EXHIBIT 10.49
PURCHASE AND SALE CONTRACT
BETWEEN
CONSOLIDATED CAPITAL PROPERTIES III,
A CALIFORNIA LIMITED PARTNERSHIP
AS SELLER
AND
XXXXXXX FINANCIAL SERVICES, INC.,
A WASHINGTON CORPORATION
AS PURCHASER
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINED TERMS 3
ARTICLE 2 PURCHASE AND SALE OF PROPERTY 7
ARTICLE 3 PURCHASE PRICE & DEPOSIT 8
ARTICLE 4 FINANCING 10
ARTICLE 5 FEASIBILITY PERIOD 11
ARTICLE 6 TITLE 16
ARTICLE 7 CLOSING 19
ARTICLE 8 REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER
25
ARTICLE 9 CONDITIONS PRECEDENT TO CLOSING 31
ARTICLE 10 BROKERAGE 33
ARTICLE 11 POSSESSION 34
ARTICLE 12 DEFAULTS AND REMEDIES 35
ARTICLE 13 RISK OF LOSS OR CASUALTY 37
ARTICLE 14 RATIFICATION 38
ARTICLE 15 EMINENT DOMAIN 39
ARTICLE 16 MISCELLANEOUS 40
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT ("PURCHASE CONTRACT") is entered into as of
the 5th day of May, 1999 (the "EFFECTIVE DATE") by and among CONSOLIDATED
CAPITAL PROPERTIES III, a California limited partnership, having a principal
address at c/o AIMCO, 0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx
00000 ("SELLER"), and XXXXXXX FINANCIAL SERVICES, INC., a Washington
corporation, having a principal address at 000 Xxxxxx Xxxxxx X., Xxxxx 000,
Xxxxxxx, Xxxxxxxxxx 00000 ("PURCHASER").
NOW, THEREFORE WITNESSETH: That for and in consideration of mutual
covenants and agreements hereinafter set forth, Seller and Purchaser hereby
agree as follows:
RECITALS
R-1. Seller owns certain real estate, improvements and related property located
in Salt Lake City, Utah.
R-2. Purchaser desires to purchase and pay to Seller the Purchase Price and
Seller has agreed to sell the Property (as defined below) to Purchaser, on the
terms and conditions set forth herein.
ARTICLE 1
DEFINED TERMS
1.1 Terms with initial capital letters in this Purchase Contract shall have the
meanings set forth in this Article 1.
1.1.1 "BUSINESS DAY" means any day other than a Saturday or Sunday or
federal holiday or legal holiday in the State of Utah.
1.1.2 "CLOSING" means the consummation of the purchase and sale and
related transactions contemplated by this Purchase Contract in accordance
with the terms and conditions of this Purchase Contract.
1.1.3 "CLOSING DATE" means the date set forth in Section 7.1.1 on which
the Closing of the conveyance of the Property is required to be held under
the terms and conditions of this Purchase Contract and on which date full
payment of the Purchase Price for the Property shall have been paid to and
received by Seller in immediately available U.S. funds.
1.1.4 "COMMERCIAL LEASE(S)" means the interest of Seller in and to all
leases, subleases and other occupancy agreements, whether or not of record,
which provide for the use or occupancy of space or facilities on or
relating to the Property and which are in force as of the Effective Date,
as set forth on the rent roll attached hereto as Exhibit 8.1.1.8, including
any new leases, subleases and other occupancy agreements entered into
between the Effective Date and the Closing Date.
1.1.5 "EXCLUDED PERMITS" means those Permits which, under applicable
law, are nontransferable or transferable only with consent and such consent
shall not have been obtained.
1.1.6 "FIXTURES AND TANGIBLE PERSONAL PROPERTY" means all fixtures,
furniture, furnishings, fittings, equipment, machinery, apparatus,
appliances and other articles of personal property now located on the Land
or in the Improvements as of the Effective Date and used or usable in
connection with any present or future occupation or operation of all or any
part of the Property as set forth in Exhibit 1.1.6. The term "FIXTURES AND
TANGIBLE PERSONAL PROPERTY" does not include (i) equipment leased by Seller
and the interest of Seller in any equipment provided to the Property for
use, but not owned or leased by Seller, or (ii) property owned or leased by
Tenants and guests, employees or other persons furnishing goods or services
to the Property, or (iii) property and equipment owned by Seller, which in
the ordinary course of business of the Property is not used exclusively for
the business, operation or management of the Property.
1.1.7 "IMPROVEMENTS" means all buildings and improvements, located on
the Land taken "as is" containing approximately 80,697 square feet of
office building space.
1.1.8 "LAND" means all of that certain tract of land located in Salt
Lake County, Utah, commonly known as 000 Xxxx 0000 Xxxxx, Xxxx Xxxx Xxxx,
Xxxx, more particularly described in Exhibit A attached hereto and made a
part hereof, and all rights, privileges and appurtenances pertaining
thereto.
1.1.9 "MISCELLANEOUS PROPERTY ASSETS" means all contract rights,
leases, concessions, warranties, plans, drawings, and other items of
intangible personal property relating to the ownership or operation of the
Property and owned by Seller, excluding, however, (i) receivables,
(ii) Property Contracts, (iii) Commercial Leases, (iv) Permits, (v) cash or
other funds, whether in xxxxx cash or house "banks," or on deposit in bank
accounts or in transit for deposit, (vi) refunds, rebates or other claims,
or any interest thereon, for periods or events occurring prior to the
Closing Date, (vii) utility and similar deposits, or (viii) insurance or
other prepaid items.
1.1.10 "PERMITS" means all licenses and permits other than Excluded
Permits granted by governmental authorities having jurisdiction over the
Property in respect of the matter to which the applicable license or permit
applies and owned by Seller and used in or relating to the ownership,
occupancy or operation of the Property or any part thereof not subject to a
Commercial Lease.
1.1.11 "PERMITTED EXCEPTIONS" means those exceptions or conditions
permitted to encumber the title to the Property in accordance with the
provisions of Section 6.2.
1.1.12 "PROPERTY" means the Land, Improvements and all rights of Seller
relating to the Land and the Improvements, including without limitation,
all right, title and interest of Seller, if any, in and to (i) any strips
and gores adjacent to the Land and any land lying in the bed of any street,
road, or avenue opened or proposed, in front of or adjoining the Land, to
the center line thereof, (ii) any unpaid award for any taking by
condemnation or any damage to the Property by reason of a change of grade
of any street or highway, (iii) all of the easements, rights, privileges,
and appurtenances belonging or in any way appertaining to the Property,
(iv) all Fixtures and Tangible Personal Property, (v) the right, if any and
only to the extent transferable, of Seller in any Property Contracts and
Commercial Leases, Permits (other than Excluded Permits) and the
Miscellaneous Property Assets owned by Seller which are located on the
Property and used in its operation, and (vi) any water rights or mineral
rights, appurtenant to the Land.
1.1.13 "PROPERTY CONTRACTS" means all purchase orders, maintenance,
service, or utility contracts and similar contracts (except Commercial
Leases, which shall be assumed by Purchaser at Closing), which relate to
the ownership, maintenance, construction or repair and/or operation of the
Property and are set forth on Exhibit 1.1.13.
1.1.14 "PURCHASE CONTRACT" means this Purchase and Sale Purchase
Contract by and between Seller and Purchaser.
1.1.15 "PURCHASE PRICE" means the total consideration to be paid by
Purchaser to Seller for the purchase of the Property.
1.1.16 "SURVEY" shall have the meaning ascribed thereto in Section 6.7.
1.1.17 "TENANT" means any person or entity entitled to occupy any
portion of the Property under a Commercial Lease.
1.1.18 "TITLE COMMITMENT" or "TITLE COMMITMENTS" shall have the meaning
ascribed thereto in Section 6.1.
1.1.19 "TITLE INSURER" shall have the meaning set forth in Section 6.1.
