PURCHASE AGREEMENT
6680 Poe Avenue
THIS PURCHASE AGREEMENT ("Agreement") is made as of July 30, 1996 (the
"date of this Agreement") between ANGELES PARTNERS XIV, a California limited
partnership ("Seller"), and ABMD LTD., an Ohio limited liability company
("Purchaser").
Section 1. Description of Property: Agreement of Purchase and Sale.
1.1 Purchase and Sale; Property. Seller agrees to sell to Purchaser, and
Purchaser agrees to purchase, upon the terms and conditions contained in this
Agreement, the following:
1.1.1 The parcel of land located in Vandalia, Montgomery County,
State of Ohio, as more particularly described in Exhibit A (the "Land"),
together with all appurtenant rights, privileges and easements.
1.1.2 An office building containing approximately 44,596 square
feet of gross area and all other buildings, structures, appurtenances,
landscaping and other improvements on the Land, including parking areas for a
minimum of 263 vehicles (the "Improvements") (the Land and Improvements are
referred to as the "Premises"); the address of the Premises is commonly referred
to as 6680 Poe Avenue, Vandalia, Ohio.
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, 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, including the property identified on
Exhibit B attached hereto and incorporated herein by reference (all of the
foregoing being collectively referred to as the "Personal Property");
1.1.4 Easements over and upon the Retained Property (as defined in
Section 7.2.13 hereof), for ingress and egress over the parking areas, and for
access to and use of the sprinkler system, storm and sanitary sewer systems,
water systems and electrical transformers, if any, servicing the Premises and
located on the Retained Property, which easements shall be granted pursuant to
the Reciprocal Easement Agreement defined in Section 7.2.13 hereof.
1.1.5 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.
The term "Property" as used in this Agreement shall mean all property,
whether real or personal, tangible or intangible set out in this Section 1.1.
Section 2. Deposit and Purchase Price.
2.1 Deposit. Purchaser will deposit with Larry Stein Realty Trust Account
the sum of Twenty-five Thousand Dollars ($25,000) as an earnest money deposit
("Deposit"). If the contingencies set forth herein are not satisfied or waived
by Purchaser, or if the sale contemplated herein is not closed for any reason
not the fault of Purchaser, the Deposit shall be returned to Purchaser. If,
after all contingencies have been satisfied or waived by Purchaser, Purchaser
refuses to perform its obligations under this Agreement, Seller shall retain the
Deposit as liquidated damages, this Agreement shall terminate, and each of the
parties shall be released from any further liability or obligation hereunder.
If this purchase is closed, the Deposit shall be credited to the purchase price.
2.2 Purchase Price. The purchase price for the Premises shall be ONE
MILLION NINE HUNDRED FIFTY THOUSAND DOLLARS ($1,950,000) ("Purchase Price").
The entire Purchase Price shall be paid at the closing ("Closing") by certified
check, cashier's check, wire transfer or cash as follows:
(i) $5,000.00 shall be paid to Seller;
(ii) The balance, including the Deposit applied in accordance
with Paragraph 2.1, shall be paid to The Travelers Insurance Company
("Travelers"), Seller's mortgagee, pursuant to the terms of a certain letter
agreement between Seller, Travelers and Miller-Valentine Realty dated May 23,
1996 (the "Travelers Agreement"). The amount due under this subparagraph shall
be further adjusted for prorations of taxes, utilities and other customary
closing adjustments and credits, the payment of expenses related to the lot
split approval, and the payment of the Commissions identified in Section 12
hereof, all as identified in the Travelers Agreement.
The Purchase Price shall be allocated among the Land, Building and Personal
Property as follows:
Land $ 40,000.00
Building $1,910,000.00
Total $1,950,000.00
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 documents 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.
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 any 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, including the lease between Seller and CSC
dated .
3.1.5 Copies of any environmental audits or other reports
concerning soil, ground water, underground tanks, subsurface conditions,
environmental conditions or other information concerning the Premises of which
Seller is aware.
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, including but not limited to a Phase 1
environmental assessment. Purchaser shall not cause or permit any of its agents
to cause any damage to the Premises in connection with the inspections and shall
not perform any inspections which are invasive into the ground or structural
portions of the Premises without the prior written consent of Travelers.
