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EXHIBIT 10.20
PURCHASE AND SALE AGREEMENT
AND
ESCROW INSTRUCTIONS
BETWEEN
BOETTCHER PENSION INVESTORS, LTD., AS SELLER
AND
STEPHEN M. BERREY, AS BUYER
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TABLE OF CONTENTS
ARTICLE 1 PURCHASE PRICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE 2 OPENING OF ESCROW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE 3 CONDITIONS TO THE PARTIES' OBLIGATIONS . . . . . . . . . . . . . . . . . . . . . . . 3
3.1 Escrow Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.2 Conditions to Buyer's Obligation to Purchase . . . . . . . . . . . . . . . . . . . . 3
3.2.1 Performance by Seller . . . . . . . . . . . . . . . . . . . . . . . . 3
3.2.2 Satisfaction or Waiver of
Contingencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.2.3 Accuracy of Representations . . . . . . . . . . . . . . . . . . . . . 3
3.2.4 Title Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.3 Conditions to Seller's Obligation to Sell . . . . . . . . . . . . . . . . . . . . . 4
3.3.1 Performance by Buyer . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.3.2 Accuracy of Representation . . . . . . . . . . . . . . . . . . . . . . 4
3.3.3 Payment of Purchase Price . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE 4 - BUYER'S DELIVERIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4.1 Initial Deposits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4.2 Additional Deliveries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4.2.1 Balance of Purchase Price . . . . . . . . . . . . . . . . . . . . . . 4
4.2.2 Assignment and Assumption of Leases . . . . . . . . . . . . . . . . . 4
4.2.3 Assignment and Assumption of Contracts . . . . . . . . . . . . . . . . 5
4.2.4 Cash - Prorations . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.2.5 Settlement Statement . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.3 Further Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.4 Failure to Deliver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE 5 - SELLER'S CLOSING DELIVERIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5.1 Delivery of Instruments and Documents . . . . . . . . . . . . . . . . . . . . . . . 5
5.1.1 Deed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5.1.2 Bill of Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5.1.3 Assignment and Assumption of Leases . . . . . . . . . . . . . . . . . 5
5.1.4 Assignment and Assumption of Contracts . . . . . . . . . . . . . . . . 5
5.1.5 Tenant Notification . . . . . . . . . . . . . . . . . . . . . . . . . 6
5.1.6 Leases/Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5.1.7 Section 1445 Affidavit . . . . . . . . . . . . . . . . . . . . . . . . 6
5.1.8 Settlement Statement . . . . . . . . . . . . . . . . . . . . . . . . . 6
5.1.9 Tenant Estoppel Certificates . . . . . . . . . . . . . . . . . . . . . 6
5.2 Further Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5.3 Failure to Deliver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE 6 - INVESTIGATION OF PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
6.1 Initial Delivery of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
6.1.1 Title Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
6.1.2 Rent Roll . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
6.1.3 Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
6.1.4 Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
6.1.5 Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
6.1.6 ALTA Survey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
6.1.7 Property Assessment and Taxes . . . . . . . . . . . . . . . . . . . . 7
6.1.8 Insurance Policies . . . . . . . . . . . . . . . . . . . . . . . . . . 7
6.1.9 Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
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6.1.10 Income and Operating Statements . . . . . . . . . . . . . . . . . . 7
6.1.11 Soils Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
6.1.12 Tenant Financial Information . . . . . . . . . . . . . . . . . . . . 8
6.1.13 Delinquency Reports . . . . . . . . . . . . . . . . . . . . . . . . 8
6.1.14 Permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6.1.15 Improvements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6.2 [INTENTIONALLY OMITTED] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6.3 "As Is" Purchase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6.3.1 Opportunity to Inspect . . . . . . . . . . . . . . . . . . . . . . . 8
6.3.2 No Implied Representations . . . . . . . . . . . . . . . . . . . . . 9
6.3.3 Waiver and Release . . . . . . . . . . . . . . . . . . . . . . . . . 9
6.3.4 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE 7 - THE CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
7.1 Date and Manner of Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
7.1.1 Funds and Documents . . . . . . . . . . . . . . . . . . . . . . . . 10
7.1.2 Title Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . 10
7.2 Delay in Closing; Authority to Close . . . . . . . . . . . . . . . . . . . . . . . 10
7.3 Termination of Agreement; Liability of Escrow
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE 8 PRORATIONS, FEES AND COSTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
8.1 Prorations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
8.1.1 Property Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
8.1.2 Income . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
8.1.3 Deposits; Tenant Concessions . . . . . . . . . . . . . . . . . . . . 12
8.1.4 Reimbursable Expenses . . . . . . . . . . . . . . . . . . . . . . . 12
8.1.5 Other Expenses of Property . . . . . . . . . . . . . . . . . . . . . 13
8.1.6 Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
8.2 Date of Proration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
8.3 Buyer's Closing Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
8.4 Seller's Closing Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE 9 DISTRIBUTION OF FUNDS AND DOCUMENTS . . . . . . . . . . . . . . . . . . . . . . . 14
9.1 Form of Disbursements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
9.2 Liens and Encumbrances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
9.3 Recorded Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
9.4 Nonrecorded Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
9.5 Cash Disbursements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
9.6 Copies of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE 10 RETURN OF DOCUMENTS AND FUNDS UPON TERMINATION . . . . . . . . . . . . . . . . . . 15
10.1 Return of Seller's Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
10.2 Return of Buyer's Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
10.3 No Effect on Rights of Parties . . . . . . . . . . . . . . . . . . . . . . . . . . 15
10.4 Payment of Termination Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE 11 DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
11.1 Seller's Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
11.2 Buyer's Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE 12 - REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . 16
12.1 Escrow Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
12.2 Seller's Representations and Warranties . . . . . . . . . . . . . . . . . . . . . 16
12.2.1 Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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EXHIBITS
A - Legal Description
B - Assignment and Assumption of Leases
C - Assignment and Assumption of Contracts
D - Bill of Sale and Assignment
E - Wiring Instructions
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PURCHASE AND SALE AGREEMENT
AND
ESCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS (this
"Agreement"), dated as of September 29, 1995, is made and entered into by and
between BOETTCHER PENSION INVESTORS, LTD., a Colorado limited partnership
("Seller"), and STEPHEN M. BERREY and/or assigns ("Buyer"), with reference to
the recitals set forth below and constitutes (i) a contract of purchase and
sale between the parties, and (ii) joint escrow instructions to TICOR TITLE
INSURANCE COMPANY ("Escrow Holder"), the consent of which appears at the end
hereof.
RECITALS
This Agreement is entered into with reference to the following facts:
A. Seller is the owner of fee title to that certain retail center
known as "Clackamas Corner" located at the northeast corner of the Clackamas
Town Center in unincorporated Clackamas County, Oregon.
B. As used in this Agreement, the term "Property" includes all of
the following:
(1) The real property described on Exhibit A together with
all reversions, remainders, easements, rights-of-way, appurtenances, leases,
subleases, agreements, licenses, tenements, hereditaments and water rights
appertaining to or otherwise benefiting or used in connection with such real
property or the "Improvements" (as hereinafter defined), together with all of
Seller's right, title and interest in and to any strips of land, streets, and
alleys abutting or adjoining such real property (the "Land");
(2) The existing buildings and other improvements,
structures, open parking facilities and fixtures placed, constructed, installed
or located on the Land, and all plants, trees, sculptures, and other
appurtenances located upon, over or under the Land (collectively, the
"Improvements"; the Land and Improvements are sometimes hereinafter
collectively referred to as the "Real Property");
(3) All right, title and interest of Seller, as landlord,
under any leases, tenancies or other occupancy arrangements affecting any
portion of the Real Property (the "Leases");
(4) All right, title and interest of Seller in and to any
written contracts, agreements or commitments, other than the Leases, including,
without limitation, all construction contracts,
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contracts for repair or maintenance, contracts for the provision of services
(such as, e.g., contracts concerning security services or the maintenance of
landscaping or fire safety or mechanical systems), property management and
leasing agreements, if any, relating to the Real Property, to the extent that
they are assignable (the "Contracts");
(5) All right, title and interest of Seller in and to any
unexpired warranties, guaranties and bonds, including, without limitation,
contractors' and manufacturers' warranties or guaranties, if any, relating to
the Real Property, to the extent that they are assignable (the "Warranties");
(6) All right, title and interest of Seller in and to any
governmental permits, licenses, certificates and authorizations, including,
without limitation, certificates of occupancy, if any, relating to the
construction, use or operation of the Real Property, to the extent that they
are assignable (the "Permits");
(7) All right, title and interest of Seller, if any, in and
to those site plans, surveys, soil and substratum studies, architectural
drawings, plans and specifications, engineering, electrical and mechanical
plans and studies, floor plans, landscape plans, and other plans and studies
contained in the due diligence materials delivered to Buyer pursuant to Article
6 of this Agreement that relate to the Real Property, to the extent that they
are assignable (the "Plans"); and
(8) Subject to the provisions of Article 8 below any other
rights, privileges, and appurtenances owned by Seller and in any way related
to, or used in connection with the operation of the Real Property, including
all of Seller's right, title and interest in and to the use of the Property's
name, to the extent that they are assignable (the "Intangible Property").
C. Seller now desires to sell and Buyer now desires to purchase the
Property, upon the terms and covenants and subject to the conditions set forth
below.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and intending to
be legally bound hereby, the parties hereto agree as follows:
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ARTICLE 1 - PURCHASE PRICE
In consideration of the covenants herein contained, Seller hereby agrees
to sell, and Buyer hereby agrees to purchase, the Property for a total purchase
price (the "Purchase Price") of TWO MILLION FOUR HUNDRED FIFTY THOUSAND AND
NO/100'S DOLLARS ($2,450,000.00), in Cash.