ARTICLE 2
PURCHASE AND SALE OF PROPERTY
2.1 Purchase and Sale of Property. Seller agrees to sell and convey the
Property to Purchaser and Purchaser agrees to purchase the Property from
Seller, in accordance with the terms and conditions set forth in this
Purchase Contract.
ARTICLE 3
PURCHASE PRICE & DEPOSIT
3.1 Purchase Price and Deposit. The total purchase price ("PURCHASE PRICE")
for the Property shall be Three Million Six Hundred Thousand and No/100
Dollars ($3,600,000.00), which shall be paid by Purchaser, as follows:
3.1.1 On the date hereof, Purchaser shall deliver to Fidelity National
Title Insurance Company, Bank of America Center, 000 Xxxxxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxx 00000 ("ESCROW AGENT" or the "TITLE COMPANY") a deposit in
the sum of One Hundred Thousand and No/100 Dollars ($100,000.00) in cash
(such sum being hereinafter referred to and held as the "DEPOSIT"), to be
held and disbursed by Escrow Agent pursuant to the terms of an escrow
agreement (the "ESCROW AGREEMENT") in the form attached hereto as
Exhibit B. Purchaser and Seller each approve and shall execute the Escrow
Agreement concurrently with the execution of this Purchase Contract.
3.1.2 The Escrow Agent shall hold the Deposit and make delivery of the
Deposit to the party entitled thereto under the terms of the Escrow
Agreement. Escrow Agent shall invest the Deposit in such short-term,
high-grade securities, interest-bearing bank accounts, money market funds
or accounts, bank certificates of deposit or bank repurchase agreements as
Escrow Agent, in its discretion, deems suitable (provided that Escrow Agent
shall invest the Deposit as jointly directed by Seller and Purchaser should
Seller and Purchaser each in their respective sole discretion determine to
issue such joint investment instructions to the Escrow Agent), and all
interest and income thereon shall become part of the Deposit and shall be
remitted to the party entitled to the Deposit, as set forth below.
3.1.3 If the sale of the Property is closed by the date fixed therefor
(or any extension date provided for by the mutual written consent of the
parties hereto, given or withheld in their respective sole discretion),
monies held as the Deposit shall be applied (and paid over to the Seller)
on the date of Closing. If the sale of the Property is not closed by the
date fixed therefor (or any such extension date) owing to failure of
satisfaction of a condition precedent to Purchaser's obligations, the
Deposit shall be returned and refunded to Purchaser and neither party shall
have any further liability hereunder except as expressly stated herein, and
subject to and except for Purchaser's liability under Sections 5.3 and 5.4.
3.1.4 If the sale of the Property fails to close on the Closing Date
(or any such extension date) due to a failure of performance by Seller,
Purchaser shall be entitled to the remedies set forth in Article 12 hereof.
If the sale of the Property fails to close on the Closing Date (or any such
extension date) due to a failure of performance by Purchaser, the Deposit
shall be forfeited by Purchaser and the sum thereof shall go to Seller
forthwith as liquidated damages for the lost opportunity costs and
transaction expenses incurred by Seller, as more fully set forth in
Article 12 below.
3.2 Purchase Price. On the Closing Date, Purchaser shall pay Seller the amount
of Three Million Six Hundred Thousand and No/100 Dollars ($3,600,000.00),
subject to credit and adjustment as provided herein, in cash or by wire-
transfer of current funds pursuant to wire instructions provided by Seller.
ARTICLE 4
FINANCING
4.1 Financing of Purchaser. Purchaser assumes full responsibility to
expeditiously and diligently initiate and pursue all steps necessary to
obtain appropriate financing for purchase of the Property. In no event
shall Purchaser's ability to obtain financing to purchase the Property for
the Purchase Price upon the terms and conditions contained herein be a
condition precedent to Closing.
ARTICLE 5
FEASIBILITY PERIOD
5.1 Due Diligence and Feasibility Period. Subject to the rights of the Tenants
and the terms of Sections 5.3 and 5.4 below, for thirty-five (35) calendar
days following the Effective Date (the "FEASIBILITY PERIOD"), Purchaser,
and its agents, contractors, engineers, surveyors, attorneys, and employees
(collectively, "CONSULTANTS") shall have the right from time to time upon
reasonable advance notice to Seller to enter onto the Property:
5.1.1 To conduct and make any and all customary studies, tests,
examinations and inspections, or investigations of or concerning the
Property (including without limitation, engineering and feasibility
studies, evaluation of drainage and flood plain, soil tests for bearing
capacity and percolation and surveys, including topographical surveys).
Notwithstanding the foregoing, in no event shall Purchaser conduct any
invasive environmental assessment test of the Property without the prior
written consent of Seller, which consent may be withheld, in Seller's sole
discretion.
5.1.2 To confirm any and all matters which Purchaser may reasonably
desire to confirm with respect to the Property.
5.1.3 To ascertain and confirm the suitability of the Property for
Purchaser's intended use of the Property.
5.1.4 To review and copy and to independently analyze and verify,
(i) to the extent in Seller's possession or control, all books and records
pertaining to operation of the Property (or duplicate copies thereof),
including but not limited to current operating statements for the calendar
year 1998 and the first quarter of 1999, (ii) to the extent in Seller's
possession or control, plans, specifications, and engineering and/or
architectural drawings of the Improvements and systems of the Property or
any part of the Property (or duplicate copies thereof), (iii) to the extent
in Seller's possession or control, any boundary and "as-built" surveys of
the Land and Improvements, (iv) to the extent in Seller's possession or
control, any environmental reports relating to the Property, (v) copies of
Commercial Leases in effect as of Closing and all amendments thereto,
(vi) copies of Property Contracts in effect as of Closing and assumed by
Purchaser, and (vii) to the extent in Seller's possession or control, any
Permits.
5.2 Termination Rights. Should the results of any of the matters referred to
in Section 5.1 above appear unsatisfactory to Purchaser for any reason,
then Purchaser shall have the right to terminate this Purchase Contract by
giving written Notice to that effect to Seller and Escrow Agent on or
before 5:00 p.m. PST on the date of expiration of the Feasibility Period,
specifying the matter(s) to which Purchaser objects. If Purchaser
exercises such right to terminate as provided in this Section 5.2, this
Purchase Contract shall terminate and be of no further force and effect,
except as otherwise expressly stated herein, and subject to and except for
Purchaser's liability under Sections 5.3 and 5.4, and Escrow Agent shall
promptly return the Deposit to Purchaser. Purchaser shall, within ten (10)
days of such termination, deliver to Seller copies of all feasibility
studies, surveys, engineering reports and all other information obtained by
Purchaser with respect to the Property, which requirement shall survive the
termination of this Purchase Contract. In the event Seller does not
receive such Notice of Purchaser's disapproval on or before the 5:00 p.m.
PST on the date of expiration of the Feasibility Period, the Property shall
be deemed satisfactory to Purchaser, and Purchaser shall be deemed
conclusively to have waived its termination rights under this Section 5.2
and this Purchase Contract shall remain in full force and effect and
Purchaser's obligation to purchase the Property shall be noncontingent and
unconditional except only for satisfaction of the conditions expressly
stated in this Article 5 and in Article 9.
5.3 Confidentiality. Any and all information provided by Seller to Purchaser
or obtained by Purchaser relating to the Property in the course of its
inspections or review under or in connection with the rights under
Section 5.1, including, without limitation, any environmental assessment or
audit, shall be treated as confidential information by Purchaser and
Purchaser shall instruct all of its Consultants to the confidentiality of
all such information. Purchaser will not, except with the express prior
written consent of Seller, directly or indirectly, (i) disclose or permit
the disclosure of any information to any person or entity, except persons
who are bound to observe the terms hereof, or (ii) use or permit the use of
all information pertaining to the Property (1) in any way detrimental to
the Seller or (2) for any purpose other than evaluating the contemplated
purchase of the Property. Purchaser agrees, that if the Closing does not
occur, Purchaser will promptly return to the Seller or its authorized agent
all written or tangible information pertaining to the Property, including
all copies or extracts thereof, and all notes based upon the information.