Purchaser agrees that all reports and results of the inspections, whether
written or unwritten, shall be treated as confidential information by Purchaser
and will not be disclosed to any person or entity other than Seller, or Seller's
agents, Travelers, or Purchaser's agents and employees. 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 or performance of any act, work or
thing, on or about the Premises, including, without limitation, personal injury,
property damage or liens. The obligations stated in this section shall survive
the consummation or termination of this Agreement.
3.3 Inspection Period. Purchaser shall have fifteen (15) business days
from the date of this Agreement (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 (or
Purchaser's lender). 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 last day
of the Inspection Period. 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 shall obtain, at Purchaser's
cost, 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. At
Closing, Seller will convey the Premises to Purchaser (or Purchaser's designee)
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 or intended 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 Premises or
Purchaser's plans for the future development of the Premises; and
(d) Installments of real estate taxes and assessments which are a
lien upon the Premises, but not yet due and payable.
Any mortgage or other monetary lien on the Property is to be discharged and paid
by Seller at the time of Closing.
4.2 Survey. Prior to Closing, Seller (at Seller's cost) shall obtain and
deliver to Purchaser a survey ("Survey") sufficient in form and content 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 insurer, 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 may obtain, at
Purchaser's cost, 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. 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 Sections 4.1 through 4.3 are referred to as the "Title
Evidence." Purchaser shall notify Seller of Purchaser's disapproval of any
matter contained in the Title Evidence promptly 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 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,
which shall take place on the date specified in Section 7. 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; or (2) Purchaser may, at its sole election, proceed to close this
transaction notwithstanding the existence of such Defects. At Purchaser's
option, Closing shall be extended until such date as is necessary to allow
Seller to cure the Defects provided, however, that Closing shall not be extended
beyond August 1, 1996. If this Agreement is terminated pursuant to the
provisions of this Section, 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 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 Sections 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 or caused to be delivered to
Purchaser in satisfactory form the documents and all other items referred to in
Section 7 below which are to be delivered to Purchaser pursuant to the
provisions thereof.
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 consent of Travelers and any other
holders of mortgages on the Property to the sale of the Property on the terms
and conditions set forth in this Agreement and the agreement of such parties to
release their respective liens against the Property at Closing in any case where
such mortgage is not being paid in full. In addition, Seller shall be in
compliance with and shall have satisfied all of its obligations under the
Travelers Agreement.
5.7 Purchaser 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 and that there is adequate parking
for such uses.
5.8 Seller shall have obtained, at Seller's expense, all necessary
governmental approvals required to split the Premises from the existing lot.
5.9 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, 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.
5.10 Purchaser shall have obtained financing in the amount of not less than
$ 1,500,000 on terms no less favorable than those generally prevailing for
commercial loans of similar size and on similar types of commercial property as
the Premises to a borrower of similar creditworthiness as Purchaser. Purchaser
agrees to promptly apply for and diligently proceed with its efforts to obtain
such financing. If such financing is not obtained by the Closing, Purchaser may
terminate this Agreement as provided in Section 5.12 below. The Closing of this
transaction is contingent upon Purchaser's lender funding said loan.
5.11 Seller and Purchaser shall have negotiated the terms of a Reciprocal
Easement Agreement required pursuant to Section 7.2.13.
5.12 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 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, which
shall be released at Closing. Seller is not contemplating the institution of
insolvency proceedings.
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 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 of 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 representations 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 the
foregoing matters.
6.1.7 Seller is not a foreign person under Section 1445 of the
Internal Revenue Code.
6.1.8 Seller owns good record, marketable and fee simple title to
the Premises in recordable form, free and clear of any and all mortgages (except
mortgages to be 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 real estate taxes and
assessments which are not yet due and payable, and such easements, rights-of-way
and covenants of record as do not materially impair Purchaser's ability to use
the same as intended by Purchaser and tenant's rights as disclosed to Purchaser.
6.1.9 Seller owns the Personal Property free of any liens or
encumbrances.
6.1.10 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 becomes regulated
by any local governmental authority, any agency of the State of Ohio, or any
agency of the United State 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.
6.1.11 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.
6.2 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.
6.3 Survival. All of the representations, warranties and covenants made
by Seller in this Section 6 and elsewhere in this Agreement shall survive
Closing for a period of one (1) year from the date of Closing 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 general warranty contained in
Seller's deed shall survive indefinitely.
Section 7. Closing and Transfer of Title.
7.1 Closing. The parties agree to consummate this purchase and sale and
the transactions contemplated hereby ("Closing") on July 31, 1996, or as soon
thereafter as possible, not to exceed thirty (30) days, in the offices of the
Title Company in Dayton, Ohio, or at such other date, time and place as may be
agreed upon by the parties. Purchaser and Seller agree to work toward an
earlier Closing if conditions precedent to Closing can be reasonably
accomplished by such earlier date.
7.2 Seller's Documents; Other Deliveries. At Closing, Seller shall
execute and/or deliver to Purchaser the following:
7.2.1 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.
7.2.2 A Bill of Sale with full warranties of title, conveying the
Personal Property to Purchaser.
7.2.3 An assignment of all warranties and guarantees with respect
to the Property.
7.2.4 An assignment of all leases and rental agreements concerning
the Property or any portion thereof which Purchaser desires to assume.
7.2.5 Releases of all mortgages and liens which are liens against
the Premises.
7.2.6 All other documents and instruments referred to in this
Agreement which are to be delivered to Purchaser.
7.2.7 An assignment of all permits, licenses and certificates and
authority granted to Seller for the ownership, occupation and operation of the
Property.
7.2.8 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.
7.2.9 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.
7.2.10 An owner's affidavit as to mechanics' liens, persons 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.
7.2.11 All consents that may be required from any third person or
entity in connection with the sale of the Property.
7.2.12 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.
7.2.13 A Reciprocal Easement Agreement ("REA"), satisfactory in
form and content to both Purchaser, Seller and Travelers. The REA shall grant
to Purchaser (i) an easement for ingress and egress over the parking areas, and
(ii) an easement for access to and use of the sprinkler system, storm and
sanitary sewer systems, water systems and electrical transformers, if any,
servicing the Premises and located on the real property adjacent to the Premises
located at 6640 Poe Avenue, Vandalia, Ohio, which real property is being
retained by Seller and is more particularly described on Exhibit C attached
hereto ("Retained Property"). The REA shall also grant to Seller (i) an
easement for ingress and egress over the parking areas on the Premises, and (ii)
an easement for access to and use of the cooling towers and refuse pads
servicing the Retained Property and which are located on the Premises. In
addition, the REA shall provide for the maintenance obligations of each party
with respect to the respective easement areas granted therein, and shall provide
such remedies for a breach of the REA as are deemed appropriate by the parties.
Seller will, as part of the Survey obtained pursuant to Section 4, obtain legal
descriptions necessary to properly identify the Retained Property and the
respective easement areas to be granted in the REA. The parties agree to
provide Travelers with a draft of the REA at least ten (10) days prior to
Closing.
7.2.14 Such other documents or instruments as may be reasonably
required by Purchaser, required by other provisions of this Agreement, 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.
7.3 Purchaser's Documents. At Closing, Purchaser shall execute and/or
deliver to Seller the following documents:
7.3.1 An assignment of leases and rental agreements, as described
in 7.2.4 hereof, and which shall include Purchaser's assumption of the
obligations of the Lessor thereunder.
7.3.2 The REA required pursuant to Section 7.2.13 hereof.
7.3.3 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. If closing occurs after June 30, 1996, the Seller shall be responsible
for payment of the June, 1996 installment of real estate taxes and assessments,
for which bills have not yet been issued, but which are due. The December, 1996
installment of real estate taxes (due and payable in approximately February,
1997) and assessments which are a lien for the year in which the Closing occurs
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
so-called "short form" method of proration (as is the custom for property
located in Montgomery County, Ohio). Purchaser shall pay the December, 1996
installment of real estate taxes and all installments thereafter. If Closing
occurs prior to June 30, 1996, the June, 1996 installment of real estate taxes
shall be prorated as of the date of Closing in accordance with the "short form"
method of proration. In such an event, Purchaser shall pay the June, 1996
installment of real estate taxes and all installments thereafter.
9.2 Utility Expenses. Final reading on all gas, water and electric meters
shall be made as of the date of Closing, if possible. Seller shall be
responsible for all charges for consumption of utilities prior to the date of
Closing and Purchaser shall be responsible for utility charges from and after
the date of Closing. Any deposits made by Seller with utility companies shall
be returned to Seller. Purchaser shall be responsible for making all
arrangements for the continuation of utility services.
9.3 Rent: Other Income and Expenses. The parties will prorate, as of the
date of Closing, any miscellaneous income and expenses related to the Property,
including, but not limited to, rents and other amounts due under any leases
affecting the property which Purchaser assumes.
9.4 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.
9.5 Estimates. All items that are not subject to an exact determination
shall be estimated by the parties. When any item so estimated is capable of
exact determination after Closing, the party in possession of the facts
necessary to make the determination shall send the other party a detailed report
on the exact determination and the parties shall adjust the prior estimate
within ten (10) days after both parties have received the reports. Either party
will be entitled, at its expense, to audit the records supporting the
determination made. All prorations shall be made as of 11:59 p.m. on the day
prior to the date of Closing. In all events, any adjustment which is to be made
shall be made not later than sixty (60) days after the Closing Date. If the
adjustment is not capable of being made within such 60-day period, the estimate
utilized at Closing adjusted for any information learned during the 60-day
period shall be conclusively deemed to be the final and correct determination of
such matter as between the parties hereto. Purchaser and Seller agree to use
reasonable and good faith efforts to obtain all information necessary to make
final determinations within the 60-day time period provided hereby and to
disclose any such information as and when learned promptly to the other party.
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 Seller or
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 neither Seller nor Purchaser elects 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, Seller or 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 neither Seller nor Purchaser elects 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 the Deposit shall be retained by Seller and
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, including the Purchaser's
obligations regarding indemnification set out in Section 3.2 hereof, it being
agreed that any amounts due to Seller from Purchaser pursuant to Section 3.2
shall be in addition to the Deposit.
If the Closing is not concluded due to failure of Seller to perform its
obligations under this Agreement, Purchaser, at its option, may terminate this
Agreement by written notice to Seller, after which the Deposit shall be returned
to Purchaser and 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.
12.1 Miller-Valentine Realty has acted as broker for Seller in this
transaction and shall be entitled to a commission equal to five percent (5%) of
the Purchase Price. Larry Stein Realty has acted as broker for Purchaser in
this transaction and shall be entitled to a commission equal to one percent (1%)
of the Purchase Price. Commissions shall be subject to the condition that the
sale is consummated as herein provided and shall be paid by Seller at Closing
from the proceeds of the sale. Each party represents and warrants to the other
that it has dealt with no other agent or broker who has in any way participated
in the sale of the Property other than those listed above. Seller agrees to pay
the brokerage commissions set out above. 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.
13.1 This Agreement shall be binding upon and shall inure to the benefit of
the parties and their respective heirs, personal representatives, successors and
assigns.
13.2 This Agreement may be assigned by Purchaser to any other person or
entity without the consent of Seller.
Section 14. Notices.
14.1 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: ABMD Ltd.
c/o The Mazer Corporation
P. O. Box 1400-J
2501 Neff Road
Dayton, OH 45414
Attention: William Franklin
with a copy to: Jonas J. Gruenberg, Esq.
Coolidge, Wall, Womsley & Lombard
Suite 600, 33 West First Street
Dayton, OH 45402
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: Kenneth A. Cobler
As to Travelers: Neil Neumark, Esq.
Schwartz, Cooper, Greenberger & Kraus
180 North LaSalle Street
Suite 2700
Chicago, IL 60601
Section 15. Expenses.
15.1 Seller shall pay for any transfer tax and conveyance fee in connection
with recording the deed in connection with the sale of the Premises and costs of
obtaining the survey required hereby. Purchaser shall pay all costs, fees and
premiums of the commitment, environmental assessment, and Title Policy. -
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 contest 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, understandings
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 on which the last of Purchaser or Seller shall 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 effective as of the date first above written.
PURCHASER: ABMD LTD.
By /s/William Franklin
Its Managing Agent
Date July 30, 1996
SELLER: ANGELES PARTNERS XIV, a California
partnership
By: ANGELES REALTY CORPORATION
II, its general partner
By /s/Robert D. Long, Jr.
Its Vice President
Date
EXHIBIT A
In the State of Ohio, County of Montgomery, City of Vandalia and being Lot
numbered One (1), 70/75 Corporate Center, Section Two as recorded in Plat Book
, Page of the plat records of Montgomery County, Ohio.
EXHIBIT B
PERSONAL PROPERTY
[None]