ARTICLE 2 - OPENING OF ESCROW
Immediately prior to or concurrently with Buyer's delivery of the
"Deposit" (as hereinafter defined) to Escrow Holder in accordance with Section
4.1 below, Buyer and Seller shall open an escrow account ("Escrow") with Escrow
Holder and shall deposit with Escrow Holder fully executed counterparts of this
Agreement for use as escrow instructions. Buyer and Seller further agree to
execute Escrow Holder's usual form, of supplemental escrow instructions for
transactions of this type; provided, however, that such escrow instructions
shall be for the purpose of implementing this Agreement, and such instructions
shall incorporate this Agreement by reference and shall specifically provide
that no provision thereof shall have the effect of modifying this Agreement
unless it is so expressly stated and initialed on behalf of Buyer and Seller.
In the event of any conflict between the provisions of this Agreement and any
supplementary escrow instructions, the terms of this Agreement shall prevail.
ARTICLE 3 - CONDITIONS TO THE PARTIES' OBLIGATIONS
3.1 Escrow Holder. Escrow Holder shall not be concerned with
this Article nor have any responsibility therefor.
3.2 Conditions to Buyer's Obligation to Purchase. Buyer's
obligation to purchase the Property is expressly conditioned upon the
satisfaction of each of the following:
3.2.1 Performance by Seller. Timely performance of each
obligation and covenant of, and delivery required of, Seller hereunder.
3.2.2 Satisfaction or Waiver of Contingencies. The
contingencies set forth in Article 6 below shall have been satisfied or waived
by Buyer; provided, that if Buyer does not terminate this Agreement pursuant to
Article 6, the contingencies set forth in such Article 6 shall be deemed to
have been waived by Buyer.
3.2.3 Accuracy of Representations. The accuracy in all
material respects of each representation and warranty of Seller contained in
Section 12.2 below.
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3.2.4 Title Policy. Delivery at the "Closing" (as
hereinafter defined) of the "Title Policy" (as hereinafter defined) by Escrow
Holder, in its capacity as title insurer (in such capacity, "Title Company") to
issue the Title Policy showing title in Buyer.
3.3 Conditions to Seller's Obligation to Sell. Seller's
obligation to sell the Property is expressly conditioned upon each of the
following:
3.3.1 Performance by Buyer. Timely performance of each
obligation and covenant of, and delivery required of, Buyer hereunder.
3.3.2 Accuracy of Representations. The accuracy in all
material respects of each representation and warranty of Buyer in Section 12.3
below.
3.3.3 Payment of Purchase Price. Payment of the Purchase
Price at the Closing in the manner herein provided.
ARTICLE 4 - BUYER'S DELIVERIES
4.1 Initial Deposits. Not later than two (2) business days after
Buyer's execution of this Agreement, Buyer shall deliver to Escrow Holder the
amount of ONE HUNDRED THOUSAND AND NO/100'S DOLLARS ($100,000.00), in Cash.
Escrow Holder shall deposit such amount in an interest-bearing account (which
amount, together with all interest earned thereon, is herein referred to as the
"Deposit"). The Deposit shall be applied to the Purchase Price of the Property,
subject to the terms and provisions of this Agreement. In the event Buyer
defaults hereunder, the Deposit shall be retained by Seller as liquidated
damages pursuant to the terms of Article 11 below. In the event of the failure
of a condition precedent set forth in Section 3.2, Escrow Holder shall return
the Deposit to Buyer.
4.2 Additional Deliveries. Buyer shall, at or before the
Closing, deliver to Escrow Holder the following funds, instruments and
documents, the delivery of each of which is an express obligation of Buyer:
4.2.1 Balance of Purchase Price. Cash constituting the
balance of the Purchase Price, TWO MILLION THREE HUNDRED FIFTY THOUSAND AND
NO/100'S DOLLARS ($2,350,000.00), subject to adjustments and prorations for
as provided herein.
4.2.2 Assignment and Assumption of Leases. Two
counterparts of the Assignment and Assumption of Leases in the form of Exhibit
B attached hereto (the "Assignment of Leases"), executed by Buyer, pursuant to
which Seller shall assign all of its right, title and interest in and to the
Leases to Buyer.
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4.2.3 Assignment and Assumption of Contracts. Two
counterparts of the Assignment and Assumption of Contracts in the form of
Exhibit C attached hereto (the "Assignment of Contracts"), executed by Buyer,
pursuant to which Seller shall assign all of its right, title and interest in
and to the "Approved Contracts" (as hereinafter defined).
4.2.4 Cash - Prorations. Buyer's share, if any, of
prorations, fees and costs, as described in Article 8 below.
4.2.5 Settlement Statement. A settlement statement signed
by Buyer reflecting the Purchase Price, the Deposit, Buyer's share of the
prorations, costs and fees described in Article 8 and the amounts due from
Buyer hereunder.
4.3 Further Documents. Buyer shall execute and deliver
such other documents and shall take such other action at the Closing as may be
necessary or appropriate to carry out its respective obligations under this
Agreement, without further representations or warranties other than those
contained herein.
4.4 Failure to Deliver. The delivery of the funds,
instruments and documents required above shall be express obligations of Buyer
and a condition precedent to Seller's performance hereunder, and the failure
of Buyer to make any delivery required above by the date, or within the time,
set forth above, shall constitute a material breach hereof by Buyer.
ARTICLE 5 - SELLER'S CLOSING DELIVERIES
5.1 Delivery of Instruments and Documents. Seller
shall, at or before the Closing, deliver to Escrow Holder the following
instruments and documents, the delivery of each of which is an express
obligation of Seller:
5.1.1 Deed. A special warranty deed on Escrow Holder's
standard form thereof (the "Deed"), executed and acknowledged by Seller,
conveying the Property to Buyer free and clear of all liens and encumbrances
but subject to the "Permitted Exceptions" (as hereinafter defined).
5.1.2 Bill of Sale. A bill of sale in the form of Exhibit D
attached hereto, executed by Seller, conveying the Warranties, Permits, Plans
and Intangible Property to Buyer, without representation or warranty of any
kind whatsoever.
5.1.3 Assignment and Assumption of Leases. Two counterparts
of the Assignment of Leases executed by Seller.
5.1.4 Assignment and Assumption of Contracts. Two
counterparts of the Assignment of Contracts executed by Seller.
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5.1.5 Tenant Notification. Signed notification to be sent
to each tenant under each of the Leases following the Closing Date, advising
each tenant of the transfer of ownership and directing that all further
payments of rent be made as directed by Buyer.
5.1.6 Leases/Contracts. Originals or legible copies of the
Leases and any amendments thereto and any written Contracts, and all keys to
the Improvements in Seller's possession.
5.1.7 Section 1445 Affidavit. An affidavit executed by
Seller which evidences that the Seller is exempt from the withholding
requirements of Section 1445 of the Internal Revenue Code of 1986, as amended.
5.1.8 Settlement Statement. A settlement statement signed
by Seller reflecting the Purchase Price, Seller's share of the prorations,
costs and fees described in Article 8, and the net proceeds due to Seller.
5.1.9 Tenant Estoppel Certificates. An estoppel
certificate executed by each of the tenants under the Leases certifying that
such tenant's Lease is in full force and effect; provided, that in the event
that any tenant fails or refuses to timely deliver such estoppel certificate,
Seller shall have the right to execute and deliver such estoppel certificate on
such tenant's behalf as contemplated by the terms of the Leases, and Seller's
obligations pursuant to this Section 5.1.9 shall be deemed satisfied by
Seller's delivery of such estoppel certificate signed by Seller.
5.2 Further Documents. Seller shall execute and deliver such
other documents and shall take such other action at Closing as may be necessary
or appropriate to carry out its respective obligations under this Agreement,
without further representations or warranties other than those contained
herein.
5.3 Failure to Deliver. The delivery of the documents required
above shall be express obligations of Seller and a condition precedent to
Buyer's obligation to purchase the Property. The failure of Seller to make any
delivery required above by the date, or within the time, set forth above shall
constitute a material breach hereof by Seller.
ARTICLE 6 - INVESTIGATION OF PROPERTY
6.1 Initial Delivery of Documents. Buyer hereby acknowledges and
agrees that prior to the date of this Agreement, Seller has delivered or has
made available to Buyer the following items (collectively referred to herein as
"Seller's Deliveries"):
6.1.1 Title Commitment. A preliminary title report for the
Property addressed to Buyer, together with legible
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copies of all recorded exceptions to title referred to in such report,
including reciprocal easement agreements, if any (collectively, the "Title
Report"), covering the Property and issued by Title Company, contemplating the
issuance of an extended coverage owner's policy of title insurance in
accordance with Section 7.1.2 below. Buyer hereby accepts the condition of
title to the Property as disclosed by the Title Report, and agrees to accept
conveyance of title to the Property subject to the exceptions shown in the
Title Report (the "Permitted Exceptions").
6.1.2 Rent Roll. A current rent roll (the "Rent Roll")
listing (i) the name of each current tenant (and subtenant, if any), (ii) the
current rent and amount of reimbursable expenses payable by each tenant (and
subtenant, if any), (iii) the method of calculating reimbursable expenses, (iv)
the amount of any security deposits held by Seller, (v) the approximate square
footage of each rental unit, and (vi) a description of provisions, if any, for
future rental increases, renewals or purchase options.
6.1.3 Leases. Complete copies of all of the Leases and any
amendments or addenda thereto.
6.1.4 Contracts. A list or copies of any Contracts to be
assigned to Buyer.
6.1.5 Plans. Originals or legible copies of any Plans in
Seller's possession.