Except for disclosures required by law or pursuant to legal process or
except for the disclosure of information already in the public domain,
Purchaser shall be liable for all costs and expenses, and/or damage or
injury to any person or property resulting from any such review or
inspection or any failure to keep all such information confidential,
whether occasioned by the acts of Purchaser or any of its Consultants, and
whether Seller or its authorized agents shall have been present at the same
or shall have consented to the same; and Purchaser agrees to indemnify and
hold harmless Seller from any liability, claims or expenses (including,
without limitation, mechanic's or construction liens and/or reasonable
attorneys' fees) resulting therefrom. Neither the Seller, nor any of its
officers, directors, employees, agents or representatives, shall be deemed
to make or to have made any representation or warranty as to the accuracy
or completeness of any information pertaining to the Property or whether or
not the information provided constitutes all of the information available
to the Seller; and neither the Seller nor any of its officers, directors,
employees, representatives or agents shall have any liability resulting
from Purchaser's use of any information pertaining to the Property.
Notwithstanding anything to the contrary set forth in this Agreement, the
obligations of Purchaser set forth in this Section 5.3 shall survive the
Closing or the termination of this Agreement, as applicable.
5.4 Indemnification of Seller. Purchaser shall indemnify and hold Seller
harmless for any actions taken by Purchaser and its Consultants on the
Property. Purchaser shall indemnify, defend (with attorneys selected by
Seller) and hold Seller harmless from any and all claims, damages, costs
and liability which may arise due to such entries, surveys, tests,
investigations and the like. Seller shall have the right, without
limitation, to disapprove any and all entries, surveys, tests,
investigations and the like that in their reasonable judgment could result
in any injury to the Property or breach of any agreement, or expose Seller
to any liability, costs, liens or violations of applicable law, or
otherwise adversely affect the Property or Seller's interest therein. No
consent by the Seller to any such activity shall be deemed to constitute a
waiver by Seller or assumption of liability or risk by Seller. The
provisions of this Section 5.4 shall survive Closing or the earlier
termination of this Purchase Contract.
5.5 Insurance of Purchaser. Purchaser shall maintain casualty insurance and
comprehensive public liability insurance with broad form contractual and
personal injury liability endorsements with respect to the Property and
Purchaser's activities carried on therein, in amounts (including deductible
amounts) and with such insurance carriers as shall be approved by Seller
and naming Seller and its affiliates as Loss Payees or Additional Insureds
(at the option of Seller), with endorsements acceptable to Seller,
including a waiver of defenses of the insurer based on the actions or
inaction of Purchaser. Such liability insurance shall provide coverages of
not less than $1,000,000.00 for injury or death to any one person and
$3,000,000.00 for injury or death to more than one person and $500,000.00
with respect to property damage, by water or otherwise.
5.6 Condition of Property. Purchaser hereby agrees to restore the Property to
the same condition existing immediately prior to Purchaser's exercise of
its rights pursuant to this Article 5 at Purchaser's sole cost and expense.
Purchaser shall not permit any mechanics' or materialmen's liens or any
other liens to attach to the Property by reason of the performance of any
work or the purchase of any materials by Purchaser or any other party in
connection with any studies or tests conducted by or for Purchaser.
5.7 Exercise of Due Care. Purchaser shall permit Seller to have a
representative present during all investigations and inspections conducted
with respect to the Property. Purchaser shall take all reasonable actions
and implement all protections necessary to ensure that all actions taken in
connection with the investigations and inspections of the Property, and all
equipment, materials and substances generated, used or brought onto the
Property pose no material threat to the safety of persons or the
environment and cause no damage to the Property or other property of Seller
or other persons.
ARTICLE 6
TITLE
6.1 Title. Purchaser shall within ten (10) days of the Effective Date secure a
commitment for title insurance for the Property in an amount equal to the
Purchase Price ("TITLE COMMITMENT") issued by Fidelity National Title
Insurance Company ("TITLE INSURER") for an owner's title insurance policy
on the most recent standard American Land Title Association ("ALTA") Policy
form ("POLICY"), together with legible copies of all instruments identified
as exceptions therein. Seller shall be responsible, at Closing, for the
premium allocable to the standard coverage portion of the owner's title
insurance policy. Purchaser agrees that it shall be solely responsible for
payment of all other costs relating to the procurement of the Title
Commitment, review of title and the issuance of policies of title
insurance, including but not limited to, any extended coverage portion of
the owner's title policy, the lender's title policy, and any endorsements
thereto.
6.2 Permitted Exceptions. Purchaser agrees to accept title to the Land and
Improvements, so long as the same is insurable at ordinary rates.
Purchaser agrees to accept title to the Land and Improvements by special
warranty deed subject to the Permitted Exceptions ("SPECIAL WARRANTY
DEED"). The term "PERMITTED EXCEPTIONS" shall mean the following, all of
which shall be deemed Permitted Exceptions:
6.2.1 The title exceptions listed on Exhibit B of the form of Special
Warranty Deed attached hereto as Exhibit 7.2.1.1;
6.2.2 Such exceptions and matters as the Title Insurer shall be willing
to omit as exceptions to coverage;
6.2.3 All Commercial Leases; and
6.2.4 All Property Contracts.
6.3 Approved Exceptions.
6.3.1 The existence of other mortgages, liens, or encumbrances shall
not be objections to title, provided that properly executed instruments in
recordable form necessary to satisfy and remove the same of record are
delivered to the Purchaser at Closing or, in the alternative, with respect
to any mortgage or deed of trust liens, that payoff letters from the holder
of the mortgage or deed of trust liens shall have been delivered to and
accepted by the Title Insurer (sufficient to remove the same from the
Policy at Closing), together in either case with recording and/or filing
fees.
6.3.2 Unpaid liens for taxes, charges, and assessments shall not be
objections to title, but the amount thereof plus interest and penalties
thereon shall be deducted from the Purchase Price to be paid for the
Property hereunder and allowed to Purchaser, subject to the provisions for
apportionment of taxes and charges contained herein.
6.3.3 Exceptions for utility easements that do not involve an
encroachment or violation shall not be objections to title.
6.4 Survey. Purchaser at Purchaser's sole cost and expense, may elect to cause
to be prepared a survey for the Property ("SURVEY") to be delivered to
Purchaser and Seller within twenty (20) days of the Effective Date. The
Survey shall be prepared to Purchaser's specifications. In the event the
perimeter legal description of the Property contained in the Survey differs
from that contained in the deed or deeds by which Seller took title to the
Property, the latter description shall be used in the Special Warranty Deed
delivered to Purchaser at Closing, and the Survey legal shall be used in a
quitclaim deed to the Property which also shall be delivered to Purchaser
at Closing. Upon Purchaser's receipt, Purchaser shall promptly provide
Seller a copy of the Survey and the Title Commitment.
6.5 Title and Survey Review and Objections. Prior to the expiration of the
Feasibility Period, Purchaser shall examine and approve the Survey, if any,
the Title Commitment and copies of the documents and instruments referred
to in the Title Commitment. Purchaser shall have until 5:00 p.m. on the
date of expiration of the Feasibility Period to provide written Notice to
Seller of any defects affecting the marketability of the title to the
Property or any objections to any exceptions (other than Permitted
Exceptions), the Survey, or the Title Commitment. At Seller's sole option,
Seller may elect to cure such objections or defects at Seller's expense at
any time prior to Closing. If Seller is unable or unwilling, in its sole
discretion or opinion, to eliminate such objections or defects or to cause
a title insurance company to insure over or satisfy such objections or
defects, Seller shall give Purchaser written Notice thereof, and if
Purchaser does not waive such objections or defects by written Notice
delivered to Seller and the Title Insurer on or before seven (7) calendar
days following the date Seller gives such Notice, then this Purchase
Contract shall automatically terminate, in which event Purchaser shall
release all of Purchaser's right and interest in such Property to Seller,
and except as expressly provided herein, and except for Purchaser's
liability under Sections 5.3 and 5.4, the parties hereto shall have no
further obligations to each other. In the event Purchaser fails to object
to any exceptions, the Survey, or the Title Commitment or to any objections
or defects affecting the marketability of title to the Property within the
Feasibility Period, Purchaser shall be deemed to have waived any objections
and defects and to accept title to the Property subject to the Title
Commitment and the Permitted Exceptions. In the event Purchaser elects not
to obtain a Survey, Purchaser shall be deemed to have waived any objections
that would be disclosed by an "as built" Survey, including all exceptions
to the Policy for matters which would be disclosed by a survey. Anything
to the contrary notwithstanding, Purchaser shall not have any right to
terminate this Purchase Contract or object to any lien, encumbrance,
exception or other matter that is a Permitted Exception, that has been
waived or deemed to have been waived by Purchaser.
ARTICLE 7
CLOSING
7.1 Closing and Prorations.
7.1.1 The Closing shall take place on or before thirty (30) calendar
days following the expiration or earlier termination of the Feasibility
Period at such place as the parties shall mutually agree upon at a time
mutually agreed upon on the Closing Date. Purchaser and Seller may agree
to conduct Closing through a preclosing, an escrow or other arrangement
reasonably, whereby Seller and Purchaser and their attorneys need not be
physically present at the Closing and may deliver documents by overnight
air courier or other means. The Closing Date may be extended without
penalty if mutually acceptable to Seller and Buyer.
7.1.2 All normal and customarily proratable items, including, without
limitation, Rents (as defined below), operating expenses, escalations,
taxes and insurance charges, common area maintenance charges, personal
property taxes, other operating expenses and fees, shall be prorated as of
the Closing Date, Seller being charged and credited for all of same
attributable to the period up to the Closing Date (and credited for any
amounts paid by Seller attributable to the period on or after the Closing
Date) and Purchaser being responsible for, and credited or charged, as the
case may be, for all of same attributable to the period on and after the
Closing Date. All unapplied deposits (with interest thereon, if required
by law or under the terms of the Commercial Leases) under Commercial
Leases, if any, shall be transferred by Seller to Purchaser at the Closing.
Leasing commissions, tenant finish allowances and similar expenses shall,
however, be allocable to Purchaser to the extent payable after the
Effective Date, and any leasing commissions, tenant finish allowances or
similar expenses paid by Seller from and after the Effective Date through
the Closing Date shall be reimbursed to Seller by Purchaser at Closing, and
otherwise Purchaser shall assume all liability for such leasing
commissions, tenant finish allowances and similar expenses. Purchaser
shall assume at Closing the obligation to pay any accrued but unpaid tenant
improvement allowances and leasing commissions, together with any payments
due parties to other agreements affecting the Property which survive
Closing. Any real estate ad valorem or similar taxes for the Property, or
any installment of assessments payable in installments, which installment
is payable in the year of Closing, shall be prorated to the date of
Closing, based upon actual days involved. The proration of real property
taxes or installments of assessments shall be based upon the assessed
valuation and tax rate figures for the year in which the Closing occurs to
the extent the same are available; provided, that in the event that actual
figures (whether for the assessed value of the Property or for the tax
rate) for the year of Closing are not available at the Closing Date, the
proration shall be made using figures from the preceding year. The
proration shall be final and unadjustable except as provided in Section
7.1.3. For purposes of this Section 7.1.2 and Sections 7.1.3 and 7.1.4,
the terms "RENT" and "RENTS" shall include, without limitation, base rents,
additional rents, percentage rents and common area maintenance charges.
The provisions of this Section 7.1.2 shall apply during the Proration
Period (as defined below).
7.1.3 If any of the items subject to proration hereunder cannot be
prorated at the Closing because the information necessary to compute such
proration is unavailable, or if any errors or omissions in computing
prorations at the Closing are discovered subsequent to the Closing, then
such item shall be reapportioned and such errors and omissions corrected as
soon as practicable after the Closing Date and the proper party reimbursed,
which obligation shall survive the Closing for a period from the Closing
Date until one (1) year after the Closing Date (the "PRORATION PERIOD").
Neither party hereto shall have the right to require a recomputation of a
Closing proration or a correction of an error or omission in a Closing
proration unless within the Proration Period one of the parties hereto
(i) has obtained the previously unavailable information or has discovered
the error or omission, and (ii) has given Notice thereof to the other party
together with a copy of its good faith recomputation of the proration and
copies of all substantiating information used in such recomputation. The
failure of a party to obtain any previously unavailable information or
discover an error or omission with respect to an item subject to proration
hereunder and to give Notice thereof as provided above within the Proration
Period shall be deemed a waiver of its right to cause a recomputation or a
correction of an error or omission with respect to such item after the
Closing Date. Any Rents that have accrued, but have not yet been paid,
shall be prorated in accordance with estimates based upon the prior years'
information (or reasonable estimates of Seller if no such prior years'
information is available), and shall be subsequently readjusted and
reapportioned upon receipt. Purchaser shall pay Seller for Rents that have
accrued, but are not yet due and payable, at Closing.
7.1.4 If on the Closing Date any Tenant is in arrears in any Rent
payment under any Commercial Lease (the "DELINQUENT RENT"), any Delinquent
Rent received by Purchaser and Seller from such Tenant after the Closing
shall be applied to amounts due and payable by such Tenant during the
following periods in the following order of priority: (i) first, to the
period of time before the Closing Date, and (ii) second, to the period of
time after the Closing Date. If Delinquent Rent or any portion thereof
received by Seller or Purchaser after the Closing are due and payable to
the other party by reason of this allocation, the appropriate sum, less a
proportionate share of any reasonable attorneys' fees and costs and
expenses expended in connection with the collection thereof, shall be
promptly paid to the other party. After the Closing, Seller shall continue
to have the right, but not the obligation, in its own name, to demand
payment of and to collect Delinquent Rent owed to Seller by any Tenant,
which right shall include, without limitation, the right to continue or
commence legal actions or proceedings against any Tenant (provided, that
Seller shall not commence any legal actions or proceedings against any
Tenant which continues as a Tenant at the Property after Closing without
the prior consent of Purchaser, which will not be unreasonably withheld or
delayed), and the delivery of the Assignment as defined in Section 7.2.1.3
shall not constitute a waiver by Seller of such right. Purchaser agrees to
cooperate with Seller at no cost or liability to Purchaser in connection
with all efforts by Seller to collect such Delinquent Rent and to take all
steps, whether before or after the Closing Date, as may be necessary to
carry out the intention of the foregoing, including, without limitation,
the delivery to Seller, upon demand, of any relevant books and records
(including, without limitation, rent statements, receipted bills and copies
of Tenant checks used in payment of such Rent), the execution of any and
all consents or other documents, and the undertaking of any act reasonably
necessary for the collection of such Delinquent Rent by Seller; provided,
however, that Purchaser's obligation to cooperate with Seller shall not
obligate Purchaser to terminate any Commercial Lease with an existing
Tenant or evict any existing Tenant from the Property. The provisions of
this Section 7.1.4 shall apply during the Proration Period.
7.2 Items To Be Delivered Prior To Or At Closing.
7.2.1 Seller. At Closing, Seller shall deliver to Purchaser each of
the following items, as applicable:
7.2.1.1 Special Warranty Deed. A Special Warranty Deed in the form
attached as Exhibit 7.2.1.1 to Purchaser. The acceptance of the Special
Warranty Deed at Closing shall be deemed to be full performance of, and
discharge of, every agreement and obligation on Seller's part to be
performed under this Purchase Contract, except as expressly stated herein.
7.2.1.2 Xxxx of Sale. A Xxxx of Sale without recourse or warranty in the
form attached as Exhibit 7.2.1.2 covering all Fixtures and Tangible
Personal Property required to be transferred to Purchaser with respect to
the Property. Purchaser shall countersign the same so as to effect an
assumption by Purchaser, including, without limitation, of Seller's
obligations thereunder.
7.2.1.3 General Assignment. A general assignment (to the extent
assignable and in force and effect) without recourse or warranty in the
form attached as Exhibit 7.2.1.3 of all of Seller's right, title and
interest in and to the Miscellaneous Property Assets, Permits, Property
Contracts and Commercial Leases, subject to any required consents (the
"ASSIGNMENT"). Purchaser shall countersign the same so as to effect an
assumption by Purchaser, including, without limitation, of Seller's
obligations thereunder.
7.2.1.4 Closing Statement. A closing statement executed by Seller.
7.2.1.5 Vendor's Affidavit. A vendor's affidavit or at Seller's option
an indemnity, as applicable, in the customary form reasonably acceptable
to Seller to enable Title Insurer to delete those exceptions for
mechanic's liens with respect to work or materials and rights of parties
in possession other than under Commercial Leases, to be issued pursuant to
the Title Commitment; provided that such affidavit does not subject Seller
to any greater liability, or impose any additional obligations, other than
as set forth in this Purchase Contract.
7.2.1.6 FIRPTA. A certification of Seller's nonforeign status pursuant
to Section 1445 of the Internal Revenue Code of 1986, as amended, in the
form attached hereto as Exhibit 7.2.1.6.
7.2.1.7 Estoppel Certificates. Tenant Estoppel Certificates (as defined
below) as provided in Section 9.1.4, in the form of Exhibit 9.1.4.
7.2.1.8 Other. Except for the items expressly listed above to be
delivered at Closing, delivery of any other required items shall be deemed
made by Seller to Purchaser, if Seller leaves such documents at the
Property in their customary place of storage or in the custody of
Purchaser's representatives.
7.2.2 Purchaser. At Closing, Purchaser shall deliver to Seller the
following items with respect to each Property being conveyed or transferred
by merger at such Closing:
7.2.2.1 Purchase Price. The full Purchase Price as required by Article 3
hereof plus or minus the adjustments or prorations required by this
Purchase Contract. If at Closing there are any liens or encumbrances on
the Property that Seller is obligated to pay and discharge, Seller may use
any portion of the Purchase Price for the Property to satisfy the same.
The existence of any such liens or encumbrances shall not be deemed
objections to title if Seller shall comply with the foregoing
requirements.
7.2.2.2 Closing Statement. A closing statement executed by Purchaser.
7.2.2.3 Xxxx of Sale. A countersigned counterpart of the Xxxx of Sale in
the form attached as Exhibit 7.2.1.2.
7.2.2.4 General Assignment. A countersigned counterpart of the
Assignment in the form attached as Exhibit 7.2.1.3.
7.2.2.5 Other. Such other instruments, documents or certificates as are
required to be delivered by Purchaser to Seller in accordance with any of
the other provisions of this Purchase Contract.
ARTICLE 8
REPRESENTATIONS, WARRANTIES AND
COVENANTS OF SELLER AND PURCHASER
8.1 Representations And Warranties And Covenants Of Seller.
8.1.1 Representations and Warranties of Seller. For the purpose of
inducing Purchaser to enter into this Purchase Contract and to consummate
the sale and purchase of the Property in accordance herewith, Seller
represents and warrants to Purchaser the following as of the Effective
Date:
8.1.1.1 Seller (i) is lawfully and duly organized, and in good standing
under the laws of the State of California, (ii) has or at Closing shall
have the power and authority to sell and convey the Property and to
execute the documents to be executed by Seller, and (iii) prior to Closing
will have taken as applicable, all corporate, partnership, limited
liability company or equivalent entity actions required for the execution
and delivery of this Purchase Contract, and the consummation of the
transactions contemplated by this Purchase Contract. The compliance with
or fulfillment of the terms and conditions hereof will not conflict with,
or result in a breach of, the terms, conditions or provisions of, or
constitute a default under, any Purchase Contract to which Seller is a
party or by which Seller is otherwise bound. Seller has not made any
other purchase contract for the sale of, or given any other person the
right to purchase, all or any part of any of the Property applicable to
the foregoing representation;
8.1.1.2 Seller owns insurable fee title to the Property, including all
real property contained therein required to be sold to Purchaser, subject
only to the Permitted Exceptions;
8.1.1.3 There are no adverse or other parties in possession of the
Property, except for occupants, guests and Tenants under the Commercial
Leases;
8.1.1.4 The joinder of no person or entity other than Seller is necessary
to convey the Property fully and completely to Purchaser at Closing, or to
fulfill Seller's obligations and Seller has all necessary right and
authority to convey and assign to Purchaser all contract rights and
warranties required to be conveyed and assigned to Purchaser hereunder;
8.1.1.5 Purchaser has no duty to collect withholding taxes for Seller
pursuant to the Foreign Investors Real Property Tax Act of 1980, as
amended;
8.1.1.6 Seller has received no written notice of any actions,
proceedings, litigation or governmental investigations or condemnation
actions either pending or threatened against the Property, as applicable;
and
8.1.1.7 Seller has received no written notice of any claims for labor
performed, materials furnished or services rendered in connection with
constructing, improving or repairing any of the Property, as applicable,
caused by Seller and which remain unpaid beyond the date for which payment
was due and in respect of which liens may or could be filed against any of
the Property, as applicable;
8.1.1.8 The copy of the rent roll attached hereto as Exhibit 8.1.1.8 is
true, accurate and complete in all material respects.
8.1.2 Disclaimer. Except for the representations and warranties
expressly set forth above in Section 8.1.2, the Property is expressly
purchased and sold "AS IS," "WHERE IS," and "WITH ALL FAULTS." The
Purchase Price and the terms and conditions set forth herein are the result
of arm's-length bargaining between entities familiar with transactions of
this kind, and said price, terms and conditions reflect the fact that
Purchaser shall have the benefit of, and is relying upon, no information
provided by Seller and no statements, representations or warranties,
express or implied, made by or enforceable directly against Seller,
including, without limitation, any relating to the value of the Property,
the physical or environmental condition of the Property, the state,
federal, county or local law, ordinance, order, permit or suitability,
compliance or lack of compliance of the Property with any regulation, or
any other attribute or matter of or relating to the Property (other than
any covenants of title contained in the Special Warranty Deed conveying the
Property and the representations set forth above). Purchaser represents
and warrants that as of the Closing Date, it has and shall have reviewed
and conducted such independent analyses, studies, reports, investigations
and inspections as it deems appropriate in connection with the Property.
If Seller provides or has provided any documents, opinions or work product
of consultants, surveyors, architects, engineers, title companies,
governmental authorities or any other person or entity with respect to the
Property, Purchaser and Seller agree that Seller has done so or shall do so
only for the convenience of both parties, Purchaser shall not rely thereon
and the reliance by Purchaser upon any such documents, opinions or work
product shall not create or give rise to any liability of or against
Seller, Seller's partners or affiliates or any of their respective
partners, officers, directors, participants, employees, contractors,
attorneys, consultants, representatives, agents, successors, assigns or
predecessors-in-interest. Purchaser shall rely only upon the Policy
obtained by Purchaser with respect to title to the Property. Purchaser
acknowledges and agrees that no representation has been made and no
responsibility is assumed by Seller with respect to current and future
applicable zoning or building code requirements or the compliance of the
Property with any other laws, rules, ordinances or regulations, the
financial earning capacity or expense history of the Property, the
continuation of contracts, continued occupancy levels of the Property, or
any part thereof, or the continued occupancy by Tenants of any Commercial
Leases or, without limiting any of the foregoing, occupancy at Closing.
Prior to Closing, Seller shall have the right, but not the obligation, to
enforce its rights against any and all Property occupants, guests or
Tenants. Purchaser agrees that the departure or removal, prior to Closing,
of any of such guests, occupants or Tenants shall not be the basis for, nor
shall it give rise to, any claim on the part of Purchaser, nor shall it
affect the obligations of Purchaser under this Purchase Contract in any
manner whatsoever; and Purchaser shall close title and accept delivery of
the Special Warranty Deed with or without such Tenants in possession and
without any allowance or reduction in the Purchase Price under this
Purchase Contract. Purchaser hereby releases Seller from any and all
claims and liabilities relating to the foregoing matters, except as
provided in Section 8.1.3 below.
8.1.3 Survival of Representations and Warranties. Seller and Purchaser
agree that those representations contained in this Section 8.1 shall
survive Closing for a period of one (1) year (that is, any proceeding based
on the breach of a representation contained in this Section 8.1 that
survives Closing must be commenced within one (1) year subsequent to the
Closing Date). In the event that Seller breaches any representation
contained in this Section 8.1 and Purchaser had actual knowledge of such
breach, Purchaser shall be deemed to have waived any right of recovery and
Seller shall not have any liability in connection therewith.
8.1.4 No Duty of Inquiry. Representations and warranties above made to
the knowledge of Seller shall not be deemed to imply any duty of inquiry.
8.1.5 Covenants of Seller.
8.1.5.1 Seller covenants that it will not voluntarily create or cause any
lien or encumbrance (other than Commercial Leases and Property Contracts
in the ordinary course of business) to attach to the Property between the
Effective Date and the Closing Date; any such monetary lien or
encumbrance so attaching by voluntary act of Seller shall be discharged
by the Seller at or prior to Closing, on the Closing Date or any
postponed Closing Date. Except as expressly provided above, Seller shall
not be required to undertake efforts to remove any other lien,
encumbrance, security interest, exception, objection or other matter, to
make any expenditure of money or institute litigation or any other
judicial or administrative proceeding and Seller may elect not to
discharge the same.
8.1.5.2 Seller may enter into new Commercial Leases and new Property
Contracts in the ordinary course of business during the Feasibility
Period; provided, however, that any new Property Contracts entered into
by Seller after the Effective Date shall be terminable upon thirty (30)
days' notice without penalty. Unless this Purchase Contract is
terminated as provided herein, upon the expiration of the Feasibility
Period, and Purchaser's acceptance of the Property, Seller shall not
enter into any new Commercial Leases or Property Contracts affecting the
Property without the reasonable consent of Purchaser. All new leases or
contracts entered into in accordance with the provisions of this Section
8.1.5 shall be deemed "COMMERCIAL LEASES" and "PROPERTY CONTRACTS",
respectively, as defined herein.
8.2 Representations And Warranties And Covenants Of Purchaser.
8.2.1 Representations and Warranties of Purchaser. For the purpose of
inducing Seller to enter into this Purchase Contract and to consummate the
sale and purchase of the Property in accordance herewith, Purchaser
represents and warrants to Seller the following as of the Effective Date
and as of the Closing Date:
8.2.1.1 Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of Washington.
8.2.1.2 Purchaser, acting through any of its duly empowered and
authorized officers or members, has all necessary power and authority to
own and use its properties and to transact the business in which it is
engaged, and has full power and authority to enter into this Purchase
Contract, to execute and deliver the documents and instruments required of
Purchaser herein, and to perform its obligations hereunder; and no consent
of any of Purchaser's officers or members is required to so empower or
authorize Purchaser.
8.2.1.3 No pending or, to the knowledge of Purchaser, threatened
litigation exists which if determined adversely would restrain the
consummation of the transactions contemplated by this Purchase Contract or
would declare illegal, invalid or nonbinding any of Purchaser's
obligations or covenants to Seller.
8.2.1.4 Purchaser is duly authorized to execute and deliver, acting
through its duly empowered and authorized officers and members,
respectively, and perform this Purchase Contract and all documents and
instruments and transactions contemplated hereby or incidental hereto, and
such execution, delivery and performance by Purchaser does not (i) violate
any of the provisions of their respective certificates of incorporation or
bylaws, (ii) violate any provision of any law, governmental rule or
regulation currently in effect, (iii) violate any judgment, decree, writ,
injunction, award, determination or order currently in effect that names
or is specifically directed at Purchaser or its property, and (iv) require
the consent, approval, order or authorization of, or any filing with or
notice to, any court or other governmental authority.
8.2.1.5 The joinder of no person or entity other than Purchaser is
necessary to consummate the transactions to be performed by Purchaser and
Purchaser has all necessary right and authority to perform such acts as
are required and contemplated by this Purchase Contract.
8.2.2 Covenant of Purchaser.
8.2.2.1 Purchaser has not dealt with any broker, finder or any other
person in connection with the purchase of or the negotiation of the
purchase of the Property that might give rise to any claim for commission
against Seller or lien or claim against the Property, except for Pinnacle
Realty Management Company (the "BROKER") and Xxxx X. Xxxxxxx ("XXXXXXX"),
a licensed real estate agent who is affiliated with Pinnacle. Purchaser
shall and does hereby indemnify and hold harmless Seller from and against
any claim whether or not meritorious, for any real state sales
commissions, finder's fees, or like compensation in connection with the
sale contemplated hereby and arising out of any act or agreement of
Purchaser, including any claim asserted by Xxxxxxx. Purchaser agrees
that Xxxxxxx has waived any claim for commission, finder's fee or like
compensation in connection with the transaction contemplated herein.
8.2.2.2 Purchaser shall obtain financing prior to Closing sufficient to
purchase the Property for the Purchase Price and upon the terms and
conditions contained herein.
ARTICLE 9
CONDITIONS PRECEDENT TO CLOSING
9.1 Conditions Precedent to Purchaser's Obligation to Close. Purchaser's
obligation to close under this Purchase Contract shall be subject to and
conditioned upon the fulfillment of each and all of the following
conditions precedent:
9.1.1 All of the documents required to be delivered by Seller to
Purchaser at Closing pursuant to the terms and conditions hereof shall have
been delivered and shall be in form and substance reasonably satisfactory
to Purchaser;
9.1.2 Each of the representations and warranties of Seller contained
herein shall be true in all material respects as of the Closing Date;
9.1.3 Seller shall have complied with, fulfilled and performed in all
material respects each of the covenants, terms and conditions to be
complied with, fulfilled or performed by Seller hereunder;
9.1.4 Purchaser shall have received from Seller, at or prior to Closing
a fully executed estoppel certificate by the Tenants leasing an aggregate
of seventy percent (70%) of the leasable square footage of the floor area
of the building comprising the Property in substantially the form of
Exhibit 9.1.4 attached hereto ("TENANT ESTOPPEL CERTIFICATES"). In the
event Seller is unable to obtain estoppel certificates from the Tenants
leasing at least an aggregate of seventy percent (70%) of the leasable
square footage of the building comprising the Property, Purchaser shall
accept an estoppel certificate from Seller as landlord in substantially the
form of Exhibit 9.1.4. In the event any Tenant Estoppel Certificate
discloses any material default by Seller beyond the expiration of any
applicable cure periods, Purchaser may terminate this Purchase Contract,
and neither party shall have any further rights or obligations hereunder,
except as expressly set forth herein, and subject to and except for
Purchaser's liability under Sections 5.3 and 5.4.
9.1.5 Notwithstanding anything to the contrary, there are no other
conditions on Purchaser's obligation to Close except as expressly set forth
above.
9.2 Conditions Precedent to Seller's Obligation to Close. Without limiting any
of the rights of Seller elsewhere provided for in this Purchase Contract,
Seller's obligation to close with respect to the Property under this
Purchase Contract shall be subject to and conditioned upon the fulfillment
of each and all of the following conditions precedent:
9.2.1 Purchaser's representations and warranties set forth in this
Purchase Contract shall have been true and correct in all material respects
when made, and shall be true and correct in all material respects on the
Closing Date and as of the Effective Date as though such representations
and warranties were made at and as of such date and time.
9.2.2 Purchaser shall have fully performed and complied with all
covenants, conditions, and other obligations in this Purchase Contract to
be performed or complied with by it at or prior to Closing including,
without limitation, payment in full of the Purchase Price.
9.2.3 There shall not be pending or, to the knowledge of either
Purchaser or Seller, any litigation or threatened litigation which, if
determined adversely, would restrain the consummation of any of the
transactions contemplated by this Purchase Contract or declare illegal,
invalid or nonbinding any of the covenants or obligations of the Purchaser.
9.2.4 Purchaser shall have produced evidence reasonably satisfactory to
Seller of Purchaser's compliance with Xxxx-Xxxxx-Xxxxxx Act requirements or
of the nonapplicability thereof to the transactions contemplated by this
Purchase Contract.
ARTICLE 10
BROKERAGE
10.1 Indemnification. Seller represents and warrants to Purchaser that it has
dealt only with the Broker in connection with this Purchase Contract.
Seller and Purchaser each represent and warrant to the other that other
than the Broker and Xxxxxxx, it has not dealt with or utilized the services
of any other real estate broker, sales person or finder in connection with
this Purchase Contract, and each party agrees to indemnify the other party
from and against all claims for brokerage commissions and finder's fees
arising from or attributable to the acts or omissions of the indemnifying
party. Seller agrees to pay Pinnacle a commission according to the terms
of a separate agreement. The Broker and Xxxxxxx shall not be deemed a
party or third-party beneficiary of this Purchase Contract.
10.2 No Warranties or Representations by Broker. The Broker assumes no
responsibility for the condition of the Property or representation for the
performance of this Purchase Contract by the Seller or Purchaser.
ARTICLE 11
POSSESSION
11.1 Transfer of Possession. Possession of the Property subject to the
Permitted Exceptions shall be delivered to Purchaser at the Closing.
ARTICLE 12
DEFAULTS AND REMEDIES
12.1 Purchaser's Default. In the event Purchaser terminates this Purchase
Contract following the Feasibility Period for any reason other than
Seller's inability to convey title as required by this Purchase Contract,
or defaults hereunder prior to the Closing Date and consummation of the
Closing does not occur by reason of such termination or default by
Purchaser, Seller and Purchaser agree that it would be impractical and
extremely difficult to estimate the damages which Seller may suffer.
Therefore, Seller and Purchaser hereby agree that, except as expressly set
forth herein and except for the Purchaser's liability under Sections 5.3
and 5.4, the reasonable estimate of the total net detriment that Seller
would suffer in the event that Purchaser terminates this Purchase Contract
or defaults hereunder prior to the Closing Date is and shall be, as
Seller's sole remedy (whether at law or in equity), the right to receive
from the Escrow Agent and retain the full amount of the Deposit. The
payment and performance of the above as liquidated damages is not intended
as a forfeiture or penalty within the meaning of applicable law and is
intended to settle all issues and questions about the amount of damages
suffered by Seller in the applicable event, except as expressly set forth
herein, and subject to and except for Purchaser's liability under
Sections 5.3 and 5.4, irrespective of the time when the inquiry about such
damages may take place. Upon any such failure by Purchaser hereunder, this
Purchase Contract shall be terminated, and neither party shall have any
further rights or obligations hereunder, each to the other, except as
expressly set forth herein, and subject to and except for Purchaser's
liability under Sections 5.3 and 5.4 above, and the right of Seller to
collect such liquidated damages to the extent not theretofore paid by
Purchaser.
12.2 Seller's Default. Provided that Purchaser has not terminated this Purchase
Contract and is not otherwise in default hereunder, if the Closing does not
occur as a result of Seller's default hereunder, Purchaser's sole remedy
shall be to elect to terminate this Purchase Contract and receive
reimbursement of the Deposit (or so much thereof as has been received by
Escrow Agent) or to seek specific performance of this Purchase Contract.
ARTICLE 13
RISK OF LOSS OR CASUALTY
13.1 Risk of Loss or Casualty. The risk of loss or damage to the Property by
fire or other casualty until the date of Closing is assumed by the Seller,
provided that the Seller's responsibility shall be only to the extent of
any recovery from insurance now carried on the Property. If any of the
Improvements shall be destroyed or damaged prior to the Closing, and the
estimated cost of repair or replacement exceeds One Hundred Thousand and
No/100 Dollars ($100,000.00), Purchaser may, by written notice given to
Seller within fifteen (15) days after receipt of written notice from Seller
of such damage or destruction, elect to terminate this Agreement, in which
event the Deposit shall immediately be returned by Escrow Agent to
Purchaser and except as expressly provided herein, subject to and except
for Purchaser's liability under Sections 5.3 and 5.4, the rights, duties,
obligations, and liabilities of all parties hereunder shall immediately
terminate and be of no further force or effect. If Purchaser does not
elect to terminate this Agreement pursuant to this Section 13.1, or has no
right to terminate this Agreement (because the damage or destruction does
not exceed $100,000.00), and the sale of the Property is consummated,
Purchaser shall be entitled to receive all insurance proceeds paid or
payable to Seller by reason of such destruction or damage under the
insurance policies carried by Seller (less amounts of insurance theretofore
received and applied by Seller to restoration). If the amount of said
casualty or rent loss insurance proceeds is not settled by the date of
Closing, Seller shall execute at Closing all proofs of loss, assignments of
claim, and other similar instruments to ensure that Purchaser shall receive
all of Seller's right, title, and interest in and under said insurance
proceeds. Seller shall not, in any event, be obligated to effect any
repair, replacement, and/or restoration, but may do so at its option in
which case Seller may apply the insurance proceeds to the costs of
restoration.
ARTICLE 14
RATIFICATION
14.1 Ratification. This Purchase Contract shall be null and void unless fully
ratified by Purchaser and Seller on or before May 10, 1999.
ARTICLE 15
EMINENT DOMAIN
15.1 Eminent Domain and Condemnation. In the event that at the time of Closing
all or any part of the Property is (or has previously been) acquired, or is
about to be acquired, by authority of any governmental agency in purchase
in lieu thereof (or in the event that at such time there is any notice of
any such acquisition by any such governmental agency), Purchaser shall have
the right, at Purchaser's option, to terminate this Purchase Contract by
giving written Notice within fifteen (15) days after receipt of written
Notice from Seller of the occurrence of such event and recover the Deposit
hereunder, or to settle in accordance with the terms of this Purchase
Contract for the full Purchase Price and receive the full benefit or any
condemnation award.
ARTICLE 16
MISCELLANEOUS
16.1 Exhibits And Schedules. All Exhibits annexed hereto are a part of this
Purchase Contract for all purposes.
16.2 Assignability. This Purchase Contract is not assignable without first
obtaining the prior written approval of the nonassigning party. However,
Purchaser may assign this Purchase Contract to an entity in which Purchaser
and/or Xxxxxxx have a substantial interest; provided, that Purchaser and
assignee are jointly and severally liable for all obligations and
liabilities under this Purchase Contract.
16.3 Binding Effect. This Purchase Contract shall be binding upon and inure to
the benefit of Seller and Purchaser, and their respective successors, heirs
and permitted assigns.
16.4 Captions. The captions, headings, and arrangements used in this Purchase
Contract are for convenience only and do not in any way affect, limit,
amplify, or modify the terms and provisions hereof.
16.5 Number And Gender Of Words. Whenever herein the singular number is used,
the same shall include the plural where appropriate, and words of any
gender shall include each other gender where appropriate.
16.6 Notices. All notices, demands, requests and other communications required
pursuant to the provisions of this Purchase Contract ("NOTICE") shall be in
writing and shall be deemed to have been properly given or served for all
purposes (i) if sent by Federal Express or the nationally recognized
overnight carrier for next business day delivery, on the first business day
following deposit of such Notice with such carrier, or (ii) if personally
delivered, on the actual date of delivery, or (iii) if sent by certified
mail, return receipt requested postage prepaid, on the fifth (5th) business
day following the date of mailing addressed as follows:
If to Seller: If to Purchaser:
Consolidated Capital Properties III Xxxx Xxxxxxx
c/o AIMCO Xxxxxxx Financial Services, Inc.
0000 Xxxxx Xxxxxxxx Xxxxxx 000 Xxxxxx Xxxxxx X., Xxxxx 000
Xxxxx 0000 Xxxxxxx, Xxxxxxxxxx 00000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxx Works, Xxxxx Xxxxxx
Xxxxxx Xxxxxx
and: with a copy to:
Argent Real Estate Xxxx Xxxxx, Esquire
0000 Xxxxxxxx Xxxxxx, Xxxxx 000 Xxxxxx, Pepper & Shefelman
Xxxxx, Xxxxxxx 00000 0000 Xxxxx Xxxxxx, Xxxxx 0000
Attention: Xxxxx Xxxxxxxxx Xxxxxxx, Xxxxxxxxxx 00000
with a copy to:
Xxxxxxx X. Xxxx, Esquire
Xxxxx Xxxx LLP
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
and
Xxxxxxx X. Xxxxxxxxxx, Esquire
Xxxxx Xxxx LLP
3500 One Kansas City Place
0000 Xxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Any of the parties may designate a change of address by Notice in writing
to the other parties. Whenever in this Purchase Contract the giving of
Notice by mail or otherwise is required, the giving of such Notice may be
waived in writing by the person or persons entitled to receive such Notice.
16.7 Governing Law And Venue. The laws of the State of Utah shall govern the
validity, construction, enforcement, and interpretation of this Purchase
Contract, unless otherwise specified herein except for the conflict of laws
provisions thereof. All claims, disputes and other matters in question
arising out of or relating to this Purchase Contract, or the breach
thereof, shall be decided by proceedings instituted and litigated in the
United States District Court for the district in which the Property is
situated, and the parties hereto expressly consent to the venue and
jurisdiction of such court.
16.8 Entirety And Amendments. This Purchase Contract embodies the entire
Purchase Contract between the parties and supersedes all prior Purchase
Contracts and understandings, if any, relating to the Property, and may be
amended or supplemented only by an instrument in writing executed by the
party against whom enforcement is sought.
16.9 Severability. If any of the provisions of this Purchase Contract is held
to be illegal, invalid, or unenforceable under present or future laws, such
provision shall be fully severable. The Purchase Contract shall be
construed and enforced as if such illegal, invalid, or unenforceable
provision had never comprised a part of this Purchase Contract; and the
remaining provisions of this Purchase Contract shall remain in full force
and effect and shall not be affected by the illegal, invalid, or
unenforceable provision or by its severance from this Purchase Contract.
In lieu of such illegal, invalid, or unenforceable provision, there shall
be added automatically as a part of this Purchase Contract a provision as
similar in terms to such illegal, invalid, or unenforceable provision as
may be possible to make such provision legal, valid, and enforceable.
16.10 Multiple Counterparts. This Purchase Contract may be executed in
a number of identical counterparts. If so executed, each of such
counterparts is to be deemed an original for all purposes and all such
counterparts shall, collectively, constitute one Purchase Contract. In
making proof of this Purchase Contract, it shall not be necessary to
produce or account for more than one such counterparts.
16.11 Further Acts. In addition to the acts and deeds recited herein
and contemplated and performed, executed and/or delivered by Seller and
Purchaser, Seller and Purchaser agree to perform, execute and/or deliver or
cause to be performed, executed and/or delivered any and all such further
acts, deeds, and assurances as may be necessary to consummate the
transactions contemplated hereby.
16.12 Construction. No provision of this Purchase Contract shall be
construed in favor of, or against, any particular party by reason of any
presumption with respect to the drafting of this Purchase Contract; both
parties, being represented by counsel, having fully participated in the
negotiation of this instrument.
16.13 Confidentiality. Purchaser shall not disclose the terms and
conditions contained in this Purchase Contract, shall keep the same
confidential, provided that Purchaser may disclose the terms and conditions
of this Purchase Contract (i) as required by law, (ii) to consummate the
terms of this Purchase Contract, or any financing relating thereto, or
(iii) to Purchaser's or Seller's lenders, attorneys and accountants. Any
information provided by Seller to Purchaser under the terms of this
Purchase Contract is for informational purposes only. In providing such
information to Purchaser, Seller makes no representation or warranty,
express, written, oral, statutory, or implied, and all such representations
and warranties are hereby expressly excluded. Purchaser shall not in any
way be entitled to rely upon the accuracy of such information. Such
information is also confidential and Purchaser shall be prohibited from
making such information public to any other person or entity other than its
agents and legal representatives, without Seller's prior written
authorization, which may be granted or denied in Seller's sole discretion.
16.14 Time Of The Essence. It is expressly agreed by the parties
hereto that time is of the essence with respect to this Purchase Contract.
16.15 Cumulative Remedies And Waiver. Except as otherwise provided
herein, no remedy herein conferred or reserved is intended to be exclusive
of any other available remedy or remedies, but each and every such remedy
shall be cumulative and shall be in addition to every other remedy given
under this Purchase Contract or now or hereafter existing at law or in
equity. No delay or omission to exercise any right or power accruing upon
any default, omission, or failure of performance hereunder shall impair any
right or power or shall be construed to be a waiver thereof, but any such
right and power may be exercised from time to time and as often as may be
deemed expedient. No waiver, amendment, release, or modification of this
Purchase Contract shall be established by conduct, custom, or course of
dealing.
16.16 Litigation Expenses. In the event either party hereto commences
litigation against the other to enforce its rights hereunder, the
prevailing party in such litigation shall be entitled to recover from the
other party its reasonable attorneys' fees and expenses incidental to such
litigation.
16.17 Time Periods. Should the last day of a time period fall on a
weekend or legal holiday, the next Business Day thereafter shall be
considered the end of the time period.
16.18 Exchange. At Seller's sole cost and expense, Seller may
structure the sale of the Property to Purchaser as a Like Kind Exchange
under Internal Revenue Code Section 1031 whereby Seller will acquire
certain property (the "LIKE KIND EXCHANGE PROPERTY") in conjunction with
the sale of the Property (the "LIKE KIND EXCHANGE"). Purchaser shall
cooperate fully and promptly with Seller's conduct of the Like Kind
Exchange, provided that all costs and expenses generated in connection with
the Like Kind Exchange shall be borne solely by Seller, and Purchaser shall
not be required to take title to or contract for the purchase of any other
property. If Seller uses a qualified intermediary to effectuate the
exchange, any assignment of the rights or obligations of Seller hereunder
shall not relieve, release or absolve Seller of its obligations to
Purchaser. In no event shall the Closing Date be delayed by the Like Kind
Exchange. Seller shall indemnify and hold harmless Purchaser from and
against any and all liability arising from and out of the Like Kind
Exchange.
[Remainder of Page Intentionally Left Blank.]
NOW WHEREFORE, the parties hereto have executed this Purchase Contract
as of the date first set forth above.
SELLER: CONSOLIDATED CAPITAL PROPERTIES III,
a California limited partnership
By: ConCap Equities, Inc.,
a Delaware corporation,
its managing general partner
By: [SEAL]
Name:
Title:
PURCHASER: XXXXXXX FINANCIAL SERVICES, INC.,
a Washington corporation
By: [SEAL]
Name::
Title:
