Form 8-K - CURRENT REPORT
(As last amended in Rel. No. 34-36968, eff. August 13, 1992.)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) December 30, 1999
ANGELES INCOME PROPERTIES, LTD. III
(Exact name of registrant as specified in its charter)
California 0-13192 95-3903984
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification
Number)
55 Beattie Place
Post Office Box 1089
Greenville, South Carolina 29602
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (864) 239-1000
N/A
(Former name or former address, if changed since last report)
<PAGE>
Item 2. Acquisition or Disposition of Assets.
Poplar Square Shopping Center located in Medford, Oregon was sold by Poplar
Square AIP III, L.P. on December 30, 1999 to SB Management Corporation, an
unrelated party, for $5,215,000. Poplar Square AIP III, L.P., is owned 99% by
Angeles Income Properties, Ltd. III (the "Registrant") and 1% by the general
partner of the Registrant. Accordingly the Registrant controls Poplar Square AIP
III, L.P.
The General Partner is currently evaluating the cash requirements of the
Partnership to determine what portion of the net proceeds, if any, would be
available to distribute to the partners in the near future.
Item 7. Financial Statements and Exhibits
(b) Pro Forma financial information.
The following unaudited pro forma information reflects the operations of the
Partnership for the nine months ended September 30, 1999 and 1998, as if Poplar
Square Shopping Center had been sold on January 1, 1998 (in thousands).
1999 1998
---- ----
Revenues $ 648 $ 653
Expenses 590 603
------ -----
Net income $ 58 $ 50
====== =====
Net income per limited partnership units $ .67 $ .58
====== =====
These pro forma adjustments are not necessarily reflective of the results that
actually would have occurred if the sale had been in effect as of and for the
periods presented or what may be achieved in the future.
(c) Exhibits
10.16 Purchase and Sale Contract between Poplar Square AIP III, L.P.
and SB Management Corporation dated August 12, 1999.
10.17 Amendment to Purchase and Sale Contract between Poplar Square AIP
III, L.P. and SB Management Corporation.
10.18 Second Amendment to Purchase and Sale Contract between Poplar
Square AIP III, L.P. and SB Management Corporation.
10.19 Third Amendment to Purchase and Sale Contract between Poplar
Square AIP III, L.P. and SB Management Corporation.
10.20 Fourth Amendment to Purchase and Sale Contract between Poplar
Square AIP III, L.P. and SB Management Corporation.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ANGELES INCOME PROPERTIES, LTD. III
By: Angeles Realty Corporation II
Its Managing General Partner
By: /s/ Patrick J. Foye
Patrick J. Foye
Executive Vice President
Date: January 13, 2000
<PAGE>
EXHIBIT 10.16
PURCHASE AND SALE CONTRACT
BETWEEN
POPLAR SQUARE AIP III, L.P.
AS SELLER
AND
SB MANAGEMENT CORP
AS PURCHASER
<PAGE>
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT ("Purchase Contract") is entered into as
of the 12th day of August, 1999 (the "Effective Date") by and between POPLAR
SQUARE AIP III, L.P., a South Carolina limited partnership, having a principal
address at 1873 South Bellaire Street, 17th Floor, Denver, Colorado 80222
("Seller") and SB MANAGEMENT CORP, a California corporation, having a principal
address at 433 North Camden Drive, Suite 1070, Beverly Hills, California 90210
("Purchaser").
NOW, THEREFORE WITNESSETH: That for and in consideration of mutual
covenants and agreements herein after set forth, Seller and Purchaser hereby
agree as follows:
RECITALS
R-1. Seller holds legal title to the real estate located in Jackson County,
Oregon, as more particularly described in Exhibit A attached hereto and made a
part hereof. Improvements have been constructed on the parcels described in this
Recital.
R-2. Purchaser desires to purchase and Seller has agreed to sell such land,
improvements and certain associated property, defined below as the "Property" on
the terms and conditions set forth below, (which terms and conditions shall
control in the event of any conflict with these Recitals), such that on the
Closing Date (as hereinafter defined) the Property will be conveyed by limited
or special warranty deed to Buyer.
R-3. Purchaser has agreed to pay to Seller the Purchase Price for the Property,
and Seller has agreed to sell the Property to Purchaser on the terms and
conditions set forth below.
R-4. Purchaser intends to make investigations regarding the Property, and
Purchaser's intended uses of the Property as Purchaser deems necessary and
desirable.
DEFINED TERMS
Unless otherwise defined herein, terms with initial capital letters in
this Purchase Contract shall have the meanings set forth in this Article 1
below.
"Business Day" means any day other than a Saturday or Sunday or
Federal holiday or legal holiday in the State of Oregon.
"Closing" means the consummation of the purchase and sale and
related transactions contemplated by this Purchase Contract in accordance with
the terms and conditions of this Purchase Contract.
"Closing Date" means the date on which date the Closing of the
conveyance of the Property is required to be held under the terms and conditions
of this Purchase Contract and on which date full payment of the Purchase Price
for the Property shall have been paid to the Title Company in immediately
available U.S. funds with irrevocable instructions to deliver immediately to
Seller, and the Title Company and Buyer are ready, willing and able to
immediately Close.
"Commercial Lease(s)" means the interest of Seller in and to
all leases, subleases and other occupancy agreements, whether or not of record,
which provide for the use or occupancy of space or facilities on or relating to
the Property and which are in force as of the Effective Date for the applicable
Property.
"Excluded Permits" means those Permits which, under applicable
law, are nontransferable and such other Permits as may be designated as Excluded
Permits on Exhibit 1.1.5, if any, attached hereto.
Intentionally Omitted.
"Fixtures and Tangible Personal Property" means all fixtures,
furniture, furnishings, fittings, equipment, machinery, apparatus, appliances
and other articles of tangible personal property now located on the Land or in
the Improvements as of the date of this Purchase Contract and used or usable in
connection with any present or future occupation or operation of all or any part
of the Property. The term "Fixtures and Tangible Personal Property" does not
include (i) equipment leased by Seller and the interest of Seller in any
equipment provided to the Property for use, but not owned or leased by Seller,
or (ii) property owned or leased by Tenants and guests, employees or other
persons furnishing goods or services to the Property or (iii) property and
equipment owned by Seller, which in the ordinary course of business of the
Property is not used exclusively for the business, operation or management of
the Property or (iv) the property and equipment, if any, expressly identified in
Exhibit1.1.7.
"Improvements" means all buildings and improvements, located
on the Land taken "as is".
"Land" means all of that certain land located in the State of
Oregon, commonly known as Poplar Square Shopping Center (described on Exhibit
"A" attached hereto), and all rights, privileges and appurtenances pertaining
thereto.
"Miscellaneous Property Assets" means all contract rights,
leases, concessions, warranties, plans, drawings and other items of intangible
personal property relating to the ownership or operation of the Property and
owned by Seller, excluding, however, (i) receivables, (ii) Property Contracts,
(iii) Commercial Leases, (iv) Permits, (v) cash or other funds, whether in petty
cash or house "banks," or on deposit in bank accounts or in transit for deposit,
(vi) refunds, rebates or other claims, or any interest thereon, for periods or
events occurring prior to the Closing Date, (vii) utility and similar deposits,
or (viii) insurance or other prepaid items or (ix) Seller's proprietary books
and records, except to the extent that Seller receives a credit on the closing
statement for any such item.
"Permits" means all licenses and permits granted by
governmental authorities having jurisdiction over the Property in respect of the
matter to which the applicable license or permit applies and owned by Seller and
used in or relating to the ownership, occupancy or operation of the Property or
any part thereof not subject to a Commercial Lease.
"Permitted Exceptions" means those exceptions or conditions
permitted to encumber the title to the Property in accordance with the
provisions of Section 0.
"Property" means the Land and Improvements and all rights of
Seller relating to the Land and the Improvements, including without limitation,
any rights, title and interest of Seller, if any, in and to (i) any strips and
gores adjacent to the Land and any land lying in the bed of any street, road, or
avenue opened or proposed, in front of or adjoining the Land, to the center line
thereof; (ii) any unpaid award for any taking by condemnation or any damage to
the Property by reason of a change of grade of any street or highway; (iii) all
of the easements, rights, privileges, and appurtenances belonging or in any way
appertaining to the Property; together with all Fixtures and Tangible Personal
Property, the right, if any and only to the extent transferable, of Seller in
and to Property Contracts and Commercial Leases, Permits other than Excluded
Permits and the Miscellaneous Property Assets owned by Seller which are located
on the Property and used in its operation.
"Property Contracts" means all purchase orders, maintenance,
service, or utility contracts and similar contracts, which relate to the
ownership, maintenance, construction or repair and/or operation of the Property
and which are not cancelable on 30 days' or shorter Notice without penalty,
except Commercial Leases.
"Purchase Contract" means this Purchase and Sale Contract by
and between Seller and Purchaser.
"Purchase Price" means the total consideration to be paid by
Purchaser to Seller for the purchase of the Property.
"Survey" shall have the meaning ascribed thereto in Section
6.12.
"Tenant" means any person or entity entitled to occupy any
portion of the Property under a Commercial Lease.
"Title Commitment" or "Title Commitments" shall have the
meaning ascribed thereto in Section 6.1.
"Title Insurer" shall have the meaning set forth in Section 0.
PURCHASE AND SALE OF PROPERTY
Seller agrees to sell and convey the Property to Purchaser and Purchaser
agrees to purchase the Property from Seller, in accordance with the terms and
conditions set forth in this Purchase Contract.
PURCHASE PRICE & DEPOSIT
The total purchase price ("Purchase Price") for the Property shall be Five
Million Four Hundred Fifty Thousand Dollars ($5,450,000.00), which shall be paid
by Purchaser, as follows:
On the date hereof, Purchaser shall deliver to Fidelity National
Title Company ("Escrow Agent" or the "Title Insurer") a deposit in the sum of
One Hundred Thousand and no/100 Dollars ($100,000.00), in cash, (such sum being
hereinafter referred to and held as the "Deposit"). Purchaser shall also deliver
a quitclaim deed to the Escrow Agent in the form attached as Exhibit 3.1.1.
Purchaser and Seller each approve the form of Escrow Agreement attached as
Exhibit B.
On or before 5:00 p.m. Pacific Daylight Savings Time on the
date of expiration of the Feasibility Period, provided Purchaser has not
terminated this Purchase Contract pursuant to Section 5.2 below, Purchaser shall
deliver to Escrow Agent an additional deposit in the sum of One Hundred Thousand
and no/100 Dollars ($100,000.00), in cash (such sum being hereinafter referred
to as the "Additional Deposit").
The Escrow Agent shall hold the Deposit and the Additional
Deposit and make delivery of the Deposit and the Additional Deposit to the party
entitled thereto under the terms hereof. Escrow Agent shall invest the Deposit
and the Additional Deposit in such short-term, high-grade securities,
interest-bearing bank accounts, money market funds or accounts, bank
certificates of deposit or bank repurchase agreements as Escrow Agent, in its
discretion, deems suitable, (provided that Escrow Agent shall invest the Deposit
and the Additional Deposit as jointly directed by Seller and Purchaser should
Seller and Purchaser each in their respective sole discretion determine to issue
such joint investment instructions to the Escrow Agent) and all interest and
income thereon shall become part of the Deposit and the Additional Deposit and
shall be remitted to the party entitled to the Deposit and the Additional
Deposit, as set forth below.
If the sale of the Property is closed by the date fixed
therefor (or any extension date provided for by the mutual written consent of
the parties hereto, given or withheld in their respective sole discretion),
monies held as the Deposit and the Additional Deposit shall be applied to the
Purchase Price on the Date of Closing. If the sale of the Property is not closed
by the date fixed therefor (or any such extension date) owing to failure of
satisfaction of a condition precedent to Purchaser's obligations, the Deposit
and the Additional Deposit shall be returned and refunded to Purchaser, and
neither party shall have any further liability hereunder, provided Seller is not
in default subject to and except for Purchaser's liability under Section 0.
If the sale of the Property is not closed by the date fixed
therefor (or any such extension date) owing to failure of performance by Seller,
Purchaser shall be entitled to the remedies set forth in 0 hereof. If the sale
of the Property is not closed by the date fixed therefor (or any such extension
date) owing to failure of performance and default hereunder by Purchaser, the
Deposit and the Additional Deposit shall be forfeited by Purchaser and the sum
thereof shall go to Seller forthwith as liquidated damages for the lost
opportunity costs and transaction expenses incurred by Seller, as more fully set
forth in 0 below.
FINANCING
Purchaser assumes full responsibility to expeditiously and diligently
initiate and pursue all steps necessary to (i) assume that certain loan on the
Property in the original principal amount of $3,800,000 (the "Existing Loan")
made by Union Capital Investments, Inc., LLC ("Lender"), and (ii) obtain the
remaining funds required for settlement (that portion of the Purchase Price to
be paid in cash to Seller in excess of the outstanding principal balance of the
Existing Loan as of the Closing). Purchaser's assumption of the Existing Loan
shall be a contingency to the Closing but Purchaser's acquisition of all
additional funds for Closing shall not be a contingency to the Closing. To the
best of Seller's knowledge, the outstanding principal balance on the Existing
Loan as of July 1, 1999 is $3,681,621.70. Seller agrees to pay all assumption
fees required by Lender for Purchaser's assumption of the Existing Loan, and
Seller agrees that Seller's rights in and to all existing reserves held by
Lender in connection with the Loan shall be transferred to Purchaser upon the
Closing. Seller further agrees not to withdraw any of the funds held in the
foregoing reserves during the term of this Contract, without the prior written
consent of Purchaser (which consent shall not be unreasonably withheld,
conditioned, or delayed). It shall be a condition of the assumption of the
Existing Loan, that upon the Closing, Seller shall be released from all
liability for the repayment of the Existing Loan.
FEASIBILITY PERIOD
Subject to the terms of Section 0 below, for thirty (30) calendar days
following the Purchaser's receipt of the documents in Seller's possession or
control relating to the Property (excluding Seller's proprietary information),
but in no event later than September 15, 1999 (the "Feasibility Period"),
Purchaser, and its agents, contractors, engineers, surveyors, attorneys, and
employees ("Consultants") shall have the right from time to time to enter onto
the Property (which right to enter and inspect shall continue following the
expiration of the Feasibility Period, provided this Agreement has not been
terminated) and Seller's management office, where all of the books and records
pertaining to the Property are stored.
