FORM 10-QSB.--QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Quarterly or Transitional Report
(As last amended by 34-32231, eff. 6/3/93.)
U.S. Securities and Exchange Commission
Washington, D.C. 20549
Form 10-QSB
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1995
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT
For the transition period.........to.........
Commission file number 0-16116
ANGELES OPPORTUNITY PROPERTIES, LTD.
(Exact name of small business issuer as specified in its charter)
California 95-4052473
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
One Insignia Financial Plaza, P.O. Box 1089
Greenville, South Carolina 29602
(Address of principal executive offices) (Zip Code)
Issuer's telephone number (803) 239-1000
Check whether the issuer (1) filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the past 12 months (or
for such shorter period that the registrant was required to file such
reports), and (2) has been subject to such filing requirements for the
past 90 days. Yes X No
<PAGE>
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
a) ANGELES OPPORTUNITY PROPERTIES, LTD.
CONSOLIDATED BALANCE SHEET
(Unaudited)
June 30, 1995
<TABLE>
<CAPTION>
<S> <C> <C>
Assets
Cash:
Unrestricted $1,056,681
Restricted--tenant security deposits 46,915
Accounts receivable 66,684
Escrow for taxes 105,310
Restricted escrows 255,554
Other assets 216,365
Investment properties:
Land $ 955,873
Buildings and related personal property 6,776,049
7,731,922
Less accumulated depreciation (1,229,069) 6,502,853
$8,250,362
Liabilities and Partners' Capital
Liabilities
Accounts payable $ 35,401
Tenant security deposits 48,986
Accrued taxes 99,261
Other liabilities 100,058
Mortgage notes payable 4,408,665
Partners' (Deficit) Capital
General partner $ (68,111)
Limited partners (12,425 units issued
and outstanding) 3,626,102 3,557,991
$8,250,362
</TABLE>
See Accompanying Notes to Consolidated Financial Statements
1
<PAGE>
b) ANGELES OPPORTUNITY PROPERTIES, LTD.
CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
1995 1994 1995 1994
<S> <C> <C> <C> <C>
Revenues:
Rental income $528,195 $ 553,636 $1,091,725 $ 1,125,177
Other income 32,397 32,289 66,480 64,111
Total revenues 560,592 585,925 1,158,205 1,189,288
Expenses:
Operating 154,173 190,226 323,069 343,718
General and administrative 67,849 106,808 127,901 184,247
Property management fees 27,006 37,612 55,205 65,759
Maintenance 58,581 92,586 106,604 151,855
Depreciation 66,923 82,469 140,802 163,959
Amortization of lease
commissions 1,061 2,149 7,374 4,447
Interest 112,092 114,548 223,870 222,781
Property taxes 45,125 52,794 100,304 91,731
Tenant reimbursements (1,513) (9,339) (25,270) (16,265)
Total expenses 531,297 669,853 1,059,859 1,212,232
Income (loss) before gain
(loss) on sale/disposition
of investment property and
casualty gain 29,295 (83,928) 98,346 (22,944)
Loss on disposal of property -- (5,559) -- (5,559)
Gain on sale of property 465,830 -- 957,760 --
Casualty gain 17,456 20,702
Net income (loss) $512,581 $ (89,487) $1,076,808 $ (28,503)
</TABLE>
See Accompanying Notes to Consolidated Financial Statements
2
<PAGE>
b) ANGELES OPPORTUNITY PROPERTIES, LTD.
CONSOLIDATED STATEMENTS OF OPERATIONS (continued)
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
1995 1994 1995 1994
<S> <C> <C> <C> <C>
Net income (loss) allocated
to general partner (1%) $ 5,126 $ (895) $ 10,768 $ (285)
Net income (loss) allocated
to limited partners (99%) 507,455 (88,592) 1,066,040 (28,218)
Net income (loss) $512,581 $ (89,487) $1,076,808 $ (28,503)
Net income (loss) per
limited partnership unit $ 40.84 $ (7.13) $ 85.80 $ (2.27)
</TABLE>
See Accompanying Notes to Consolidated Financial Statements
3
<PAGE>
c) ANGELES OPPORTUNITY PROPERTIES, LTD.
CONSOLIDATED STATEMENT OF CHANGES IN PARTNERS' CAPITAL (DEFICIT)
(Unaudited)
<TABLE>
<CAPTION>
Limited
Partnership General Limited
Units Partners Partners Total
<S> <C> <C> <C> <C>
Original capital
contributions 12,425 $ 1,000 $12,425,000 $12,426,000
Partners' (deficit) capital
at December 31, 1994 12,425 $ (43,879) $ 6,024,997 $ 5,981,118
Distributions to partners -- (35,000) (3,464,935) (3,499,935)
Net income for the six
months ended June 30, 1995 -- 10,768 1,066,040 1,076,808
Partners' (deficit) capital
at June 30, 1995 12,425 $ (68,111) $ 3,626,102 $ 3,557,991
</TABLE>
See Accompanying Notes to Consolidated Financial Statements
4
<PAGE>
d) ANGELES OPPORTUNITY PROPERTIES, LTD.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
<TABLE>
<CAPTION>
Six Months Ended
June 30,
1995 1994
<S> <C> <C>
Cash flows from operating activities:
Net income (loss) $1,076,808 $ (28,503)
Adjustments to reconcile net income (loss) to
net cash provided by operating activities:
Depreciation 140,802 163,959
Amortization of discounts, loan costs,
and leasing commissions 22,548 11,968
Gain on sale of investment property (957,760) --
Casualty gain (20,702) --
Loss on disposal of property -- 5,559
Change in accounts:
Restricted cash 32,454 (18,485)
Accounts receivable 154 14,426
Escrows for taxes 108,229 110,450
Other assets (17,523) (10,352)
Accounts payable 6,875 (17,322)
Tenant security deposit liabilities (3,038) 305
Accrued taxes (88,549) (83,562)
Due to affiliates -- 9,364
Other liabilities (40,532) 21,481
Net cash provided by operating
activities 259,766 179,288
Cash flows from investing activities:
Property improvements and replacements (160,219) (66,264)
Proceeds from sale of investment property 3,392,871 --
Deposits to restricted escrows (22,038) (21,492)
Withdrawals from restricted escrows 2,051 25,217
Insurance proceeds 41,193 --
Net cash provided by (used in)
investing activities 3,253,858 (62,539)
</TABLE>
See Accompanying Notes to Consolidated Financial Statements
5
<PAGE>
d) ANGELES OPPORTUNITY PROPERTIES, LTD.
CONSOLIDATED STATEMENTS OF CASH FLOWS (continued)
(Unaudited)
<TABLE>
<CAPTION>
Six Months Ended
June 30,
<S> <C> <C>
1995 1994
Cash flows from financing activities:
Payments on mortgage notes payable $ (58,536) $ (52,973)
Distributions to partners (3,499,935) (54,972)
Net cash used in financing activities (3,558,471) (107,945)
Net (decrease) increase in cash (44,847) 8,804
Cash at beginning of period 1,101,528 799,634
Cash at end of period $ 1,056,681 $ 808,438
Supplemental disclosure of cash
flow information:
Cash paid for interest $ 209,698 $ 215,261
</TABLE>
See Accompanying Notes to Consolidated Financial Statements
6
<PAGE>
e) ANGELES OPPORTUNITY PROPERTIES, LTD.
NOTES TO FINANCIAL STATEMENTS
(Unaudited)
Note A - Basis of Presentation
The accompanying unaudited financial statements have been prepared in
accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-QSB and Item
310(b) of Regulation S-B. Accordingly, they do not include all of the
information and footnotes required by generally accepted accounting
principles for complete financial statements. In the opinion of the
General Partner, all adjustments (consisting of normal recurring
accruals) considered necessary for a fair presentation have been
included. Operating results for the six month period ended June 30,
1995, are not necessarily indicative of the results that may be expected
for the fiscal year ended December 31, 1995. For further information,
refer to the financial statements and footnotes thereto included in the
Partnership's annual report on Form 10-KSB for the fiscal year ended
December 31, 1994.
Certain reclassifications have been made to the June 30, 1994
information to conform to the June 30, 1995 presentation.
Note B - Note Receivable
The Partnership's assets included a note receivable ("Note") of
$1,070,000 from Rolling Greens Communities, Ltd. ("Borrower") net of a
write-down for in-substance foreclosure, as more fully described below,
of $780,000. This Note was collateralized by a first trust deed on
undeveloped commercial and mobile home park land adjacent to Rolling
Green Communities ("Rolling Greens"), and required interest only
payments computed at a 12.5% rate per annum with a maturity date of June
1997.
During 1992, a refinancing of the first mortgage on Rolling Greens
was consummated. As a concession to the new first mortgage holder,
Angeles Corporation ("Angeles"), a former affiliate of the General
Partner and/or its affiliates, released or caused to be released a lien
on the developed portion of the mobile home park, retaining a lien upon
undeveloped commercial and park zoned land as security for the Note. The
Partnership was informed and believes that the release of the lien was
without consideration to the Partnership.
Proceeds from the refinanced first mortgage and an additional
$450,000 that the Partnership advanced to the Borrower in 1992 under
this Note were used by the Borrower to pay off (i) third trust deed
financing that had been provided by Angeles Mortgage Investment Trust
("AMIT"), a real estate investment trust, and (ii) unsecured advances
payable to Angeles. Subsequent to the refinancing of the first mortgage
discussed above, the developed portion of Rolling Greens was sold to a
third party and a note receivable was received by the Partnership as
consideration. AMIT continues to have loans outstanding to the
Partnership that owns the interest in the Borrower.
7
<PAGE>
Note B - Note Receivable - (continued)
Since the Partnership's Note from the Borrower is secured by land
that does not generate any cash flow, the Borrower has been unable to
make interest payments on a current basis and consequently defaulted on
the Note. The undeveloped land which serves as collateral for the
Partnership's Note is adjacent to the mobile home park that was recently
sold by the Borrower. Given its lack of direct access to public
highways, it was difficult to ascertain a market value for this
particular tract. The General Partner believed that the land securing
the $1,850,000 Note had an estimated net realizable value of
approximately $1,070,000, net of an estimated $80,000 in selling costs,
which was lower than the carrying value of the Note, and that the
decline in the value of the real estate was other than temporary.
Accordingly, the Partnership had recorded the Note as an in-substance
foreclosure at the estimated fair value of the underlying collateral and
recorded a write-down for in-substance foreclosed property of $650,000
in the fourth quarter of 1992 and an additional $130,000 in the fourth
quarter of 1993. Also, the Partnership ceased recording interest income
or late fees on this Note due to the low probability that these fees
would be collected. During the first quarter of 1993, the Partnership
recorded $61,281 in interest and late fees. These amounts were fully
reserved in the second quarter of 1993.
On April 29, 1994, the Partnership, the Borrower and AMIT entered
into an agreement as to the distribution of the sales proceeds generated
by the sale of certain real estate owned by the Borrower, as follows: i)
$50,000 was retained in an escrow account for the purpose of paying
operating and legal expenses of the Borrower, (an additional sum of
$22,000 was retained in the escrow account for the purpose of paying
1994 real estate taxes), ii) $125,000 was paid towards the principal
balance outstanding to Angeles Acceptance Pool, L.P. ("AAP"), an
affiliate of the General Partner, plus unpaid interest accrued of
$19,447 on that balance, iii) $561,741 was distributed to the
Partnership to be applied towards the reduction of the outstanding
balance due by the Borrower to the Partnership, iv) the remaining
balance was distributed 57.18% to AMIT and 42.82% to the Partnership.
In addition, the Partnership executed and delivered to AMIT an
assignment of a 57.18% interest in the Note.
On August 29, 1994, the Partnership received $1,061,440 in proceeds
as a partial settlement from the above described Note.
During the first quarter of 1995, the Partnership initiated
foreclosure proceedings under the terms of the Note against the Borrower
relating to the raw land which is security for the Note.