6.1.6 ALTA Survey. An ALTA "as built" improvement survey
of the Property (the "Survey"). The certification contained in the Survey shall
be amended prior to Closing to specifically name Buyer.
6.1.7 Property Assessment and Taxes. Evidence of payment
of real and personal property assessments and taxes relating to the Property
for the past three (3) years.
6.1.8 Insurance Policies. A copy of any insurance policies
held by Seller and relating to the Property.
6.1.9 Employees. A list of all persons employed at the
Property.
6.1.10 Income and Operating Statements. Monthly and annual
income and operating statements, budget comparisons and retail sales figures
for the Property for the period of Seller's ownership of the Property through
the month of May, 1995.
6.1.11 Soils Reports. Copies of environmental and soils
reports, engineering and architectural studies, grading plans, topographical
maps and similar data relating to the Property, if any, to the extent the same
are in Seller's possession or control.
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6.1.12 Tenant Financial Information. Copies of any tenant
financial statements and sales reports, to the extent the same are in Seller's
possession or control. At Buyer's request, Seller shall use reasonable efforts
to obtain updates of such statements and reports from current tenants of the
Property if such updates are required to be provided pursuant to the terms of
such tenants' Leases.
6.1.13 Delinquency Reports. Copies of any reports
maintained by Seller summarizing tenant delinquencies and late payments for the
twenty-four (24) month period ended May 31, 1995.
6.1.14 Permits. Originals or legible copies of any Permits,
to the extent the same are in Seller's possession or control.
6.1.15 Improvements. A schedule of tenant improvements
which Seller remains obligated to complete pursuant to the terms of existing
Leases and any other capital improvements to the Property in progress or
included in Seller's operating budget for the Property for the current fiscal
year.
6.2 [INTENTIONALLY OMITTED].
6.3 "As Is" Purchase.
6.3.1 Opportunity to Inspect. Buyer acknowledges and agrees,
for Buyer and Buyer's successors and assigns, that prior to the date of this
Agreement, (i) Buyer has been given a reasonable opportunity to review the
contents of the Seller's Deliveries and to inspect and investigate the Property
and all aspects relating thereto, either independently or through agents,
consultants or experts of Buyer's choosing; and (ii) Buyer has had the
opportunity to engage such qualified agents, consultants or experts, including,
without limitation, environmental consultants, as Buyer deemed necessary to
make all appropriate inquiry regarding the condition of the Property and
adjacent property, including, without limitation, the presence thereon, or the
condition thereof with respect to, any "Hazardous Materials" (as defined
below). Buyer further acknowledges and agrees that at Closing, Buyer shall
acquire and accept the Property in its then-existing condition on an "AS IS,
WHERE IS, AND WITH ALL FAULTS" basis, with no right of set-off or reduction in
the Purchase Price. As used in this Agreement, "Hazardous Materials" shall mean
any hazardous or toxic substances, materials or wastes, defined or regulated as
such in or under any "Environmental Law" (as defined below), including, without
limitation, asbestos, gasoline and any other petroleum products (including
crude oil or any fraction thereof), polychlorinated biphenyls and
urea-formaldehyde insulation. As used in this Agreement, "Environmental Law"
shall mean any and all federal, state, local or municipal laws, rules, orders,
regulations, statutes, ordinances, codes, decrees or requirements of any
governmental authority or requirements of law (including common law) relating
to or imposing liability or standards of
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conduct concerning the protection of human health, the environment or natural
resources, or to releases or threatened releases of Hazardous Materials into
the environment, including, without limitation, ambient air, surface water,
groundwater or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials, as now or may hereafter be in effect.
6.3.2 No Implied Representations. Buyer acknowledges and
agrees that, except for Seller's express representations and warranties set
forth in Section 12.2 below or in any instrument of conveyance signed by Seller
and delivered to Buyer at Closing (collectively, "Seller's Express
Representations"), NEITHER SELLER NOR ANY AGENT, EMPLOYEE, OFFICER, DIRECTOR,
BROKER, CONTRACTOR OR REPRESENTATIVE OF SELLER HAS MADE, AND SELLER
SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE
WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR
FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO THE PROPERTY, INCLUDING,
WITHOUT LIMITATION: (A) THE NATURE, QUANTITY, QUALITY OR CONDITION OF THE
PROPERTY, INCLUDING, WITHOUT LIMITATION, THE AREA, OR THE CONDITION WITH
RESPECT TO WATER, SOILS OR GEOLOGY, OF ANY LAND INCLUDED IN THE PROPERTY, THE
PLUMBING, ELECTRICAL OR MECHANICAL EQUIPMENT OR SYSTEMS OR THE ROOFS,
FOUNDATIONS OR OTHER STRUCTURAL COMPONENTS OF ANY IMPROVEMENTS INCLUDED IN THE
PROPERTY, OR THE FITNESS OF ANY PERSONAL PROPERTY INCLUDED IN THE PROPERTY; (B)
THE INCOME TO BE DERIVED FROM THE PROPERTY BY VIRTUE OF THE LEASES OR
OTHERWISE; (C) THE COSTS OF OWNING, OPERATING, REPAIRING OR MAINTAINING THE
PROPERTY; (D) THE MARKETABILITY OF THE PROPERTY OR ANY POTENTIAL TO DEVELOP,
CONSTRUCT OR ALTER IMPROVEMENTS ON, OR LEASE OR SELL THE PROPERTY; (E) THE
HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE
PROPERTY; OR (F) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY
LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL
AUTHORITY, INCLUDING, WITHOUT LIMITATION, ANY ENVIRONMENTAL LAW; AND THAT
NEITHER SELLER NOR ANY AGENT, EMPLOYEE, OFFICER, DIRECTOR, BROKER, CONTRACTOR
OR REPRESENTATIVE OF SELLER HAS MADE, AND SELLER SPECIFICALLY DISCLAIMS, ANY
REPRESENTATIONS CONCERNING HAZARDOUS MATERIALS. BUYER ACKNOWLEDGES AND AGREES
THAT, EXCEPT FOR SELLER'S EXPRESS REPRESENTATIONS, BUYER IS RELYING SOLELY UPON
ITS OWN INSPECTION OF THE PROPERTY AND NOT UPON ANY INFORMATION PROVIDED BY OR
ON BEHALF OF, OR TO BE PROVIDED BY OR ON BEHALF OF, SELLER OR UPON ANY
REPRESENTATIONS MADE TO IT BY SELLER OR ANY AGENT, EMPLOYEE, OFFICER, DIRECTOR,
BROKER, CONTRACTOR OR REPRESENTATIVE OF SELLER. BUYER FURTHER ACKNOWLEDGES AND
AGREES THAT ANY INFORMATION PROVIDED OR TO BE PROVIDED WITH RESPECT TO THE
PROPERTY WAS OR MAY BE OBTAINED FROM A VARIETY OF SOURCES AND THAT SELLER HAS
NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND
MAKES NO REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF SUCH
INFORMATION.
6.3.3 Waiver and Release. Buyer, for Buyer and Buyer's
successors and assigns, releases Seller and Seller's agents, employees,
officers, directors, brokers, contractors and
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representatives from, and waives any and all causes of action or claims against
any of such persons for (i) any and all liability attributable to any physical
condition of or at the Property; and (ii) any liabilities, damages or injury
arising from, connected with or otherwise caused by statements, opinions or
information obtained from any of such persons with respect to the Property,
except only for liabilities, damages or injury arising from a material breach
of any of Seller's Express Representations.
6.3.4 Survival. The provisions of this Section 6.3
shall survive Closing or any termination of this Agreement.
ARTICLE 7 - THE CLOSING
7.1 Date and Manner of Closing. The close of Escrow (the
"Closing") shall take place at the offices of Escrow Holder contemporaneously
with the closing of the "Exchange Transaction" (as hereinafter defined), but in
no event (i) earlier than October 1, 1995, nor (ii) later than October 31,
1995. Buyer shall give Seller not less than ten (10) days prior written notice
of the date on which the closing of the Exchange Transaction and the Closing
hereunder shall occur. The date of Closing hereunder is referred to herein as
the "Closing Date." Escrow Holder shall close the Escrow by (i) filing for
record the Deed and such other documents as may be necessary to procure the
Title Policy (described below) and (ii) delivering funds and documents as set
forth in Article 9, WHEN AND ONLY WHEN each of the following conditions has
been satisfied:
7.1.1 Funds and Documents. All funds and
instruments required to be delivered to Escrow Holder pursuant to Articles 4
and 5 have been so delivered to Escrow Holder
7.1.2 Title Insurance. The Title Company is
prepared to issue an extended coverage owner's policy of title insurance with
liability in the amount of the Purchase Price and with the "standard" or
"survey" exceptions to coverage deleted, insuring that fee title to the Real
Property vests in Buyer. The title insurance policy to be issued to Buyer
pursuant to this Section 7.1.2 is hereinafter referred to as the "Title
Policy".
7.2 Delay in Closing; Authority to Close. If Escrow
Holder cannot close the Escrow on or before the scheduled Closing date, it
will, nevertheless, close the same when all conditions have been satisfied or
waived, notwithstanding that one or more of such conditions has not been timely
performed, unless after said date and prior to Closing, Escrow Holder receives
a written notice to terminate the Escrow and this Agreement from a party who,
at the time such notice is delivered, is not in default hereunder. Neither (i)
the exercise of such right to terminate, (ii) delay in the exercise of such
right, nor (iii) the return of monies and documents, shall affect the right of
the party giving such notice
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of termination to pursue legal or equitable remedies as provided in this
Agreement for the other party's breach of this Agreement. Nor shall (i) the
giving of such notice, (ii) the failure to object to termination of the escrow
or (iii) the return of monies and documents affect the right of the other party
to pursue other legal or equitable remedies as provided in this Agreement for
the breach of the party who gives such notice.