To conduct and make any and all customary studies, tests,
examinations and inspections, or investigations of or concerning the Property
(including without limitation, engineering and feasibility studies, evaluation
of drainage and flood plain, soil tests for bearing capacity and percolation and
surveys, including topographical surveys).
To confirm any and all matters which Purchaser may reasonably
desire to confirm with respect to the Property.
To ascertain and confirm the suitability of the property for
Purchaser's intended use of the Property other than Seller's proprietary
information.
To review all of the files, books, records and reports of
Seller or its agents pertaining to the Property other than Seller's proprietary
information.
Should the results of any of the matters referred to in
sub-paragraphs 5.1., 5.1.2 and 5.1.3 above appear unsatisfactory to Purchaser
for any reason, then Purchaser shall have the right to terminate this Purchase
Contract by giving written Notice to that effect to Seller and Escrow Agent on
or before 5:00 p.m. EST on the date of expiration of the Feasibility Period. If
Purchaser exercises such right to terminate, this Purchase Contract shall
terminate and be of no further force and effect, subject to and except for
Purchaser's liability under Section 0, and Escrow Agent shall forthwith deliver
the Quitclaim Deed of all of Purchaser's right and interest in the Property to
Seller, and then promptly return the Deposit to Purchaser. If Purchaser fails to
provide Seller with written Notice of cancellation prior to the end of the
Feasibility Period in strict accordance with the Notice provisions of this
Purchase Contract, this Purchase Contract shall remain in full force and effect
and Purchaser's obligation to purchase the Property shall be non-contingent and
unconditional except as otherwise set forth herein.
Purchaser shall indemnify and hold Seller harmless for any actions
taken by Purchaser and its Consultants on the Property. Purchaser shall
indemnify, defend (with attorneys to be selected by Purchaser but reasonably
approved by Seller) and hold Seller harmless from any and all claims, damages,
costs and liability which may arise due to such entries, surveys, tests,
investigations and the like. Seller shall have the right, without limitation, to
disapprove any and all entries, surveys, tests, investigations and the like that
in their reasonable judgment could result in any injury to the Property or
breach of any agreement, or expose Seller to any liability, costs, liens or
violations of applicable law, or otherwise adversely affect the Property or
Seller's interest therein. No consent by the Seller to any such activity shall
be deemed to constitute a waiver by Seller or assumption of liability or risk by
Seller. Purchaser hereby agrees to restore the Property to the same condition
existing immediately prior to Purchaser's exercise of its rights pursuant to
this 0 at Purchaser's sole cost and expense. Purchaser or its agent entering the
Property shall maintain comprehensive public liability insurance with broad form
contractual and personal injury liability endorsements with respect to the
Property and Purchaser's activities carried on therein, and naming Seller as
loss payee or additional insured. Such liability insurance shall provide
coverages of not less than $1,000,000.00 for injury or death to any one person
and $3,000,000.00 for injury or death to more than one person and $500,000.00
with respect to property damage, by water or otherwise). The provisions of this
Section shall survive the Closing or termination of this Purchase Contract.
Purchaser shall not permit any mechanic's or materialman's liens or
any other liens to attach to the Property by reason of the performance of any
work or the purchase of any materials by Purchaser or any other party in
connection with any studies or tests conducted by or for Purchaser. Purchaser
shall give notice to Seller a reasonable time prior to entry onto the Property,
shall deliver proof of insurance coverage required above to Seller and shall
permit Seller to have a representative present during all investigations and
inspections conducted with respect to the Property. Purchaser shall take all
reasonable actions and implement all protections necessary to ensure that all
actions taken in connection with the investigations and inspections of the
Property, and all equipment, materials and substances generated, used or brought
onto the Property pose no material threat to the safety of persons or the
environment and cause no damage to the Property or other property of Seller or
other persons. All information made available by Seller to Purchaser in
accordance with this Purchase Contract or obtained by Purchaser in the course of
its investigations shall be treated as confidential information by Purchaser,
and, prior to the purchase of the Property by Purchaser, Purchaser shall use its
reasonable efforts to prevent its Consultants, agents and employees from
divulging such information to any unrelated third parties except as reasonably
necessary to third parties engaged by Purchaser for the limited purpose of
analyzing and investigating such information for the purpose of consummating the
transaction contemplated by this Purchase Contract, including Purchaser's
attorneys and representatives, prospective lenders and engineers.
TITLE
Purchaser shall promptly secure a commitment for title insurance for the
Property in an amount equal to the Purchase Price ("Title Commitment,") issued
by Fidelity National Title Company ("Title Insurer") for an owner's title
insurance policy on the most recent standard American Land Title Association
("ALTA") Policy form, together with legible copies of all instruments identified
as exceptions therein and shall cause a copy thereof to be delivered to Seller
during the Feasibility Period. Seller agrees to pay the costs of the CLTA
portion of the owner's title policy. Purchaser and Seller agree to share equally
the costs of the ALTA portion of the Owner's title policy and Purchaser agrees
that it shall be solely responsible for payment of all other title costs,
including the costs of any lender's title policy.
Purchaser agrees to accept title to the Land and Improvements, so
long as the same is insurable at ordinary rates and any conveyance by special
warranty deed pursuant to this Purchase Contract shall be subject to the
following, all of which shall be deemed "Permitted Exceptions" and Purchaser
agrees to accept the deed and title subject thereto:
Intentionally deleted; and
Such exceptions and matters approved by Purchaser, or
disapproved by Purchaser and as the Title Company shall be willing to omit as
exceptions to coverage; and
All Commercial Leases; and
All Property Contracts which are not identified for
termination by Purchaser during the Feasibility Period; and
Real estate and property taxes for the taxable year in
which closing occurs to the extent not due and payable;
Intentionally deleted; and
All matters of public record as of the effective time of the
Title Commitment (as approved by Purchaser).
The existence of other mortgages, liens, or encumbrances shall
not be objections to title, provided that properly executed instruments in
recordable form necessary to satisfy and remove the same of record are delivered
to the Purchaser at Closing or, in the alternative, with respect to any mortgage
or deed of trust liens, that payoff letters from the holder of the mortgage or
deed of trust liens shall have been delivered to and accepted by the Title
Insurer (sufficient to remove the same from the policy issued at Closing),
together in either case, with recording and/or filing fees.
Unpaid liens for taxes, charges, and assessments shall not be
objections to title, but the amount thereof plus interest and penalties thereon
shall be deducted from the Purchase Price to be paid for the applicable Property
hereunder and allowed to Purchaser, subject to the provisions for apportionment
of taxes and charges contained in 0 herein.
Intentionally deleted.
Intentionally deleted.
If on the Closing Date, the state of title is other than in
accordance with the requirements set forth in this Purchase Contract or if any
condition to be fulfilled by Seller shall not be satisfied, Purchaser shall
provide Seller with written Notice thereof at such time, or such title objection
or unfulfilled condition shall be deemed waived by Purchaser in which case
Purchaser and Seller shall proceed to consummate the Closing on the Closing
Date. If Purchaser timely gives Seller such Notice, Seller at its sole option
and upon Notice to Purchaser within Seven (7) calendar days following receipt of
such Notice may elect to cure such objection or unfulfilled condition for up to
thirty (30) calendar days. Should Seller be able to cure such title objection or
condition, or should Seller be able to cause title insurance over the same by
the Closing Date or any postponed Closing Date, or should Purchaser waive such
objection or condition within such period for cure, then the Closing shall take
place on or before ten (10) calendar days after Notice of such cure or waiver.
If Seller does not elect to cure such objection or unfulfilled
condition or during the period of cure Seller is unable or unwilling, in its
sole discretion or opinion, to eliminate such title objection or cause Title
Insurer to insure over such matter or satisfy such unfulfilled condition, Seller
shall give Purchaser written Notice thereof, and if Purchaser does not waive
such objection by written Notice delivered to Seller and the title company
issuing the Title Commitment on or before Seven (7) calendar days following the
date Seller gives such Notice, then this Purchase Contract shall automatically
terminate, in which event Purchaser shall release and quitclaim all of
Purchaser's right and interest in such Property to Seller, and the parties
hereto shall have no further obligations to each other, except for Purchaser's
obligations pursuant to Section 5.3 above, and the Deposit and the Additional
Deposit (if then paid) shall be immediately returned to Purchaser.
Seller covenants that it will not voluntarily create or cause any
lien or encumbrance to attach to the Property between the date of this Purchase
Contract and the Closing Date; any such monetary lien or encumbrance so
attaching by voluntary act of Seller shall be discharged by the Seller at or
prior to Closing on the Closing Date or any postponed Closing Date. Except as
expressly provided above, Seller shall not be required to undertake efforts to
remove any other lien, encumbrance, security interest, exception, objection or
other matter, to make any expenditure of money or institute litigation or any
other judicial or administrative proceeding and Seller may elect not to
discharge the same.
Anything to the contrary notwithstanding, Purchaser shall not have
any right to terminate this Purchase Contract or object to any lien,
encumbrance, exception or other matter that is a Permitted Exception, that has
been waived or deemed to have been waived by Purchaser.
Intentionally deleted.
Purchaser at Purchaser's sole cost and expense, may cause to be
prepared a survey for the Property ("Survey"). Purchaser at Purchaser's sole
cost and expense, may cause to be prepared an environmental report for the
Property ("Environmental Report"). In the event the perimeter legal description
of the Property contained in the Survey differs from that contained in the deed
or deeds by which Seller took title to the Property, the latter description
shall be used in the special warranty deed delivered to Purchaser at Closing,
and the Survey legal shall be used in a quitclaim deed to the Property which
also shall be delivered to Purchaser at Closing.
Should such Survey disclose conditions that give rise to a title
exception other than a Permitted Exception, Purchaser shall have the right to
object thereto within the Feasibility Period in accordance with the procedures
set forth in ARTICLE 5 above.
Purchaser agrees to make payment in full of all costs of
obtaining Surveys required by this Purchase Contract on or before Closing or
termination of this Purchase Contract.
Condition and Use of Property. From and after the date of
Seller's execution hereof, Seller shall use commercially reasonable efforts to
maintain Property in good condition and repair, and in accordance with customary
and reasonable practices. From and after the date of Seller's execution hereof,
Seller shall not grant or convey any easement, lease, license, permit or any
other legal or beneficial interest in or to the Property without the prior
written consent of Purchaser which consent shall not be unreasonably withheld or
delayed. If during the Feasibility Period Purchaser unreasonably disapproves of
any proposed action, Seller shall have the option to terminate this Purchase
Contract upon five (5) days written notice to Purchaser (and Purchaser's failure
to approve a lease which is for market rent from a financially competent tenant
for a use which is not prohibited under any existing use restrictions shall be
deemed unreasonable for purposes of determining whether Purchaser unreasonably
disapproves a lease). Upon Purchaser's receipt of such termination notice,
Purchaser shall have the right to either accept the termination (in which case
the Deposit shall be returned to Purchaser and neither party shall have any
obligation to the other, except as expressly set forth herein for provisions
which survive termination), or Purchaser may approve the proposed action (which
was previously disapproved), and permit the Purchase Contract to continue. If
notice of approval of the proposed transaction or agreement is not delivered to
Seller within five (5) days after Purchaser's receipt of the termination notice,
Purchaser shall be deemed to have accepted Seller's termination. Seller shall
not have the foregoing right of termination after the expiration of the
Feasibility Period. Seller shall do or cause to be done all things reasonably
within its control to preserve intact and unimpaired any and all easements,
grants, appurtenances, privileges and licenses in favor of or constituting any
portion of the Property.
CLOSING
Dates, Places Of Closing, Prorations, Delinquent Rent and Closing Costs.
The Closing shall take place in the offices of such place as the
parties shall mutually agree upon at a time mutually agreed upon on or before
the Closing Date. If requested by Seller or Purchaser, the parties shall agree
to conduct closing through a pre-closing, an escrow or other arrangement
reasonably requested by Seller or Purchaser, whereby the Seller, Purchaser and
their attorneys need not be physically present at the Closing and may deliver
documents by overnight air courier or other means.
The Closing Date shall be no later than thirty (30) days
following the expiration of the Feasibility Period and may be extended without
penalty at the option of Seller to a date not later than thirty (30) days
following the Closing Date specified above to satisfy a condition to be
satisfied by Seller, or such later date as is mutually acceptable to Seller and
Purchaser; provided, however, that Seller agrees to extend the Closing Date for
such additional period reasonably required by Lender to effectuate Purchaser's
assumption of the Existing Loan so long as Purchaser is diligently processing
such assumption request, but in no event shall such extension be for a period
exceeding ninety (90) days.
All normal and customarily proratable items, including,
without limitation, Rents (as defined below), operating expenses, personal
property taxes, other operating expenses and fees, shall be prorated as of the
Closing Date, Seller being charged or credited, as appropriate, for all of same
attributable to the period up to the Closing Date (and credited for any amounts
paid by Seller attributable to the period on or after the Closing Date, if
assumed by Purchaser) and Purchaser being responsible for, and credited or
charged, as the case may be, for all of same attributable to the period on and
after the Closing Date. All unapplied deposits under Tenant leases, if any,
shall be transferred by Seller to Purchaser at the Closing. Purchaser shall
assume at Closing the obligation to pay any accrued but unpaid tenant
improvement allowances and leasing commissions under Commercial Leases executed
after the Effective Date, together with any payments due parties under the
Property Contracts assumed by Purchaser, provided all of the foregoing have been
prorated. Any real estate ad valorem or similar taxes for the Property, or any
installment of assessments payable in installments which installment is payable
in the calendar year of Closing, shall be prorated to the date of Closing, based
upon actual days involved. The proration of real property taxes or installments
of assessments shall be based upon the assessed valuation and tax rate figures
for the year in which the Closing occurs to the extent the same are available;
provided, that in the event that actual figures (whether for the assessed value
of the Property or for the tax rate) for the year of Closing are not available
at the Closing Date, the proration shall be made using figures from the
preceding year. The proration shall be final and unadjustable except as provided
in the following paragraph. For purposes of this Section 7.1.3 and Section 7.1.4
and 7.1.5 the terms "Rent" and "Rents" shall include, without limitation, base
rents, additional rents, percentage rents and common area maintenance charges.