MAE GP Corporation ("MAE GP"), an affiliate of the General Partner,
owns 1,675,113 Class B Shares of AMIT. MAE GP has the option to convert
these Class B Shares, in whole or in part, into Class A Shares on the
basis of 1 Class A Share for every 49 Class B Shares. These Class B
Shares entitle MAE GP to receive 1% of the distributions of net cash
distributed by AMIT. These Class B Shares also entitle MAE GP to vote
on the same basis as Class A Shares which allows MAE GP to vote
approximately 33% of the total shares (unless and until converted to
Class A Shares at which time the percentage of the vote controlled
represented by the shares held by MAE GP would approximate 1%
8
<PAGE>
Note B - Note Receivable (continued)
of the vote). Between the date of acquisition of these shares (November
24, 1992) and March 31, 1995, MAE GP declined to vote these shares.
Since that date, MAE GP voted its shares at the 1995 annual meeting in
connection with the election of trustees and other matters. MAE GP has
not exerted and continues to decline to exert any management control
over or participate in the management of AMIT. However, MAE GP may
choose to vote these shares as it deems appropriate in the future.
As part of a settlement of certain disputes with AMIT, MAE GP granted
to AMIT an option to acquire the Class B shares owned by it. This
option can be exercised at the end of 10 years or when all loans made by
AMIT to partnerships affiliated with MAE GP as of November 9, 1994,
(which is the date of execution of a definitive Settlement Agreement)
have been paid in full, but in no event prior to November 9, 1997. AMIT
delivered to MAE GP cash in the sum of $250,000 at closing, which
occurred April 14, 1995, as payment for the option. Upon exercise of
the option, AMIT would remit to MAE GP an additional $94,000.
Simultaneously with the execution of the option, MAE GP executed an
irrevocable proxy in favor of AMIT the result of which is MAE GP will be
able to vote the Class B shares on all matters except those involving
transactions between AMIT and MAE GP affiliated borrowers or the
election of any MAE GP affiliate as an officer or trustee of AMIT. On
those matters, MAE GP granted to the AMIT trustees, in their capacity as
trustees of AMIT, proxies with regard to the Class B shares in
accordance with the vote of the majority of the Class A shares voting to
be determined without consideration of the votes of "Excess Class A
Shares" as defined in Section 6.13 of the Declaration of Trust of AMIT.
Note C - Transactions with Affiliated Parties
The Partnership has no employees and is dependent on the General
Partner and its affiliates for the management and administration of all
Partnership activities. The Partnership Agreement provides for payments
to affiliates for services and as reimbursement of certain expenses
incurred by affiliates on behalf of the Partnership. The following
payments were made to the General Partner and affiliates during the six
months ended June 30, 1995 and 1994:
<TABLE>
<CAPTION>
1995 1994
<S> <C> <C>
Property management fees $55,205 $ 65,759
Reimbursement for services of affiliates 77,385 102,822
Marketing services 238 23
</TABLE>
9
<PAGE>
Note C - Transactions with Affiliated Parties (continued)
The Partnership insures its properties under a master policy through
an agency and insurer unaffiliated with the General Partner. An
affiliate of the General Partner acquired, in the acquisition of a
business, certain financial obligations from an insurance agency which
was later acquired by the agent who placed the current year's master
policy. The current agent assumed the financial obligations to the
affiliate of the General Partner who receives payment on these
obligations from the agent. The amount of the Partnership's insurance
premiums accruing to the benefit of the affiliate of the General Partner
by virtue of the agent's obligations is not significant.
See Note B for discussion of the transaction with AMIT.
10
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATIONS
The Partnership's investment properties consist of two apartment
complexes. The following table sets forth the average occupancy of the
properties for the six months ended June 30, 1995 and 1994:
<TABLE>
<CAPTION>
Average
Occupancy
Property 1995 1994
<S> <C> <C>
Lake Meadows Apartments
Garland, Texas 94% 96%
Lakewood Apartments
Tomball, Texas 96% 95%
</TABLE>
For the three and six months ended June 30, 1995, the Partnership
generated net income of $512,581 and $1,076,808, respectively, as
compared to a net loss for the three and six months ended June 30, 1994,
of $89,487 and $28,503, respectively. The increase in income in 1995
can primarily be attributed to the gain recognized on the sale of
Oquendo Warehouse during the first six months of 1995 (See discussion
below).
Overall, expenses for the three and six months ended June 30, 1995,
decreased as compared to the three and six months ended June 30, 1994.
The decreases in operating expenses, property management fees,
maintenance expense and depreciation expense can all be attributed to
the sale of Oquendo Warehouse (See discussion below). Lower corporate
unit expense, employee apartments and benefits and utility expenses at
Lakewood Apartments also contributed to the decrease in operating
expenses for the three and six months ended June 30, 1995, versus the
three and six months ended June 30, 1994. General and administrative
expenses decreased primarily due to decreased partnership accounting,
investor relations, and asset management cost reimbursements. The
decrease in maintenance expense can also be attributed to decreases in
contract cleaning and landscaping at Lakewood Apartments. Property tax
expense increased for the six months ended June 30, 1995, as compared to
the six months ended June 30, 1994, due to a tax refund received by
Lakewood Apartments during 1994. However, the slight decrease in
property tax expense for the second quarter of 1995 as compared to the
second quarter of 1994 can also be attributed to the sale of Oquendo
Warehouse. Tenant reimbursements increased for the six months ended
June 30, 1995 as compared to the six months ended June 30, 1994, due to
actual reimbursements for 1994 exceeding estimates. The difference was
recorded during the first quarter of 1995. Tenant reimbursements
decreased for the second quarter of 1995 versus the second quarter of
1994 due to the sale of Oquendo Warehouse.
On January 20, 1995, the Partnership sold one building at Oquendo
Warehouse, located at 3550 W. Quail Avenue in Las Vegas, Nevada to the
tenant occupying the building, Czarnowski Display Service, Inc. Total
consideration was $1,325,000 resulting in a gain on sale of the property
of $491,930. On May 5, 1995, the Partnership sold the remaining two
buildings at Oquendo Warehouse, located at 3655 W. Quail and 3600 W.
Oquendo in Las Vegas, Nevada, to an unrelated third party. Total
consideration was $2,250,000 resulting in a gain on the sale of the
property of $465,830. Due to the above transactions, a total gain on
sale of the property of $957,760 was realized for the six months ended
June 30, 1995. The General Partner believed that the sale of the
property was in the best interest of the Partnership.
11
<PAGE>
On March 27, 1995, Lake Meadows Apartments, one of the Partnership's
investment properties, sustained damage to the roofs of the apartment
units due to a severe hailstorm. This casualty will be covered by
insurance. The roofs were written off as of March 31, 1995, and a
receivable was established for the insurance proceeds. Due to the
receipt of additional insurance proceeds over the book value of roofs
written off a casualty gain of $20,702 was recorded.
During the second quarter of 1994, the investment property, Oquendo
Warehouses, replaced a roof on one of its buildings. The cost of the
new roof was in excess of the book value of the old roof. The write off
of the old roof resulted in a $5,559 loss on the disposition of the
property.
As part of the ongoing business plan of the Partnership, the General
Partner monitors the rental market environment of each of its investment
properties to assess the feasibility of increasing rents, maintaining or
increasing occupancy levels and protecting the Partnership from
increases in expenses. As part of this plan the General Partner
attempts to protect the Partnership from the burden of inflation-related
increases in expenses by increasing rents and maintaining a high overall
occupancy level. However, due to changing market conditions, which can
result in the use of rental concessions and rental reductions to offset
softening market conditions, there is no guarantee that the General
Partner will be able to sustain such a plan.
At June 30, 1995, the Partnership had unrestricted cash of $1,056,681
as compared to $808,438 at June 30, 1994. Net cash provided by
operating activities increased primarily due to the increased net income
for the six months ended June 30, 1995. Net cash provided by investing
activities increased due to the cash proceeds received relating to the
sale of Oquendo Warehouse during the first six months of 1995. Also,
net cash used in financing activities increased due to the cash
distribution to partners during the second quarter of 1995.
The sufficiency of existing liquid assets to meet future liquidity
and capital expenditure requirements is directly related to the level of
capital expenditures required at the various properties to adequately
maintain the physical assets and other operating needs of the
Partnership. Such assets are currently thought to be sufficient for any
near-term needs of the Partnership. The mortgage indebtedness of
$4,408,665, net of discount, is amortized over 10 years and 37 years
with maturity dates of October 2003 and March 2008, at which time the
properties will either be refinanced or sold. Total cash distributed
was $3,499,935 for the six months ended June 30, 1995, consisting of
$3,464,935 to the limited partners and $35,000 to the General Partner.
Future cash distributions will depend on the levels of net cash
generated from operations, property sales, and the availability of cash
reserves.
12
<PAGE>
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
The Registrant is unaware of any pending or outstanding litigation
that is not of a routine nature. The General Partner of the Registrant
believes that all such pending or outstanding litigation will be
resolved without a material adverse effect upon the business, financial
condition, or operations of the Partnership.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
a) Exhibits -
10.7 Commercial Contract to Buy Real Estate between Angeles
Opportunity Properties, Ltd. and Paul Willet, Mark Nagle and
Kim Nagle dated August 1, 1994, documenting the sale of Oquendo
Warehouse located at 3550 West Quail Avenue.
10.8 Contract of Sale between Angeles Opportunity
Properties, Ltd. and Roberts Ranch Venture L.P. dated March 30,
1995, documenting the sale of Oquendo Warehouse located at
3655 West Quail and 3600 West Oquendo.
Exhibit 27, Financial Data Schedule, is filed as an exhibit to
this report.
b) Reports on Form 8-K:
A form 8-K dated May 5, 1995 was filed reporting the sale of
two buildings at Oquendo Warehouse, located at 3655 W. Quail
and 3600 W. Oquendo in Las Vegas, Nevada.
13
<PAGE>
SIGNATURES
In accordance with the requirements of the Exchange Act, the
registrant caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
ANGELES OPPORTUNITY PROPERTIES, LTD.
By: Angeles Realty Corporation II
General Partner
By: /s/Carroll D. Vinson
Carroll D. Vinson
President
By: /s/Robert D. Long, Jr.
Robert D. Long, Jr.
Controller and
Principal Accounting Officer
Date: August 10, 1995
14
<PAGE>
SIGNATURES
In accordance with the requirements of the Exchange Act, the
registrant caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
ANGELES OPPORTUNITY PROPERTIES, LTD.
By: Angeles Realty Corporation II
General Partner
By:
Carroll D. Vinson
President
By:
Robert D. Long, Jr.
Controller and
Principal Accounting Officer
Date: August 14, 1995
15
<PAGE>
EXHIBIT "A"
THIS IS A LEGAL INSTRUMENT, IF NOT UNDERSTOOD, LEGAL, TAX OR OTHER
COUNSEL SHOULD BE CONSULTED BEFORE SIGNING.
COMMERCIAL CONTRACT TO
BUY REAL ESTATE
1. PARTIES AND PROPERTY. PAUL WILLET, MARK NAGLE and KIM NAGLE
and/or Assignee, (hereinafter referred to as "Buyer"), agrees to
buy and the undersigned Seller, agrees to sell, on the terms and
conditions set forth in this contract, the following described real
estate in the County of Clark, State of Nevada, to wit:
An approximate 40,000 square foot industrial building
situated on approximately 2.28 acres of land located at 3550 W.
Quail Avenue, Las Vegas Nevada. Clark County Assessor's parcel
number 162-32-101-013 and 162-32-101-014 and identified on the
attached Exhibit "A" as parcels 38 and 39.
together with all interest of Seller in vacated streets and alleys
adjacent thereto, all easements and other appurtenances thereto,
all improvements thereon and all attached fixtures thereon, except
as herein excluded, and called the Property.