7.3 Termination of Agreement; Liability of Escrow Holder. Escrow
Holder shall have no liability or responsibility for determining whether or not
a party giving a notice of termination is or is not in default hereunder.
Within two business days after receipt of such notice from one party, Escrow
Holder shall deliver a copy of such notice to the other party. Unless written
objection to the termination of the Escrow is received by Escrow Holder within
ten (10) days after Escrow Holder so delivers such notice to the other party,
(i) Escrow Holder shall forthwith terminate the Escrow and return all funds,
documents and other items held by it to the party depositing same, except that
Escrow Holder may retain such documents and other items usually retained by
escrow holders in accordance with standard escrow termination procedures and
practices, and (ii) each party shall forthwith pay to Escrow Holder one-half of
Escrow Holder's reasonable escrow termination charges. Notwithstanding the
foregoing provisions of this subparagraph, Escrow Holder may deduct from any
cash or other funds held by it, a sum sufficient to pay its escrow termination
charges in full. If written objection to the termination of the Escrow is
delivered to Escrow Holder within such ten (10) day period, Escrow Holder is
authorized to hold all funds, documents and other items delivered to it in
connection with the Escrow and may, in Escrow Holder's sole discretion, take no
further action until otherwise directed, either by the parties' mutual written
instructions or final order of a court of competent jurisdiction.
ARTICLE 8 - PRORATIONS, FEES AND COSTS
8.1 Prorations. Escrow Holder will prorate and adjust between
the parties, in Cash at the Closing, the following (all prorations are to be
made on the basis of a 365-day year, unless otherwise specifically instructed
in writing):
8.1.1 Property Taxes. All real property and personal
property taxes and assessments (except special assessments) shall be prorated
as of the Closing Date. Buyer shall be solely responsible for payment of any
special assessments payable in installments due on or after the Closing Date.
Seller shall pay all such taxes attributable to any period prior to the
Closing. If the applicable tax rate and assessments for the Property have not
been established for the year in which Closing occurs, the proration of real
estate and/or personal property taxes, as the case may be, shall be based upon
the most recent assessed valuations and mill levy available, which proration
shall be deemed a final settlement between the parties.
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8.1.2 Income. All income from the Leases or from
any other portion of the Property (such as, e.g., parking rents, if any) shall
be prorated as of the Closing Date. Buyer shall receive all income accruing on
the Closing and thereafter. Seller shall receive all income accruing prior to
the Closing. Delinquent rent due from tenants under the Leases prior to the
Closing and collected by Buyer after the Closing shall be paid over by Buyer to
Seller as and when collected. Any rents collected by Buyer after Closing for
periods prior to the Closing Date shall be promptly remitted to Seller,
provided, that all such rents received by Buyer after Closing shall be applied
first to the current month's rent due on the date of receipt, and second to
satisfy delinquent rental obligations for any period before Closing not
prorated at Closing. Seller shall retain all ownership rights relating to any
such delinquent rents, and Buyer shall not take any action which would
compromise or otherwise undermine Seller's efforts to collect any such
delinquent rents owed to Seller. If Buyer has not collected the same within
sixty (60) days from the Closing Date, Seller may take such action as it deems
necessary to collect such delinquent rents, including the commencement of an
action against the tenant under the Lease or any other person liable for such
delinquent rents, but Seller shall not have the right to cause the tenancy of
such tenant to be terminated.
8.1.3 Deposits; Tenant Concessions. Buyer shall be
entitled to a credit at Closing for the amount of (i) any security or other
refundable deposits paid by tenants under the Leases, (ii) one-half (1/2) of
the amount of abated rent credited to the "Library" (as hereinafter defined)
for the month of October, 1995 in the amount of $4,057.29, (iii) any
reimbursements owed to tenants under the Leases for tenant improvements
pursuant to the terms of any Lease entered into after June 21, 1995, and (iv)
the amount of funds held in Seller's capital reserve account as of the date of
this Agreement for purposes of funding capital replacements and repairs to the
Property, totalling approximately $12,000.00.
8.1.4 Reimbursable Expenses. For each of the
tenants under the Leases, there shall be calculated the difference, if any,
between (i) the rental payments made by such tenant to Seller through the
Closing Date for such tenant's prorata share of Reimbursable Expenses for the
year of Closing; and (ii) such tenant's prorata share, pursuant to the terms of
its Lease, of the actual Reimbursable Expense incurred by Seller for the year
of Closing through the Closing Date. In calculating such amounts, any rental
payments for Reimbursable Expenses that are credited to Buyer at Closing shall
be subtracted from rental payments for Reimbursable Expenses deemed received by
Seller and all prorations charged to Seller for expenses that constitute
Reimbursable Expenses shall be deemed amounts incurred by Seller through the
Closing Date. The amounts of such differences (whether positive or negative)
for each of the tenants under the Leases shall then be added together and (A)
if Seller has received more rental for Reimbursable Expenses for the year of
Closing through the Closing Date than the actual amount of Reimbursable
Expenses incurred by
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Seller during such period for which Seller is entitled to reimbursement under
the Leases, then Seller shall credit the amount of such excess to Buyer at
Closing; and (B) if Seller has received less rental for Reimbursable Expenses
for the year of Closing through the Closing Date than the actual amount of
Reimbursable Expenses incurred by Seller during such period for which Seller is
entitled to reimbursement under the Leases, then Buyer shall pay the amount of
such deficiency to Seller at Closing. Such adjustment between Seller and Buyer
for reimbursements due from the tenants under the Leases for Reimbursable
Expenses shall be deemed a final settlement. Buyer shall be solely responsible
for any adjustments that are required to be made with the tenants under the
Leases after the end of the year of Closing for any differences between the
rental payments made by such tenants for Reimbursable Expenses for the year of
Closing and the actual total Reimbursable Expenses for such year. Such
obligation of Buyer shall survive Closing.
8.1.5 Other Expenses of Property. In general, all
expenses relating to the operation of the Property accruing prior to the
Closing shall be paid by Seller and all such expenses accruing on or after
Closing shall be paid by Buyer. Seller shall be entitled to a credit at Closing
for the amount of any deposits Seller has made with any of the utilities
services or companies servicing the Property. Buyer shall arrange with all
utilities services and companies servicing the Property to have new accounts
started in the name of Buyer or Buyer's designee beginning at 12:01 a.m. on the
Closing Date. In addition, Escrow Holder is hereby authorized and directed to
retain in Escrow the sum of $50,000.00 (the "Tenant Improvement Retention"),
representing Seller's good faith estimate of the funds necessary to complete
the tenant improvements (the "Library Improvements") contemplated by the lease
(the "Library Lease") between Seller and the Clackamas County Library (the
"Library") which have not been completed prior to Closing and leasing
commissions remaining payable with respect to the Library Lease as of the
Closing Date. Upon delivery to Escrow Holder of (i) lien waivers signed by each
materialman or contractor supplying labor or materials in connection with the
Library Improvements, and (ii) confirmation from the Library that the Library
Improvements have been accepted by the Library, and (iii) confirmation by
"Broker" (as hereinafter defined) that all leasing commissions payable with
respect to the Library Lease have been paid, Escrow Holder is authorized and
directed to release the Tenant Improvement Retention, together with all
interest accrued therein, to Seller.
8.1.6 Miscellaneous. All of the prorations respecting
the Property, except as otherwise provided herein, shall be made in accordance
with the custom of Clackamas County, Oregon.
8.2 Date of Proration. The prorations and adjustments
provided for in this Article 8 shall be made so that the Buyer shall receive
the income and be charged with the expense of the operation of the Property for
the Closing Date, provided that the
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Purchase Price (subject to the adjustments and prorations provided for herein)
is delivered to Seller in sufficient time on the Closing Date so that such
proceeds may be invested and Seller shall receive interest on such investment
for the Closing Date. If the proceeds of the Purchase Price are not so
delivered to the Seller on the Closing Date, the prorations and adjustments to
be made under this Article 8 shall not be changed, but Escrow Holder shall not
effect the Closing until Buyer has paid to Seller interest on the amounts due
to Seller at a rate equal to nine percent (9%) per annum, calculated on a
360-day year, to compensate Seller for the loss of interest for such date.
8.3 Buyer's Closing Costs. Buyer will pay (i) one-half of any
excise, transfer (such as documentary fees or stamps) sales and use taxes, in
the amount Escrow Holder determines to be required by law (collectively,
"Transfer Taxes"), (ii) one-half of Escrow Holder's escrow fee, (iii) usual
buyer's document-drafting and recording charges, and (iv) Buyer's attorneys'
fees.
8.4 Seller's Closing Costs. Seller will pay (i) one-half of any
Transfer Taxes, (ii) one-half of Escrow Holder's escrow fee, (iii) the cost of
the Survey, (iv) the Title Company's premium for the Title Policy, (v) usual
seller's document-drafting and recording charges, and (vi) Seller's attorneys'
fees.
ARTICLE 9 - DISTRIBUTION OF FUNDS AND DOCUMENTS
9.1 Form of Disbursements. All disbursements by Escrow Holder
shall be made by wire transfer to the account of Seller in accordance with the
wiring instructions attached as Exhibit H hereto.
9.2 Liens and Encumbrances. At the time of Closing, Escrow
Holder shall pay, from funds to which Seller shall be entitled, to the obligees
thereof, any lien, deed of trust, mortgage or other encumbrance then affecting
the Property.
9.3 Recorded Documents. Escrow Holder will cause the County
Recorder of Clackmas County, Oregon, to mail the Deed (and each other document
which is herein expressed to be, or by general usage is, recorded) after
recordation, to the grantee, beneficiary or person (i) acquiring rights under
said document or (ii) for whose benefit said document was acquired.
9.4 Nonrecorded Documents. Escrow Holder will, at the Closing,
deliver by United States mail (or will hold for personal pickup, if requested),
at least one duplicate original of each nonrecorded document received hereunder
by Escrow Holder to Buyer and Seller.
9.5 Cash Disbursements. Escrow Holder will, at the Closing,
arrange for wire transfer, (i) to Seller, or order, the
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Purchase Price, plus any prorations or other credits to which Seller will be
entitled and less any appropriate prorations or other charges and (ii) to
Buyer, or order, any excess funds theretofore delivered to Escrow Holder by
Buyer.
9.6 Copies of Documents. Escrow Holder will, as soon as possible
after Closing, deliver to Buyer and to Seller a copy of the Deed (conformed to
show recording data) and each document recorded or delivered to or through
Escrow herein.
ARTICLE 10 - RETURN OF DOCUMENTS AND FUNDS UPON TERMINATION
10.1 Return of Seller's Documents. In the event the Escrow is
terminated for any reason (other than the default of Seller), Buyer shall,
within fifteen (15) calendar days following such termination, deliver to Seller
all documents and materials, if any, relating to the Property previously
delivered to Buyer by Seller. Escrow Holder shall deliver all documents and
materials deposited by Seller and then in Escrow Holder's possession to Seller.
10.2 Return of Buyer's Documents. In the event Escrow is
terminated for any reason (other than the default of Buyer), Escrow Holder
shall, within fifteen (15) calendar days following such termination, deliver to
Buyer all funds and documents, if any, deposited by Buyer and then in Escrow
Holder's possession to Buyer.
10.3 No Effect on Rights of Parties. The return of documents and
monies as set forth above shall not affect the right of either party to seek
such legal or equitable remedies as such party may be entitled by the terms of
this Agreement.
10.4 Payment of Termination Fee. Escrow Holder may condition its
deliveries hereinabove provided upon payment by the party requesting delivery
of a termination fee. Notwithstanding any other provision of this Agreement to
the contrary, any termination fee shall be paid (or reimbursed) by the
defaulting party, or paid equally if neither party is then in default.
ARTICLE 11 - DEFAULT
11.1 Seller's Remedies. If Buyer fails to complete the
acquisition as herein provided by reason of any default by Buyer, Seller shall
be released from any further obligations hereunder and shall be entitled to the
following:
Buyer's INSOFAR AS IT WOULD BE EXTREMELY IMPRACTICABLE AND
Initials DIFFICULT TO ESTIMATE THE DAMAGE AND HARM WHICH
SELLER WOULD SUFFER IN THE EVENT BUYER DEFAULTS
HEREUNDER AND FAILS TO COMPLETE THE ACQUISITION
HEREUNDER AND INSOFAR AS A REASONABLE ESTIMATE OF
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THE TOTAL NET DETRIMENT THAT SELLER WOULD
SUFFER IN THE EVENT OF BUYER'S DEFAULT AND
FAILURE TO DULY COMPLETE THE ACQUISITION
Seller's HEREUNDER IS THE SUM OF $100,000.00,
Initials SELLER SHALL THEREFORE BE ENTITLED
srr TO BUYER'S DEPOSIT OF $100,000.00 PLUS ANY
INTEREST THEREON, DELIVERED TO SELLER IN
ACCORDANCE WITH SECTION 4.1 OF THIS
AGREEMENT AS AND FOR THE SOLE REMEDY FOR
DAMAGES ARISING FROM BUYER'S FAILURE TO
COMPLETE THE ACQUISITION IN ACCORDANCE WITH
THE TERMS HEREOF.
11.2 Buyer's Remedies. In the event of any failure of Seller to comply
with any of its obligations hereunder which are required to be performed at or
prior to the Closing, Buyer may, at Buyer's option and as its exclusive remedy,
either (i) terminate this Agreement by giving written notice of termination to
Seller and to Escrow Holder whereupon Escrow Holder shall return the Deposit to
Buyer and both Buyer and Seller shall be relieved of further obligations or
liabilities hereunder, provided that Buyer may thereafter seek actual damages
arising as a result of Seller's breach of its obligations pursuant to this
Agreement prior to such termination, in an amount not to exceed $100,000.00
(unless Seller's failure to comply with its obligations hereunder is a
voluntary or intentional breach (an "Intentional Breach") occurring as a result
of events or circumstances within Seller's reasonable control, in which event
Buyer shall have the right to recover its actual damages resulting from
Seller's Intentional Breach in an amount not to exceed $200,000.00), or (ii)
Buyer may seek specific performance of this Agreement.
ARTICLE 12 - REPRESENTATIONS AND WARRANTIES
12.1 Escrow Holder. Escrow Holder shall have no concern with, or
liability or responsibility for, this Article.
12.2 Seller's Representations and Warranties. Seller represents and
warrants to Buyer that, as of the date of this Agreement and as of the date on
which Closing shall occur, the statements made by Seller pursuant to this
Section 13.2 shall be true and correct in all material respects, it being
expressly understood and agreed by Purchaser that except as set forth in this
Section 12.2, Seller is not making and has not made any other representations
or warranties of any kind or nature whatsoever, express or implied, including,
without limitation, any representations or warranties as to the condition of
the Property or its fitness for any particular purpose:
12.2.1 Authority. Seller is a limited
partnership, duly organized and existing in good standing under the laws of the
State of Colorado. Upon obtaining all requisite partnership and governmental
approvals of the transactions contemplated by this Agreement, Seller shall have
the full right
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and authority to sell the Property on the terms and conditions set forth
herein.
12.2.2 Violations. To the best of Seller's knowledge, the
entering into and consummation of the transactions contemplated hereby will not
conflict with, or constitute a default under, any Contract, Lease or other
Agreement to which Seller is a party or by which Seller may be bound.
12.2.3 Condition of Property. To the actual knowledge of Kelly
J. Stradinger, the Vice President and Assistant Secretary of BPL Holdings,
Inc., the general partner of the general partner of Seller's general partner,
with respect to the Property, without independent investigation or inquiry of
any kind:
(a) Compliance. The Land and the Improvements comply
with all applicable governmental requirements with respect to
the use, occupation and construction thereof, including, but not
limited to, environmental, zoning, platting, and other land use
requirements (the "Legal Requirements"), and Seller has received no
notice of and has no knowledge of any violations or investigations
relating thereto.
(b) Hazardous Substances. The Property has not been
affected by the presence, and there is not present any
Hazardous Material that is in violation of any Environmental Law, and
there are no potentially hazardous environmental conditions which
could affect the Property.
(c) Underground Tanks. There are no underground
storage tanks on the Property, nor have underground storage tanks been
removed from the Property.
(d) Condemnation. There is no condemnation proceeding
affecting the Property or any portion thereof currently pending nor,
to the Seller's knowledge, is any proceeding threatened.
12.2.4 Special Assessments. To the best of Seller's knowledge,
the Real Property is not situated within any special assessment district other
than the districts revealed by the most recent statement for real property
taxes for the Real Property. Seller has no knowledge of any proposal under
which the Real Property is to be included in any other special assessment
district. Seller makes the following disclosure to Purchaser: SPECIAL TAXING
DISTRICTS MAY BE SUBJECT TO GENERAL OBLIGATION INDEBTEDNESS THAT IS PAID BY
REVENUES PRODUCED FROM ANNUAL TAX LEVIES ON THE TAXABLE PROPERTY WITHIN SUCH
DISTRICTS. PROPERTY OWNERS IN SUCH DISTRICTS MAY BE PLACED AT RISK FOR
INCREASED MILL LEVIES AND EXCESSIVE TAX BURDENS TO SUPPORT THE SERVICING OF
SUCH DEBT WHERE CIRCUMSTANCES ARISE RESULTING IN THE INABILITY OF SUCH A
DISTRICT TO DISCHARGE SUCH INDEBTEDNESS WITHOUT SUCH AN INCREASE
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IN MILL LEVIES. PURCHASERS SHOULD INVESTIGATE THE DEBT FINANCING REQUIREMENTS
OF THE AUTHORIZED GENERAL OBLIGATION INDEBTEDNESS OF SUCH DISTRICTS, EXISTING
MILL LEVIES OF SUCH DISTRICT SERVICING SUCH INDEBTEDNESS, AND THE POTENTIAL FOR
AN INCREASE IN SUCH MILL LEVIES.
12.2.5 Survival. The foregoing representations and warranties
shall terminate as of the earlier to occur of (i) the termination of this
Agreement, or (ii) the Closing Date. Seller shall indemnify and hold Buyer
harmless and defend Buyer from any loss, liability or expense incurred by Buyer
or any claim made against Buyer by reason of the breach of any of the foregoing
representations or warranties.
12.3 Buyer's Representations and Warranties. Buyer represents
and warrants to Seller that, as of the Closing:
12.3.1 Authority. Buyer has full right and authority to enter
into this Agreement and consummate the transaction contemplated hereby.
12.3.2 Consents; Binding Obligations; Violations. All consents
and approvals which may be required in order for Buyer to enter into this
Agreement or to consummate the transaction contemplated hereby have been
obtained. This Agreement and all documents required hereby to be executed by
Buyer are and shall be valid, legally binding obligations of and enforceable
against Buyer in accordance with their terms. Neither the execution of this
Agreement, nor the consummation of the transaction contemplated hereby will be
in violation of any judgement, order, permit, writ, injunction, or decree of
any court, commission, bureau or agency to which Buyer is subject or by which
Buyer is bound, or constitute a breach or default under any agreement or other
obligation to which Buyer is a party or otherwise bound.
12.3.3 Survival. The foregoing representations and warranties
shall terminate as of the earlier to occur of (i) the termination of this
Agreement, or (ii) the Closing Date. Buyer shall indemnify and hold Seller
harmless and defend Seller from any loss, liability or expense incurred by
Seller or any claim made against Seller by reason of the breach of any of the
foregoing representations or warranties.
ARTICLE 13 - BROKER'S COMMISSION
The parties hereto represent and warrant that they know of no broker's
commissions, agents' or finders' fees due in connection with this transaction,
except for the commission due to Grubb & Ellis Company ("Broker"), which shall
be the sole responsibility of Seller. Any sub-agency fees or commissions shall
be paid by Broker. The parties hereto hereby agree to hold harmless, indemnify
and defend each other from all expenses, liabilities and damages, including
without limitation, attorneys'
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fees, resulting from claims of brokers, agents or finders, licensed or
otherwise claiming through, under or by reason of the conduct of the
indemnifying party respecting the transaction contemplated herein.
ARTICLE 14 - SELLER'S COVENANTS
Seller covenants for the benefit of and agrees with Buyer that,
pending Closing, Seller shall:
14.1 Leases. Perform in a timely manner all of Seller's
obligations under the Leases, consistent with Seller's ordinary business
practices in effect as of the date hereof. Prior to Closing, Seller shall not
enter into any new Leases without Buyer's prior written consent, which consent
shall not be unreasonably withheld or delayed. In addition, Seller shall not
modify or terminate any of the Leases without Buyer's prior written consent,
which consent shall not be unreasonably withheld or delayed. If Seller desires
to enter into a new Lease prior to Closing, which Lease requires the consent of
Buyer thereto as provided in this Section 15.1 Seller shall deliver written
notice to Buyer requesting Buyer's approval thereof and providing therewith the
most current draft of the proposed new Lease. Seller also agrees to provide any
other information concerning the new Lease and proposed tenant which Buyer
reasonably requests. Buyer shall respond to Seller's request for approval of
the new Lease transaction within five (5) business days after the delivery of
Seller's notice. Unless Buyer shall deliver written notice to Seller
disapproving the proposed new Lease within such five (5) day period, Buyer
shall be deemed to have approved such Lease transaction for all purposes of
this Agreement and Seller may proceed to consummate such new Lease in the form
most recently approved (or deemed approved) by Buyer.
14.2 Contracts. Perform in a timely manner all of Seller's
obligations under the Contract, consistent with Seller's ordinary business
practices in effect as of the date hereof. Prior to Closing, Seller shall not
enter into any new Contracts except those which by their terms may be
terminated upon no more than thirty (30) days' written notice (and to deliver
to Buyer copies of any such new Contracts) without Buyer's prior written
consent, which consent shall not be unreasonably withheld or delayed. In
addition, Seller shall not modify or terminate any of the Contracts without
Buyer's prior written consent, which consent shall not be unreasonably withheld
or delayed. Buyer's consent shall be deemed to have been given by Buyer if
Buyer does not notify Seller to the contrary within five (5) business days
after receipt of Seller's request for such consent.
14.3 [INTENTIONALLY OMITTED]
14.4 Maintenance and Operation of Property. Maintain the
Property in its present condition, ordinary wear and tear
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excepted, and operate the Property in substantially the same manner as the
Property has previously been operated by Seller.
14.5 Insurance. Maintain in full force and effect all
insurance policies covering the Property as of the date of this Agreement.
14.6 Notices. Promptly deliver to Buyer a copy of any notice
received by Seller of any lawsuits threatened or pending involving all or a
portion of the Property or concerning any building, zoning, fire or health code
violation.
ARTICLE 15 - CASUALTY
In the event that the Property should be damaged by any casualty prior
to Closing, Seller shall promptly give Buyer written notice of such occurrence,
and as soon thereafter as practicable, shall provide Buyer with an estimate
(the "Estimate") made by an architect, engineer or contractor selected by
Seller and approved by Buyer (which approval shall not be unreasonably withhold
or delayed) of the cost required to repair such damage. If it is so estimated
that the cost to make any such repairs shown on the Estimate would exceed an
amount equal to ten percent (10%) of the Purchase Price, then Buyer, at its
option, may terminate the Agreement upon written notice to Seller given within
ten (10) days after both parties' receipt of the Estimate, in which event
Escrow Holder shall return the Deposit to Buyer and both parties shall be
relieved of any further obligations hereunder. If Buyer does not elect to so
terminate this Agreement, then this Agreement shall remain in full force and
effect, and Seller shall assign all insurance proceeds payable as a result of
such casualty to Buyer at the Closing, up to the estimated cost of repairs
shown on the Estimate.
ARTICLE 16 - CONDEMNATION
16.1 Notice. If, prior to Closing, Seller learns of any actual
or threatened taking in condemnation or by eminent domain (or a sale in lieu
thereof) of all of any portion of the Property, Seller will notify Buyer
promptly thereof.
16.2 Termination. Other than with respect to an "Immaterial
Taking" (as defined below), any actual or threatened taking or condemnation for
any public or quasi-public purpose or use by any competent authority in
appropriate proceedings or by any right of eminent domain of all or any part of
the Property between the date of this Agreement and the Closing Date shall, at
Buyer's option, cause a termination of this Agreement. The election to
terminate provided hereby must be exercised (or will be deemed to have been
waived) by notice to Seller to that effect given within fifteen (15) days
following delivery of Seller's notice pursuant to Section 16.1 above. Upon
delivery of such termination notice.
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Escrow Holder shall return the Deposlt to Buyer and both parties shall be
relieved of any future obligations hereunder. If Buyer shall not elect to so
terminate this Agreement, or in the event of an Immaterial Taking, Seller shall
be relieved of all obligations under this Agreement with respect to the portion
of the Property so taken or condemned, but Buyer will be entitled to receive
all proceeds of any such taking or condemnation, and Seller agrees that it will
not make any adjustment or settlement of any such taking or condemnation
proceeding without Buyer's consent and will take at Closing all action
necessary to assign its entire interest in such award to Buyer or its designee.
Any taking or condemnation for any public or quasi-public purpose or use which
does not affect access, reduce parking, render the Improvements non-conforming
with applicable Legal Requirements, or take any part of the Improvements shall
be deemed an "Immaterial Taking."
ARTICLE 17 - ASSIGNMENT
Buyer may assign this Agreement without the written consent of
Seller, provided, that no such assignment shall release the Buyer herein named
from any obligation or liability under this Agreement. Any assignee shall be
deemed to have made any and all representations and warranties made by Buyer
hereunder, as if the assignee were the original signatory hereto.
If Buyer elects to assign this Agreement, Buyer shall promptly
(1) notify Seller in writing of the proposed assignment; (2) provide Seller
with a name and address of the proposed assignee; and (3) provide Seller with a
copy of the proposed assignment.
ARTICLE 18 - EXCHANGE
Seller hereby acknowledges that Buyer intends to acquire the
Property as a "Like-Kind" exchange of real property in connection with a
contemporaneous sale transaction (the "Exchange Transaction") designed to
afford Buyer the benefits of Section 1031 of the Internal Revenue Code of 1986,
as amended. Seller agrees to cooperate with and accommodate Buyer in effecting
the Exchange Transaction; provided, that Seller shall not be required to incur
any obligation or liability to a third party in connection with such Exchange
Transaction, nor shall any such Exchange Transaction delay the Closing
hereunder. Buyer shall bear any additional transaction costs attributable to
the Exchange Transaction, and shall be solely responsible for assuring the
effectiveness of the purchase and sale of the Property for Buyer's tax
purposes.
-21-
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ARTICLE 19 - NOTICES
Unless otherwise specifically provided herein, all notices,
demands or other communications given hereunder shall be in writing and any and
all such items shall be deemed to have been duly delivered upon personal
delivery; or as of the third business day after mailing by United States mail,
certified, return receipt requested, postage prepaid, addressed as follows; or
as of 12:00 Noon on the immediately following business day after deposit with
Federal Express or a similar overnight courier service, addressed as follows;
or as of the third business hour (a business hour being one of the hours from
8:00 a.m. to 5:00 p.m. on business days) after transmitting by telecopier to
the telecopy number set forth below:
If to Seller, to:
Boettcher Pension Investors, Ltd.
c/o Everen Securities, Inc.
77 West Wacker Drive
Chicago, Illinois 60601-1694
Attention: Mr. Kelly J. Stradinger
Telecopy: (312) 574-8903
with a copy at the same time to:
Otten, Johnson, Robinson,
Neff & Ragonetti, P.C.
950 17th Street, Suite 1600
Denver, Colorado 80202
Attention: Marguerite L. Sadler, Esq.
Telecopy: (303) 825-6525
If to Buyer, to:
Stephen M. Berrey
18879 S.W. Martinazzi
Tualatin, Oregon 97602
Telecopy: (503)
with a copy at the same time to:
Tonkon, Torp, Galen, Marmaduke & Booth
1000 Pioneer Tower
888 S.W. Fifth Avenue
Portland, Oregon 97204-2099
Attention: Jeffrey H. Keeney
Telecopy: (503) 274-8779
-22-
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If to Escrow Holder, to:
Ticor Title Insurance Company
1000 S.W. Broadway, Suite 1555
Portland, Oregon 97205
Attention: Ms. Lana Gabriel
Telecopy: (503) 242-0770
or to such other address or to such other person as any party shall designate
to the others for such purpose in the manner hereinabove set forth.
ARTICLE 20 - TRANSFER OF TITLE AND POSSESSION
20.1 Transfer of Possession. Possession of the Property shall
be transferred to Buyer on the Closing.
20.2 Delivery of Documents on Closing. On the Closing, in
addition to those other documents set forth herein, Seller shall deliver to
Buyer the following:
20.2.1 Leases. An original counterpart (or if originals
are unavailable, a copy certified by Seller as true and correct) of all written
documents creating or evidencing the Leases, including all amendments or
modifications thereto.
20.2.2 Plans, Warranties and Permits. The Plans and any
written Warranties or Permits.
ARTICLE 21 - GENERAL PROVISIONS
21.1 Definitions. Unless the context otherwise indicates,
whenever used in this Agreement:
21.1.1 Cash. The word "Cash" means (i) United States
currency or (ii) an amount in United States currency credited by wire-transfer
or by other means providing immediately available funds.
21.1.2 Party. The word "party" or "parties" means Buyer
and/or Seller, as the context may require.
21.2 Gender; Number. The use herein of (i) the neuter gender
includes the masculine and the feminine and (ii) the singular number includes
the plural, whenever the context so requires.
21.3 Captions. Captions in this Agreement are inserted for
convenience of reference only and do not define, describe or limit the scope
or the intent of this Agreement or any of the terms hereof.
-23-
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21.4 Dates. If any date set forth in this Agreement for the delivery of
any document or the happening of any event (such as, for example, the date of
Closing) should, under the terms hereof, fall on a weekend or holiday, then
such date shall be automatically extended to the next succeeding weekday that
is not a holiday.
21.5 Exhibits. All exhibits referred to herein and attached hereto are
a part hereof.
21.6 Entire Agreement. This Agreement and that certain Confidentiality
and Nondisclosure Agreement dated as of June _____,1995, constitute the entire
agreement between the parties relating to the transactions contemplated hereby
and all prior or contemporaneous agreements, understandings, representations
and statements, oral or written, including, without limitation, that certain
proposal accepted by Seller on June 21, 1995, are merged herein.
21.7 Modification. No modification, waiver, amendment, discharge or
change of this Agreement shall be valid unless the same is in writing and
signed by the party against which the enforcement of such modification, waiver,
amendment, discharge or change is or may be sought.
21.8 Attorneys' Fees. Should any party hereto employ an attorney for
the purpose of enforcing or construing this Agreement, or any judgment based on
this Agreement, in any legal proceeding whatsoever, including insolvency,
bankruptcy, arbitration, declaratory relief or other litigation, including
appeals or rehearing, the prevailing party shall be entitled to receive from
the other party or parties thereto reimbursement for all attorneys' fees and
all costs, including but not limited to service of process, filing fees, court
and court reporter costs, investigative costs, expert witness fees, and the
cost of any bonds, whether taxable or not.
21.9 Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Oregon.
21.10 Time of Essence. Seller and Buyer hereby acknowledge and agree
that TIME IS STRICTLY OF THE ESSENCE with respect to each and every term,
condition, obligation and provision herein and the failure to TIMELY AND FULLY
perform or satisfy any of the terms, conditions, obligations or provisions of
this Agreement shall constitute a material default hereunder.
21.11 Survival of Obligations. All obligations referred to herein to be
performed at a time or times after the Closing, and all warranties and
representations contained herein, shall survive the Closing and the delivery of
Seller's Deed.
21.12 Severability. In the event any term, covenant, condition,
provision or agreement herein contained is held to be
-24-
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invalid, void or otherwise unenforceable by any court of competent
jurisdiction, the fact that such term, covenant, condition, provision or
agreement is invalid, void or otherwise unenforceable shall in no way affect
the validity or enforceability of any other term, covenant, condition,
provision or agreement herein contained.
21.13 Successors and Assigns. Subject to any provisions concerning
assignment hereinabove set forth, all terms of this Agreement shall be binding
upon, inure to the benefit of, and be enforceable by, the parties hereto and
their respective legal representatives, successors and assigns.
21.14 Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed an original; such
counterparts shall together constitute but one agreement.
* * * * * * * * * * * *
-25-
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IN WITNESS WHEREOF, this Agreement has been executed as of the day and
year first set forth below.
SELLER:
BOETTCHER PENSION INVESTORS, LTD.,
a Colorado limited partnership
By: Boettcher Affiliated Investors
L.P., its Managing General
Partner
By: Boettcher Properties,
Ltd., its Managing General
Partner
By: BPL HOLDINGS, INC.,
its Managing General
Partner
October 4, 1995 By: Stanley R. Fallis
- ----------------- -----------------
Date of Signature Stanley R. Fallis,
Director
BUYER:
- ----------------- -------------------------------------
Date of Signature STEPHEN M. BERREY
IN WITNESS WHEREOF, this Agreement has been executed as of the
day and year first set forth below.
SELLER:
BOETTCHER PENSION INVESTORS, LTD.,
a Colorado limited partnership
By: Boettcher Affiliated Investors
L.P., its Managing General
Partner
By: Boettcher Properties,
Ltd., its Managing General
Partner
By: BPL HOLDINGS, INC.,
its Managing General
Partner
By:
- ------------------------ ------------------
Date of Signature Stanley R. Fallis,
Director
BUYER:
October 4, 1995 Stephen M. Berrey
- ------------------------ ------------------------------------
Date of Signature STEPHEN M. BERREY
-26-
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CONSENT OF ESCROW HOLDER
The undersigned Escrow Holder hereby agrees to (i) accept the foregoing
Agreement, (ii) be Escrow Holder under said Agreement, and (iii) be bound by
said Agreement in the performance of its duties as Escrow Holder.
TICOR TITLE INSURANCE COMPANY
9-29-95 By: /s/ Lana R. Gabriel
- ------------------ ------------------------
Date of Signature Name: Lana R. Gabriel
------------------------
Title: Escrow Officer
------------------------
-27-
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EXHIBIT A
LEGAL DESCRIPTION
A-1
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[TICOR TITLE INSURANCE LOGO] Report No. C634682
LEGAL DESCRIPTION
PARCEL 1: That portion of the Southeast one-quarter of Section 33, Township 1
South, Range 2 East, of the Willamette Meridian, in the County of Clackamas and
State of Oregon, described as follows:
Beginning at the Northeasterly corner of said Lot 27, Block 2, of Monterey
Meadows, a recorded plan said corner being also a point on the Westerly line of
said Southeast one-quarter: thence Southerly along said Westerly line South 00
degrees 40 degrees 46" West 461.58 feet to the Northwesterly corner of I.W.
Carr Tract, as described in Book 366, Page 195, Clackamas County Deed Records:
thence along the Northerly line of said I.W. Carr Tract. North 89 degrees 41
degrees 46" East 178.00 feet to a point on the Southwesterly line of East
Portland Freeway, State Highway I-205: thence along said Southwesterly line
North 14 degrees 19 degrees 24" West a distance of 475.52 feet: thence
South 89 degrees 51 degrees 26" West a distance of 54.88 feet to the beginning.
PARCEL 2: That portion of the South one-half of Section 33, Township I South,
Range 2 East, of the Willamette Meridan, in Clackamas County, Oregon, and a
portion of Lot 27, Block 2, of Monterey Meadows, in Clackamas County, Oregon,
described as follows:
Beginning at the Northeasterly corner of said Lot 27, said corner being also a
point on the Easterly line of the Southwest one-quarter of said Section 33:
thence along the Easterly line and its Southerly prolongation of said Lot 27,
and along the Easterly line of said Southwest one-quarter. South 00 degrees
40 degrees 46" West 461.58 feet to the Northwesterly corner of I.W. Carr
Tract, as described in Book 366, Page 195, Clackamas County Deed Records:
thence along the Northerly line of said I.W. Carr Tract. North 89 degrees 41
degrees 46" East 178.00 feet to a point on the Southwesterly line of East
Portland Freeway, State Highway 1-205: thence along said Southwesterly line
South 14 degrees 19 degrees 24" East a distance of 76.55 feet: thence leaving
said Southwesterly line North 89 degrees 05 degrees 31" West 256.73 feet:
thence North 6 degrees 35 degrees 31" West 5.69 feet: thence North 0 degrees
54 degrees 29" East 525.07 feet to a point on the Northerly line of said Lot
27: thence along Northerly line of said Lot 27. North 89 degrees 51 degrees
26" East 57.55 feet to the point of beginning.
PARCEL 3: A non-exclusive perpetual easement described as follows:
That portion of the South one-half of Section 33. Township 1 South, Range 2
East, of the Willamette Meridian. Clackamas County, Oregon, included within a
strip of land, of varying width not to exceed 48.00 feet, the centerline of
which is more particularly described as follows:
PARCEL A: Beginning at the Southeast corner of Parcel 6 of Clackamas Town
Center as shown on the Subdivision Plat thereof. Recorded in Book 82, Page 13,
of said County Plat Records, said corner also being on the Northerly line of
Sunnyside Road (County Road No. 96) as shown on said plat: thence along said
Northerly line South 87 degrees 51 degrees 36" West 343.70 feet: thence South
88 degrees 34 degrees 43" West 161.07 feet to the true point of beginning;
thence leaving said Northerly line North 01 degrees 25 degrees 17" West 150.26
feet to Point "A": thence North 88 degrees 34 degrees 43" East 52.21 feet to
the beginning of a curve; concave Northwesterly, and having a radius of 129.00
feet: thence Easterly, Northeasterly and Northerly, along said curve through a
central angle of 87 degrees 40 degrees 14" an arc distance of 197.39 feet from
which a chord bears North 44 degrees 44 degrees 36" East 178.69 feet: thence
North 0 degrees 54 degrees 29" East 211.96 feet: thence North 06 degrees 35
degrees 31" West 716.33 feet: thence
CONTINUED
4
34
[TICOR TITLE INSURANCE LOGO] Report No. C634682
North 0 degrees 54 degrees 29" East 393.98 feet to the beginning of a curve;
concave Southwesterly, having a radius of 51.00 feet: thence Northerly,
Northwesterly and Westerly along said curve through a central angle of 86
degrees 20 degrees 00", an arc distance of 76.85 feet from which a chord bears
North 42 degrees 15 degrees 50" West 69.78 feet: thence North 85 degrees 25
degrees 31" West 500.89 feet: thence South 89 degrees 51 degrees 26" West
1733.58 feet to the beginning of a curve; concave Southeasterly and having a
radius of 49.00 feet: thence Westerly. Southwesterly and Southerly along said
curve through a central angle of 88 degrees 56 degrees 57" an arc distance of
76.07 feet from which a chord bears South 45 degrees 22 degrees 57" West 68.66
feet: thence South 0 degrees 54 degrees 29" West 315.45: feet: thence North 89
degrees 05 degrees 31" West 112.70 feet to a point on the Westerly boundary of
said plat, distant thereon South 01 degrees 48 degrees 00" West 400.92 feet
from the Northwesterly corner thereof.
TOGETHER WITH:
PARCEL B: Beginning at the hereinabove described Point "A": thence North 01
degrees 25 degrees 17" West 2.00 feet: thence South 88 degrees 34 degrees 43"
West 210.26 feet to the beginning of a curve; concave Northeasterly, and having
a radius of 122.00 feet: thence Northwesterly along said curve through a central
angle of 32 degrees 19 degrees 46", an arc distance of 68.84 feet from which a
chord bears North 75 degrees 15 degrees 25" West 67.93 feet: thence North 59
degrees 05 degrees 31" West 34.30 feet: thence North 89 degrees 05 degrees 31"
West 66.21 feet: thence South 02 degrees 06 degrees 21" West 22.00 feet: thence
South 01 degrees 25 degrees 17" East 170.25 feet to a point on the Northerly
line of said Sunnyside Road, distant South 88 degrees 34 degrees 43" West 372.00
feet from the said true point of beginning as described in Parcel A.
5
35
EXHIBIT B
ASSIGNMENT AND ASSUMPTION OF LEASES
THIS ASSIGNMENT AND ASSUMPTION OF LEASES (this "Agreement") is made and
entered into this day of October, 1995, between BOETTCHER PENSION
INVESTORS, LTD., a Colorado limited partnership ("Assignor"), and STEPHEN M.
BERREY ("Assignee").
For Ten Dollars and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged by Assignor, Assignor hereby
assigns, transfers and conveys to Assignee, all right, title and interest of
Assignor as landlord in and to those leases, tenancies and other occupancy
arrangements (the "Leases") described in Schedule 1 attached hereto and made a
part hereof.
Assignor shall indemnify and hold Assignee harmless from all
obligations on the part of the landlord arising under the Leases prior to the
date hereof and from all liabilities, costs and expenses (including, without
limitation, reasonable attorney's fees) incurred in connection therewith.
Assignee hereby expressly assumes all liabilities and agrees to perform
all obligations of Assignor under the Leases to be performed from and after the
date hereof and shall indemnify and hold Assignor harmless from all obligations
on the part of the landlord arising under the Leases from and after the date
hereof and from all liabilities, costs and expenses (including, without
limitation, reasonable attorney's fees) incurred in connection therewith.
Assignor represents to Assignee that to the best of Seller's knowledge
Schedule 2 attached hereto is a complete and accurate schedule of all
refundable security and/or damage deposits that have been paid by tenants under
the Leases (the "Deposits"). Assignee acknowledges that Assignor has
transferred the Deposits to Assignee and, without limiting the foregoing,
Assignee agrees to hold Assignor harmless from any failure by Assignee to deal
with any such Deposits in compliance with law and with the terms of the Leases
to which they pertain.
B-1
36
This Assignment shall bind and inure to Assignor and Assignee and their
respective successors and assigns.
ASSIGNOR:
BOETTCHER PENSION INVESTORS, LTD.,
a Colorado limited partnership
By: Boettcher Affiliated Investors
L.P., its Managing General Partner
By: Boettcher Properties,
Ltd., its Managing General
Partner
By: BPL HOLDINGS, INC.,
its Managing General Partner
By:
------------------------
Stanley R. Fallis,
Director
ASSIGNEE:
----------------------------------
STEPHEN M. BERREY
B-2
37
Schedule 1
Leases
B-3
38
Schedule 2
Deposits
B-4
39
EXHIBIT C
ASSIGNMENT AND ASSUMPTION OF CONTRACTS
THIS ASSIGNMENT AND ASSUMPTION OF CONTRACTS (this "Agreement") is made
and entered into as of October ___ , 1995, by and between BOETTCHER PENSION
INVESTORS, LTD., a Colorado limited partnership ("Assignor"), and STEPHEN M.
BERREY ("Assignee").
Recitals
This Agreement is made with respect to the following facts:
A. Assignor has this date conveyed to Assignee certain real property,
buildings, improvements and personal property located at the northeast corner
of the Clackamas Town Center in unincorporated Clackamas County, Oregon, and
commonly known as Clackamas Corner (the "Property").
B. In connection with the conveyance of the Property to Assignee,
Assignor desires to assign all of Assignee's right, title and interest in and
to those contracts, agreements and commitments for the repair, maintenance,
service and supply of the Property that are listed on Schedule 1 attached
hereto and made a part hereof (the "Contracts").
C. Assignee desires to assume Assignor's obligations under the
Contracts.
Agreement
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Assignor hereby assigns to Assignee all of its right, title and
interest in and to the Contracts and Assignor agrees to indemnify and hold
Assignee harmless from all obligations on the part of the owner of the Property
arising under the Contracts prior to the date hereof and from all liabilities,
costs and expenses (including, without limitation, reasonable attorney's fees)
incurred in connection therewith.
2. Assignee hereby expressly assumes and agrees to perform all the
obligations of Assignor under the Contracts to be performed from and after the
date hereof and Assignee agrees to indemnify and hold Assignor harmless from
all obligations on the part of the owner of the Property arising under the
Contracts from and after the date hereof and from all liabilities, costs and
expenses (including, without limitation, reasonable attorney's fees) incurred
in connection therewith.
C-1
40
3. This Assignment shall bind and inure to Assignor and Assignee and
their respective successors and assigns.
Executed as of the date set forth above.
ASSIGNOR:
BOETTCHER PENSION INVESTORS, LTD.,
a Colorado limited partnership
By: Boettcher Affiliated Investors
L.P., its Managing General Partner
By: Boettcher Properties,
Ltd., its Managing General Partner
By: BPL HOLDINGS, INC.,
its Managing General Partner
By:
-----------------------
Stanley R. Fallis,
Director
ASSIGNEE:
By:
--------------------------------
STEPHEN M. BERREY
C-2
41
Schedule 1
Contracts
C-3
42
EXHIBIT D
BILL OF SALE AND ASSIGNMENT
This Bill of Sale dated as of October______, 1995, is between
BOETTCHER PENSION INVESTORS, LTD., a Colorado limited partnership ("Seller"),
and STEPHEN M. BERREY ("Buyer").
For Ten Dollars and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged by Seller, Seller hereby
sells, conveys, transfers, assigns, and sets over unto Buyer all right, title
and interest of Seller in and to the following:
(a) Any site plans, surveys, soil and substratum studies,
architectural drawings, plans and specifications, engineering,
electrical and mechanical plans and studies, floor plans,
landscape plans, appraisals, feasibility studies, and other
plans and studies, if any and in Seller's possession that
relate to the real property described on Schedule 1 attached
hereto (the "Real Property"), to the extent that they are
assignable, without representation or warranty of any kind
whatsoever as to the assignability of such items or any matter
contained therein.
(b) Any unexpired warranties, guaranties and bonds, including,
without limitation, contractors' and manufacturers' warranties
or guaranties, belonging to Assignor in connection with the
Real Property, all buildings thereon and their construction,
improvement or equipment or any personal property located
thereon or used in connection therewith, but only to the
extent such warranties, guaranties and bonds can be lawfully
assigned;
(c) Any governmental permits, licenses, certificates and
authorizations, including, without limitation, certificates of
occupancy, held by Assignor and related to the construction,
use or operation of the Real Property, all buildings thereon
and their construction, use, operation, improvement or
equipment or any personal property located thereon and used
in connection therewith, but only to the extent such permits,
licenses, certificates and authorizations can be lawfully
assigned; and
(d) The right to use of the name "Clackamas Corner" in connection
with the ownership and operation of the Real Property.
D-1
43
Executed as of the date set forth above.
BOETTCHER PENSION INVESTORS, LTD., a
Colorado limited partnership
By: Boettcher Affiliated Investors
L.P., its Managing General
Partner
By: Boettcher Properties,
Ltd., its Managing General
Partner
By: BPL HOLDINGS, INC.,
its Managing General
Partner
By:
--------------------
Stanley R. Fallis,
Director
D-2
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Schedule 1
Real Property
D-3
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Schedule 2
Personal Property
D-4
46
EXHIBIT E
SELLER'S WIRING INSTRUCTIONS
CitiBank of New York
ABA # 021 000 089
For the account of: Everen Clearing Corp.
Account No. 3889-7669
Reference: Boettcher Pension Investors, Ltd.
#15657907
E-1