The provisions of this Section 7.1.3 shall apply during the Proration Period (as
defined below).
If any of the items subject to proration hereunder cannot be
prorated at the Closing because the information necessary to compute such
proration is unavailable, or if any errors or omissions in computing prorations
at the Closing are discovered subsequent to the Closing, then such item shall be
reapportioned and such errors and omissions corrected as soon as practicable
after the Closing Date and the proper party reimbursed, which obligation shall
survive the Closing for a period (the "Proration Period") from the Closing Date
until one (1) year after the Closing Date. Neither party hereto shall have the
right to require a recomputation of a Closing proration or a correction of an
error or omission in a Closing proration unless within the Proration Period one
of the parties hereto (i) has obtained the previously unavailable information or
has discovered the error or omission, and (ii) has given Notice thereof to the
other party together with a copy of its good faith recomputation of the
proration and copies of all substantiating information used in such
recomputation. The failure of a party to obtain any previously unavailable
information or discover an error or omission with respect to an item subject to
proration hereunder and to give Notice thereof as provided above within the
Proration Period shall be deemed a waiver of its right to cause a recomputation
or a correction of an error or omission with respect to such item after the
Closing Date.
If on the Closing Date any Tenant is in arrears in any Rent
payment under any Tenant lease (the "Delinquent Rent"), any Delinquent Rent
received by Purchaser and Seller from such Tenant after the Closing shall be
applied to amounts due and payable by such Tenant during the following periods
in the following order of priority: (i) first, to the period of time after the
Closing Date, and (ii) second, to the period of time before the Closing Date. If
Delinquent Rent or any portion thereof received by Purchaser after the Closing
are due and payable to the other party by reason of this allocation, the
appropriate sum, less a proportionate share of any reasonable attorneys' fees
and costs and expenses expended in connection with the collection thereof, shall
be promptly paid to the other party. Any monies received by Seller after closing
shall be forwarded to Purchaser for disbursement in accordance with the order of
payment provided herein above. After the Closing, Seller shall continue to have
the right, but not the obligation, in its own name, to demand payment of and to
collect Delinquent Rent owed to Seller by any Tenant, which right shall include,
without limitation, the right to continue or commence legal actions or
proceedings against any Tenant (provided, that Seller shall not commence any
legal actions or proceedings against any Tenant which continues as a Tenant at
the Property after Closing without the prior consent of Purchaser, which will
not be unreasonably withheld or delayed), and the delivery of the Assignment as
defined in Section 7.2.1.3 shall not constitute a waiver by Seller of such
right. Purchaser agrees to cooperate with Seller at no cost or liability to
Purchaser in connection with all efforts by Seller to collect such Delinquent
Rent and to take all steps, whether before or after the Closing Date, as may be
necessary to carry out the intention of the foregoing, including, without
limitation, the delivery to Seller, within seven (7) days after a written
request, of any relevant books and records (including, without limitation, rent
statements, receipted bills and copies of tenant checks used in payment of such
rent), the execution of any and all consents or other documents, and the
undertaking of any act reasonably necessary for the collection of such
Delinquent Rent by Seller; provided, however, that Purchaser's obligation to
cooperate with Seller pursuant to this sentence shall not obligate Purchaser to
terminate any Tenant lease with an existing Tenant or evict any existing Tenant
from the Property. The provisions of this Section 7.1.5 shall only apply during
the Proration Period.
Purchaser shall pay the recording costs with respect to the
Closing. Seller and Purchaser shall share equally in the costs of the Escrow
Agent for escrow fees.
Items To Be Delivered Prior To Or At Closing.
Seller. At Closing, Seller shall deliver to Purchaser, each of
the following items, as applicable:
Special or Limited Warranty deed in the form attached as
Exhibit 7.2.1.1 to Purchaser. The acceptance of the deed at Closing, shall be
deemed to be full performance of, and discharge of, every agreement and
obligation on Seller's part to be performed under this Purchase Contract, except
for those that this Purchase Contract specifically provides shall survive
Closing.
A Bill of Sale without recourse or warranty in the form attached as Exhibit
7.2.1.2 covering all Property Contracts, Commercial Leases, Permits (other than
Excluded Permits) and Fixtures and Tangible Personal Property required to be
transferred to Purchaser with respect to such Property. Purchaser shall
countersign the same so as to effect an assumption by Purchaser, including,
without limitation, of Seller's obligations thereunder.
An Assignment (to the extent assignable and in force
and effect) without recourse or warranty in the form attached as Exhibit 7.2.1.3
of all of Seller's right, title and interest in and to the Miscellaneous
Property Assets, subject to any required consents. Purchaser shall countersign
the same so as to effect an assumption by Purchaser, including, without
limitation, of Seller's obligations thereunder.
A closing statement executed by Seller.
A vendor's affidavit, or at Seller's option an
indemnity, as applicable, in the customary form reasonably acceptable to Seller
to enable Title Insurer to delete the standard exceptions to the title insurance
policy set forth in this Purchase Contract to be issued pursuant to the Title
Commitments; and
A certification of Seller's non-foreign status
pursuant to Section 1445 of the Internal Revenue Code of 1986, as amended.
To the extent in Seller's possession or control,
original copies of the Commercial Leases and Property Contracts, lease files,
keys to the property, Seller's books and records (other than proprietary
information) regarding the Property, and original copies of the tenant
estoppels.
Except for the items expressly listed above to be
delivered at Closing, delivery of any other required items shall be deemed made
by Seller to Purchaser, if Seller leaves such documents at the Property in their
customary place of storage or in the custody of Purchaser's representatives.
Purchaser. At Closing, Purchaser shall deliver to
the Title Company (for disbursement to Seller upon the Closing) the following
items with respect to the Property being conveyed at such Closing:
The full Purchase Price as required by 0 hereof plus or minus
the adjustments or prorations required by this Purchase Contract. If at Closing
there are any liens or encumbrances on the Property that Seller is obligated or
elects to pay and discharge, Seller may use any portion of the Purchase Price
for the Property(s) to satisfy the same, provided that Seller shall have
delivered to Title Company such Closing instruments in recordable form
sufficient to satisfy such liens and encumbrances of record (or, as to any
mortgages or deeds of trust, appropriate payoff letters, acceptable to the Title
Insurer), together with the cost of recording or filing such instruments.
A closing statement executed by Purchaser.
A countersigned counterpart of the Bill of Sale in
the form attached as Exhibit 7.2.1.2.
A countersigned counterpart of the Assignment in the
form attached as Exhibit 7.2.1.3.
Such other instruments, documents or certificates as
are required to be delivered by Purchaser to Seller in accordance with any of
the other provisions of this Purchase Contract.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER
Representations And Warranties Of Seller.
For the purpose of inducing Purchaser to enter into this Purchase
Contract and to consummate the sale and purchase of the Property in accordance
herewith, Seller represents and warrants to Purchaser the following as of the
Effective Date and as of the Closing Date:
Seller identified in the Recitals is lawfully and duly
organized, and in good standing under the laws of the state of its formation set
forth in the initial paragraph of this Purchase Contract; and has the power and
authority to sell and convey the Property and to execute the documents to be
executed by Seller and has taken as applicable, all corporate, partnership,
limited liability company or equivalent entity actions required for the
execution and delivery of this Purchase Contract, and the consummation of the
transactions contemplated by this Purchase Contract. The compliance with or
fulfillment of the terms and conditions hereof will not conflict with, or result
in a breach of, the terms, conditions or provisions of, or constitute a default
under, any Purchase Contract to which Seller is a party or by which Seller is
otherwise bound. Seller has not made any other purchase contract for the sale
of, or given any other person the right to purchase, all or any part of any of
the Property;
Seller owns insurable, fee title to the Property,
including all real property contained therein required to be sold to Purchaser,
subject only to the Permitted Exceptions (provided, however, that if this
representation is or becomes untrue (other than as a result of Seller's willful
misconduct in violation of this Purchase Contract), Purchaser's remedies shall
be limited to the remedies set forth in Section 6.7 hereof and Seller shall have
no other liability as a result thereof, either before or after Closing);
There are no adverse or other parties in possession
of the Property, except for occupants, guests and tenants under the Commercial
Leases (provided, however, that if this representation is or becomes untrue,
Purchaser's remedies shall be limited to the remedies set forth in Section 6.7
hereof).
The joinder of no person or entity other than Seller
is necessary to convey the Property, fully and completely to Purchaser at
Closing, or to fulfill Seller's obligations and Seller has all necessary right
and authority to convey and assign to Purchaser all contract rights and
warranties required to be conveyed and assigned to Purchaser hereunder;
Purchaser has no duty to collect withholding taxes
for Seller pursuant to the Foreign Investors Real Property Tax Act of 1980,
as amended;
To Seller's knowledge, there are no actions,
proceedings, litigation or governmental investigations or condemnation
actions either pending or threatened against the Property, as applicable;
Seller has no knowledge of any claims for labor
performed, materials furnished or services rendered in connection with
constructing, improving or repairing any of the Property, as applicable, caused
by Seller or its agents and which remain unpaid beyond the date for which
payment was due and in respect of which liens may or could be filed against any
of the Property, as applicable;
To Seller's best knowledge, Seller has complied with
all federal, state and local laws, mechanical and electrical codes, and
administrative measures relating to the operation of the Property, including
without limitation, applicable zoning and building ordinances;
To Seller's best knowledge, Seller has not received
any notices that the property is in violation of any environmental laws.
To Seller's best knowledge, other than the Leases,
Service Contracts (which Purchaser agrees to assume), and tenant improvements
and leasing commissions for leases executed after the Effective Date, there are
no contracts or agreements entered into by Seller which Purchaser will be
obligated to pay or perform after the Closing Date.
Except for the representations and warranties
expressly set forth above in Subsection 8.1(a), Subsections (i-vii), the
Property is expressly purchased and sold "AS IS," "WHERE IS," and "WITH ALL
FAULTS." The Purchase Price and the terms and conditions set forth herein are
the result of arm's-length bargaining between entities familiar with
transactions of this kind, and said price, terms and conditions reflect the fact
that Purchaser shall have the benefit of, and is not relying upon any
information provided by Seller or Broker or statements, representations or
warranties, express or implied, made by or enforceable directly against Seller
or Broker, including, without limitation, any relating to the value of the
Property, the physical or environmental condition of the Property, any state,
federal, county or local law, ordinance, order or permit; or the suitability,
compliance or lack of compliance of the Property with any regulation, or any
other attribute or matter of or relating to the Property (other than any
covenants of title contained in the deeds conveying the Property and the
representations set forth above). Purchaser represents and warrants that as of
the date hereof and as of the Closing Date, it has and shall have reviewed and
conducted such independent analyses, studies, reports, investigations and
inspections as it deems appropriate in connection with the Property. If Seller
provides or has provided any documents, summaries, opinions or work product of
consultants, surveyors, architects, engineers, title companies, governmental
authorities or any other person or entity with respect to the Property,
including, without limitation, the Offering prepared by Broker, Purchaser and
Seller agree that Seller has done so or shall do so only for the convenience of
both parties, Purchaser shall not rely thereon and the reliance by Purchaser
upon any such documents, summaries, opinions or work product shall not create or
give rise to any liability of or against Seller, Seller's partners or affiliates
or any of their respective partners, officers, directors, participants,
employees, contractors, attorneys, consultants, representatives, agents,
successors, assigns or predecessors-in-interest. Except as set forth in the
special warranty deed, Purchaser shall rely only upon any title insurance
obtained by Purchaser with respect to title to the Property. Purchaser
acknowledges and agrees that, except as otherwise set forth herein, no
representation has been made and no responsibility is assumed by Seller with
respect to current and future applicable zoning or building code requirements or
the compliance of the Property with any other laws, rules, ordinances or
regulations, the financial earning capacity or expense history of the Property,
the continuation of contracts, continued occupancy levels of the Property, or
any part thereof, or the continued occupancy by tenants of any Commercial Leases
or, without limiting any of the foregoing, occupancy at Closing. Prior to
Closing, Seller shall have the right, but not the obligation, to enforce its
rights against any and all Property occupants, guests or tenants. Except as
otherwise set forth herein, Purchaser agrees that the departure or removal,
prior to Closing, of any of such guests, occupants or tenants shall not be the
basis for, nor shall it give rise to, any claim on the part of Purchaser, nor
shall it affect the obligations of Purchaser under this Purchase Contract in any
manner whatsoever; and Purchaser shall close title and accept delivery of the
deed with or without such tenants in possession and without any allowance or
reduction in the Purchase Price under this Purchase Contract. Purchaser hereby
releases Seller from any and all claims and liabilities relating to the
foregoing matters, except as provided in Section 8.1.3 below.
Seller and Purchaser agree that those representations
contained in Section 0 shall survive Closing for a period of One (1) year (that
is, any proceeding based on the breach of a representation contained in Section
0 that survives Closing must be commenced within One (1) year subsequent to the
date of such representation).
Representations and warranties above made to the knowledge of
Seller shall not be deemed to imply any duty of inquiry. For purposes of this
Purchase Contract, the term Seller's "knowledge" shall mean and refer to only
actual knowledge of the Designated Representative (as hereinafter defined) of
the Seller and shall not be construed to refer to the knowledge of any other
partner, officer, director, agent, employee or representative of the Seller, or
any affiliate of the Seller, or to impose upon such Designated Representative
any duty to investigate the matter to which such actual knowledge or the absence
thereof pertains, or to impose upon such Designated Representative any
individual personal liability. As used herein, the term "Designated
Representative" shall refer to Suzanne Milat at Insignia/ESG, telephone number
(253) 941-3558.
Representations And Warranties Of Purchaser
For the purpose of inducing Seller to enter into this Purchase
Contract and to consummate the sale and purchase of the Property in accordance
herewith, Purchaser represents and warrants to Seller the following as of the
Effective Date and as of the Closing Date:
With respect to Purchaser and its business, Purchaser
represents and warrants, in particular, that:
Purchaser is corporation duly organized, validly existing and
in good standing under the laws of California.
Purchaser, acting through any of its or their duly
empowered and authorized officers or members, has all necessary power and
authority to own and use its properties and to transact the business in which it
is engaged, and has full power and authority to enter into this Purchase
Contract, to execute and deliver the documents and instruments required of
Purchaser herein, and to perform its obligations hereunder; and no consent of
any of Purchaser's officers or members are required to so empower or authorize
Purchaser.
No pending or, to the knowledge of Purchaser,
threatened litigation exists which if determined adversely would restrain the
consummation of the transactions contemplated by this Purchase Contract or would
declare illegal, invalid or non-binding any of Purchaser's obligations or
covenants to Seller.
Purchaser is duly authorized to execute and deliver,
acting through its duly empowered and authorized officers and members,
respectively, and perform this Purchase Contract and all documents and
instruments and transactions contemplated hereby or incidental hereto, and such
execution, delivery and performance by Purchaser does not (i) violate any of the
provisions of their respective articles of organization or operating agreement,
(ii) violate any provision of any law, governmental rule or regulation currently
in effect, (iii) violate any judgment, decree, writ, injunction, award,
determination or order currently in effect that names or is specifically
directed at Purchaser or its property, and (iv) require the consent, approval,
order or authorization of, or any filing with or notice to, any court or other
governmental authority.
The joinder of no person or entity other than
Purchaser is necessary to consummate the transactions to be performed by
Purchaser and Purchaser has all necessary right and authority to perform such
acts as are required and contemplated by this Purchase Contract.
Purchaser has not dealt with any broker, finder or
any other person, in connection with the purchase of or the negotiation of the
purchase of the Property that might give rise to any claim for commission
against Seller or lien or claim against the Property.
Intentionally Omitted.
CONDITIONS PRECEDENT TO CLOSING
Purchaser's obligation to close under this Purchase Contract, shall be
subject to and conditioned upon the fulfillment of each and all of the following
conditions precedent:
All of the documents required to be delivered by Seller to Purchaser
at the Closing pursuant to the terms and conditions hereof shall have been
delivered and shall be in form and substance reasonably satisfactory to
Purchaser;
Each of the representations and warranties of Seller contained
herein shall be true in all material respects as of the Closing Date;
Seller shall have complied with, fulfilled and performed in
all material respects each of the covenants, terms and conditions to be complied
with, fulfilled or performed by Seller hereunder;
The issuance of the Title Policy as contemplated by Section 6
of this Agreement.
Seller shall have delivered to Purchaser estoppel certificates
required below. On or before five (5) days prior to Closing, Seller shall
deliver to Purchaser estoppel certificates, dated within forty-five (45) days of
Closing on a form attached hereto as Exhibit 9.1.5 (the "Tenant Estoppels"),
from at least 70% of the tenants, and which 70% must include the following
tenants: Ross Stores, Gold's Gym, Guadelajara Craft Wherehouse and Joanne's
Fabrics. To the extent that less than 100% of the tenants have delivered
estoppels, Seller shall provide a Seller estoppel of equivalent form to its best
knowledge. In addition, if requested by Purchaser, Seller shall, upon the
Closing, deliver to each of the tenants on the Property, a notification in form
reasonably acceptable to Purchaser, that the Property has been sold to
Purchaser.
The absence on the Closing Date of:
Any material violation of any federal, state or local law,
rule, regulation or ordinance affecting the use, occupancy or condition of the
Property which has not been cured, remedied or waived; and
Any material default by the landlord under any lease.
Notwithstanding anything to the contrary, there are
no other conditions on Purchaser's obligation to Close except as expressly
set forth above.
Without limiting any of the rights of Seller elsewhere
provided for in this Purchase Contract, Seller's obligation to close with
respect to conveyance of the Property under this Purchase Contract shall be
subject to and conditioned upon the fulfillment of each and all of the following
conditions precedent:
Purchaser's representations and warranties set forth in this
Purchase Contract shall have been true and correct in all material respects when
made, and shall be true and correct in all material respects on the Closing Date
and as of the Effective Date as though such representations and warranties were
made at and as of such date and time.
Purchaser shall have fully performed and complied with all
covenants, conditions, and other obligations in this Purchase Contract to be
performed or complied with by it at or prior to Closing including, without
limitation, payment in full of the Purchase Price, after notice and cure rights
if violated.
There shall not be pending or, to the knowledge of either
Purchaser or Seller, any litigation or threatened litigation which, if
determined adversely, would restrain the consummation of any of the transactions
contemplated by this Purchase Contract or declare illegal, invalid or nonbinding
any of the covenants or obligations of the Purchaser.
BROKERAGE
Seller represents and warrants to Purchaser that it has dealt only with
Pinnacle Realty Management Company, 7316 Wisconsin Avenue, Suite 300, Bethesda,
Maryland 20814-2925 ("Broker") in connection with this Purchase Contract. Seller
and Purchaser each represents and warrants to the other that other than Broker,
it has not dealt with or utilized the services of any other real estate broker,
sales person or finder in connection with this Purchase Contract, and each party
agrees to indemnify the other party from and against all claims for brokerage
commissions and finder's fees arising from or attributable to the acts of
omissions of the indemnifying party.
For valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, in addition to paying the Purchase Price (e.g., not as a
credit against the Purchase Price), Purchaser agrees to pay Broker the
commission which would otherwise be payable by Seller. Broker shall not be
deemed a party or third party beneficiary of this Purchase Contract.
Broker assumes no responsibility for the condition of the Property
or representation for the performance of this Purchase Contract by the Seller or
Purchaser.
POSSESSION
Possession of the Property subject to the Permitted Exceptions shall be
delivered to Purchaser at the Closing, subject to Purchaser's right of entry for
inspection as set forth in 0.
DEFAULTS AND REMEDIES
In the Event Purchaser defaults in its performance under this Purchase
Contract on or prior to the Closing Date and consummation of the Closing does
not occur by reason of such default by Purchaser, Seller and Purchaser agree
that it would be impractical and extremely difficult to estimate the damages
which Seller may suffer. Therefore, Seller and Purchaser hereby agree that,
except for the Purchaser's obligations to Seller under Section 0, the reasonable
estimate of the total net detriment that Seller would suffer in the event that
Purchaser defaults hereunder on or prior to the Closing Date is and shall be, as
Seller's sole remedy (whether at law or in equity), the right to receive from
the Escrow Agent and retain the full amount of the Deposit and the Additional
Deposit. The payment and performance of the above as liquidated damages is not
intended as a forfeiture or penalty within the meaning of applicable law and is
intended to settle all issues and questions about the amount of damages suffered
by Seller in the applicable event, except only for damages under Section 0
above, irrespective of the time when the inquiry about such damages may take
place. This amount (the Deposit and the Additional Deposit) shall be full,
agreed and liquidated damages for the breach of this Purchase Contract by the
Purchaser, all other claims to damage or other remedies being herein expressly
waived by Seller. Upon any such failure by Purchaser hereunder, this Purchase
Contract shall be terminated, and neither party shall have any further rights or
obligations hereunder, each to the other, except for the Purchaser's obligations
to Seller under Section 0 above, and the right of Seller to collect such
liquidated damages to the extent not theretofore paid by Purchaser.
Provided that Purchaser has not terminated this Purchase Contract
and is not otherwise in default hereunder, if the Closing does not occur as a
result of Seller's default hereunder, Purchaser's sole remedy shall be to elect
to terminate this Purchase Contract and receive reimbursement of the Deposit and
the Additional Deposit (or so much thereof as has been received by Escrow Agent)
or to seek specific performance of this Purchase Contract.
RISK OF LOSS OR CASUALTY
The risk of loss or damage to the Property by fire or other casualty until
the deed of conveyance is recorded is assumed by the Seller, provided that the
Seller's responsibility shall be only to the extent of any recovery from
insurance now carried on the Property plus applicable deductibles. Upon
assignment to Purchaser of any insurance proceeds in respect of fire or other
casualty occurring between the Effective Date of this contract and the time of
settlement plus a credit for applicable deductibles, Purchaser shall have no
right to terminate this Purchase Contract on account thereof (unless the damage
is estimated to be in excess of $200,000, in which case Purchaser may terminate
this Agreement and receive the return of the Deposit and the Additional Deposit,
if then paid), but Seller shall assign to Purchaser its interest in and to any
insurance policies and proceeds thereof payable as a result of such damage or
destruction. Seller shall not, in any event, be obligated to effect any repair,
replacement, and/or restoration, but may do so at its option in which case
Seller may apply the insurance proceeds to the costs of restoration.
RATIFICATION
This Purchase Contract shall be null and void unless fully ratified by
Purchaser and Seller on or before August 17, 1999.
EMINENT DOMAIN
In the event that at the time of Closing all or any part of the Property
is (or has previously been) acquired, or is about to be acquired, by authority
of any governmental agency in purchase in lieu thereof (or in the event that at
such time there is any notice of any such acquisition or intent to acquire by
any such governmental agency), Purchaser shall have the right, at Purchaser's
option, to terminate this Purchase Contract by giving written Notice within
Fifteen (15) days of Purchaser's receipt from Seller of the occurrence of such
event and recover the Deposit and the Additional Deposit (if then paid)
hereunder, or to settle in accordance with the terms of this Purchase Contract
for the full Purchase Price and receive the full benefit or any condemnation
award.
MISCELLANEOUS
Exhibits And Schedules
All Exhibits and Schedules annexed hereto are a part of this Purchase
Contract for all purposes.
Assignability
Subject to Section 16.18, this Purchase Contract is not assignable without
first obtaining the prior written approval of the non-assigning party, except
that Purchaser may assign all or an undivided interest in this Purchaser
Contract to one or more entities so long as (i) Purchaser or its affiliate
remains a part of the purchasing entity(ies), and (ii) Seller consents thereto
(which consent shall not be unreasonably withheld or delayed).
Binding Effect
This Purchase Contract shall be binding upon and inure to the benefit of
Seller and Purchaser, and their respective successors, heirs and permitted
assigns.
Captions
The captions, headings, and arrangements used in this Purchase Contract
are for convenience only and do not in any way affect, limit, amplify, or modify
the terms and provisions hereof.
Number And Gender Of Words
Whenever herein the singular number is used, the same shall include the
plural where appropriate, and words of any gender shall include each other
gender where appropriate.
Notices
All Notices, demands, requests and other communications required pursuant
to the provisions of this Purchase Contract ("Notice") shall be in writing and
shall be deemed to have been properly given or served for all purposes (i) if
sent by Federal Express or another nationally recognized overnight carrier for
next business day delivery, on the first business day following deposit of such
Notice with such carrier addressed as set forth below, or (ii) if personally
delivered, on the actual date of delivery or (iii) if sent by certified mail,
return receipt requested postage prepaid, on the Fifth (5th) business day
following the date of mailing addressed as follows:
<PAGE>
If to Seller: If to Purchaser:
Poplar Square AIP III, L.P. SB Management Corp
1873 South Bellaire Street, 17th c/o Black Equities
Floor 433 North Camden Drive, Suite
Denver, Colorado 80222 1070
Attn: Mr. Harry Alcock Beverly Hills, California
90210
And Attn: Mr. Sam Rosenwald
With a copy to:
Argent Real Estate
1401 Brickell Avenue, Suite 520 Brownstein Hyatt Farber &
Miami, Florida 33131 Strickland, P.C.
Attn: Mr. David Marquette 410 Seventeenth Street, 22nd
Floor
With a copy to: Denver, Colorado 80202-4437
Attn: Robert Kaufmann, Esq.
Loeb & Loeb
1000 Wilshire Boulevard, Suite 1800
Los Angeles, California 90017
Attn: Andrew S. Clare, Esq.
Karen N. Higgins, Esq.
Any of the parties may designate a change of address by Notice in writing
to the other parties. Whenever in this Purchase Contract the giving of Notice by
mail or otherwise is required, the giving of such Notice may be waived in
writing by the person or persons entitled to receive such Notice.
Governing Law And Venue
The laws of the State of Oregon shall govern the validity, construction,
enforcement, and interpretation of this Purchase Contract, unless otherwise
specified herein except for the conflict of laws provisions thereof. All claims,
disputes and other matters in question arising out of or relating to this
Purchase Contract, or the breach thereof, shall be decided by proceedings
instituted and litigated in the United States District Court for the district in
which the Property is situated, and the parties hereto expressly consent to the
venue and jurisdiction of such court.
Entirety And Amendments
This Purchase Contract embodies the entire Purchase Contract between the
parties and supersedes all prior Purchase Contracts and understandings, if any,
relating to the Property, and may be amended or supplemented only by an
instrument in writing executed by the party against whom enforcement is sought.
Severability
If any provision of this Purchase Contract is held to be illegal, invalid,
or unenforceable under present or future laws, such provision shall be fully
severable. The Purchase Contract shall be construed and enforced as if such
illegal, invalid, or unenforceable provision had never comprised a part of this
Purchase Contract; and the remaining provisions of this Purchase Contract shall
remain in full force and effect and shall not be affected by the illegal,
invalid, or unenforceable provision or by its severance from this Purchase
Contract. In lieu of such illegal, invalid, or unenforceable provision, there
shall be added automatically as a part of this Purchase Contract a provision as
similar in terms to such illegal, invalid, or unenforceable provision as may be
possible to make such provision legal, valid, and enforceable.
Multiple Counterparts
This Purchase Contract may be executed in a number of identical
counterparts. If so executed, each of such counterparts is to be deemed an
original for all purposes and all such counterparts shall, collectively,
constitute one Purchase Contract. In making proof of this Purchase Contract, it
shall not be necessary to produce or account for more than one such
counterparts.
Further Acts
In addition to the acts and deeds recited herein and contemplated and
performed, executed and/or delivered by Seller and Purchaser, Seller and
Purchaser agree to perform, execute and/or deliver or cause to be performed,
executed and/or delivered any and all such further acts, deeds, and assurances
as may be necessary to consummate the transactions contemplated hereby.
Construction
No provision of this Purchase Contract shall be construed in favor of, or
against, any particular party by reason of any presumption with respect to the
drafting of this Purchase Contract; both parties, being represented by counsel,
having fully participated in the negotiation of this instrument.