2. INCLUSIONS. The purchase price include the following item
(a) if attached to the Property on the date of this contra t:
lighting, heating, plumbing, ventilating, and air conditioning
fixtures, smoke/fire/burglar alarms, security devices, inside telephone
wiring and connecting blocks/jacks, plants, floor coverings, intercom
systems, built-in kitchen appliances, and sprinkler systems and
controls; and (b) if on the Property whether attached or not on the date
of this contract:
(1) approximate 10' X 10' paint booth and all
related equipment.
The aforementioned included items (Inclusions) are to be conveyed to the
Buyer by Seller by bill of sale at the closing, free and clear of all
taxes, liens and encumbrances, except as provided in section 10.
Excluded from the purchase are items that are owned by tenants of
the property or any security system that is not owned by the Seller.
3. PURCHASE PRICE AND TERMS. The purchase price shall be One Million,
Three Hundred Twenty Five Thousand Dollars ($1,325,000.000) payable in
U.S. dollars by Buyer as follows:
(a) Earnest Money. $20,000.00 in the form a personal check,
<PAGE>
as earnest money deposit and part payment of the purchase
price, payable to and held by The Realty Group Commercial
(hereinafter referred to as "Broker"), on behalf of both
Seller and Buyer. Broker is authorized to deliver the earnest
money to Lawyers Title Company of Nevada (the "Escrow Agent"),
upon acceptance of this contract.
(b) New Loans. Buyer to obtain a new loan. Loan discount
points, if any, shall be paid by the Buyer. If an appraisal is
required, the cost of any appraisal for loan purpose shall be
paid by the Buyer upon loan application as required by lender.
Buyer shall order said appraisal within twenty (20) days of
the Effective Date. Should the resulting appraised value be an
amount that is less than the purchase price, Buyer shall have the
right to cancel this contract under the terms of Section 24,
provided, however, that the contract may be terminated for
this reason only during the first Ninety (90) days after the
Effective Date. Seller agrees to satisfy any and all
appraisal conditions contained therein, up to a total cost not to
exceed $5,000.00.
4. FINANCING CONDITIONS AND OBLIGATIONS.
(a) Loan Application. Buyer is to pay a part of the purchase
price as set forth in Section 3 by obtaining a new loan. Buyer,
if required by such lender, shall make written application
within ten (10) calendar days from the Effective Date. Buyer
shall deliver to Seller, a letter from the lender confirming
said application within Fifteen (15) days after the Effective
Date. Buyer shall cooperate with Seller and lender to obtain loan
approval, diligently and timely purse same in good faith, execute
all documents and furnish all information an documents required by
the lender, and , subject to Section 3, timely pay the costs
of obtaining such loan or lender consent.
(b) Loan Approval. This contract is conditional upon lender's
approval of the new loan on or before 120 days from the
Effective Date. If not so approved by said date, this contract
shall terminate in accordance with Section 24. If the loan is so
approved, but such proceeds are not available to purchaser as
required in Section 5 (Good Funds) at the time of closing,
closing shall be extended one time for 30 calendars days. If
sufficient funds are not then available, this contract
shall terminate in accordance with Section 24.
5 . GOOD FUNDS. All payments required at closing shall be made in funds
which comply with all applicable Nevada laws.
6. NOT ASSIGNABLE. This contract shall not be assignable by Buyer
without Sellers prior written consent. Except as so restricted, this
contract shall i n u r e to the benefit of and be binding upon
the heirs, personal representatives, successors and assigns of the
parties.
7 . EVIDENCE OF TITLE. Seller shall furnish to Buyer, at Seller's
expense, a Commercial Extended ALTA owner's Title Insurance Policy in
an amount equal to the purchase price on or before close of Escrow.
Seller will have the title insurance policy delivered to Buyer as soon
as practicable after closing and pay the premium at closing with
such endorsements that Buyer may assign. Seller shall pay up to
$3,500.00 for said Title Policy and Buyer shall pay any additional cost.
8. TITLE.
(a) Title Review. Buyer shall have the right to inspect the
Preliminary Title Commitment (the "Commitment"). Written
notice by purchaser of unmerchantability of title or of any
other unsatisfactory title condition shown by the Commitment
shall be signed by or on behalf of Buyer and given to Seller
or Escrow Agent on or before Twenty (20) calendar days after
<PAGE>
Document(s) or Endorsement(s) adding new Exception(s)
to the Commitment together with a copy of the Title
Document adding new Exception(s) to title. If Seller or Escrow
Agent does not receive Buyer's notice by the date(s) specified
above, Buyer shall be deemed to have accepted the condition of
title as disclosed by the Commitment as satisfactory.
(b) Matters Not Shown by the Public Records. Within twenty
(20) days after the Effective Date, Seller shall deliver to Buyer
or Escrow Agent, true copies of all lease(s), environmental
report(s), soils report(s) or survey(s) in Seller's possession
pertaining to the Property and shall disclose to Buyer all
easements, liens or other title matters not shown by the public
records of which Seller has actual knowledge. Buyer shall have
the right to inspect the Property to determine if any third
party(s) has any right in the Property not shown by the public
records (such as an unrecorded easement, unrecorded lease, or
boundary line discrepancy). Written notice of any
unsatisfactory condition(s) disclosed by Seller or revealed by
such inspection shall be signed by or on behalf of Buyer and
given to Seller or Escrow Agent on or before Fifteen (15) days
after Buyer's receipt of said documents. If Seller or Escrow
Agent does not receive Buyer's notice by said date, Buyer shall
be deemed to have accepted title subject to such rights, if
any, of third parties of which Buyer has actual knowledge.
(c) Right to Cure. If Seller or Escrow Agent receives
notice of unmerchantability of title or any other
unsatisfactory title condition(s) as provided in Subsection
(a) or (b) above, Seller shall use reasonable effort to correct
said unsatisfactory title condition(s) prior to the date of
closing. If Seller fails to correct said unsatisfactory
title condition(s) on or before the date of closing, this contract
shall then terminate, subject to Section 17; provided, however,
Buyer may, by written notice received by Seller or Escrow Agent
on or before closing, waive objection to said
unsatisfactory title condition(s).
9. DATE OF CLOSING. The date and time of closing shall be on or
before 120 days from the Effective Date, or by mutual agreement at an
earlier date. The place of closing shall be Lawyer's Title Company of
Nevada, 6655 W. Sahara Avenue, Suite E-102, Las Vegas, Nevada
89102. The date of closing may be extended in accordance with Section
4.B.
10. TRANSFER OF TITLE. Subject to tender or payment on closing as
required herein and compliance by Buyer with the other terms and
provisions hereof, Seller shall execute and deliver a good and
sufficient Grant, Bargain and Sale Deed to Buyer, on closing, conveying
the Property free and clear of all taxes except the general taxes for
the year of closing, and except; free and clear of all liens for
special improvements installed as of the date of Buyer's signature
hereon, whether assessed or not; except distribution utility
easements, including cable TV; except those matters reflected by the
Title documents accepted by Buyer in accordance with Subsection 8(a);
and subject to building and zoning regulations. The form of the Grant,
Bargain and Sale Deed is attached as Exhibit "B".
11. PAYMENT OF ENCUMBRANCES. Any encumbrance required to be paid shall
be paid at or before the time of settlement from the proceeds of this
transaction or from any other source.
12. CLOSING COSTS, DOCUMENTS AND SERVICES. Buyer and Seller shall pay
their respective closing costs at closing as customary in the
State of Nevada, except as provided herein. Buyer and Seller
shall sign and complete all customary or required documents at or before
closing. The escrow fee is to be split 50/50, Seller is to pay
transfer taxes, recording fees and for document preparation by the
closing agent. An estimate of Seller's closing costs indicating the
types of costs to be paid by Seller is attached as Exhibit "C".
<PAGE>
Each party to pay their own attorney fees.
13. PRORATIONS. General taxes for the year of closing based on
the most recent levy and the most recent assessment, rents, water and
sewer charges, owner's association dues, tenant deposits, and interest
on continuing loan(s), if any, and existing insurance policies (if
assumed by Buyer) shall be prorated to date of closing. Any sales,
use and transfer tax that may accrue because of this transaction shall
be paid by Seller.
14. POSSESSION. Possession of the Property shall be delivered to
Buyer as follows: at close of escrow subject to the following lease(s)
or tenancy(s): any remaining lease space not currently occupied by
Buyer.
15. CONDITION OF AND DAMAGE TO PROPERTY. The Property and Inclusions
shall be conveyed in their present condition ordinary wear and tear
excepted. In the event the Property shall be damaged by fire or other
casualty prior to time of closing, in an amount of not more than ten
(10) percent of the total purchase price, Seller shall be obligated
to repair the same before the date of closing. In the event such
damage is not repaired within said time or if the damages exceed such
sum, this contract may be terminated at the option of the Buyer. Should
Buyer elect to carry out this contract despite such damage, Buyer
shall be entitled to credit for all the insurance proceeds resulting
from such damage to the Property and Inclusions, not exceeding,
however the total purchase price. Should any Inclusion(s) or service(s)
fail or be damaged between the date of this contract and the date
of closing or the date of possession, whichever shall be earlier,
then Seller shall be liable for the repair or replacement of such
Inclusion(s) or service(s) with a unit of similar size, and
quality, or an equivalent credit, less any insurance proceeds
received by Buyer covering such repair or replacement.
16. SELLER'S WARRANTIES. Seller represents and warrants, to the best
of its knowledge, that as of the Closing Date (and said
representations and warranties shall be true as of the closing):
(a) There are no recorded or unrecorded leases (other than
those currently in effect), encumbrances, easements, claims of
easements or prescriptive rights upon or concerning or claims of
adverse possession against the property or any part hereof other
than those disclosed under Section 8(a) or 8(b).
(b) There are no litigation, arbitration or administrative
proceedings pending or threatened against the property, or
pending or threatened against Seller which might have the effect
of impairing the use of the property.
(c) Seller has no actual knowledge of any leaks of petroleum
products or hazardous materials from any storage facilities on to
the property or of any petroleum product or hazardous material
storage facilities that may have been located on the property.
Seller has no basis to believe, as it may affect the property,
that noncompliance exists with respect to the applicable laws
(a) regarding storage or disposal of hazardous materials; or
(b) any contamination.
17. TIME OF ESSENCE/REMEDIES. Time is of the essence hereof. If any
note or check received as earnest money hereunder or any other payment
due hereunder is not paid, honored or tendered when due, or if
any other obligation hereunder is not performed or waived as herein
provided, there shall be the following remedies:
(a) If Buyer is in Default: All Payments and things of value
received hereunder shall be forfeited by the Buyer and
retained on behalf of Seller, and both parties shall
thereafter be released from all obligations hereunder. It
is agreed that such payments and things of value are LIQUIDATED
DAMAGES and (except as provided in Subsection (c) are SELLER'S
SOLE AND ONLY REMEDY for Buyer's failure to perform the
<PAGE>
obligation of this contract. Seller expressly waives the
remedies of specific performance and additional damages.
(b) If Seller is in Default: Buyer may elect to treat this
contract as canceled, in which case all payments and things
of value received hereunder shall be returned and Buyer may
recover such damages as may be proper, or Buyer may elect to treat
this contract as being in full force and effect and Buyers shall
have the right to specific performance, but not to damages.
(c) Costs and Expenses. Anything to the contrary herein
notwithstanding, in the event of any litigation or
arbitration arising out of this contract, the court shall award
to the prevailing party all reasonable costs and expense,
including attorney fees.
18. EARNEST MONEY DISPUTE. Notwithstanding any termination of this
contract, Buyer and Seller agree that, in the event of any
controversy regarding the earnest money and things of value held
by Broker or Escrow Agent, unless mutual written instructions are
received by the holder of the earnest money and things of value, Broker
or Escrow Agent shall not be required to take any action but may await
any proceedings, or at broker's or escrow agent's option and sole
discretion, may interplead all parties and deposit any money or
things of value into a court of competent jurisdiction and shall recover
court costs and reasonable attorney fees.
19. INSPECTION. Buyer shall sixty (60) days after the Effective Date
during which to inspect the property (the "Inspection Period").
During the Inspection Period, Buyer or any designee of Buyer, shall
have the right to have inspection(s) of the physical condition of the
property and Inclusions, at Buyer's expense. If a written notice
of any unsatisfactory condition, signed by Buyer, is not received by
Seller or Escrow Agent on or before the end of Inspection Period,
then the physical condition of the property and Inclusions shall be
deemed to be satisfactory to Buyer. However, at any time during the
Inspection Period, Buyer may terminate this contract by giving
written notice to the Seller and Escrow Agent. In this event, the
terms of Section 24 shall apply. Buyer is responsible and shall pay
for any damage which occurs to the Property and Inclusions as a
result of such inspection. Buyer indemnifies Seller against any
claims made by persons inspecting the property on behalf of Buyer.
20. COMMISSIONS. Buyer has retained the service of The Realty
Group Commercial as broker (hereinafter referred to as "Broker").
Buyer agrees to be solely responsible for the payment of commission to
the Broker. Buyer and Seller represent and warrant to the other that
they have not employed or dealt with any other Broker, Agent or
any other party which may be entitled to receive a commission in
connection with this sale, and Buyer and Seller, as the case may be,
each shall indemnify the other against claims, demands, damages or
expenses arising out of or in connection with a claim by any Broker or
Agent employed or dealt with by the indemnifying party.
21. AGENCY DISCLOSURE. The Broker, and its sales agents represent the
Buyer. The Broker owes duties of trust, loyalty, and confidence to Buyer
only. While the Broker has a duty to treat Seller honestly, the Broker
is Buyer's agent and is acting on behalf of Buyer and not Seller. BY
SIGNING BELOW, SELLER ACKNOWLEDGES PRIOR TIMELY NOTICE BY BROKER THAT
BROKER IS BUYER'S AGENT. Agency disclosure form is attached as Exhibit
"D".
22. ADDITIONAL PROVISIONS. Within 10 calendar days, after acceptance
of this contract, Seller shall furnish all leases and tenancies to
Buyer, and Seller shall use its best efforts to obtain and deliver,
within 20 calendar days, after acceptance of this contract, a
"TENANT ESTOPPEL CERTIFICATE" (in a format as attached hereto as Exhibit
"E") to Buyer, for any tenants other than Czarnowski Exhibit Services.
Seller shall provide Buyer with a Phase I Environmental Report at
Seller's expense (the "Phase I
<PAGE>
Study"). Said study is to be performed by a licensed environmental
engineer. Upon receipt of the completed study, Buyer shall have
Fifteen (15) days (the "Review Period") to review the findings set
forth in the Phase I Study to determine that the property is not in
violation of any local, state and/or federal environmental requirements
and is in satisfactory condition for the Buyer's requirements. Should
Buyer determine in its sole reasonable judgement that the Phase I Study
is unacceptable, Buyer may terminate this contract at any time
during the Review Period by notifying Seller and Escrow Agent and in
this event, the terms of Section 24 shall apply. Should Seller and
Escrow Agent not be so notified, then Buyer shall be deemed to have
accepted said Phase I Study. The parties expressly agree that Seller
shall have no liability for any omissions or inaccuracies that may be
contained in any environmental report, survey or any other report that
was prepared by a third party and furnished by Seller to Buyer, even if
said report or survey was paid for by Seller, Seller's agents,
predecessors or related entities.
23. RECOMMENDATION OF LEGAL COUNSEL. By signing this document,
Buyer and Seller acknowledge that the Broker has recommended that
Buyer and Seller obtain the advice of their own Legal counsel
regarding examination of title and this contract.
24. TERMINATION. In the event this contract is terminated, all
payments and things of value received shall be returned and the
parties shall be relieved of all obligations hereunder, subject to
Section 17.
25. COUNTERPARTS. A copy of this document may be executed by each
party, separately, and when each party executed a copy thereof, such
copies taken together shall be deemed to be a full and complete
contract between the parties.
26. EFFECTIVE DATE. This document shall become a contract between
Seller and Buyer and the Effective Date of the Contract shall be the
date upon which the Escrow Agent receives and signs an original copy of
the Contract that has been fully executed by the Buyer, Seller and The
Realty Group Commercial.
27. SALE AS IS, WHERE IS. The Seller is selling and the Buyer is
buying the Property "As is, where is" with all defects and defaults,
except as otherwise noted herein.
28. NOTICES. Any notice allowed or required by this contract shall
be in writing and addressed to Buyer and Seller at eh following
addresses and either sent by (i) hand delivery, receipt confirmed,
(ii) Federal Express Priority Overnight Deliver, receipt confirmed,
or (iii) by telecopier, receipt confirmed.
AS TO BUYER: Czarnowski Exhibit Services
2287 S. Blue Island Avenue
Chicago, IL 60608
Attn: Mark Nagle
Telephone: (312) 247-1500
Telecopier: (312) 247-3790
With a Copy To: The Realty Group Commercial
5435 W. Sahara Ave., Suite B
Las Vegas, NV 89102
Attn: Myla Gardiner
Telephone: (702) 251-8080
Telecopier: (702) 251-8842
AS TO SELLER: Angeles Opportunity Properties, LTD.
c/o Insignia Financial Group
One Insignia Financial Plaza
Greenville, SC 29601
Attn: Bruce Stillwagon
Telephone: (803) 239-1078
Telecopier: (803) 239-1066
<PAGE>
With a Copy To: David Huddleston
c/o Insignia Mortgage
102 Woodmont Blvd., Suite 400
Nashville, TN 37025
Telephone: (615) 783-1032
Telecopier: (615) 783-1016
The addresses of Buyer and Seller and the party, if any, to
whose attention a notice or copy of same shall be directed may be
changed or added form time to time by either party giving notice to the
other in the prescribed manner. Any notice shall be deemed to have been
given or served when received or if the party to whom such notice is
directed refuses such notice, then when refused. By signing below,
the signatories warrant that they have the authority to enter into
this agreement.
Buyer:
By:
/s/ Paul Willet 8/1/94
Paul Willet Date
/s/ Mark Nagle 8/1/94
Mark Nagle Date
/s/ Kim Nagle 8/1/94
Kim Nagle Date
SELLER: Angeles Opportunity Properties, LTD.
DBA Oquendo Warehouse
By: _______________________________ ____________
Date
By: ______________________________
The undersigned Broker confirms the respective agency disclosure as set
forth in Section 21.
Selling Broker
By:_________________________________
Selling Company Escrow Agent
THE REALTY GROUP COMMERCIAL LAWYER'S TITLE OF NEVADA
by: /s/ Myla Gardiner by: ____________________
Its: Authorized Broker Its: ____________________
Date: July 29, 1994 Date:
<PAGE>
CONTRACT OF SALE
THIS CONTRACT OF SALE (this "Contract") is made and entered into by and
between Angeles Opportunity Properties Ltd., dba Oquendo Warehouses, a
California limited partnership ("Seller"), and Roberts Ranch Venture L.P., a
California limited partnership ("Purchaser").
ARTICLE I.
SALE OF THE PROPERTY
1.1 Property. For the consideration and upon and subject to the terms,
provisions and conditions of this Contract, Seller agrees to sell to
Purchaser, and Purchaser agrees to purchase from Seller, Seller s
respective rights, titles and interests in and to all of the following
described property (collectively, the "Property"):
(a) All of Seller's rights, titles and interests in and to that
certain tract or parcel of land (the "Land") and buildings located at
3655 W. Quail and 3600 W. Oquendo, Las Vegas, Nevada, and more
particularly described on Exhibit A attached hereto and made a part
hereof for all purposes, together will all improvements, structures and
fixtures, if any, located on the Land (the "Improvements"), and all
rights, titles and interests of Seller appurtenant to the Land and
Improvements, including, without limitation, appurtenant easements,
adjacent roads, highways and rights-of-way;
(b) All tangible personal property of any kind (the "Personalty")
owned by Seller and attached to or located on the Land or Improvements;
(c) All of Seller's rights, titles and interests under any leases or
other agreements demising space in or providing for the use or occupancy
of the Improvements or Land (the "Tenant Leases"), and, to the extent
actually received and held by Seller, all unapplied deposits, whether
security or otherwise ("Deposits"), paid by tenants "Tenants") holding
under the Tenant Leases;
(d) All of Seller's rights, titles and interests in and to all service
contracts, warranties, guaranties and bonds in effect at Closing
relating to the Land, the Improvements or the Personalty, to the extent
the same are assignable (the "Contracts"); and
(e) All other rights, privileges and appurtenances owned by Seller and
in any way relating to the above-described properties.
ARTICLE II.
PURCHASE PRICE
2.1 Purchase Price. The total Purchase Price (herein so called) to be paid
by Purchaser to Seller for the Property is Two Million Two Hundred Fifty
Thousand Dollars ($2,250,000)payable in cash or Current Funds (hereinafter
defined) at the Closing (hereinafter defined).
1
<PAGE>
ARTICLE III.
EARNEST MONEY DEPOSIT
3.1 Amount and Timing. Within one (1) business day after the Effective Date
(hereinafter defined), Purchaser shall deliver to First American Title
Insurance Company, located at 3760 Pecos Mcleod, Suite 7, Las Vegas, NV
89121 , Attention: Lynn Donner (the "Title Company"), Ten Thousand and
NO/100 Dollars ($10,000) (the "Earnest Money Deposit") in cash or Current
Funds (hereinafter defined), to be held by the Title Company in escrow
to be applied or disposed of by the Title Company as is provided in this
Contract. In the event Purchaser fails to deposit the Earnest Money
Deposit with the Title Company as herein provided, this Agreement shall
automatically terminate, and neither Seller nor Purchaser shall have any
further obligations hereunder except that the provisions of Sections
4.2, 5.1 and 11.1 and Article VI of this Contract shall survive the
termination of this Contract. As used in this Contract, the term
"Current Funds" shall mean wire transfers, certified funds or a
cashier's check in a form acceptable to the Title Company which would
permit the Title Company to immediately disburse such funds.
3.2 Application and Interest. If the purchase and sale hereunder is
consummated, then the Earnest Money Deposit shall be applied to the
Purchase Price at Closing. In all other events, the Earnest Money Deposit
shall be disposed of by the Title Company as provided in this Contract.
The Earnest Money Deposit shall be invested in an interest-bearing account
with a financial institution and in a manner reasonably acceptable to
Seller and Purchaser. All interest earned on the Earnest Money Deposit is
part of the Earnest Money Deposit, to be applied or disposed of in the same
manner as the Earnest Money Deposit under this Contract.
ARTICLE IV.
TITLE AND SURVEY
4.1 Title Commitment. Within fifteen (15) days after the Effective Date,
Seller shall cause to be furnished to Purchaser, (with the cost and expense
to be paid equally by Seller and Purchaser), a current ALTA Commitment for
Title Insurance (the "Title Commitment") issued by the Title Company. The
Title Commitment shall set forth the state of title to the Property,
including a list of conditions or exceptions to title affecting the
Property that would appear in an Owner's Policy of Title Insurance, if one
were issued. The Title Commitment shall contain the expressed commitment
of the Title Company to issue the Title Policy (hereinafter defined) to
Purchaser in the amount of the Purchase Price, insuring the title to the
Property specified in the Title Commitment. At such time as the Title
Commitment is furnished to Purchaser, the Title Company shall also furnish
to Purchaser copies of instruments or documents (the "Exception Documents")
that create or evidence conditions or exceptions to title affecting the
Property, as described in the Title Commitment.
4.2 Survey. Seller is not in possession of a survey. If Purchaser requires
a survey, Purchaser shall pay for the cost of the survey.
