrespective of the time when the inquiry
about such damages may take place. Upon any such failure by Purchaser
hereunder, this Purchase Contract shall be terminated, and neither party
shall have any further rights or obligations hereunder, each to the other,
and the right of Seller to collect such liquidated damages to the extent
not theretofore paid by Purchaser.
11.2 If the Closing does not occur as a result of Seller's default hereunder,
Purchaser's sole remedy shall be to elect to terminate this Purchase
Contract and receive reimbursement of the Deposit (or so much thereof as
has been received by Escrow Agent) or to seek specific performance of this
Purchase Contract.
ARTICLE 12
RISK OF LOSS OR CASUALTY
12.1 The risk of loss or damage to the Property by fire or other casualty until
the deed of conveyance is recorded is assumed by the Seller, provided that
the Seller's responsibility shall be only to the extent of any recovery
from insurance now carried on the Property. Upon assignment to Purchaser
of any insurance proceeds in respect of fire or other casualty occurring
between the date of ratification of this contract and the time of
settlement, Purchaser shall have no right to terminate this Purchase
Contract on account thereof, but Seller shall assign to Purchaser its
interest in and to any insurance policies and proceeds thereof payable as a
result of such damage or destruction. Seller shall not, in any event, be
obligated to effect any repair, replacement, and/or restoration, but may do
so at its option in which case Seller may apply the insurance proceeds to
the costs of restoration.
ARTICLE 13
RATIFICATION
13.1 This Purchase Contract shall be null and void unless signed by Purchaser,
on or before March 31, 1999, and by Seller on or before April ___, 1999.
ARTICLE 14
EMINENT DOMAIN
14.1 In the event that at the time of Closing all or any part of the Property is
(or has previously been) acquired, or is about to be acquired, by authority
of any governmental agency in purchase in lieu thereof (or in the event
that at such time there is any notice of any such acquisition by any such
governmental agency), Purchaser shall have the right, at Purchaser's
option, to terminate this Purchase Contract by giving written Notice within
Fifteen (15) days of the occurrence of such event and recover the Deposit
hereunder, or to settle in accordance with the terms of this Purchase
Contract for the full Purchase Price and receive the full benefit or any
condemnation award. It is expressly agreed between the parties hereto that
this paragraph shall in no way apply to customary dedications for public
purposes which may be necessary for the development of the Property.
ARTICLE 15
MISCELLANEOUS
15.1 EXHIBITS AND SCHEDULES
All Exhibits and Schedules annexed hereto are a part of this Purchase
Contract for all purposes.
15.2 ASSIGNABILITY
This Purchase Contract is not assignable without first obtaining the prior
written approval of the non-assigning party. However, Purchaser may assign
this Purchase Contract to any other entity principally owned by Parley
Pearce and Blair Woodfield.
15.3 BINDING EFFECT
This Purchase Contract shall be binding upon and inure to the benefit of
Seller and Purchaser, and their respective successors, heirs and permitted
assigns.
15.4 CAPTIONS
The captions, headings, and arrangements used in this Purchase Contract are
for convenience only and do not in any way affect, limit, amplify, or
modify the terms and provisions hereof.
15.5 NUMBER AND GENDER OF WORDS
Whenever herein the singular number is used, the same shall include the
plural where appropriate, and words of any gender shall include each other
gender where appropriate.
15.6 NOTICES
All Notices, demands, requests and other communications required pursuant
to the provisions of this Purchase Contract ("Notice") shall be in writing
and shall be deemed to have been properly given or served for all purposes
(i) if sent by Federal Express or the nationally recognized overnight
carrier for next business day delivery, on the first business day following
deposit of such Notice with such carrier, or (ii) if personally delivered,
on the actual date of delivery or (iii) if sent by certified mail, return
receipt requested postage prepaid, on the Fifth (5th) business day
following the date of mailing addressed as follows:
If to Seller: If to Purchaser:
AIMCO Parley Pearce
1873 South Bellaire Street Pearce-Woodfield Development
17th Floor LLC
Denver, CO 80222-4300 615 Abbot Road,
Walla Walla, WA 99362
with a copy to: with a copy to:
Richard A. Cohn, Esquire Thomas K. Baffney, Esquire
Bryan Cave LLP Reese, Baffney, Schrag & Frol,
700 Thirteenth Street, N.W. P.S. 8 South Second Avenue,
Washington, D.C. 20005-3960 Walla Walla, WA 99362-8130
Any of the parties may designate a change of address by Notice in writing
to the other parties. Whenever in this Purchase Contract the giving of
Notice by mail or otherwise is required, the giving of such Notice may be
waived in writing by the person or persons entitled to receive such Notice.
15.7 GOVERNING LAW AND VENUE
The laws of the State of Washington shall govern the validity,
construction, enforcement, and interpretation of this Purchase Contract,
unless otherwise specified herein except for the conflict of laws
provisions thereof. All claims, disputes and other matters in question
arising out of or relating to this Purchase Contract, or the breach
thereof, shall be decided by proceedings instituted and litigated in the
United States District Court for the district in which the Property is
situated, and the parties hereto expressly consent to the venue and
jurisdiction of such court.
15.8 ENTIRETY AND AMENDMENTS
This Purchase Contract embodies the entire Purchase Contract between the
parties and supersedes all prior Purchase Contracts and understandings, if
any, relating to the Property, and may be amended or supplemented only by
an instrument in writing executed by the party against whom enforcement is
sought.
15.9 SEVERABILITY
If any of the provisions of this Purchase Contract is held to be illegal,
invalid, or unenforceable under present or future laws, such provision
shall be fully severable. The Purchase Contract shall be construed and
enforced as if such illegal, invalid, or unenforceable provision had never
comprised a part of this Purchase Contract; and the remaining provisions of
this Purchase Contract shall remain in full force and effect and shall not
be affected by the illegal, invalid, or unenforceable provision or by its
severance from this Purchase Contract. In lieu of such illegal, invalid,
or unenforceable provision, there shall be added automatically as a part of
this Purchase Contract a provision as similar in terms to such illegal,
invalid, or unenforceable provision as may be possible to make such
provision legal, valid, and enforceable.
15.10 MULTIPLE COUNTERPARTS
This Purchase Contract may be executed in a number of identical
counterparts. If so executed, each of such counterparts is to be deemed an
original for all purposes and all such counterparts shall, collectively,
constitute one Purchase Contract. In making proof of this Purchase
Contract, it shall not be necessary to produce or account for more than one
such counterparts.
15.11 FURTHER ACTS
In addition to the acts and deeds recited herein and contemplated and
performed, executed and/or delivered by Seller and Purchaser, Seller and
Purchaser agree to perform, execute and/or deliver or cause to be
performed, executed and/or delivered any and all such further acts, deeds,
and assurances as may be necessary to consummate the transactions
contemplated hereby.
15.12 CONSTRUCTION
No provision of this Purchase Contract shall be construed in favor of, or
against, any particular party by reason of any presumption with respect to
the drafting of this Purchase Contract; both parties, being represented by
counsel, having fully participated in the negotiation of this instrument.
15.13 CONFIDENTIALITY
Purchaser shall not disclose the terms and conditions contained in this
Purchase Contract, shall keep the same confidential, provided that
Purchaser may disclose the terms and conditions of this Purchase Contract
(i) as required by law, (ii) to consummate the terms of this Purchase
Contract, or any financing relating thereto, or (iii) to Purchaser's or
Seller's lenders, attorneys and accountants,. Any information provided by
Seller to Purchaser under the terms of this Purchase Contract is for
informational purposes only. In providing such information to Purchaser,
Seller makes no representation or warranty, express, written, oral,
statutory, or implied, and all such representations and warranties are
hereby expressly excluded. Purchaser shall not in any way be entitled to
rely upon the accuracy of such information. Such information is also
confidential and Purchaser shall be prohibited from making such information
public to any other person or entity other than its agents and legal
representatives, without Seller's prior written authorization, which may be
granted or denied in Seller's sole discretion.
15.14 TIME OF THE ESSENCE
It is expressly agreed by the parties hereto that time is of the essence
with respect to this Purchase Contract.
15.15 CUMULATIVE REMEDIES AND WAIVER
Except as otherwise provided herein, no remedy herein conferred or reserved
is intended to be exclusive of any other available remedy or remedies, but
each and every such remedy shall be cumulative and shall be in addition to
every other remedy given under this Purchase Contract or now or hereafter
existing at law or in equity. No delay or omission to exercise any right
or power accruing upon any default, omission, or failure of performance
hereunder shall impair any right or power or shall be construed to be a
waiver thereof, but any such right and power may be exercised from time to
time and as often as may be deemed expedient. No waiver, amendment,
release, or modification of this Purchase Contract shall be established by
conduct, custom, or course of dealing.
15.16 LITIGATION EXPENSES
In the event either party hereto commences litigation against the other to
enforce its rights hereunder, the prevailing party in such litigation shall
be entitled to recover from the other party its reasonable attorneys' fees
and expenses incidental to such litigation.
15.17 TIME PERIODS
Should the last day of a time period fall on a weekend or legal holiday,
the next Business Day thereafter shall be considered the end of the time
period.
15.18 EXCHANGE
At Seller's sole cost and expense, Seller may structure the sale of the Property
to Purchaser as a Like Kind Exchange under Internal Revenue Code Section 1031
whereby Seller will acquire certain property (the "Like Kind Exchange Property")
in conjunction with the sale of the Property (the "Like Kind Exchange").
Purchaser shall cooperate fully and promptly with Seller's conduct of the Like
Kind Exchange, provided that all costs and expenses generated in connection with
the Like Kind Exchange shall be borne solely by Seller, and Purchaser shall not
be required to take title to or contract for the purchase of any other property.
If Seller uses a qualified intermediary to effectuate the exchange, any
assignment of the rights or obligations of Seller hereunder shall not relieve,
release or absolve Seller of its obligations to Purchaser. In no event shall
the Closing Date be delayed by the Like Kind Exchange. Seller shall indemnify
and hold harmless Purchaser from and against any and all liability arising from
and out of the Like Kind Exchange. Seller acknowledges that the Purchase Price
for the Property will be paid in whole or in part from the proceeds of an
Internal Revenue Code Section 1031 Like Kind Exchange entered into by Purchaser.
Purchaser intends that this Property shall constitute the "replacement property"
required in connection with such transaction, and Seller agrees to lend all
reasonable cooperation to Purchaser, but at no cost to Seller, in connection
therewith.
NOW WHEREFORE, the parties hereto have executed this Purchase Contract as of the
date first set forth above.
Seller: Angeles Income Properties, Ltd. IV
By: Angeles Realty Corporation II
Its: General Partner
By: [SEAL]
Printed:
Title:
Purchaser: Pearce-Woodfield Development Co., LLC
By: [SEAL]
Printed:
Title:
[INSERT NOTARIAL ACKNOWLEDGMENTS]