Confidentiality
Purchaser shall not disclose the terms and conditions contained in this
Purchase Contract, shall keep the same confidential, provided that Purchaser may
disclose the terms and conditions of this Purchase Contract (i) as required by
law, (ii) to consummate the terms of this Purchase Contract, or any financing
relating thereto, or (iii) to Purchaser's or Seller's lenders, attorneys,
affiliates, and accountants,. Any information provided by Seller to Purchaser
under the terms of this Purchase Contract is for informational purposes only. In
providing such information to Purchaser, except as otherwise expressly set forth
herein, Seller makes no representation or warranty, express, written, oral,
statutory, or implied, and all such representations and warranties are hereby
expressly excluded. Other than the express representations and warranties set
forth herein, Purchaser shall not in any way be entitled to rely upon the
accuracy of such information. Such information is also confidential and
Purchaser shall be prohibited from making such information public to any other
person or entity other than its agents, lenders, attorneys, affiliates, and
legal representatives, without Seller's prior written authorization, which may
be granted or denied in Seller's sole discretion.
Time Of The Essence
It is expressly agreed by the parties hereto that time is of the essence
with respect to this Purchase Contract.
Cumulative Remedies And Waiver
No remedy herein conferred or reserved is intended to be exclusive of any
other available remedy or remedies herein conferred or referred, but each and
every such remedy shall be cumulative and shall be in addition to every other
remedy given under this Purchase Contract. No delay or omission to exercise any
right or power accruing upon any default, omission, or failure of performance
hereunder shall impair any right or power or shall be construed to be a waiver
thereof, but any such right and power may be exercised from time to time and as
often as may be deemed expedient. No waiver, amendment, release, or modification
of this Purchase Contract shall be established by conduct, custom, or course of
dealing.
Litigation Expenses
In the event either party hereto commences litigation against the other to
enforce its rights hereunder, the prevailing party in such litigation shall be
entitled to recover from the other party its reasonable attorneys' fees and
expenses incidental to such litigation, including, without limitation, fees and
expenses incurred (i) on any appeal, (ii) in connection with any petition for
review, or (iii) in any proceeding before a United States Bankruptcy Court.
Time Periods
Should the last day of a time period fall on a weekend or legal holiday,
the next Business Day thereafter shall be considered the end of the time period.
Exchange
At Seller's sole cost and expense, Seller may structure the sale of the
Property to Purchaser as a Like Kind Exchange under Internal Revenue Code
Section 1031 whereby Seller will acquire certain property (the "Like Kind
Exchange Property") in conjunction with the sale of the Property (the "Like Kind
Exchange"). Purchaser shall cooperate fully and promptly with Seller's conduct
of the Like Kind Exchange, provided that all costs and expenses generated in
connection with the Like Kind Exchange shall be borne solely by Seller, and
Purchaser shall not be required to take title to or contract for the purchase of
any other property. If Seller uses a qualified intermediary to effectuate the
exchange, any assignment of the rights or obligations of Seller hereunder shall
not relieve, release or absolve Seller of its obligations to Purchaser. In no
event shall the Closing Date be delayed by the Like Kind Exchange. Seller shall
indemnify and hold harmless Purchaser from and against any and all liability
arising from and out of the Like Kind Exchange.
At Purchaser's sole cost and expense, Purchaser may structure the purchase
of the Property from Seller as a Like Kind Exchange under Internal Revenue Code
Section 1031. Seller shall cooperate fully and promptly with Purchaser's conduct
of the Like Kind Exchange, provided that all costs and expenses generated in
connection with the Like Kind Exchange shall be borne solely by Purchaser, and
Seller shall not be required to take title to or contract for the purchase of
any other property. If Purchaser uses a qualified intermediary to effectuate the
exchange, any assignment of the rights or obligations of Purchaser hereunder
shall not relieve, release or absolve Purchaser of its obligations to Seller. In
no event shall the Closing Date be delayed by the Like Kind Exchange. Purchaser
shall indemnify and hold harmless Seller from and against any and all liability
arising from and out of the Like Kind Exchange.
No Personal Liability of Officers, Trustees or directors of Seller
Purchaser acknowledges that this Agreement is entered into by Seller which
is a limited partnership, and Purchaser agrees that no individual officer,
partner, trustee, director or representative of Seller or its' partners shall
have any personal liability under this Agreement or any document executed in
connection with the transactions contemplated by this Agreement.
Seller acknowledges that this Agreement is entered into by Purchaser which
is a California corporation, and Seller agrees that no individual officer,
trustee, member, manager, director or representative of Purchaser shall have any
personal liability under this Agreement or any document executed in connection
with the transactions contemplated by this Agreement.
No Exclusive Negotiations
Seller shall have the right, at all times, to solicit backup offers and
enter into discussions, negotiations, or any other communications concerning or
related to the sale of the Property with any third-party; provided, however,
that such communications are subject to the terms of this Agreement, and that
Seller shall not enter into any contract or binding agreement with a third-party
for the sale of the Property unless such agreement is contingent on the
termination of this Agreement without the Property having been conveyed to
Purchaser.
Oregon Statutory Requirement
THE PROPERTY DESCRIBED IN THIS INSTRUMENT MAY NOT BE WITHIN A FIRE
PROTECTION DISTRICT PROTECTING STRUCTURES. THE PROPERTY IS SUBJECT TO LAND USE
LAWS AND REGULATIONS, WHICH, IN FARM OR FOREST ZONES, MAY NOT AUTHORIZE
CONSTRUCTION OR SITING OF A RESIDENCE AND WHICH LIMIT LAWSUITS AGAINST FARMING
OR FOREST PRACTICES AS DEFINED IN ORS 30.930 IN ALL ZONES. BEFORE SIGNING OR
ACCEPTING THIS INSTRUMENT, THE PERSON ACQUIRING FEE TITLE TO THE PROPERTY SHOULD
CHECK WITH THE APPROPRIATE CITY OR COUNTY PLANNING DEPARTMENT TO VERIFY APPROVED
USES AND EXISTENCE OF FIRE PROTECTION FOR STRUCTURES.
NOW WHEREFORE, the parties hereto have executed this Purchase Contract
under seal as of the date first set forth above.
Seller: POPLAR SQUARE AIP III, L.P.,
a South Carolina limited partnership
By: Poplar Square GP Limited
Partnership,
a South Carolina limited
partnership,
general partner
By: GP Services IX, Inc.,
a South Carolina corporation,
general partner
By: __________________________
Its:___________________________
By: Angeles Income Properties, Ltd. III,
a California limited partnership,
limited partner
By: Angeles Realty Corporation II,
a California corporation,
general partner
By: __________________________
Its:___________________________
Purchaser: SB MANAGEMENT CORP., a California
corporation
By: _____________________________
Its:___________________________
By: ______________________________
Its:___________________________
<PAGE>
STATE OF )
- ---------------
) ss.
COUNTY OF )
- ---------------
On the _____ of __________________, 1999, before me, personally appeared ,
who is the _________________ of GP Services IX, Inc., a South Carolina
corporation (the "Corporation"), which Corporation is the general partner of
Poplar Square GP Limited Partnership, a South Carolina limited partnership (the
"General Partner"), which General Partner is the general partner of Poplar
Square AIP III, L.P., a South Carolina limited partnership, and acknowledged the
foregoing to be his/her voluntary act and deed.
Notary Public for My commission expires:
STATE OF )
---------------
) ss.
COUNTY OF )
---------------
On the _____ of __________________, 19___, before me, personally appeared
, who is the ___________________ of Angeles Realty Corporation II, a California
corporation (the "Corporation"), which Corporation is the general partner of
Angeles Income Properties, Ltd., III, a California limited partnership ("Limited
Partner"), which Limited Partner is the limited partner of Poplar Square AIP
III, L.P., a South Carolina limited partnership, and acknowledged the foregoing
to be his/her voluntary act and deed.
Notary Public for My commission expires:
STATE OF )
---------------
) ss.
COUNTY OF )
---------------
On the _____ of __________________, 19___, before me, personally
appeared , who is the ____________ of SB
---------------------------------
MANAGEMENT CORP., a California corporation, and acknowledged the foregoing to
be his/her voluntary act and deed.
Notary Public for My commission expires:
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION FOR POPLAR SQUARE SHOPPING CENTER
Lots 2, 3, 4, 5 and 6, POPLAR SQUARE SUBDIVISION, in Jackson County, Oregon.
EXCEPTING THEREFROM that portion of said Lot 2 described as follows: Beginning
at a point which is North 89(0)59'10" West, 45.00 feet, from the southeast
corner of Lot 2 of the above named Subdivision; thence North 0(0)00'50" East,
325.00 feet, to a point; thence North 89(0)59'10" West, 90.00 feet, to a point;
thence South 0(0)00'50" West, 60.00 feet, to a point; thence North 89(0)59'10"
West, 70.00 feet, to a point; thence South 0(0)00'50" West, 265.00 feet, to a
point; thence South 89(0)59'10" East, 160.00 feet, to the point of beginning.
<PAGE>
EXHIBIT 1.1.5
LIST OF EXCLUDED PERMITS
To Be Inserted, If Any
<PAGE>
EXHIBIT 1.1.7
LIST OF EXCLUDED PERSONAL PROPERTY OR EQUIPMENT
To Be Inserted, If Any
<PAGE>
64
EXHIBIT 3.1.1
FORM OF QUITCLAIM DEED
RECORDING REQUESTED BY:
Fidelity National Title Company
After Recording, Return To:
Loeb & Loeb LLP
1000 Wilshire Boulevard, Suite 1800
Los Angeles, California 90017
Attention: Karen Nielsen Higgins, Esq.
QUITCLAIM DEED
KNOW ALL MEN BY THESE PRESENTS that SB MANGEMENT CORP., a California
corporation, hereinafter called Grantor, whose address is c/o Black Equities,
433 North Camden Drive, Suite 1070, Beverly Hills, California 90210, conveys and
quitclaims to POPLAR SQUARE AIP III, L.P., a South Carolina limited partnership,
hereinafter called Grantee, whose address is 1873 South Bellaire Street, 17th
Floor, Denver, Colorado, the following-described real property situated in
Jackson County, Oregon:
LEGAL DESCRIPTION ATTACHED HERETO AS EXHIBIT "A"
DATED this day of , 1999.
------- ----------------
SB MANAGEMENT CORP.,
a California corporation
By:
Its Authorized Officer
<PAGE>
EXHIBIT "A"
LEGAL DESCRIPTION FOR POPLAR SQUARE SHOPPING CENTER
Lots 2, 3, 4, 5 and 6, POPLAR SQUARE SUBDIVISION, in Jackson County, Oregon.
EXCEPTING THEREFROM that portion of said Lot 2 described as follows: Beginning
at a point which is North 89(0)59'10" West, 45.00 feet, from the southeast
corner of Lot 2 of the above named Subdivision; thence North 0(0)00'50" East,
325.00 feet, to a point; thence North 89(0)59'10" West, 90.00 feet, to a point;
thence South 0(0)00'50" West, 60.00 feet, to a point; thence North 89(0)59'10"
West, 70.00 feet, to a point; thence South 0(0)00'50" West, 265.00 feet, to a
point; thence South 89(0)59'10" East, 160.00 feet, to the point of beginning.
<PAGE>
STATE OF )
---------------
) ss.
COUNTY OF )
------------
On the _____ of __________________, 19___, before me, personally
appeared , who is the ____________ of SB
---------------------------------
MANAGEMENT CORP., a California corporation, and acknowledged the foregoing to
be his/her voluntary act and deed.
Notary Public for My commission expires:
<PAGE>
EXHIBIT 6.2.1
ADDITIONAL TITLE EXCEPTIONS
[To Be Attached]
<PAGE>
EXHIBIT 7.2.1.1
FORM OF SPECIAL WARRANTY DEED
RECORDING REQUESTED BY:
Fidelity National Title Company
After Recording, Return To:
Brownstein Hyatt Farber & Strickland P.C.
410 Seventeenth Street, 22nd Floor
Denver, Colorado 80202-4437
Attn: Robert Kaufmann, Esq.
SPECIAL WARRANTY DEED
POPLAR SQUARE AIP III, L.P., a South Carolina limited partnership
("Grantor"), hereby conveys and specially warrants to
____________________________ ("Grantee"), the following described real
property situated in Jackson County, Oregon, free of encumbrances created or
suffered by the Grantor, except as specifically set forth herein:
LEGAL DESCRIPTION ATTACHED HERETO AS EXHIBIT "A"
subject to and excepting all liens securing payment of property taxes for the
current and subsequent years, as well as those matters of record, or matters
that could be disclosed by a visual inspection or accurate survey of the
property, as of the date hereof.
Grantor covenants to and with the Grantee and Grantee's heirs, successors and
assigns that said real property is free from encumbrances created or suffered
thereon by Grantor, and that Grantor will warrant and defend the title against
the lawful claims of all persons claiming by, under or through Grantor, except
for the exceptions stated hereinabove.
The true and actual consideration for this conveyance is $_________________.
<PAGE>
Until a change is requested, all tax statements are to be sent to the address
set forth above.
DATED: ________________, 1999 POPLAR SQUARE AIP III, L.P.,
a South Carolina limited partnership
By: Poplar Square GP Limited
Partnership, a South Carolina limited
partnership, general partner
By: GP Services IX, Inc.,
a South Carolina corporation,
general partner
By: __________________________
Its:___________________________
By: Angeles Income Properties, Ltd. III,
a California limited partnership,
limited partner
By: Angeles Realty Corporation II,
a California corporation,
By: __________________________
Its:___________________________
<PAGE>
STATE OF )
----------------
) ss.
COUNTY OF )
---------------
On the _____ of __________________, 1999, before me, personally appeared ,
who is the _________________ of GP Services IX, Inc., a South Carolina
corporation (the "Corporation"), which Corporation is the general partner of
Poplar Square GP Limited Partnership, a South Carolina limited partnership (the
"General Partner"), which General Partner is the general partner of Poplar
Square AIP III, L.P., a South Carolina limited partnership, and acknowledged the
foregoing to be his/her voluntary act and deed.
Notary Public for My commission expires:
STATE OF )
---------------
) ss.
COUNTY OF )
---------------
On the _____ of __________________, 19___, before me, personally appeared
, who is the ___________________ of Angeles Realty Corporation II, a California
corporation (the "Corporation"), which Corporation is the general partner of
Angeles Income Properties, Ltd., III, a California limited partnership ("Limited
Partner"), which Limited Partner is the limited partner of Poplar Square AIP
III, L.P., a South Carolina limited partnership, and acknowledged the foregoing
to be his/her voluntary act and deed.
Notary Public for My commission expires:
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION FOR POPLAR SQUARE SHOPPING CENTER
Lots 2, 3, 4, 5 and 6, POPLAR SQUARE SUBDIVISION, in Jackson County, Oregon.
EXCEPTING THEREFROM that portion of said Lot 2 described as follows: Beginning
at a point which is North 89(0)59'10" West, 45.00 feet, from the southeast
corner of Lot 2 of the above named Subdivision; thence North 0(0)00'50" East,
325.00 feet, to a point; thence North 89(0)59'10" West, 90.00 feet, to a point;
thence South 0(0)00'50" West, 60.00 feet, to a point; thence North 89(0)59'10"
West, 70.00 feet, to a point; thence South 0(0)00'50" West, 265.00 feet, to a
point; thence South 89(0)59'10" East, 160.00 feet, to the point of beginning.
<PAGE>
EXHIBIT 7.2.1.2
FORM OF BILL OF SALE
This Bill of Sale ("Assignment") is executed by POPLAR SQUARE AIP III,
L.P., a South Carolina limited partnership ("Seller"), in favor of
_______________________ ("Purchaser").
Seller and SB Management Corp., a California corporation ("SB
Management"), have entered into that certain Purchase and Sale Contract dated as
of August 12, 1999 ("Purchase Contract"), in which Seller has agreed to sell and
Purchaser has agreed to purchase the real properties described in Exhibit "A"
attached thereto and the improvements located thereon (collectively, the
"Project").
Pursuant to the Purchase Contract, Seller has agreed to assign, without
recourse or warranty to SB Management, or its permitted assignee, which is
Purchaser, all of Seller's right, title and interest, if any, in and to the
Property (as hereinafter defined).
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
1. As used herein, the term "Property" shall mean the following property
to the extent said property is owned by Seller and used in, held for use in
connection with, or necessary for the operation of the Project:
a. Property Contracts. All of Seller's rights and interests in and to purchase
orders, maintenance, service or utility contracts or similar contracts which
relate to the ownership, maintenance, construction or repair or operation of the
Project.
b. Leases. All of Seller's rights and interests in and to leases, subleases, and
other occupancy agreements, whether or not of record, which provide for use or
occupancy of space or facilities on or relating to the Project.
c. Licenses and Permits. All of Seller's rights and interests in and to all
licenses or permits granted by governmental authorities having jurisdiction over
the Project and utilized with respect to the Project.
d. Fixtures and Tangible Personal Property. All of Sellers rights and interests
in and to all fixtures, furniture, furnishings, fittings, equipment, machinery,
apparatus, appliances and other articles of tangible personal property now
located on the Project or in the improvements thereon and used in connection
with any present or future occupation or operation of all or any part of the
Project.
The term "Property" shall not include any of the foregoing: (i) to
the extent the same are excluded or reserved to Seller pursuant to the Purchase
Contract to which Seller and Purchaser are parties; and (ii) to the extent that
the sale or transfer thereof requires consent or approval of any third party,
which consent or approval is not obtained by Seller. Nothing herein shall create
a transfer or assignment of intellectual property or similar assets of Seller.
2. Assignment. Seller hereby assigns, sells and transfers, without recourse or
warranty, to Purchaser all of Seller's right, title and interest, if any, in and
to the Property, subject to any rights of consent as provided therein.
3. Assumption. Purchaser expressly agrees to assume and hereby assumes all
liabilities and obligations of the Seller in connection with the Property
attributable to acts arising from and after the date hereof and agrees to
perform all of the covenants and obligations of Seller thereunder attributable
to acts arising from and after the date hereof. Purchaser further agrees to
indemnify, defend and hold Seller harmless from and against any and all cost,
loss, harm or damage which may arise in connection with the Property
attributable to acts arising from and after the date hereof. Seller further
agrees to indemnify, defend and hold Purchaser harmless from and against any and
all cost, loss, harm or damage which may arise in connection with the Property
attributable to acts arising prior to the date hereof.
4. Counterparts. This Assignment may be executed in counterparts, each of which
shall be deemed an original, and both of which together shall constitute one and
the same instrument.
5. Miscellaneous. This Assignment shall be binding on the parties and their
respective successors and assigns. The headings to paragraphs of this Assignment
are for convenient reference only and shall not be used in interpreting this
Assignment.
6. Attorneys' Fees. If any action or proceeding is commenced by either party to
enforce its rights under this Assignment, the prevailing party in such action or
proceeding shall be entitled to recover all reasonable costs and expenses
incurred in such action or proceeding, including reasonable attorneys' fees and
costs, in addition to any other relief awarded by the court.
7. Applicable Law. This Assignment shall be governed by and interpreted in
accordance with the laws of the State of Oregon.
8. Titles and Section Headings. Titles of sections and subsections contained in
this Assignment are inserted for convenience of reference only, and neither form
a part of this Assignment or are to be used in its construction or
interpretation.
9. Binding Effect. This Assignment shall be binding upon and inure to the
benefit of the parties hereto and their respective transferees, successors, and
assigns.
10. Entire Agreement; Modification. This Assignment supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may not be altered or modified without the written consent of
all parties.
WITH RESPECT TO ALL MATTERS TRANSFERRED, WHETHER TANGIBLE OR
INTANGIBLE, PERSONAL OR REAL, SELLER EXPRESSLY DISCLAIMS A WARRANTY OF
MERCHANTABILITY AND WARRANTY FOR FITNESS FOR A PARTICULAR USE OR ANY OTHER
WARRANTY EXPRESSED OR IMPLIED THAT MAY ARISE BY OPERATION OF LAW OR UNDER THE
UNIFORM COMMERCIAL CODE FOR THE STATE IN WHICH THE PROPERTY IS LOCATED.
WITNESS the signatures and seals of the undersigned.
Dated: , 1999
---------------
Seller: POPLAR SQUARE AIP III, L.P.,
a South Carolina limited partnership
By: Poplar Square GP Limited
Partnership,
a South Carolina limited
partnership,
general partner
By: GP Services IX, Inc.,
a South Carolina corporation,
general partner
By: __________________________
Its:___________________________
[Signature continue on following page]
By: Angeles Income Properties, Ltd. III,
a California limited partnership,
limited partner
By: Angeles Realty Corporation II,
a California corporation,
general partner
By: __________________________
Its:___________________________
Purchaser: [NAME OF PURCHASER]
By: _____________________________
Its: ___________________________
By: ______________________________
Its:___________________________
<PAGE>
EXHIBIT "A"
LEGAL DESCRIPTION
Lots 2, 3, 4, 5 and 6, POPLAR SQUARE SUBDIVISION, in Jackson County, Oregon.
EXCEPTING THEREFROM that portion of said Lot 2 described as follows: Beginning
at a point which is North 89(0)59'10" West, 45.00 feet, from the southeast
corner of Lot 2 of the above named Subdivision; thence North 0(0)00'50" East,
325.00 feet, to a point; thence North 89(0)59'10" West, 90.00 feet, to a point;
thence South 0(0)00'50" West, 60.00 feet, to a point; thence North 89(0)59'10"
West, 70.00 feet, to a point; thence South 0(0)00'50" West, 265.00 feet, to a
point; thence South 89(0)59'10" East, 160.00 feet, to the point of beginning.
<PAGE>
Exhibit 7.2.1.3
GENERAL ASSIGNMENT
This General Assignment ("Assignment") is executed by POPLAR SQUARE AIP
III, L.P., a South Carolina limited partnership ("Seller"), in favor of
_______________________ ________________________ ("Purchaser").
Seller and SB Management Corp, a California corporation ("SB Management"),
have entered into that certain Purchase and Sale Contract dated as of August 12,
1999 ("Purchase Contract"), in which Seller has agreed to sell and Purchaser has
agreed to purchase the real properties described in Exhibit "A" attached thereto
and the improvements located thereon collectively, the "Project").
Pursuant to the Purchase Contract, Seller has agreed to assign, without
recourse or warranty, to SB Management, or its permitted assignee, which is
Purchaser, all of Seller's right, title and interest, if any, in and to the
Miscellaneous Property Assets (as hereinafter defined).
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
1. As used herein, the term "Miscellaneous Property Assets" shall mean all
contract rights, leases, concessions, warranties, plans, drawings, and other
items of intangible personal property to the extent said property is owned by
Seller and used in, held for use in connection with, or necessary for the
operation of the Project.
The term "Miscellaneous Property Assets" shall not include any of
the foregoing: (i) to the extent the same are excluded or reserved to Seller
pursuant to the Purchase Contract to which Seller and Purchaser are parties; and
(ii) to the extent that the sale or transfer thereof requires consent or
approval of any third party, which consent or approval is not obtained by
Seller. Nothing herein shall create a transfer or assignment of intellectual
property or similar assets of Seller.
2. Assignment. Seller hereby assigns, sells and transfers, without recourse or
warranty, to Purchaser all of Seller's right, title and interest, if any, in and
to the Miscellaneous Property Assets, subject to any rights of consent as
provided therein.
3. Assumption. Purchaser expressly agrees to assume and hereby assumes all
liabilities and obligations of the Seller in connection with the Miscellaneous
Property Assets arising from and after the date hereof and agrees to perform all
of the covenants and obligations of Seller thereunder arising from and after the
date hereof. Purchaser further agrees to indemnify, defend and hold Seller
harmless from and against any and all cost, loss, harm or damage which may arise
in connection with the Miscellaneous Property Assets, pertaining to acts arising
on and after the date hereof. Seller further agrees to indemnify, defend and
hold Purchaser harmless from and against any and all cost, loss, harm or damage
which may arise in connection with the Miscellaneous Property Assets, pertaining
to acts arising prior to the date hereof.
4. Counterparts. This Assignment may be executed in counterparts, each of which
shall be deemed an original, and both of which together shall constitute one and
the same instrument.
5. Attorneys' Fees. If any action or proceeding is commenced by either party to
enforce its rights under this Assignment, the prevailing party in such action or
proceeding shall be entitled to recover all reasonable costs and expenses
incurred in such action or proceeding, including reasonable attorneys' fees and
costs, in addition to any other relief awarded by the court.
6. Applicable Law. This Assignment shall be governed by and interpreted in
accordance with the laws of the State of Oregon.
7. Titles and Section Headings. Titles of sections and subsections contained in
this Assignment are inserted for convenience of reference only, and neither form
a part of this Assignment or are to be used in its construction or
interpretation.
8. Binding Effect. This Assignment shall be binding upon and inure to the
benefit of the parties hereto and their respective transferees, successors, and
assigns.
9. Entire Agreement; Modification. This Assignment supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may not be altered or modified without the written consent of
all parties.
WITH RESPECT TO ALL MATTERS TRANSFERRED, WHETHER TANGIBLE OR
INTANGIBLE, PERSONAL OR REAL, SELLER EXPRESSLY DISCLAIMS A WARRANTY OF
MERCHANTABILITY AND WARRANTY FOR FITNESS FOR A PARTICULAR USE OR ANY OTHER
WARRANTY EXPRESSED OR IMPLIED THAT
<PAGE>
MAY ARISE BY OPERATION OF LAW OR UNDER THE UNIFORM COMMERCIAL CODE FOR THE STATE
IN WHICH THE PROPERTY IS LOCATED.
WITNESS the signatures and seals of the undersigned.
Dated: , 1999
---------------
Seller: POPLAR SQUARE AIP III, L.P.,
a South Carolina limited partnership
By: Poplar Square GP Limited
Partnership,
a South Carolina limited
partnership,
general partner
By: GP Services IX, Inc.,
a South Carolina corporation,
general partner
By: __________________________
Its:___________________________
By: Angeles Income Properties, Ltd. III,
a California limited partnership,
limited partner
By: Angeles Realty Corporation II,
a California corporation,
general partner
By: __________________________
Its:___________________________
Purchaser: [NAME OF PURCHASER]
By:_____________________________
Its:___________________________
By:______________________________
Its:___________________________
<PAGE>
EXHIBIT "A"
LEGAL DESCRIPTION
Lots 2, 3, 4, 5 and 6, POPLAR SQUARE SUBDIVISION, in Jackson County, Oregon.
EXCEPTING THEREFROM that portion of said Lot 2 described as follows: Beginning
at a point which is North 89(0)59'10" West, 45.00 feet, from the southeast
corner of Lot 2 of the above named Subdivision; thence North 0(0)00'50" East,
325.00 feet, to a point; thence North 89(0)59'10" West, 90.00 feet, to a point;
thence South 0(0)00'50" West, 60.00 feet, to a point; thence North 89(0)59'10"
West, 70.00 feet, to a point; thence South 0(0)00'50" West, 265.00 feet, to a
point; thence South 89(0)59'10" East, 160.00 feet, to the point of beginning.
<PAGE>
Exhibit B
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Escrow Agreement") made this day of ________, 1999
by and among POPLAR SQUARE AIP III, L.P., a South Carolina limited partnership
("Seller"), and SB MANAGEMENT CORP., a California corporation ("Purchaser"); and
FIDELITY NATIONAL TITLE INSURANCE COMPANY ("Escrow Agent");
WITNESSETH:
Whereas Purchaser and Seller are parties to a certain Purchase and Sale
Contract (the "Purchase Contract") made and dated as of the 12th day of August,
1999; and
Whereas, the Purchase Contract requires that Purchaser provide an initial
deposit in the amount of One Hundred Thousand and No/100 Dollars ($100,000.00)
in cash to be held pursuant to an escrow agreement approved by Purchaser and
Seller.
Whereas, the Purchase Contract requires that, on or before 5:00 p.m.
Pacific Daylight Savings Time on the date of expiration of the Feasibility
Period, Purchaser shall provide an additional deposit in the sum of One Hundred
Thousand and no/100 Dollars ($100,000.00), in cash (the "Additional Deposit"),
to be held by Escrow Agent.
Now, therefore, the parties agree to the following:
1. Establishment of Escrow. Escrow Agent hereby acknowledges receipt of One
Hundred Thousand and No/100 dollars ($100,000.00) in cash (constituting the
Initial Deposit), to be deposited, held, invested, and disbursed for the benefit
of Seller and Purchaser and their respective successors and assigns, as provided
herein and as provided in the Purchase Contract. Escrow Agent also hereby
acknowledges receipt of a quitclaim deed executed by Purchaser a copy of which
is attached (the "Quitclaim Deed") and agrees to hold and release the Quitclaim
Deed in accordance with the terms of this Escrow Agreement.
2. Investment of Escrow Fund. All funds received by Escrow Agent, including the
Initial Deposit and the Additional Deposit (collectively, the "Escrow Fund"),
shall be held in insured accounts and invested in such short-term, high-grade
securities, money market funds or accounts, interest bearing bank accounts, bank
certificates of deposit or bank repurchase agreements as Escrow Agent, in its
discretion, deems suitable (provided that Escrow Agent shall invest the Escrow
Fund as jointly directed by Seller and Purchaser should Seller and Purchaser
each in their respective sole discretion determine to issue such joint
investment instructions to the Escrow Agent) and all interest and income thereon
shall become part of the Escrow Fund and shall be remitted to the party entitled
to the Escrow Fund, as set forth below.
3. Application of Escrow Fund. Escrow Agent shall hold the Escrow Fund as
provided above and (a) if the sale of the Property is closed by the date fixed
therefor (or any extension date provided for by mutual written consent of the
parties hereto, given or withheld in their respective sole discretion), Escrow
Agent shall return the Quitclaim Deed to Purchaser and deliver the Escrow Fund
to Seller in immediately available funds by wire transfer in accordance with the
instructions of Seller on the Closing Date as set forth in the Purchase
Contract, (b) if the sale of the Property is not closed by the date fixed
therefor (or any such extension date) owing to failure of satisfaction of a
condition precedent to Purchaser's obligations, the Escrow Agent shall return
and refund the Escrow Fund to Purchaser and shall forthwith deliver the
Quitclaim Deed to Seller, (c) if the sale of the Property is not closed by the
date fixed therefor (or any such extension date) owing to failure of performance
by Seller, Purchaser shall give Notice to the Escrow Agent and Seller and in
such Notice shall state whether it elects as its remedy return of the Escrow
Fund or specific performance of the Purchase Contract; if Purchaser elects
return of the Escrow Fund, Escrow Agent shall return and refund the Escrow Fund
to Purchaser and shall forthwith deliver the Quitclaim Deed to Seller, (d) if
the sale of the Property is not closed by the date fixed therefor (or any such
extension date) owing to failure of performance by Purchaser, Escrow Agent shall
forthwith deliver to Seller the Quitclaim Deed and the Escrow Fund in
immediately available funds by wire transfer in accordance with the instructions
of Seller, and (e) if Purchaser shall have canceled the Purchase Contract on or
before the expiration of the Feasibility Period (as defined in the Purchase
Contract), the Escrow Agent shall return and refund the Escrow Fund to Purchaser
and shall forthwith deliver the Quitclaim Deed to Seller.
If on or prior to the termination of the Escrow Agreement, a party claims
to be entitled to payment of the Escrow Fund under the provisions referred to,
such party shall give Notice to the Escrow Agent and the other party of the
claim in writing, describing in such Notice the nature of the claim, and the
provisions of the Purchase Contract on which the claim is based. Unless the
other party sends the Escrow Agent a written objection to the claim, with a copy
concurrently to the claiming party, within Ten (10) days after delivery of the
Notice of claim, the claim shall be conclusively presumed to have been approved.
In such case, or in the event of mutual written consent of the parties hereto,
given or withheld in their respective sole discretion, Escrow Agent shall,
within Two (2) business days thereafter, pay the claim as demanded.
Notwithstanding the foregoing, Escrow Agent shall deliver the Escrow Fund to
Seller forthwith upon Closing in accordance with the terms of subpart (a) of the
immediately preceding paragraph.
When all monies held by Escrow Agent have been finally distributed in
accordance herewith, this Escrow Agreement shall terminate.
4. Liability. Escrow Agent will be obligated to perform only the duties that are
expressly set forth herein. In case of conflicting demands upon Escrow Agent, it
may (i) refuse to comply therewith as long as such disagreement continues and
make no delivery or other disposition of any funds or property then held (and
Escrow Agent shall not be or become liable in any way for such failure or
refusal to comply with such conflicting or adverse claims or demands, except for
its failure to exercise due care, willful breach and willful misconduct); and
(ii) continue to so refrain and so refuse to act until all differences have been
adjusted by agreement and, Escrow Agent has been notified thereof in writing
signed jointly by Seller and Purchaser or (iii) to interplead the portion of
Escrow Fund in dispute.
5. No Obligation to Take Legal Action. Escrow Agent shall not be under any
obligation to take any legal action in connection with this Escrow Agreement or
for its enforcement, or to appear in, prosecute, or defend any action or legal
proceeding which, in its opinion, would or might involve it in any costs,
expense, loss, or liability, unless and as often as required by it, it is
furnished with satisfactory security and indemnity against all such costs,
expenses, losses, or liabilities.
6. Status of Escrow Agent. Escrow Agent is to be considered and regarded as a
depository only, and shall not be responsible or liable (except for its failure
to exercise due care, willful breach or willful misconduct) for the sufficiency
or correctness as to form, manner of execution, or validity of any instrument
deposited pursuant to this Escrow Agreement, nor as to the identity, authority,
or rights of any person executing the same. Escrow Agent's duties hereunder
shall be limited to the safekeeping of the Quitclaim Deed and the safekeeping
and investment of money, instruments, and securities received by it as Escrow
Agent and for their disbursement in accordance with the written escrow
instructions given it in accordance with this Escrow Agreement.
7. Written Instructions of Parties. Notwithstanding any contrary provision
contained herein, Escrow Agent shall, at all times, have full right and
authority and the duty and obligation to pay over and disburse the principal and
interest of the Escrow Fund and Quitclaim Deed in accordance with the joint
written instructions signed by Seller and Purchaser.
8. Notices. Any required or permitted Notice or other communication under this
Escrow Agreement ("Notice") shall be given as follows. All Notices, requests,
demands and other communications hereunder shall be deemed to have been duly
given if the same shall be in writing and shall be delivered personally or sent
by federal express or other recognized national overnight courier service
maintaining records of delivery, or sent by registered or certified mail,
postage pre-paid, and addressed as set forth below:
(a) If to Seller:
Poplar Square AIP III, L.P.
1873 South Bellaire Street, 17th Floor
Denver, Colorado 80222
Attn: Mr. Harry Alcock
and
Argent Real Estate
1401 Brickell Avenue, Suite 520
Miami, Florida 33131
Attn: Mr. David Marquette
With a copy to:
--------------
Loeb & Loeb, LLP
1000 Wilshire Boulevard, Suite 1800
Los Angeles, California 90017
Attn: Andrew S. Clare, Esq.
Karen N. Higgins, Esq.
(b) If to Purchaser:
SB Management Corp
c/o Black Equities
433 North Camden Drive, Suite 1070
Beverly Hills, California 90210
Attn: Mr. Sam Rosenwald
With a copy to:
--------------
Brownstein Hyatt Farber & Strickland, P.C.
410 Seventeenth Street, 22nd Floor
Denver, Colorado 80202-4437
Attn: Robert Kaufmann, Esq.
(c) If to Escrow Agent:
Fidelity National Title Insurance Company
700 Louisiana Street, Suite 2400
Houston, Texas 77002
Attn: Ms. Lolly Avant
Any party may change the address to which Notices are to be addressed by
giving the other parties Notice in the manner herein set forth. All such
Notices, requests, demands and other communications shall be deemed to have been
delivered (i) as of the day of receipt, in the case of personal delivery, or
(ii) as of the day of receipt or attempted delivery date in the case of delivery
by air courier, or (iii) as of the date of receipt or first attempted delivery,
as evidenced by the return receipt card, in the case of mailing by certified or
registered United States mail.
9. Fee. Escrow Agent shall receive a fee of $300.00 for its services hereunder,
and be paid or reimbursed for all expenses, disbursements and advances,
including reasonable attorney's fees, incurred or paid in connection with
carrying out its duties hereunder, the payment of all amounts to be shared by
Purchaser and Seller equally, and not out of the Escrow Fund. Non-payment of
such fee by Purchaser shall not entitle Escrow Agent to refuse or fail to act as
required by this Escrow Agreement.
10. Titles and Section Headings. Titles of sections and subsections contained in
this Escrow Agreement are inserted for convenience of reference only, and
neither form a part of this Escrow Agreement or are to be used in its
construction or interpretation.
11. Counterparts. This Escrow Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
12. Non-Waiver. No waiver by either party of any breach of any term or condition
of this Escrow Agreement shall operate as a waiver of any other breach of such
term or condition or of any other term or condition. No failure to enforce such
provision shall operate as a waiver of such provision or of any other provision
hereof, or constitute or be deemed a waiver or release of any other party for
anything arising out of, connected with, or based upon this Escrow Agreement.
13. Binding Effect. This Escrow Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective transferees, successors, and
assigns. The parties recognize and acknowledge that the powers and authority
granted Escrow Agent herein are each irrevocable and coupled with an interest.
Escrow Agent shall have no liability to Seller or Purchaser for any mistakes in
judgment in the performance of any function hereunder, except for failure to
exercise due care, willful breach and willful misconduct.
14. Nonlimitation of Liability. Nothing contained herein shall in any way limit
the liabilities, obligations and remedies of Seller and Purchaser as set forth
in the Purchase Contract.
15. Governing Law. This Escrow Agreement shall be governed by and construed in
accordance with the laws of the State of Oregon.
16. Time of Essence. Time is of the essence of this Escrow Agreement.
<PAGE>
17. Entire Agreement; Modification. This Escrow Agreement supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may not be altered or modified without the written consent of
all parties.
In witness whereof each of the parties hereto has caused this Escrow
Agreement to be executed under seal on its behalf by duly authorized persons,
all as of the day and year first above written.
Seller: POPLAR SQUARE AIP III, L.P.,
a South Carolina limited partnership
By: Poplar Square GP Limited
Partnership,
a South Carolina limited
partnership,
general partner
By: GP Services IX, Inc.,
a South Carolina corporation,
general partner
By: __________________________
Its:___________________________
By: Angeles Income Properties, Ltd. III,
a California limited partnership,
limited partner
By: Angeles Realty Corporation II,
a California corporation,
general partner
By: __________________________
Its:___________________________
Purchaser: SB MANAGEMENT CORP., a California
corporation
By: _____________________________
Its:___________________________
By: ______________________________
Its:___________________________
FIDELITY NATIONAL TITLE INSURANCE COMPANY
[SEAL]
By: _____________________________________
Title:
<PAGE>
EXHIBIT 9.1.5
FORM OF TENANT ESTOPPEL
[See Attached]
<PAGE>
TENANT ESTOPPEL CERTIFICATE - TENANT
FROM:
("Tenant")
TO:
("Buyer")
("Landlord")
Re: Lease between _________________________ pertaining to premises at
the following address _________________________ (the "Premises")
Gentlemen:
Tenant hereby certifies to Landlord and Buyer as follows: 1. The copy of
the Lease attached hereto as Exhibit A is a true, correct and complete copy of
the Lease, including all amendments, supplements and modifications thereof. The
Lease is in full force and effect, in good standing, and constitutes the full
and complete understanding and agreement between Landlord and Tenant concerning
the letting of the Premises covered by the Lease.
2. The current minimum monthly or base rent to be paid by Tenant for the
Premises pursuant to the terms of the Lease is $ . Tenant's percentage share of
operating expenses is . The last rent was paid on ________________ and the next
rent is due on ____________. 3. Tenant has no right to expand the Premises or to
relocate to different space, except that Tenant has a right of first refusal to
lease the following (if none, so state) _____________________ 4. Tenant
acknowledges that the current term of the Lease shall expire on _____________,
19 , unless sooner terminated in accordance with the terms - of the Lease.
Tenant has no option to renew or extend the lease term, except as follows (if
none, so state): _____________________ 5. No default or event that with the
giving of notice or the passage of time, or both, would constitute a default
(hereinafter collectively a "default") on the part of Tenant exists under the
Lease in the performance of the terms, covenants and conditions of the Lease
required to be performed on the part of Tenant.
6. No default on the part of Landlord exists under the Lease in the performance
of the terms, covenants and conditions of the Lease required to be performed on
the part of the Landlord.
7. Tenant possesses no right, title, interest or estate in and to the Premises
or any part thereof except as Tenant, and Tenant has no option or right to
purchase the property of which the Premises are a part, or any part thereof.
8. Tenant has not assigned, sublet, or transferred its interest in the
Lease and/or the Premises, or any part thereof and is in occupancy of the
Premises.
9. There have been no promises or representations made to Tenant by Landlord
concerning the Lease or the Premises not contained in the Lease. 10. Neither the
Lease nor any obligations of Tenant thereunder have been guaranteed by any
person or entity, except as follows (if none, so state):
11. No rentals are accrued and unpaid under the Lease.
12. With respect to the Premises, all items required to have been
constructed or installed by Landlord have been completed in accordance with
any applicable plans and specifications and within the time periods set forth
in the Lease and have been paid for in full. No "punch list" or other items
remain to be completed by Landlord and no sums are due from Landlord to
Tenant in connection with such work. The Premises are in satisfactory
condition and are acceptable to Tenant in all respects.
13. Any payments, free rent, partial rent, rent credit, rebate of rent,
moving allowances, tenant improvement allowances, or other payments, credits,
allowances, concessions or abatements required to be given by Landlord to
Tenant have already been received by Tenant, except
.
14. No prepayments of rentals due under the Lease have been made more than one
month in advance. Further, no security deposits have been made under the Lease,
except for the sum of $ which has been deposited by Tenant with Landlord
pursuant to the terms of the Lease.
15. Tenant has received no notice of any prior sale, transfer or
assignment, hypothecation or pledge of the said Lease or of the rents
received therein, except
.
16. Tenant has no defense as to its obligations under the Lease and claims
no setoff, lien, or counterclaim against Landlord.