4.3 Review of Title and Survey. Purchaser shall have until the end of the
2
<PAGE>
Inspection Period (hereinafter defined) in which to notify Seller in
writing of any objections Purchaser has to any matters shown or referred to
in the Title Commitment, the Exception Documents or on the Survey. Any
title encumbrances, exceptions or other matters which are set forth in he
Title Commitment, the Exception Documents or on the Survey, and to which
Purchaser does not object within the Inspection Period, shall be deemed to
be permitted exceptions to the status of Seller's title (the "Permitted
Exceptions"). Notwithstanding the foregoing, all mortgages, deeds of trust
and other monetary liens along with delinquent and past due taxes and
assessments shall be paid by Seller prior to or at the close of escrow.
4.4 Objections to Status of Title and Survey. If Purchaser objects to any
item shown or referred to in the Title Commitment, Exception Documents or
Survey within the Inspection Period, Seller shall be given a fifteen (15)
day period (the "Cure Period") to cure, at Seller's option and sole
discretion, but without any obligation to do so, any objection to the
condition of title raised by Purchaser, provided, that if the Closing Date
is scheduled to occur prior to the end of such Cure Period, then the
Closing Date may be extended, at Seller's option, to the end of the Cure
Period. If Seller is either unable to cure such objections within the Cure
Period, or chooses not to do so, Purchaser may, at its option exercisable
within five (5) days following the earlier of (I) the date of receipt by
Purchaser of written notice from Seller stating that Seller is unable or
unwilling or cure such objections, or (ii) the expiration of the Cure
Period, either (x) accept such title as Seller can deliver, in which case
all exceptions to title set forth in the Title Commitment, Exception
Documents and Survey which are not removed shall be deemed to be Permitted
Exceptions, or (y) terminate this Contract by notice in writing to Seller
in which event the Title Company shall return the Earnest Money Deposit to
Purchaser and neither party shall have any further rights, duties or
obligations hereunder, except as otherwise provided in Sections 4.2, 5.1
and 11.1 hereof, provided, that if the Closing is scheduled to occur prior
to the end of such 5 day period, then the Closing Date may be extended, at
Purchaser's option, to the end of such 5 day period. In the event
Purchaser fails to notify Seller, within such five (5) day period, that
Purchaser has elected to proceed under either subpart (x) or (y) of the
immediately preceding sentence, Purchaser shall be deemed to have elected
to proceed under subpart (y), and this Contract shall terminate.
4.5 Other Permitted Exceptions. The Permitted Exceptions shall include
those matters shown in the Commitment and Survey which become Permitted
Exceptions pursuant to sections 4.3 and 4.4 above and, in addition, the
following: (a) the Tenant Leases; (b) taxes and assessments for the year in
which Closing occurs and subsequent years; (c) liens and encumbrances
arising after the date hereof to which Purchaser consents in writing; and
(d) any liens or encumbrances of a definite or ascertainable amount,
provided that Seller causes such liens or encumbrances to be paid at or
prior to the close of escrow such that same do not appear as an exception
in the owner policy of title insurance issued to Purchaser pursuant to the
Commitment.
ARTICLE V.
INSPECTION BY PURCHASER
5.1 Inspection Period. Purchaser shall have a period of time commencing on
the Effective Date and expiring at 5:00 p.m. Las Vegas, Nevada time, on
April 13, 1995 (the "Inspection Period" ) within to examine the Property
and to conduct its feasibility study thereof. The Inspection Period shall
be inclusive of the Effective Date. Seller agrees to allow Purchaser and
3
<PAGE>
Purchaser's agents access to the Property during normal business hours upon
24 hours prior written notice to conduct soil and engineering, hazardous
waste, marketing, feasibility, zoning and other studies or tests and to
otherwise determine the feasibility of the Property for Purchaser s
intended use. Notwithstanding the foregoing, (a) the costs and expenses of
Purchaser's investigation shall be borne solely by Purchaser, (b) prior to
the expiration of the Inspection Period, Purchaser shall restore the
Property to the condition which existed prior to Purchaser's entry thereon
and investigation thereof, Purchaser shall not interfere, interrupt or
disrupt the operation of Seller's business on the Property and, further,
such access by Purchaser and/or its agents shall be subject to the rights
of Tenants under Tenant Leases, (d) in the event the transaction
contemplated by this Contract does not close for any reason, Purchaser
shall deliver to Seller copies of all tests, reports and inspections
conducted by Purchaser with respect to the Property, (e) 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 pursuant to this Section 5.1, (f)
Purchaser shall permit Seller to have a representative present during all
investigations and inspections conducted with respect to the Property, and
(g) Purchaser shall take all actions and implement all protections
necessary to ensure that all actions taken in connections with the
investigations and inspections of the Property, and all equipment,
materials and substances generated, used or brought onto the Property pose
no 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 or Purchaser in accordance with this
Contract or obtained by Purchaser in the course of its investigations shall
be treated as confidential information by Purchaser in the course of its
investigations shall be treated as confidential information by Purchaser,
and, prior to the purchase of the Property by Purchaser, Purchaser shall
use its best efforts to prevent its agents and employees from divulging
such information to any 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 Contract, including Purchaser's attorneys
and representatives, prospective lenders and engineers. Purchaser shall
indemnify, defend and hold harmless Seller from and against any claims,
liabilities, causes of action, damages, liens, losses and expenses
(including, without limitation, attorneys fees) incident to, resulting
from or in any way arising out of any of Purchaser's and its agents
activities on the Property, including, without limitation, any tests or
inspections conducted by Purchaser or its agents on the Property. The
agreements contained in this Section 5.1 shall survive the Closing and not
be merged therein and shall also survive any termination of this Contract.
5.2 Approval of Inspections. If Purchaser determines at any time prior to
the expiration of the Inspection Period, that the Property is not
satisfactory to Purchaser, then Purchaser may terminate this Contract by
delivery of written notice to Seller within such Inspection Period given in
accordance with the provisions of Section 13.1 hereof, in which event the
Title Company shall return the Earnest Money Deposit to Purchaser and
neither party shall have any further rights or liabilities hereunder,
except as provided in Sections 4.2, 5.1 and 11.1 thereof. If Purchaser
does not timely deliver to Seller written notice of termination within such
Inspection Period, the conditions of this Section 5.2 shall be deemed
satisfied, and Purchaser may not thereafter terminate this Contract
pursuant to this Section 5.2
5.3 Matters to be Delivered by Seller. No later than ten (10) days from the
Effective Date, Seller shall deliver to Purchaser the following items
(collectively, the "Submission Matters"):
(a) A current rent roll and delinquency report for the Property;
(b) A copy of the Leases with respect to the Property, including any
4
<PAGE>
and all modifications, amendments or supplements thereto;
(c) A current certified inventory of all Personalty owned by Seller
and located on, related to, or used in connection with the Property;
(d) Copies of any and all service, maintenance, management or other
contracts in Seller's possession relating to the ownership and operation
of the Property;
(e) Complete copies of any and all warranties and guaranties in Seller s
possession relating to the Property, or any part thereof, or to the
Personalty owned by Seller and located on, attached to, or used in
connection with the Property;
(f) An income and expense statement with respect to the Property,
accurately reflecting the operating history of the Property after
January 1, 1993;
(g) Copies of all plans and specifications in Seller's possession with
respect to the Property and copies of all licenses and permits in
Seller's possession with respect to the ownership and operation of
the Property, including building permits and certificates of
occupancy;
(h) A certificate of fire, hazard, extended coverage, liability and other
insurance policies held by Seller with respect to the Property;
(i) Copies of the most recent real estate and personal property tax
statements received by Seller with respect to the Property: and
(j) Common Area Maintenance (CAM) statement and back-up calculations and
work papers for 1994.
5.4 Estoppel Certificates. Seller shall deliver to Purchaser within thirty
(30) days after the Effective Date estoppel certificates addressed to
Purchaser in substantially the form of Exhibit F attached hereto and made a
part hereof for all purposes (the "Estoppel Certificates") from each Tenant
under a Tenant Lease covering more than 5,000 square feet of rentable space
in the Improvements (the "Major Tenants"), and Seller shall use reasonable
efforts to obtain additional Estoppel Certificates from each Tenant which
is not a Major Tenant. In the event Seller is unable to obtain Estoppel
Certificates from the Major Tenants, Seller, at Seller's option, may, in
lieu thereof, furnish Purchaser with an Estoppel Certificate executed by
Seller with respect to each Major Tenant from which an Estoppel Certificate
has not been obtained certifying, to Seller's current actual knowledge, the
matters set forth in the form of Estoppel Certificate set forth on Exhibit
F. The representations contained in any such Estoppel Certificate supplied
by Seller shall survive the Closing for a period of six (6) months or until
the termination or expiration of the applicable Tenant Lease, whichever
occurs first. In the event Seller both (I) is unable to obtain Estoppel
Certificates from the Major Tenants and (ii) fails to furnish an Estoppel
Certificate executed by Seller in lieu of the Estoppel Certificates from
the Major Tenants which have not delivered Estoppel Certificates, then
Purchaser may terminate this Contract and the Earnest Money Deposit shall
thereupon be returned to Purchaser as its sole remedy; provided, however,
that neither the failure to obtain such Estoppel Certificates from any
Tenants other than the Major Tenants nor any non-material exceptions,
qualifications or modifications of any Estoppel Certificate delivered by
any of the Tenants or by Seller, as herein permitted, shall permit
Purchaser to terminate this Contract. In the event that Purchaser so
terminates this Contract, the provisions of Sections 4.2, 5.1 and 11.1 and
Article VI hereof shall survive the termination of the Contract. All
references in this Contract or in any Estoppel Certificate delivered by
Seller to the "current actual knowledge" of Seller shall refer only to the
then current actual knowledge of the Designated Representative (as
hereinafter defined) of Seller and shall not be construed to refer to the
knowledge of any other representative, partner, officer, agent or employee
of Seller or any affiliate of Seller or to impose upon such Designated
Representative any duty to investigate the matter to which such actual
knowledge, or the absence thereof, pertains. As used herein, the terms
"Designated Employee" shall refer to Teresa Romero.
5
<PAGE>
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES; DISCLAIMERS AND WAIVERS
6.1 Representations and Warranties of Purchaser. Purchaser and each of the
persons executing this Contract on its behalf represents and warrants to
Seller as of the date hereof and as of the Closing Date as follows (which
representations and warranties shall survive the Closing):
(I) Purchaser is duly organized and existing as a limited partnership
formed under the laws of California; (ii) Purchaser is qualified and
authorized to do business in the State of Nevada, (iii) Purchaser has full
right and authority to enter into this Contract and to consummate the
transactions contemplated herein; (iv) each of the persons executing this
Contract on behalf of Purchaser is authorized to do so; and (v) this Contract
constitutes a valid and legally binding obligation of Purchaser, enforceable
in accordance with its terms.
6.2 NO REPRESENTATIONS OR WARRANTIES OF SELLER. EXCEPT AS EXPRESSLY SET
FORTH HEREIN, PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT MADE,
AND SELLER HEREBY SPECIFICALLY DISCLAIMS, ANY WARRANTY, GUARANTY OR
REPRESENTATIONS, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, OR
CONCERNING, (a) THE NATURE AND CONDITION OF THE PROPERTY, INCLUDING,
WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY, AND THE SUITABILITY
THEREOF AND OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH
PURCHASER MAY ELECT TO CONDUCT THEREON; (b) THE EXISTENCE, NATURE AND
EXTENT OF ANY RIGHT-OF-WAY, LEASE, RIGHT TO POSSESSION OR USE, LIEN,
ENCUMBRANCE, LICENSE, RESERVATION, CONDITION OR OTHER MATTER AFFECTING
TITLE TO THE PROPERTY; OR (c) WHETHER THE USE OR OPERATION OF THE PROPERTY
COMPLIES WITH ANY AND ALL LAWS, ORDINANCES OR REGULATIONS OF ANY GOVERNMENT
OR OTHER REGULATORY BODY. PURCHASER AGREES TO ACCEPT THE PROPERTY AND
ACKNOWLEDGES THAT THE SALE OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE
BY SELLER, ON AN "AS IS, WHERE IS, AND WITH ALL FAULTS" BASIS. PURCHASER
EXPRESSLY ACKNOWLEDGES THAT EXCEPT AS OTHERWISE EXPRESSLY SPECIFIED HEREIN
AND EXCEPT FOR ANY WARRANTY OF TITLE CONTAINED IN THE GRANT, BARGAIN AND
SALE DEED TO BE DELIVERED BY SELLER TO PURCHASER AT CLOSING, SELLER MAKES
NO REPRESENTATION OR WARRANTY OF ANY KIND, ORAL OR WRITTEN, EXPRESS OR
IMPLIED, OR ARISING BY OPERATION OF LAW, WITH RESPECT TO THE PROPERTY,
INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO
HABITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE
(OTHER THAN SELLER S WARRANTY OF TITLE TO BE SET FORTH IN THE GRANT,
BARGAIN AND SALE DEED), ZONING, TAX CONSEQUENCES, PHYSICAL OR ENVIRONMENTAL
CONDITION, UTILITIES, OPERATING HISTORY OR PROJECTIONS, VALUATION,
GOVERNMENTAL APPROVALS, THE COMPLIANCE OF THE PREMISES WITH GOVERNMENTAL
LAWS, THE TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION (INCLUDING,
WITHOUT LIMITATION, THE SUBMISSION MATTERS) PROVIDED BY OR ON BEHALF OF
SELLER TO PURCHASER, OR ANY OTHER MATTER OR THING REGARDING THE PROPERTY.
FURTHER, AND WITHOUT IN ANY WAY LIMITING ANY OTHER PROVISION OF THIS
CONTRACT, SELLER HAS MADE AND MAKES NO REPRESENTATION, WARRANTY OR
GUARANTY, AND HEREBY SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR
REPRESENTATION, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, WITH RESPECT TO
THE PRESENCE OR DISPOSAL ON OR BENEATH THE PROPERTY (OR ANY PARCEL IN
PROXIMITY THERETO) OF HAZARDOUS SUBSTANCES OR MATERIALS WHICH ARE
CATEGORIZED AS HAZARDOUS OR TOXIC UNDER ANY LOCAL, STATE OR FEDERAL LAW,
STATUTE, ORDINANCE, RULE OR REGULATION PERTAINING TO ENVIRONMENTAL OR
SUBSTANCE REGULATION, CONTAMINATION, CLEANUP OR DISCLOSURE (INCLUDING,
6
<PAGE>
WITHOUT LIMITATION, ASBESTOS) AND SHALL HAVE NO LIABILITY TO PURCHASER
THEREFOR, BY ACCEPTANCE OF THIS CONTRACT AND THE GRANT BARGAIN AND SALE
DEED TO BE DELIVERED BY SELLER AT THE CLOSING, PURCHASER ACKNOWLEDGES THAT
PURCHASER'S OPPORTUNITY FOR INSPECTION AND INVESTIGATION OF THE PROPERTY
(AND OTHER PARCELS IN PROXIMITY THERETO) WILL BE ADEQUATE TO ENABLE
PURCHASER TO MAKE PURCHASER'S OWN DETERMINATION WITH RESPECT TO THE
PRESENCE OR DISPOSAL ON OR BENEATH THE PROPERTY (AND OTHER PARCELS IN
PROXIMITY THERETO) OF SUCH HAZARDOUS SUBSTANCES OR MATERIALS, AND PURCHASER
ACCEPTS THE RISK OF THE PRESENCE OR DISPOSAL OF ANY SUCH SUBSTANCE OR
MATERIALS. PURCHASER AGREES THAT SHOULD ANY CLEANUP, REMEDIATION OR
REMOVAL OF HAZARDOUS SUBSTANCES OR OTHER ENVIRONMENTAL CONDITIONS ON THE
PROPERTY BE REQUIRED AFTER THE DATE OF CLOSING, PURCHASER SHALL NOT HAVE
ANY CLAIM (AND PURCHASER HEREBY WAIVES ANY CLAIM WHICH MAY EXIST) AGAINST
SELLER WITH RESPECT TO THE COST OF SUCH CLEAN UP, REMOVAL OR REMEDIATION.
PURCHASER, AND ANYONE CLAIMING, BY, THROUGH OR UNDER PURCHASER, HEREBY
FULLY RELEASES, AND DISCHARGES SELLER, ITS EMPLOYEES, OFFICERS, DIRECTORS,
SHAREHOLDERS, REPRESENTATIVES AND AGENTS, AND THEIR RESPECTIVE PERSONAL
REPRESENTATIVES, HEIRS, SUCCESSORS AND ASSIGNS FROM ANY COST, LOSS,
LIABILITY, DAMAGE, EXPENSE, DEMAND, ACTION OR CAUSE OF ACTION ARISING FROM
OR RELATED TO ANY CONSTRUCTION DEFECTS, ERRORS, OMISSION, OR OTHER
CONDITIONS AFFECTING THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES AND
AGREES THAT THIS RELEASE SHALL BE GIVEN FULL FORCE AND EFFECT ACCORDING TO
EACH OF ITS EXPRESSED TERMS AND PROVISIONS, INCLUDING, BUT NOT LIMITED TO,
THOSE RELATING TO UNKNOWN AND SUSPECTED CLAIMS, DAMAGES AND CAUSES OF
ACTION. THIS COVENANT RELEASING SELLER SHALL BE BINDING UPON PURCHASER,
ITS PERSONAL REPRESENTATIVES, HEIRS, SUCCESSORS AND ASSIGNS. THIS WAIVER
AND RELEASE OF CLAIMS SHALL SURVIVE THE CLOSING.
6.3 Representations and Warranties of Seller:
Notwithstanding Section 6.2 above, Seller does represent and warrant to
Purchaser as of the date hereof and as of the Closing Date as follows (which
representations and warranties shall survive the Closing for a period of one
(1) year):
(i) Seller is a duly organized and existing limited partnership formed
under the laws of California;
(ii) Seller is qualified and authorized to do business in the State of
Nevada;
(iii) Seller has full right and authority to enter into this Contract
and to consummate the transactions contemplated herein;
(iv) Each of the persons executing this Contract on behalf of the
Seller is authorized to do so; and
(v) This Contract constitutes a valid and legally binding obligation of
Seller, enforceable in accordance with its terms.
In addition, Seller represents and warrants to Purchaser as to the
"current actual knowledge" of Seller as of the date hereof and as of the
Closing Date as follows (which representations and warranties shall survive
the Closing for a period of one (1) year):
(vi) The Submission Matters delivered to Purchaser are true and correct
copies of the originals, or copies, in Seller's possession;
(vii) Seller has not received nor is aware of any notification from the
Department of Building and Safety, Health Department or other City, County or
State authority having jurisdiction requiring any work to be done on or
affecting the Property;
7
<PAGE>
(viii) Seller has received no notice of any lawsuit or governmental
proceedings in eminent domain or otherwise which would affect the Property.
(ix) Seller has delivered to Purchaser copies of all environmental
studies and reports with respect to the Property and the adjacent property
(commonly known as the LaSalle Warehouse and located at 3555 West Quail
Avenue) which Seller has in its possession including the Phase I Environmental
Site Assessment for those certain Three Warehouses located at 3555 and 3655
West Quail Avenue and 3600 West Oquendo Road in Las Vegas, Nevada, dated
October 5, 1994, IVI Project No. E409091, the Leach Field Assessment Report
for the properties located at 3655 West Quail Road and 3600 West Oquendo Road
in Las Vegas, Nevada, prepared by Terracon Consultants Western, Inc., dated
February 24, 1995, Project No. 64957017, and the Phase II Subsurface
Environmental Assessment Report for the property located at 3555 West Quail
Road, Las Vegas, Nevada, prepared by Terracon Consultants Western Inc., dated
March 3, 1995, Project. No. 64957018. To Seller's current actual knowledge,
except as set forth in such environmental reports and studies, there are no
material environmental problems with respect to the Property; provided,
however, that Purchaser acknowledges that Seller has no expertise with respect
to environmental matters and that Seller makes no representations or
warranties with respect to any related problems which may have arisen or may
arise as a result of the matters set forth in such environmental reports and
studies. Purchaser acknowledges that Seller has not delivered, and has no
obligation to deliver, to Purchaser copies of environmental reports with
respect to any other properties owned or formerly owned by Seller or its
affiliates (including, without limitation, the property located at 3550 West
Quail Avenue, Las Vegas, Nevada). As a condition precedent to delivery of the
reports described in this Section 6.3(ix) Purchaser must execute and deliver
to Seller a Confidentiality Agreement satisfactory to Seller.
6.4 Effect and Survival of Disclaimers. Seller has informed and hereby does
inform Purchaser that the compensation to be paid to Seller for the
Property has been decreased to take into account that the Premises is being
sold subject to the provisions of this Article VI. Seller and Purchaser
agree that the provisions of this Article VI shall survive Closing;
provided, that the representations and warranties of Seller contained in
Section 6.3 above shall only survive the Closing for a period of one (1)
year, and any cause of action against Seller as a result of a breach of
such representations and warranties must be brought and filed, if at all,
within one (1) year after Closing.
ARTICLE VII.
CONDITIONS PRECEDENT TO PURCHASER S AND SELLER S PERFORMANCE
7.1 Conditions to Purchaser's Obligations. Purchaser's obligation under
this Contract to purchase the Property is subject to the fulfillment of
each of the following conditions (any or all of which may be waived by
Purchaser):
(a) Seller shall be ready, willing and able to deliver title to the
Property in accordance with the terms and conditions of this Contract;
and
(b) Seller shall have delivered all the documents and other items
required pursuant to Section 8.2(a), and shall have performed, in all
material respects, all other covenants, undertakings and obligations,
and complied with all conditions required by this Contract to be
performed or complied with by the Seller at or prior to the Closing.
8
<PAGE>
7.2 Conditions to Seller's Obligations. Seller's obligations under this
Contract to sell the Property to Purchaser is subject to the fulfillment of
each of the following conditions (all or any of which may be waived by
Seller):
(a) the representations and warranties of Purchaser contained herein
shall be true, accurate and correct as of the Closing Date; and
(b) Purchaser shall have delivered the Purchase Price and all other
funds required hereunder and all the documents to be executed by
Purchaser set forth in Section 8.2(b) and shall have performed, in all
material respects, all other covenants, undertakings and obligations,
and complied with all conditions required by this Contract to be
performed or complied with by Purchaser at or prior to Closing.
ARTICLE VIII.
CLOSING
8.1 Time and Place. The consummation of the purchase and sale of the
Property (the "Closing") shall take place at the office of the Title
Company on or before April 17, 1995, or at such earlier date and time as
Purchaser and Seller may mutually agree or as may be extended pursuant to
Section 4.4 hereof (the "Closing Date").
8.2 Items to be Delivered at the Closing.
(a) Seller. At the Closing, Seller shall deliver, or cause to be
delivered, to Purchaser each of the following items:
(i) A standard form ALTA Owner's Policy of Title Insurance dated no
earlier than the date of the filing of the deed described in
Section 8.2(a)(ii) hereof, issued by the Title Company, and
insuring Purchaser's title in the amount of the Purchase Price,
subject only to the Permitted Exceptions and conforming to the
requirements of Article IV hereof (the "Title Policy").
(ii) A Grant Bargain and Sale Deed duly executed and acknowledged by
Seller in the form attached hereto as Exhibit B and made a part
hereof for all purposes sufficient to convey to Purchaser good and
indefeasible title to the Property free and clear of all liens and
encumbrances except for the Permitted Exceptions.
(iii) An Assignment and Assumption of Leases (the "Assignment of
Leases") duly executed and acknowledged by Seller in the form
attached hereto as Exhibit C and made a part hereof for all
purposes.
(iv) A Blanket Conveyance, Bill of Sale and Assignment ("Bill
of Sale") duly executed by Seller in the form, attached
hereto as Exhibit D and made a part hereof for all purposes.
(v) All keys and master keys to all locks located on the Property
that are in Seller's possession.
(vi) All original Tenant Leases that are in Seller's possession.
(vii) All original contracts that are in Seller's possession.
9
<PAGE>
(viii) A Non-Foreign Affidavit in the form attached hereto as
Exhibit E and made a part hereof for all purposes.
(ix) All amounts owing to Purchaser by Seller under Article IX
hereof.
(x) Evidence satisfactory to Purchaser and the Title Company
that the person or persons executing this Contract and the closing
documents on behalf of Seller have full right, power and authority
to do so.
(xi) Estoppel Certificates from Tenants to the extent Seller is
required to obtain the same by Section 5.4 hereof.
(xii) Other items reasonably requested by the Title Company for the
sale of the Property in accordance with this Contract or for
administrative requirements for consummating the Closing.
(b) Purchaser. At the Closing, Purchaser shall deliver to Seller each
of the following items:
(i) The Purchase Price in Current Funds.
(ii) The Assignment of Leases, duly executed and acknowledged by
Purchaser.
(iii) The Bill of Sale, duly executed by Purchaser.
(iv) Such additional funds in cash or Current Funds, as may be
necessary to cover Purchaser's share of the closing costs
and prorations hereunder.
(v) Evidence satisfactory to Seller and the Title Company that
the person or persons executing this Contract and the
closing documents on behalf of Purchaser have full right,
power and authority to do so.
(vi) Other items reasonably requested by the Title Company for
the sale of the Property in accordance with this Contract or
for administrative requirements for consummating the
Closing.
8.3 Costs of Closing. The escrow fees of the Title Company shall be paid
equally be Seller and Purchaser. Documentary stamp taxes, deed taxes,
transfer taxes, or other similar taxes, fees or assessments relating to the
transfer of the Property to Purchaser by filing the deed shall be borne and
paid equally by Seller and Purchaser. All costs relating to the cost of
the Title Policy shall be paid equally by Seller and Purchaser, except that
the cost and expenses related to obtaining any amendments or endorsements
to the same (including, without limitation, an extended coverage
endorsement), as well as all costs relating to a mortgagee policy
pertaining to any financing obtained by the Purchaser for the purchase of
the Property or any amendments or endorsements to the same, shall be borne
and paid exclusively by Purchaser. All other expenses shall be allocated
between the parties in the customary manner for closings of real property
similar to the Property in the geographic area in which the Property is
located. All other expenses incurred by Seller and Purchaser with respect
to the Closing, including, but not limited to, the attorneys fees and
costs and expenses incurred in connection with negotiating, preparing and
closing the transaction contemplated by this Contract, shall be borne and
paid exclusively by the party incurring same.
8.4 Prorations. All normal and customarily proratable items, including,
without limitation, rents, operating expense and leasing commissions
10
<PAGE>
(except as provided in Section 11.1 hereof), other expenses and fees, and
payments relating to any agreements affecting the Property which survive
the Closing, shall be prorated as of the Closing Date, Seller being charged
and credited for all of same attributable to the period before Closing) 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 advance and free rents and unapplied Deposits under Tenant
Leases, shall be credited to Purchaser at the Closing. Any real estate
ad valorem or similar taxes for the Property or any installment of
assessments payable in installments which installment is payable in the
year of Closing shall be prorated to the date of Closing, based upon actual
days involved. In connection with the proration of real property taxes or
installments of assessments, in the event that actual figures 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. In the
event the Property has been assessed for property tax purpose at such rates
as would result in "roll-back" taxes upon the changes in usage Purchaser
hereby assumes and holds Seller harmless from and against any and all
claims and liabilities for such taxes. The provisions of this Section 8.4
shall survive the Closing.
If any of the items subject to proration under the foregoing provisions of
this Section 8.4 cannot be prorated at the Closing because of the
unavailability of the information necessary to compute such proration, or
if any errors and omissions in computing prorations as 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 of ninety (90) days after the Closing Date
as hereinafter provided. 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 aforestated ninety
(90) day 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. The failure of a party to obtain any previous
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 ninety (90) days after the Closing Date shall be deemed a
waiver of its rights to cause a recomputation or a correction of an error
or omission with respect to such item after the Closing Date.
8.5 Possession and Closing. Possession of the Property shall be delivered
to Purchaser by Seller at the Closing, subject to the Permitted Exceptions
and the rights of the Tenants. Purchaser shall make its own arrangements
for the provision of public utilities to the Property and Seller shall
terminate its contracts with such utility companies that provide services
to the Property as of the Closing Date.
8.6 Delinquent Rent.
(a) Application of Delinquent Rent. If on the Closing Date any Tenant
is in arrears in the payment of any rent under any Tenant Lease (the
"Delinquent Rent") payable by it, 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: (A) first, to the period of time
prior to the Closing Date, and (B) second, to the period of time after
the Closing Date. If Delinquent Rent or any portion thereof received by
Seller or Purchaser after the Closing are due and payable to the other
party reason of this allocation, the appropriate sum, less a
proportionate share of any reasonable attorneys fees and cost and
expenses expended in connection with the collection thereof, shall be
11
<PAGE>
promptly paid to the other party. The provision of this Section 8.6(a)
shall survive the Closing.
(b) Collection of Delinquent Rent. After the Closing, Seller shall
continue to have the right, in its own name, to demand payment of
and 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, and the
delivery of the Assignments of Leases (as defined in Section
8.2(a)(iii)) shall not constitute waiver by Seller to collect such
Delinquent Rent and to take all steps, whether before of after the
Closing Date, as may be necessary to carry out the intention of
the foregoing, including, without limitation, the delivery to
Seller, upon demand, of any relevant books and records (including,
without limitation, 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 the reasonable cost and
expenses incurred by Purchaser in complying with this Section
8.6(b) shall be promptly paid of reimbursed by Seller. The
provisions of this Section 8.6(b) shall survive the Closing.
ARTICLE IX
CONDEMNATION OR CASUALTY
9.1 Condemnation.
(a) In the event that all or any significant portion of the Property is
condemned or taken by eminent domain or conveyed by deed in lieu thereof,
or if any condemnation proceeding is commenced for all or any significant
portion of the Property, prior to Closing, either party within ten (10)
days after (I) in the case of Seller, Seller becomes aware of such
condemnation, taking or deed in lieu, or institution of any such
condemnation proceeding, or (ii) in the case of Purchaser, Seller notifies
purchaser of the condemnation proceeding, may terminate this Contract in
which event the Earnest Money Deposit shall be returned to Purchaser and
neither party shall have any rights or obligations pursuant to this
Contract except as set forth in Sections 4.2, 5.1 and 11.1 hereof. If
neither party terminated this Contract as aforesaid, then both parties
shall proceed to close the transaction contemplated herein pursuant to the
terms hereof, in which event Seller shall deliver to Purchaser at the
Closing any proceeds actually received by Seller attributable to the
Property from such condemnation, eminent domain proceedings or deed in lieu
thereof or assign its interest in and to any such proceeds, and there shall
be no reduction in the Purchase Price.
(b) For the purposes of Section 9.1(a), "significant portion" of the
Property means (I) any portion of the buildings included within the
Improvements, or (ii) a portion of the parking areas if the taking thereof
reduces the remaining available number of parking spaces below the minimum
legally required. Notwithstanding anything to the contrary contained in
Section 9.1(a), if neither party has timely elected to terminate in
accordance with Section 9.1(a), and if the proceeds payable with respect to
the Property as a result of condemnation exceed the Purchase Price for the
12
<PAGE>
Property, the portion of such proceeds in excess of the Purchase Price
shall be paid to Purchaser. The foregoing provision shall survive the
Closing.
(c) In the event that less than a significant portion of the Property is
condemned, taken by eminent domain, conveyed by deed in lieu thereof or is
the subject of a condemnation proceeding, neither party shall have the
right to terminate this Contract, but Seller shall deliver to Purchaser at
Closing any proceeds actually received by Seller attributable to the
Property from such condemnation or eminent domain proceeding or deed in
lieu thereof, or assign its interest in and to any such proceeds to
Purchaser, and there shall be no reduction in the Purchase Price.
9.2 Casualty.
(a) In the event that all or any substantial portion of the Property shall
be damaged or destroyed by fire or other casualty prior to Closing, either
party may terminate this Contract by written notice thereof to the other
party within ten (10) days after (I) in the case of Seller, Seller becomes
aware of such casualty, or (ii) in the case of Purchaser, Seller notifies
Purchaser of the casualty. If neither party terminates this Contract as
aforesaid, then both parties shall proceed to close the transaction
contemplated herein pursuant to the terms hereof, in which event Seller
shall, except as limited in Section 9.2(b) hereof, deliver to Purchaser at
the Closing any insurance proceeds actually received by Seller attributable
to the Property from such casualty and all of Seller's right, title and
interest in and to any claims which Seller may have under the insurance
policies covering the Property, and there shall be no reduction in the
Purchase Price. In the event less than a substantial portion of the
Property shall be damaged or destroyed by fire or other casualty prior to
Closing, then the parties shall proceed in accordance with the second
sentence in this Section 9.2(a).
(b) For the purposes of Section 9.2(a), a "substantial portion" of the
Property shall be deemed to include any casualty loss in an amount equal to
or greater than Three Hundred Thousand and NO/100 Dollars ($300,000.00)
Notwithstanding anything in Section 9.2(a) to the contrary, if neither
party has timely elected to terminate in accordance with Section 9.2(a),
and if the proceeds payable with respect to the Property as a result of
casualty exceed the Purchase Price for the Property, the portion of such
proceeds in excess of the Purchase Price shall be paid to Purchaser. The
foregoing provision shall survive the Closing.
ARTICLE X.
DEFAULTS AND REMEDIES
10.1 Default by Purchaser. If Seller shall not be in default hereunder and
Purchaser refuses or fails to consummate this Contract for reasons other
than as expressly set forth in Section 4.4, Section 5.2, Section 5.4 or
Article IX hereof, Seller shall , as its sole and exclusive remedy,
terminate this Contract in which event neither party shall have any further
rights, duties, or obligations hereunder except as provided in Sections 4.2
13
<PAGE>
and 5.1 and 11.1 and article VI hereof , and Seller shall be entitled to
receive or retain the Earnest Money Deposit as liquidated damages ( Seller
and Purchaser hereby acknowledging that the amount of damages in the event
of Purchaser's default is difficult or impossible to ascertain but that
such amount is a fair estimate of such damage). Notwithstanding anything
contained in this Section to the contrary, in the event of any other
default by Purchaser under this Contract, including, without limitation,
breach of any covenant, representation or indemnity, which survives the
Closing or termination of this Contract, Seller shall have any and all
rights and remedies available at law or in equity by reason of such
default.
10.2 Default by Seller. If Purchaser shall not be in default hereunder and if
Seller refuses or fails to consummate this Contract other than due to a
termination permitted hereunder or a failure of a condition precedent to
Seller's obligations to close, Purchaser may, at Purchaser's sole option,
as its sole and exclusive remedies, either (a) terminate this Contract in
which event Purchaser shall receive back the Earnest Money Deposit made by
Purchaser and neither party shall have any further rights, duties or
obligations hereunder except as provided in Sections 4.2, 5.1 and 11.1 and
Article VI hereof, or, (b) sue for specific performance of this Contract.
10.3 Attorneys Fees. If it shall be necessary for either Purchaser or Seller
to employ an attorney to enforce its rights pursuant to this Contract, the
non-prevailing party shall reimburse the prevailing party for its
reasonable attorneys fees.
ARTICLE XI.
BROKERAGE COMMISSIONS
11.1 Brokerage Commission. Seller agrees to indemnify Purchaser and hold
Purchaser harmless from any loss, liability, damage, cost or expense
(including, without limitation, reasonable attorneys fees) arising out of
or paid or incurred by Purchaser by reason of any claim to any broker s,
finder's or other fee in connection with this transaction by any party
claiming by, through or under Seller. Purchaser agrees to indemnify Seller
and hold Seller harmless from any loss , liability, damage, cost or expense
(including, without limitation, reasonable attorneys fees) arising out of
or paid or incurred by Seller by reason of any claim to any broker s,
finder s, or other fee in connection with this transaction by any party
claiming by, through or under Purchaser. Notwithstanding anything to the
contrary contained herein, the indemnities set forth in this Article XI
shall survive the Closing.
A Sales Commission in the amount of 6% of the purchase price shall be paid
to CB Commercial Real Estate Group, Inc. by Seller.
Seller and Purchaser each warrant that they have dealt with no other real
estate brokers in connection with this transaction except: CB COMMERCIAL
REAL ESTATE GROUP, INC., who represents the Seller.
Purchaser hereby acknowledges that at the time of the execution of this
Contract, Purchaser is advised by this writing that Purchaser should have an
abstract covering the Property examined by an attorney of Purchaser's own
selection, or that Purchaser should be furnished with or obtained an owner
policy of title insurance.
In addition, Seller and Purchase agree to prorate the following leasing
commissions at Closing as follows:
14
<PAGE>
(1) Heating and Cooling renewal: Purchaser shall pay leasing commission
of $13,392.
(2) Charlie Case renewal: Purchaser shall pay leasing commission not
to exceed $7,938.
ARTICLE XII
OPERATION OF THE PROPERTY PRIOR TO THE CLOSING
Between the Effective Date and the Closing Date, Seller shall continue to
operate and maintain the Property in such condition so that the Property shall
be in the same condition on the Close of Escrow as on the date hereof ordinary
wear and tear excepted and subject to the provisions of Article IX hereof.
Seller shall have the right to modify, extend, renew, cancel or permit the
expiration of any Tenant Lease or enter into any new Tenant Lease of all or
any portion of the Property without Purchaser's consent; provided, however,
that after the expiration of the Inspection Period ( and provided this
Agreement has not been terminated in accordance with the terms hereof), Seller
shall not modify, extend or renew (unless such extension or renewal is done
pursuant to the terms of the existing Tenant Lease) any Tenant Lease or enter
into any proposed Tenant Lease of all or any portion of the Property without
Purchaser's prior written consent in each instance, which consent shall not be
unreasonably withheld or delayed. In the event that Purchaser refuses to
grant its consent to any modification, extension or renewal of any existing
Tenant Lease, or to any proposed Tenant Lease of all or any portion of the
Property within five (5) days after receiving a request for such consent from
Seller, then Seller shall have the right and option, exercisable in Seller s
sole discretion, to elect by notice to Purchaser to terminate this Contract.
If Seller so elects to terminate this Contract, this Contract shall be
terminated, Purchaser shall be entitled to receive a refund of the Earnest
Money Deposit, and neither party shall have any further rights, obligations,
or liabilities hereunder except that the obligations of the parties under
Sections 4.2 and 5.1, 11.1 and Article VI hereof shall survive the termination
of the Contract.
If, as permitted above, Seller enters into any new Tenant Leases, or if
there is any renewal or extension of any existing Tenant Leases, whether or
not such Tenant Leases provide for their extension or renewal, or any
expansion or modification of any Tenant Leases (each a "New Lease"), Seller
shall keep accurate records of all brokerage commissions and fees relating to
such leasing transaction. At the Closing, all such brokerage commissions and
fees shall be prorated between Purchaser and Seller based upon the parties
respective periods of ownership or proposed ownership of the Property over the
term of such New Lease. The provisions of this Section 12 shall survive the
Closing.
ARTICLE XIII.
MISCELLANEOUS
13.1 Notices. Any notice provided or permitted to be given under this
Contract must be in writing and may be served by depositing same in the
15
<PAGE>
United States mail, addressed to the party to be notified, postage prepaid
and registered or certified with return receipt requested, or by delivering
the same in person to such party via a hand delivery service, Federal
Express or any other courier service that provides a return receipt showing
the date of actual delivery of same to the addressee thereof or by FAX or
telecopy with verification of receipt Notice given in accordance herewith
shall be effective upon receipt at the address of the addressee. For
purposes of notice, the addresses of the parties shall be as follows:
If to Seller:
Angeles Opportunity Properties, Ltd.
Insignia Financial Group, Inc.
One Insignia Financial Plaza
Greenville, South Carolina 29602
Attention: Bruce Stillwagon
Phone: 803-239-1078
FAX: 803-239-1066
with copy to Liechty, McGinnis & Kolitz
12750 Merit Drive, Suite 1150
Dallas, Texas 75251
Attn: Lorne Liechty
Phone: (214) 233-2898
Fax: (214) 233-3088
If to Purchaser:
Roberts Ranch Venture L.P.
4230 Arguello Street
San Diego, CA 92103
ATTENTION: Julie Dillon Roberts
Phone: 619-296-2111
FAX: 619-296-4201
With copy to: Page, Polin, Busch and Boatwright
350 W. Ash Street, Suite 900
San Diego, CA 92101
ATTENTION: David Boatwright
PHONE: 619-685-5402
FAX: 619-231-1877
13.2 GOVERNING LAW. THIS CONTRACT IS BEING EXECUTED AND DELIVERED, AND IS
INTENDED TO BE PERFORMED IN, THE STATE OF NEVADA AND THE LAWS OF SUCH
STATE SHALL GOVERN THE VALIDITY CONSTRUCTION, ENFORCEMENT AND INTERPRETATION
OF THIS CONTRACT.
13.3 Entirety and Amendments. This Contract embodies the entire agreement
between the parties and supersedes all prior agreements and understandings,
if any, relating to the transaction described herein, and may be amended or
supplemented only by an instrument in writing executed by the party against
whom enforcement is sought.
16
<PAGE>
13.4 Parties Bound. Subject to the provisions of Section 13.5 hereof, this
Contract shall be binding upon and inure to the benefit of Seller and
Purchaser, and their respective heirs, personal representatives, successors
and assigns.
13.5 Assignment. This contract may be assigned in whole or in part by
Purchaser, with the consent of Seller, which consent may not be
unreasonably withheld.
13.6 Headings. Headings used in this Contract are used for reference
purposes only and do not constitute substantive matter to be considered in
construing the terms of this Contract.
13.7 Survival. Except as otherwise expressly provided herein, no
representations, warranties, covenants, acknowledgments or agreements
contained in this Contract shall survive the Closing of this Contract and
the delivery of the Grant, Bargain and Sale Deed by Seller to Purchaser.
13.8 Interpretation. The parties acknowledge that each party and its counsel
have reviewed this Contract, and the parties hereby agree that the normal
rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of
this Contract or any amendments or exhibits hereto. In case any one or
more of the provisions contained in this Contract shall for any reason be
held to be invalid, illegal or unenforceable in any respect, such validity,
illegality or unenforceability shall not affect any other provisions
hereof, and this Contract shall be construed as if such invalid, illegal or
unenforceable provisions had never been contained herein. When the context
in which words are used in this Contract indicates that such is the intent,
words in the singular numbers shall include the plural and vice versa, and
words in the masculine gender shall include the feminine and neuter genders
and vice versa.
13.9 Exhibits. All references to "Exhibit" contained herein are references to
exhibits attached hereto, all of which are hereby made a part hereof for
all purposes.
13.10 Time of Essence. It is expressly agreed by the parties hereto that time
is of the essence with respect to this Contract and Closing hereunder.
13.11 Multiple Counterparts. This 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 agreement, but, in making proof of this
Contract, it shall not be necessary to produce or account for more than one
such counterpart.
13.12 Risk of Loss. Risk of loss or damage to the Property, or any part
thereof, by fire or any other casualty from the date this Contract is fully
executed up to the time of delivering the grant, bargain and sale deed
transferring title to the Property to the Purchaser will be on the Seller
and, thereafter, will be on the Purchaser.
13.13 Effective Date. As used herein, the term "Effective Date" shall mean
for all purposes in this Contract the date on which the Title Company
acknowledges receipt of an original of the Contract executed by Purchaser
and Seller with all changes, if any, to the printed portion of this
Contract initialed by Purchaser and Seller.
13.14 Business Days. All references to "business days" contained herein are
references to normal working business days, i.e., Monday through Friday of
each calendar week, exclusive of federal and national bank holidays.
17
<PAGE>
13.15 No Recordation of Contract. In no event shall this Contract or any
memorandum hereof be recorded in the public records of the place in
which the Property is situated, and any such recordation or attempted
recordation shall constitute a breach of this Contract by the party
responsible for such recordation or attempted recordation.
13.16 IRC Section 1031 Exchange Contingency. Purchaser is purchasing the
Property as the "second leg" of an Internal Revenue Code Section 1031
Exchange. The anticipated first leg of the exchange is a sale by Purchaser of
undeveloped real property in San Diego County, State of California adjacent to
Interstate 8 to the U.S. Department of Agriculture-Forest Service. An express
condition precedent to Purchaser's obligations pursuant to this Contract to
purchase the Property shall be the close of the transaction pursuant to which
the U.S. Forest Service is purchasing Purchaser's above described property in
San Diego County, California. Seller agrees to cooperate with Purchaser in
effecting an IRC Section 1031 exchange and agrees to execute such additional
documents as may be reasonably necessary in connection with the exchange,
including, but not limited to, a consent to a qualified
intermediary/accommodator being assigned Purchaser's position under this
Contract in order to effect the exchange, provided, that in no event shall
Seller be obligated to incur any liabilities, indebtedness or obligations, or
acquire any real property, in order to facilitate such exchange. In the event
of a delay in the receipt of funds by Purchaser from the Forest Service, the
close of escrow shall be extended until on or before May 17, 1995.
13.17 Seller is aware that Julie Dillon Roberts is a California licensed real
estate broker but is acting as a principal in this transaction.
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]
18
<PAGE>
SELLER:
Angeles Opportunity Properties Ltd.,
a California limited partnership
____________________________________________
By:Angeles Realty Corporation II, ________________
____________________________________________
____________________________________________
By:_________________________________________
____________________________________________
____________________________________________
PURCHASER:
Roberts Ranch Venture, L.P., a California limited partnership
Dillon Development, Inc., General Partner
By:_________________________________________
Julie Dillon Roberts
Its:_________________________________________
President
Dated:______________________________________
[SIGNATURE PAGE TO CONTRACT OF SALE]
19
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from
Angeles Opportunity Properties Limited Partnership's 1995 second quarter
10-QSB and is qualified in its entirety by reference to such 10-QSB
filing.
</LEGEND>
<MULTIPLIER> 1
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-END> JUN-30-1995
<CASH> 1,056,681
<SECURITIES> 0
<RECEIVABLES> 66,684
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 1,275,590
<PP&E> 7,731,922
<DEPRECIATION> (1,229,069)
<TOTAL-ASSETS> 8,250,362
<CURRENT-LIABILITIES> 183,648
<BONDS> 4,408,665
<COMMON> 0
0
0
<OTHER-SE> 3,557,991
<TOTAL-LIABILITY-AND-EQUITY> 8,250,362
<SALES> 0
<TOTAL-REVENUES> 1,158,205
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 1,059,859
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 223,870
<INCOME-PRETAX> 1,076,808
<INCOME-TAX> 0
<INCOME-CONTINUING> 1,076,808
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,076,808
<EPS-PRIMARY> 85.80
<EPS-DILUTED> 0
<PAGE>
</TABLE>