17. Tenant's current address for notices under the Lease is
18. Tenant understands that this certificate is required in connection with a
potential sale and financing of the Premises, and Tenant agrees that Buyer, any
parties providing financing for the Premises and the Landlord, and their
respective successors and assigns, will, and shall be entitled to, rely on the
truth of this Certificate.
Very truly yours,
By:
Name:
Title:
Date: _____________, 19____
<PAGE>
ARTICLE 1 DEFINED TERMS.............................................6
ARTICLE 2 PURCHASE AND SALE OF PROPERTY.............................8
ARTICLE 3 PURCHASE PRICE & DEPOSIT..................................9
ARTICLE 4 FINANCING................................................10
ARTICLE 5 FEASIBILITY PERIOD.......................................10
ARTICLE 6 TITLE....................................................12
ARTICLE 7 CLOSING..................................................15
ARTICLE 8 REPRESENTATIONS, WARRANTIES AND COVENANTS OF
SELLER AND PURCHASER.....................................18
ARTICLE 9 CONDITIONS PRECEDENT TO CLOSING..........................22
ARTICLE 10 BROKERAGE................................................23
ARTICLE 11 POSSESSION...............................................24
ARTICLE 12 DEFAULTS AND REMEDIES....................................24
ARTICLE 13 RISK OF LOSS OR CASUALTY.................................24
ARTICLE 14 RATIFICATION.............................................25
ARTICLE 15 EMINENT DOMAIN...........................................25
ARTICLE 16 MISCELLANEOUS............................................25
<PAGE>
EXHIBIT 10.17
AMENDMENT TO PURCHASE AND SALE CONTRACT
(Poplar Square)
This Amendment To Purchase and Sale Contract (this "Amendment") is entered
into as of the 10th day of September, 1999, by and between POPLAR SQUARE AIP
III, L.P., ("Seller"), and SB MANAGEMENT CORP., a California corporation
("Purchaser"), with respect an escrow established with Fidelity National Title
Insurance Company.
Reference is made to that certain Purchase and Sale Contract dated as of
August 12, 1999 between Purchaser and Seller (the "Contract"). Capitalized terms
not otherwise defined herein shall have the meanings ascribed to them in the
Contract.
Purchaser and Seller desire to further amend the Contract pursuant to the
terms set forth below.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Contract is hereby amended as follows:
Extension of Feasibility Period. The Feasibility Period is hereby extended from
"no later than September 15, 1999" to "no later than September 22, 1999".
Counterparts. This Amendment may be executed in counterparts, each of which when
compiled together shall constitute one and the same original.
All other terms and conditions of the Contract remain unmodified and in
full force and effect.
IN WITNESS WHEREOF, Seller and Purchaser have entered into this Amendment
as of the date written above.
"Seller"
POPLAR SQUARE AIP III, L.P.,
a South Carolina limited partnership
By: Poplar Square GP Limited Partnership, a
South Carolina limited partnership,
general partner
By: GP Services IX, Inc., a South
Carolina corporation, general partner
By:
Its:
By: Angeles Income Properties, Ltd. III, a
California limited partnership,
limited partner
By: Angeles Realty Corporation II, a
California corporation,
general partner
By:
Its:
"Purchaser"
SB MANAGEMENT CORP., a California corporation
By:
Its:
By:
Its:
<PAGE>
EXHIBIT 10.18
SECOND AMENDMENT TO PURCHASE AND SALE CONTRACT
(Poplar Square)
This Second Amendment To Purchase and Sale Contract (this "Amendment") is
entered into as of the 13th day of October, 1999, by and between POPLAR SQUARE
AIP III, L.P., ("Seller"), SB MANAGEMENT CORP., a California corporation
("Purchaser"), and HAH Indio, LLC, a California limited liability company
("Assignee"), with respect an escrow established with Fidelity National Title
Insurance Company.
Reference is made to that certain Purchase and Sale Contract dated as of
August 12, 1999 between Purchaser and Seller, as amended by an Amendment dated
as of September 10, 1999 (collectively, the "Contract"). Capitalized terms not
otherwise defined herein shall have the meanings ascribed to them in the
Contract.
Purchaser, Assignee and Seller desire to further amend the Contract
pursuant to the terms set forth below.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Contract is hereby amended as follows:
Purchase Price. For valuable consideration the receipt and sufficiency of which
is hereby acknowledged, the Purchase Price is hereby reduced by the sum of
$235,000 from $5,450,000 to $5,215,000.
1. Waiver of Contingencies/Additional Deposit. Purchaser hereby rescinds its
notice of termination dated as of September 22, 1999. Purchaser hereby agrees
and acknowledges that all of the contingencies relating to the Feasibility
Period have been satisfied or waived. Purchaser agrees to immediately deliver
the Additional Deposit (of $100,000), in immediately available funds to Escrow
Agent.
2. Closing Date. The Closing Date shall occur on November 12, 1999 (subject to
the extension rights set forth in Section 7.1.2 of the Contract). If the Closing
Date is extended pursuant to the terms of Section 7.1.2 of the Contract in
connection with the assumption of the Existing Loan, Seller and Purchaser agree
to use commercially reasonable efforts to cause the Closing Date to occur no
later than December 31, 1999. Seller and Purchaser hereby clarify that
Purchaser's assumption of the Existing Loan is a condition precedent to
Purchaser's obligation to close under the Contract. 3. Assignment by Purchaser.
Purchaser hereby nominates Assignee, as Purchaser under the Contract. Purchaser
hereby assigns to Assignee Purchaser's interests under the Contract, and
Assignee hereby agrees to assume all of Purchaser's obligations and liabilities
under the Contract. Seller hereby agrees to the foregoing nomination, assignment
and assumption on the condition that Purchaser shall not be released from its
liability and obligations under the Contract in the event of a breach of the
Contract by Assignee.
4. Letter from Adjacent Owner. Seller hereby agrees to use commercially
reasonable efforts to obtain a letter from the owner (the "Adjacent Owner") of
the Wyant-Peterson Site (as defined in that certain Declaration of Establishment
of Protective Covenants, Conditions and Restrictions and Grants of Easement
recorded on April 10, 1984 as Instrument No. 84-05554 in the Official Records of
Jackson County, Oregon [the "Declaration"]), stating (a) that Seller is in
compliance with all of its obligations under the Declaration, (b) whether or not
rules were promulgated under Section 5.3 of the Declaration, and if so,
attaching a copy of said rules, (c) that the ground lease option described in
Section 7.5 of the Declaration has been exercised, (d) that the owner of the
Property is the Declarant under the Declaration succeeding to the interest of
Kleinschmidt, (e) that no monies are past due and unpaid from Seller to the
Adjacent Owner under that certain Party Wall Agreement (the "Party Wall
Agreement"), recorded on October 31, 1996 as Instrument No. 96-36589 in the
Official Records of Jackson County, Oregon, and (f) the approximate amount of
the annual charges payable by Seller for the shared sprinkler line maintenance
described in the Party Wall Agreement. If Seller is unable to obtain the
foregoing letter from the Adjacent Owner, Seller agrees to deliver to Purchaser
a letter in substantially similar format to the foregoing, but limited to the
best of Seller's knowledge (as defined in the Contract).
Counterparts. This Amendment may be executed in counterparts, each of which when
compiled together shall constitute one and the same original.
All other terms and conditions of the Contract remain unmodified and in
full force and effect.
[Remaining Page Left Intentionally Blank]
IN WITNESS WHEREOF, Seller, Assignee and Purchaser have entered into this
Second Amendment as of the date written above.
"Seller"
POPLAR SQUARE AIP III, L.P.,
a South Carolina limited partnership
By: Poplar Square GP Limited Partnership, a
South Carolina limited partnership,
general partner
By: GP Services IX, Inc., a South
Carolina corporation, general partner
By:
Its:
By: Angeles Income Properties, Ltd. III, a
California limited partnership,
limited partner
By: Angeles Realty Corporation II, a
California corporation,
general partner
By:
Its:
[signatures continue on following page]
"Purchaser"
SB MANAGEMENT CORP., a California corporation
By:
Its:
By:
Its:
"Assignee"
HAH Indio, LLC, a California limited liability
company
By:
Its: ______________________________
Authorized Signatory
<PAGE>
EXHIBIT 10.19
THIRD AMENDMENT TO PURCHASE AND SALE CONTRACT
(Poplar Square)
This Third Amendment To Purchase and Sale Contract (this "Amendment") is
entered into as of the 9th day of November, 1999, by and between POPLAR SQUARE
AIP III, L.P., ("Seller"), SB MANAGEMENT CORP., a California corporation
("Purchaser"), and HAH Indio, LLC, a California limited liability company
("Assignee"), with respect to an escrow established with Fidelity National Title
Insurance Company.
Reference is made to that certain Purchase and Sale Contract dated as of
August 12, 1999 between Purchaser and Seller, as amended by an Amendment dated
as of September 10, 1999 and by a Second Amendment dated as of October 15, 1999
(collectively, the "Contract"). Capitalized terms not otherwise defined herein
shall have the meanings ascribed to them in the Contract.
Purchaser, Assignee and Seller desire to further amend the Contract
pursuant to the terms set forth below.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Contract is hereby amended as follows: 5.
Closing Date. The Closing Date is hereby extended from November 12, 1999 to
December 16, 1999 (subject to the extension rights set forth in Section 7.1.2 of
the Contract), for the purpose of facilitating Purchaser's assumption of the
Existing Loan which is a condition precedent to Purchaser's obligation to close
under the Contract. If the Closing Date is further extended pursuant to the
terms of Section 7.1.2 of the Contract in connection with the assumption of the
Existing Loan, Seller and Purchaser agree to use commercially reasonable efforts
to cause the Closing Date to occur no later than December 31, 1999. The
extension of the Closing Date set forth herein constitutes 34 days toward the
ninety (90) period set forth in Section 7.1.2 of the Contract (therefore, the
extension right set forth in Section 7.1.2 has been reduced by 34 days from 90
days to 56 days).
Counterparts. This Amendment may be executed in counterparts, each of which
- ------------
when compiled together shall constitute one and the same original.
All other terms and conditions of the Contract remain unmodified and in
full force and effect.
[Remaining Page Left Intentionally Blank]
IN WITNESS WHEREOF, Seller, Assignee and Purchaser have entered into this
Third Amendment as of the date written above.
"Seller"
POPLAR SQUARE AIP III, L.P.,
a South Carolina limited partnership
By: Poplar Square GP Limited Partnership, a
South Carolina limited partnership,
general partner
By: GP Services IX, Inc., a South
Carolina corporation, general partner
By:
Its:
By: Angeles Income Properties, Ltd. III, a
California limited partnership,
limited partner
By: Angeles Realty Corporation II, a
California corporation,
general partner
By:
Its:
[signatures continue on following page]
"Purchaser"
SB MANAGEMENT CORP., a California corporation
By:
Its:
By:
Its:
"Assignee"
HAH Indio, LLC, a California limited liability
company
By:
Its: ______________________________
Authorized Signatory
<PAGE>
EXHIBIT 10.20
FOURTH AMENDMENT TO PURCHASE AND SALE CONTRACT
(Poplar Square)
This Fourth Amendment To Purchase and Sale Contract (this "Amendment") is
entered into as of the 13th day of December, 1999, by and between POPLAR SQUARE
AIP III, L.P., ("Seller"), SB MANAGEMENT CORP., a California corporation
("Purchaser"), HAH Indio, LLC, a California limited liability company ("Prior
Assignee"), and MEDFORD HAH, LLC, a Delaware limited liability company ("Current
Assignee"), with respect an escrow established with Fidelity National Title
Insurance Company.
Reference is made to that certain Purchase and Sale Contract dated as of
August 12, 1999 between Purchaser and Seller, as amended by (a) an Amendment
dated as of September 10, 1999, (b) a Second Amendment dated as of October 15,
1999, and (c) a Third Amendment dated as of November 9, 1999 (collectively, the
"Contract"). Capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Contract.
Purchaser, Prior Assignee, Current Assignee and Seller desire to further
amend the Contract pursuant to the terms set forth below.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Contract is hereby amended as follows: 6.
Closing Date. The Closing Date shall occur on or before December 23, 1999
(subject to the extension rights set forth in Section 7.1.2 of the Contract). If
the Closing Date is extended pursuant to the terms of Section 7.1.2 of the
Contract in connection with the assumption of the Existing Loan, Seller and
Purchaser agree to use commercially reasonable efforts to cause the Closing Date
to occur no later than December 31, 1999. 7. Assignment by Prior Assignee. Prior
Assignee and Purchaser hereby nominate Current Assignee, as Purchaser under the
Contract. Purchaser and Prior Assignee hereby assign to Current Assignee their
respective interests under the Contract, and Current Assignee hereby agrees to
assume all of Purchaser's and Prior Assignee's respective obligations and
liabilities under the Contract. Seller hereby agrees to the foregoing
nomination, assignment and assumption on the condition that Purchaser shall not
be released from its liability and obligations under the Contract in the event
of a breach of the Contract by Current Assignee.
Counterparts. This Amendment may be executed in counterparts, each of which
- ------------
when compiled together shall constitute one and the same original.
All other terms and conditions of the Contract remain unmodified and in
full force and effect.
[Remaining Page Left Intentionally Blank]
IN WITNESS WHEREOF, Seller, Prior Assignee, Current Assignee and Purchaser
have entered into this Fourth Amendment as of the date written above.
"Seller"
POPLAR SQUARE AIP III, L.P.,
a South Carolina limited partnership
By: Poplar Square GP Limited Partnership, a
South Carolina limited partnership,
general partner
By: GP Services IX, Inc., a South
Carolina corporation, general partner
By:
Its:
By: Angeles Income Properties, Ltd. III, a
California limited partnership,
limited partner
By: Angeles Realty Corporation II, a
California corporation,
general partner
By:
Its:
[signatures continue on following page]
"Purchaser"
SB MANAGEMENT CORP., a California corporation
By:
Its:
By:
Its:
"Prior Assignee"
HAH Indio, LLC, a California limited liability
company
By:
Its: ______________________________
Authorized Signatory
"Current Assignee"
MEDFORD HAH, LLC, a Delaware limited liability
company
By: MEDFORD BRG, LLC, a Delaware limited
liability company
Its: Manager
By:
Print Name:
Its:
