Draft Dated 6/20/97
CONTRACT OF SALE
THIS CONTRACT OF SALE (this "Contract") is made and entered into by and
between ANGELES INCOME PROPERTIES, LTD. 6, a California limited partnership
("Seller"), and XXXX XXXXXXXXX, or his permitted assigns ("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") located in Xxxxx County,
Nevada, more particularly described on Exhibit A attached hereto and made a
part hereof for all purposes, together with 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 all unapplied
deposits, whether security or otherwise ("Deposits"), paid by tenants
("Tenants") under the Tenant Leases; and
(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").
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 shall be an amount equal to One
Million Three Hundred Thousand and No/100 Dollars ($1,300,000.00). The Purchase
Price shall be payable in cash or Current Funds (defined below) at the Closing
(hereinafter defined).
ARTICLE III.
XXXXXXX MONEY DEPOSIT
3.1 Amount and Timing. Within three (3) business days after the
Effective Date (hereinafter defined), Purchaser shall deliver to United Title of
Nevada, Inc., located at 0000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxx 000, Xxx Xxxxx,
Xxxxxx 00000, Attention: Xxxxxxx Xxxxx (the "Title Company"), Twenty-Five
Thousand Dollars ($25,000.00) (the "Xxxxxxx Money Deposit") in cash or Current
Funds, 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 Xxxxxxx Money Deposit with the Title Company as herein provided,
this Contract may, at Seller's option, terminate, in which event neither Seller
nor Purchaser shall have any further obligations hereunder except for provisions
of this Contract which expressly 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 Xxxxxxx Money Deposit shall be applied to the Purchase
Price at Closing. In all other events, the Xxxxxxx Money Deposit shall be
disposed of by the Title Company as provided in this Contract. The Xxxxxxx
Money Deposit shall be invested in an interest-bearing account with a financial
institution and in a manner reasonably acceptable to Purchaser. All interest
earned on the Xxxxxxx Money Deposit is part of the Xxxxxxx Money Deposit, to be
applied or disposed of in the same manner as the Xxxxxxx Money Deposit under
this Contract.
ARTICLE IV.
TITLE AND SURVEY
4.1 Title Commitment. Not later than ten (10) business days after the
Effective Date, Seller shall cause to be furnished to Purchaser, a current ALTA
Commitment for Title Insurance for the Land and Improvements (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 also shall 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 hereby advises Purchaser that Seller has been unable
to locate a copy of a survey of the Land and Improvements. Purchaser may, but
shall not be required to, order a survey of the Land and Improvements (the
"Survey") and, in such event, Purchaser shall pay the cost to prepare a Survey
that is sufficient for Purchaser and the Title Company, and that is certified to
Seller (so long as there is no additional charge to certify the Survey to
Seller), Purchaser and the Title Company.
4.3 Review of Title and Survey. Purchaser shall have until ten (10)
days after receipt of the last of the Title Commitment, Exception Documents, and
Survey in which to notify Seller in writing (the "Title Objection Notice") of
any objections Purchaser has to any matters shown or referred to in the Title
Commitment, the Exception Documents or on the Survey; provided, that Purchaser
shall not object to current real estate taxes and assessments or to easements,
restrictions and exceptions affecting the Property which do not adversely affect
the value of the Property or its current use by Seller, all of which shall be
Permitted Exceptions hereunder. Any title encumbrances, exceptions or other
matters which are set forth in the Title Commitment, the Exception Documents or
on the Survey, and to which Purchaser does not object within the aforementioned
five (5) business day period, shall be deemed to be permitted exceptions to the
status of Seller's title (such encumbrances, exceptions or other matters,
together with such other matters included pursuant to other provisions of this
Contract, shall be referred to as the "Permitted Exceptions").
4.4 Objections to Status of Title and Survey. If Purchaser properly
objects to any item shown or referred to in the Title Commitment, Exception
Documents or Survey within the ten (10) day period set forth in Section 4.3,
Seller shall be given until ten (10) days after receipt of the Title Objection
Notice to notify Purchaser whether or not Seller will cure, prior to Closing and
at Seller's option and sole discretion but without any obligation to do so, any
objection to the condition of title raised by Purchaser. If Seller notifies
Purchaser that it elects not to cure any such objections, then Purchaser may,
at its option exercisable within five (5) days following the date of receipt by
Purchaser of written notice from Seller stating that Seller is unable or
unwilling to cure such objections, either (a) 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 (b) terminate this Contract by notice in writing
to Seller in which event the Title Company shall return the Xxxxxxx Money
Deposit to Purchaser and neither party shall have any further rights, duties or
obligations hereunder, except for provisions of this Contract which expressly
survive termination of this Contract. In the event Purchaser fails to notify
Seller, within such five (5) day period, that Purchaser has elected to proceed
under either subpart (a) or (b) of the immediately preceding sentence, Purchaser
shall be deemed to have elected to proceed under subpart (a), and this Contract
shall remain in full force and effect. If Seller notifies Purchaser that it
elects to cure any such objections but is unable to cure same by Closing or if
Seller fails to notify Purchaser of its intentions with respect to such
objections and fails to cure same by Closing, then Purchaser may, at its option,
either (x) accept such title as Seller can deliver in which case the parties
shall proceed with Closing and 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 at Closing, in which event the Title Company shall return the Xxxxxxx
Money Deposit to Purchaser and neither party shall have any further rights,
duties or obligations hereunder except for provisions of this Contract which
expressly survive termination of this Contract.
4.5 Other Permitted Exceptions. The Permitted Exceptions shall include
those matters shown in the Title Commitment and the 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 not exceeding $50,000.00,
provided that (i) Seller causes such liens or encumbrances to be insured or
bonded around such that same do not appear as an exception in the Title Policy
issued to Purchaser pursuant to the Commitment, and (ii) Seller agrees to
indemnify Purchaser from all losses incurred by Purchaser as a result of such
liens or encumbrances.
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 the
forty-fifth (45th) day thereafter (the "Inspection Period") within which to
examine the Property and to conduct its feasibility study thereof. The
Inspection Period shall be inclusive of the Effective Date. Seller agrees that,
during the Inspection Period, Seller will allow Purchaser and Purchaser's agents
access to the Property during normal business hours 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 to the extent the condition of the Property was affected
by or as a result of the actions of Purchaser or its agents, contractors or
representatives, (c) 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 a descriptive
listing of all tests, reports and inspections conducted by Purchaser with
respect to the Property and deliver copies thereof to Seller, (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 give notice
to Seller a reasonable time prior to entry onto the Property and 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 reasonable actions and implement all protections necessary to ensure that
all actions taken in connection with the investigations and inspections of the
Property, and all equipment, materials and substances generated, used or brought
onto the Property pose no material threat to the safety of persons or the
environment and cause no damage to the Property or other property of Seller or
other persons. All information made available by Seller to Purchaser in
accordance with this Contract or obtained by Purchaser in the course of its
investigations shall be treated as confidential information by Purchaser, and,
prior to the purchase of the Property by Purchaser, Purchaser shall use its 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 Seller
harmless for, from and against any and all claims, liabilities, causes of
action, damages, liens, losses, costs 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', contractors' or representatives'
activities on the Property, including, without limitation, any tests or
inspections conducted by Purchaser or its agents, contractors or representatives
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 deliver 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 Xxxxxxx
Money Deposit to Purchaser and neither party shall have any further rights,
liabilities or obligations hereunder, except for provisions of this Contract
which by their terms expressly survive the termination of this Contract. If
Purchaser does not timely deliver written notice of termination within such
Inspection Period, the conditions of this Section 5.2 shall be deemed satisfied,
and Purchaser shall be deemed to have approved the condition of the Property and
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 for the Property, certified by Seller, as
being true and correct in all material respects as of the date of such rent
roll, subject to qualification with respect to the Tenant Lease with Action
Movers as described in Section 5.3(b) below;
(b) A copy of all Tenant Leases with respect to the Property,
including all amendments thereto (except that Seller hereby advises
Purchaser that Seller has been unable to locate the amendment to the Tenant
Lease with Action Movers, and Seller and Purchaser agree that Seller shall
have no obligation to deliver the amendment to such Tenant Lease unless
Seller is able to locate same, but Seller will verify the terms of such
amendment);
(c) Copies of any and all service, maintenance, management or other
contracts in Seller's possession relating to the ownership and operation of
the Property;
(d) A certificate of fire, hazard, extended coverage, liability and
other insurance policies held by Seller with respect to the Property;
(e) Copies of the most recent real estate and personal property tax
statements received by Seller with respect to the Property;
(f) Any environmental or engineering studies regarding the Property
which Seller has in its possession; and
(g) Unaudited statements of operation showing income and expenses of
the Property for the years 1995 and 1996.
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 for a period of 180
days): (a) Purchaser has full right and authority to enter into this Contract
and to consummate the transactions contemplated herein; and (b) this Contract
constitutes a valid and legally binding obligation of Purchaser, enforceable in
accordance with its terms.
6.2 Representations and Warranties of Seller. Seller represents and
warrants to Purchaser as of the date hereof and as of the Closing Date (which
representations and warranties shall survive the Closing for a period of one
hundred eighty (180) days) as follows: (a) Seller is a limited partnership
validly existing and duly organized under the laws of the State of California;
(b) Seller has full right and authority to enter into this Contract and to
consummate the transactions contemplated herein; (c) each of the persons
executing this Contract on behalf of Seller is authorized to do so; (d) this
Contract constitutes a valid and legally binding obligation of Seller,
enforceable in accordance with its terms; and (e) to Seller's current actual
knowledge, except as set forth in the environmental reports and studies
delivered or to be delivered to Purchaser, Seller has not received written
notice of any material environmental problems currently existing on the
Property; provided, however, that Purchaser acknowledges that Seller has no
expertise with respect to environmental matters and that Seller make 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.
All references in this Contract 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, or to impose upon such Designated
Representative any individual personal liability. As used herein, the terms
"Designated Employee" shall refer to Xxxxxxx X. Xxxxxx.
6.3 NO ADDITIONAL REPRESENTATIONS OR WARRANTIES OF SELLER. PURCHASER
ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY SPECIFIED IN THIS CONTRACT OR
THE DEED TO BE DELIVERED AT CLOSING, SELLER HAS NOT MADE, AND SELLER HEREBY
SPECIFICALLY DISCLAIMS, ANY WARRANTY, GUARANTY OR REPRESENTATION, 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 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
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. PURCHASER ACKNOWLEDGES THAT EXCEPT AS EXPRESSLY
SPECIFIED IN ANY WRITTEN INSTRUMENT DELIVERED BY SELLER TO PURCHASER, SELLER
MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, ORAL OR WRITTEN, EXPRESS OR
IMPLIED, OR ARISING BY OPERATION OF LAW REGARDING OR WITH RESPECT TO ANY SUCH
INFORMATION (INCLUDING, WITHOUT LIMITATION, THE SUBMISSION MATTERS) PROVIDED OR
TO BE PROVIDED BY SELLER 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, WITHOUT LIMITATION, ASBESTOS) AND SHALL HAVE NO LIABILITY TO
PURCHASER THEREFOR. WITHOUT LIMITATION OF THE PRECEDING SENTENCE, SELLER
SPECIFICALLY DISCLAIMS ANY REPRESENTATION, WARRANTY OR GUARANTY REGARDING THE
ACCURACY OF ANY ENVIRONMENTAL REPORTS WHICH MAY BE INCLUDED WITHIN THE
SUBMISSION MATTERS. BY ACCEPTANCE OF THIS CONTRACT AND THE 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 SUBSTANCES OR MATERIALS.
PURCHASER, AND ANYONE CLAIMING, BY, THROUGH OR UNDER PURCHASER, HEREBY
FULLY RELEASES, DISCHARGES, AND HOLDS HARMLESS SELLER, ITS EMPLOYEES, OFFICERS,
DIRECTORS, PARTNERS, 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; PROVIDED, THAT THIS SHALL NOT RELEASE SELLER FROM CLAIMS ARISING, IF
ANY, AS A RESULT OF ANY WRITTEN REPRESENTATION OR WARRANTY OF SELLER BEING FALSE
WHEN MADE. 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.
PURCHASER HEREBY SPECIFICALLY ACKNOWLEDGES THAT SELLER HAS ADVISED
PURCHASER OF DEFERRED MAINTENANCE ON THE ROOF OF THE PROPERTY AND THAT THE ROOF
MAY NEED REPAIRS AND/OR MAY NEED TO BE REPLACED.
THE PROVISIONS OF THIS SECTION 6.3 (INCLUDING, WITHOUT LIMITATION, THE
WAIVER AND RELEASE OF CLAIMS CONTAINED HEREIN) SHALL SURVIVE THE CLOSING OR
EARLIER TERMINATION OF THIS CONTRACT.
6.4 No Reliance on Documents. Except as expressly stated herein or in any
written instrument delivered by Seller to Purchaser in connection herewith,
Seller makes no representation or warranty as to the truth, accuracy or
completeness of any materials, data or information (including, without
limitation, the Submission Matters) delivered by Seller to Purchaser in
connection with the transaction contemplated hereby. Purchaser acknowledges and
agrees that all materials, data and information (including, without limitation,
the Submission Matters) delivered by Seller to Purchaser in connection with the
transaction contemplated hereby are provided to Purchaser as a convenience only
and that any reliance on or use of such materials, data or information by
Purchaser shall be at the sole risk of Purchaser.
6.5 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 Property is being sold
subject to the provisions of this Article VI. Seller and Purchaser agree that
the provisions of Sections 6.3, 6.4 and 6.5 shall survive Closing.
ARTICLE VII.
CONDITIONS PRECEDENT TO PURCHASER'S AND
SELLER'S PERFORMANCE
7.1 Conditions to Purchaser's Obligations. Purchaser's obligation under
this Agreement 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) The representations and warranties of Seller contained herein
shall be true, accurate and correct as of the Closing Date;
(b) Seller shall be ready, willing and able to deliver title to the
Property in accordance with the terms and conditions of this Contract; and
(c) 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.
7.2 Conditions to Seller's Obligations. Seller's obligation under this
Agreement 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 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 (it
being contemplated that the Closing will occur by the delivery of Closing
documents into escrow with the Title Company) on the seventy-fifth (75th) day
after the Effective Date, or at such earlier date and time as Purchaser and
Seller may mutually agree (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 the Title Company for recording or delivery to Purchaser, as
applicable, each of the following items:
(i) A standard form ALTA Owner 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 (the "Title Policy").
(ii) A Grant, Bargain, Sale Deed duly executed and acknowledged
by Seller in the form attached hereto as Exhibit B and made a part
hereof for all purposes (with such reasonable changes thereto as may
be required by the Title Company in order to comply with the laws of
the State of Nevada) 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, Xxxx of Sale and Assignment ("Xxxx of
Sale") duly executed by Seller in the form attached hereto as Exhibit
D and made a part hereof for all purposes.
(vi) All original Tenant Leases that are in Seller's possession
together with letters addressed to the Tenants of the Property (the
"Notice Letters") in the form attached hereto as Exhibit F and made a
part hereof for all purposes, or in such other form as may be mutually
agreed upon by Seller and Purchaser.
(vii) Original counterparts of all service contracts that are
in Seller's possession and which are to be assumed by Purchaser.
(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) A rent roll prepared with respect to the Property in the
form normally prepared by Seller which shall be certified (subject to
qualification with respect to the Tenant Lease with Action Movers as
described in Section 5.3(b) hereof), to Seller's current actual
knowledge, as being true and correct in all material respects as of a
date not more than five (5) business days prior to Closing.
(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 the Title
Company, for recording or delivery to Seller, as applicable, 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 Xxxx 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) The Notice Letters duly executed by Purchaser.
(vii) 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 by Seller and Purchaser. The premium for the Title Policy shall be
payable by Seller. Except as otherwise provided herein, all recording costs
documentary stamp taxes, deed taxes, transfer and conveyance taxes, and other
costs related to the sale of the property hereunder shall be divided between the
Purchaser and Seller in accordance with local practice in Xxxxx County, Nevada.
Any costs, including, without limitation, recording costs, loan fees and
attorneys' fees, relating to the Purchase Loan or any other financing obtained
by the Purchaser for the purchase of the Property, and/or any documentary stamp
taxes, deed taxes, transfer taxes, intangible taxes, mortgage taxes or other
similar taxes, fees or assessments incurred in connection with any such
financing shall be borne and paid exclusively by Purchaser. 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,
unless otherwise expressly provided in this Contract.
8.4 Prorations. All normal and customarily proratable items, including,
without limitation, rents, operating expenses and leasing commissions, 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 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 under Tenant
Leases, if any, shall be transferred by Seller 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 install-
ments of assessments, such proration 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 for the figures which are unavailable for the year of
Closing. The proration shall be final and unadjustable except as provided in
the following paragraph. 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 or
omissions in computing prorations at the Closing are discovered subsequent to
the Closing, then such item shall be reapportioned and such errors and omissions
corrected as soon as practicable after the Closing Date and the proper party
reimbursed, which obligation shall survive the Closing for a period (the
"Proration Period") from the Closing Date until one hundred twenty (120) days
after the Closing Date. Neither party hereto shall have the right to require a
recomputation of a Closing proration or a correction of an error or omission in
a Closing proration unless within the Proration Period one of the parties hereto
(i) has obtained the previously unavailable information or has discovered the
error or omission, and (ii) has given notice thereof to the other party together
with a copy of its good faith recomputation of the proration and copies of all
substantiating information used in such recomputation. The failure of a party
to obtain any previously unavailable information or discover an error or
omission with respect to an item subject to proration hereunder and to give
notice thereof as provided above within the Proration Period shall be deemed a
waiver of its right to cause a recomputation or a correction of an error or
omission with respect to such item after the Closing Date.
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.
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 before the
Closing Date, and (B) second, to the period of time on or 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. The provisions 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 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, and the delivery of the
Assignment of Leases shall not constitute a waiver by Seller of such right.
Purchaser agrees to cooperate with Seller 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. 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 substantial 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
portion of the Property, prior to Closing, either party may elect to
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
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, taking or deed in lieu or institution of
such condemnation proceeding. 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 9.1(b) hereof, at its option deliver to
Purchaser at the Closing any proceeds actually received by Seller
attributable to the Property from such condemnation, eminent domain
proceeding 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 purpose of this Section 9.1(a), a "substantial
portion" of the Property shall be deemed to be any portion of the Property
with either a fair market value or replacement cost in an amount equal to
or greater than $75,000.00. 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 Property, the portion of such proceeds in excess of
the Purchase Price shall be paid to Seller (in addition to the Purchase
Price) at the Closing. The foregoing provision shall survive the Closing.
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 (except for proceeds
previously used to repair the Property) and assign to Purchaser 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 be any portion of the Property with either
a fair market value or replacement cost in an amount equal to or greater
than $75,000.00. 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 Seller (in addition to the Purchase Price) at the Closing.
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 the Closing under this Contract for
reasons other than as expressly set forth in Section 4.4, Section 5.2 or Article
IX hereof or other than due to a failure of a condition precedent to Purchaser's
obligation to close as set forth in Section 7.1 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 for
provisions of this Contract which expressly survive the termination hereof, and
Seller shall be entitled to receive or retain the Xxxxxxx 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 the Closing under this Contract
other than due to a termination permitted hereunder or a failure of a condition
precedent to Seller's obligation to close as set forth in Section 7.2 hereof,
Purchaser may, at Purchaser's sole option, as its sole and exclusive remedies,
either (a) terminate this Contract in which event neither party shall have any
further rights, duties or obligations hereunder except for provisions of this
Contract which expressly survive the termination hereof, and Purchaser shall be
entitled to a refund of the Xxxxxxx Money Deposit, or (b) enforce specific
performance of this Contract against Seller. In no event shall Seller be liable
to Purchaser for any damages, including, without limitation, any actual,
punitive, speculative or consequential damages or damages for loss of
opportunity or lost profit.
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 and Purchaser represent each to the
other that each has had no dealings with any broker, finder or other party
concerning the purchase of the Property except The Industrial Property Group,
Inc. and Xxxx Xxxxxxxxx (collectively the "Brokers"). Seller hereby agrees to
pay at Closing commissions due to the Brokers in the amount of (2%) of the
Purchase Price to each of the Industrial Property Group, Inc. and Xxxx
Xxxxxxxxx; provided, however, that Seller's obligation to pay, and Brokers'
right to receive, this commission or any other amount with respect to this
Contract or the Property is expressly conditioned upon Closing the sale of the
Property and Seller's receipt of the Purchase Price under this Contract.
Brokers shall have no right to receive these commissions or any other amount
with respect to this Contract or the Property unless and until Closing shall be
final and fully consummated and Seller shall have received the Purchase Price as
provided in this Contract. 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.
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 obtain an owner policy
of title insurance.
ARTICLE XII
OPERATION OF THE PROPERTY PRIOR TO THE CLOSING
Between the Effective Date and the Closing Date, Seller shall (a) lease,
operate, manage and enter into contracts with respect to the Property, in the
same manner done by Seller prior to the date hereof (provided, however, that
without the prior consent of Purchaser, (i) Seller shall not enter into any
service contract that cannot be terminated with thirty (30) days notice, and
(ii) after the Inspection Period, Seller shall not enter into any Tenant Lease
at less than the then prevailing market rates); and (b) advise Purchaser of the
commencement of any litigation, condemnation or other judicial or administrative
proceedings affecting the Property of which Seller has current actual knowledge.
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 (a) depositing same in the
United States mail, addressed to the party to be notified, postage prepaid and
registered or certified with return receipt requested, (b) delivering the same
in person to such party via a hand delivery service, Federal Express or any
other nationally recognized courier service that provides a return receipt
showing the date of actual delivery of same to the addressee thereof, or (c)
facsimile transmission with confirmation of receipt to the party sending same,
if a copy is deposited in the United States Mail as provided in 13.1(a) above.
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 Income Properties, Ltd. 6
One Insignia Financial Xxxxx
X.X. Xxx 0000
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile No.: 864/239-1066
Telephone No.: 864/000-0000
With a copy to: Xxxxxxx & XxXxxxxx, P.C.
00000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Facsimile No.: 214/265-0615
Telephone No.: 214/000-0000
If to Purchaser: Xxxx Xxxxxxxxx
0000 Xxxx Xxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Facsimile No.: 702/656-3885
Telephone No.: 702/000-0000
If to Title
Company: United Title of Nevada
0000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxxxxx Xxxxx
Facsimile No.: 702/894-9725
Telephone No.: 702/000-0000
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.
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 not be assigned in whole or in part by
Purchaser without the prior written consent of Seller; provided, that Purchaser
may assign this Contract to an entity owned and controlled by Purchaser. Any
assignment of this Contract by Purchaser other than as provided foregoing shall,
at Seller's option, be null and void and of no effect. In the event of an
assignment of this Contract by Purchaser, Purchaser shall not be released from
any liability or obligations hereunder.
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, 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 invalidity, 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 number 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 "Exhibits" 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, 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. In the
event that any event hereunder is to occur, or a time period is to expire, on a
date which is not a business day, such event shall occur or a time period shall
expire on the next succeeding business day.
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 Tax Free Exchange. Purchaser and Seller agree that, at
Purchaser's sole election, this transaction shall be structured as an exchange
of like-kind properties under Section 1031 of the Internal Revenue Code of 1986,
as amended, and the regulations and proposed regulations thereunder. The
parties agree that if Purchaser wishes to make such election, it must give
notice thereof to Seller not less than ten (10) days prior to the date of
Closing. If Purchaser so elects, Seller shall reasonably cooperate with
Purchaser, provided any such exchange is consummated pursuant to an agreement
that is mutually acceptable to Purchaser and Seller and which shall be executed
and delivered on or before the date of Closing. Purchaser shall in all events
be responsible for all costs and expenses related to the Section 1031 exchange
and shall fully indemnify, defend and hold Seller harmless for, from and against
any and all liability, claims damages, expenses (including, without limitation,
reasonable attorneys' fees), taxes, fees, proceedings and causes of action of
any kind or nature whatsoever arising out of, connected with or in any manner
related to such Section 1031 exchange that would not have been incurred by
Seller if the transaction did not involve a Section 1031 exchange. The
provisions of the immediately preceding sentence shall survive Closing and the
transfer of title to the Property to Purchaser. Any Section 1031 exchange shall
be consummated in such a manner that Seller shall not be required to acquire
title to any real property in connection therewith.
13.17 Licensed Real Estate Broker. Purchaser hereby advises Seller
that Xxxx Xxxxxxxxx is a licensed real estate broker in the State of Nevada and
that he is acting on his own behalf and is not acting as broker or
representative of Seller. The Industrial Property Group Inc. is the
representative of Seller only, and does not represent the Purchaser.
IN WITNESS WHEREOF, the undersigned have executed this Contract effective
as of the Effective Date.
SELLER:
ANGELES INCOME PROPERTIES, LTD. 6,
a California limited partnership
By:Angeles Realty Corp. II,
its general partner
By:/s/ Xxxxxx X. Xxxx, Xx.
Its:Vice President
Dated:____________________
PURCHASER:
/s/ Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxx
Dated: June 24, 1997
EXHIBIT C
ASSIGNMENT AND ASSUMPTION OF LEASES
STATE OF Nevada '
' KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF Xxxxx '
That, Angeles Income Properties. Ltd, 6 , a California limited partnership
("Assignor"), for and in consideration of Ten and No/100 Dollars ($10.00) and
other good and valuable consideration, to Assignor in hand paid, the receipt and
legal sufficiency of which are hereby acknowledged, hereby transfers, assigns
and sets over unto Xxxx Xxxxxxxxx and Xxxxx Xxxxxxxxx, husband and wife as joint
tenants as to an undivided 25% interest; Xxxxxxx Xxxxx Xxxxxxxx and Xxxxxxxx X.
Xxxxxxxx, husband and wife as joint tenants as to an undivided 25% interest;
Xxxx X. Xxxxxx, a married man as his sole and separate property as to an
undivided 16.67% interest; Xxxxxxx Xxxxxxxx and Xxxxxxxx Xxxxxxxx, husband and
wife as joint tenants as to an undivided 16.66% interest; and Xxxx Xxxxx, a
married man as his sole and separate property as to an undivided 16.67%
interest, (collectively "Assignee" whether one or more), all of the right,
title and interest of Assignor in and to all leases of, and security deposits
and prepaid rents relating to space in (together, the "Leases") the real
property described on Exhibit A, attached hereto and made a part hereof for all
purposes.
TO HAVE AND TO HOLD the Leases, together with any and all of the rights and
appurtenances thereto in anywise belonging to Assignor (excluding the right to
receive rents paid under the Leases and which accrued before the date of this
Assignment), unto Assignee and Assignee's successors and assigns forever, and
Assignor does hereby bind Assignor and Assignor's legal representatives and
successors, to WARRANT AND FOREVER DEFEND all and singular the Leases unto
Assignee and Assignee's successors and assigns, against every person whomsoever
lawfully claiming or to claim the same or any part thereof, by, through or under
Assignor, but not otherwise.
In consideration of the foregoing assignment, Assignee hereby assumes, and
agrees to perform all of the obligations of Assignor under the Leases,
including, but not limited to, the obligation to refund any security deposits
and the payment of any deferred leasing commissions that become payable after
the date of this Assignment with respect to any of the Leases, and indemnifies
Assignor and holds Assignor harmless from all loss, cost, liability and expense
arising out of or in connection with the Leases to the extent the same arises on
or after the date hereof. Assignee takes the Leases subject to any existing
defaults thereunder, but, to the extent required by that certain Contract of
Sale dated July 1, 1997, between Assignor and Assignee, shall pay to Assignor
monies collected from tenants who owe delinquent rents that have accrued as of
the date of this Assignment until all of such delinquent rents have been paid.
Assignor hereby agrees to indemnify and hold Assignee harmless from all loss,
cost, liability and expense arising out of or in connection with the Leases to
the extent the same arises prior to the date hereof.
EXECUTED effective as of this 6th day of October, 1997.
ASSIGNOR:
ANGELES INCOME PROPERTIES, LTD. 6,
a California limited partnership
By: Angeles Realty Corporation II,
its general partner
By: /s/ Xxxxxx X. Xxxx, Xx.
Its: Vice President
Dated: October 6, 1997
Dated: October 6, 1997
ASSIGNEE:
/s/ Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxx
/s/ Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx
/s/ Xxxxxxx Xxxxx Xxxxxxxx
Xxxxxxx Xxxxx Xxxxxxxx
/s/ Xxxxxxxx X. Xxxxxxxx
Xxxxxxxx X. Xxxxxxxx
/s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
/s/ Xxxxxxx Xxxxxxxx
Xxxxxxx Xxxxxxxx
/s/ Xxxxxxxx Xxxxxxxx
Xxxxxxxx Xxxxxxxx
/s/ Xxxx Xxxxx
Xxxx Xxxxx
STATE OF South Carolina '
'
COUNTY OF Greenville '
This instrument was acknowledged before me on this _____ day of September,
1997, by Xxxxxx X. Xxxx, Xx., Vice President of Angeles Realty Corporation II, a
California corporation, acting in its capacity as general partner of Angeles
Income Properties, Ltd. 6, a California limited partnership, known to me to be
the person whose name is subscribed to the foregoing instrument, and
acknowledged to me that he executed the same for the purposes and consideration
therein expressed, in the capacity therein stated and as the act and deed of
said partnership.
/s/ Xxxxxx X. Xxxxx
Notary Public, State of South Carolina
My Commission Expires:
November 22, 2006 /s/ Xxxxxx X. Xxxxx
Printed Name of Notary Public
STATE OF Nevada '
'
COUNTY OF Xxxxx '
This instrument was acknowledged before me on this 1st day of October,
1997, by Xxxx Xxxxxxxxx, known to me to be the person whose name is subscribed
to the foregoing instrument, and acknowledged to me that he executed the same
for the purposes and consideration therein expressed.
/s/ Xxxxx Xxxxxxxx
Notary Public, State of Nevada
My Commission Expires:
December 01, 2000 /s/ Jenna Hajweski
Printed Name of Notary Public
STATE OF Nevada '
'
COUNTY OF Xxxxx '
This instrument was acknowledged before me on this 1st day of October,
1997, by Xxxxx Xxxxxxxxx, known to me to be the person whose name is subscribed
to the foregoing instrument, and acknowledged to me that he executed the same
for the purposes and consideration therein expressed.
/s/ Xxxxx Xxxxxxxx
Notary Public, State of Nevada
My Commission Expires:
December 01, 2000 /s/ Jenna Hajweski
Printed Name of Notary Public
STATE OF Nevada '
'
COUNTY OF Xxxxx '
This instrument was acknowledged before me on this 1st day of October,
1997, by Xxxxxxx Xxxxx Xxxxxxxx, known to me to be the person whose name is
subscribed to the foregoing instrument, and acknowledged to me that he executed
the same for the purposes and consideration therein expressed.
/s/ Xxxxx Xxxxxxxx
Notary Public, State of Nevada
My Commission Expires:
December 01, 2000 /s/ Jenna Hajweski
Printed Name of Notary Public
STATE OF Nevada '
'
COUNTY OF Xxxxx '
This instrument was acknowledged before me on this 1st day of October,
1997, by Xxxxxxxx X. Xxxxxxxx, known to me to be the person whose name is
subscribed to the foregoing instrument, and acknowledged to me that he executed
the same for the purposes and consideration therein expressed.
/s/ Xxxxx Xxxxxxxx
Notary Public, State of Nevada
My Commission Expires:
December 01, 2000 /s/ Jenna Hajweski
Printed Name of Notary Public
STATE OF Nevada '
'
COUNTY OF Xxxxx '
This instrument was acknowledged before me on this 1st day of October,
1997, by Xxxx X. Xxxxxx, known to me to be the person whose name is subscribed
to the foregoing instrument, and acknowledged to me that he executed the same
for the purposes and consideration therein expressed.
/s/ Xxxxx Xxxxxxxx
Notary Public, State of Nevada
My Commission Expires:
December 01, 2000 /s/ Jenna Hajweski
Printed Name of Notary Public
STATE OF Nevada '
'
COUNTY OF Xxxxx '
This instrument was acknowledged before me on this 1st day of October,
1997, by Xxxxxxx Xxxxxxxx, known to me to be the person whose name is subscribed
to the foregoing instrument, and acknowledged to me that he executed the same
for the purposes and consideration therein expressed.
/s/ Xxxxx Xxxxxxxx
Notary Public, State of Nevada
My Commission Expires:
December 01, 2000 /s/ Jenna Hajweski
Printed Name of Notary Public
STATE OF Nevada '
'
COUNTY OF Xxxxx '
This instrument was acknowledged before me on this 1st day of October,
1997, by Xxxxxxxx Xxxxxxxx, known to me to be the person whose name is
subscribed to the foregoing instrument, and acknowledged to me that he executed
the same for the purposes and consideration therein expressed.
/s/ Xxxxx Xxxxxxxx
Notary Public, State of Nevada
My Commission Expires:
December 01, 2000 /s/ Jenna Hajweski
Printed Name of Notary Public
STATE OF Florida '
'
COUNTY OF Orange '
This instrument was acknowledged before me on this 3rd day of September,
1997, by Xxxx Xxxxx, known to me to be the person whose name is subscribed to
the foregoing instrument, and acknowledged to me that he executed the same for
the purposes and consideration therein expressed.
/s/ Xxxxxxx X. Xxxxxxxx
Notary Public, State of Florida
My Commission Expires:
July 08, 2000 /s/ Xxxxxxx X. Xxxxxxxx
Printed Name of Notary Public
EXHIBIT A
PROPERTY DESCRIPTION
PARCEL ONE (1):
THE EAST HALF (E 1/2) OF THE NORTHWEST QUARTER (NW 1/4) OF THE SOUTHEAST QUARTER
(SE 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF
SECTION 32, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.B. & M.
EXCEPTING THEREFROM THE NORTH 30.00 FEET FOR ROAD AND INCIDENTAL PURPOSES
CONVEYED TO THE COUNTY OF XXXXX BY DEED RECORDED APRIL 21, 1980 AS DOCUMENT NO
1175339 IN BOOK 1216, OFFICIAL RECORDS, XXXXX COUNTY, NEVADA.
PARCEL TWO (2):
THE WEST HALF (W 1/2) OF THE NORTHWEST QUARTER (NW 1/4) OF THE SOUTHEAST QUARTER
(SE 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF
SECTION 32, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.B. & M.
EXCEPTING THEREFROM THE NORTH 30.00 FEET FOR ROAD AND INCIDENTAL PURPOSES
CONVEYED TO THE COUNTY OF XXXXX BY DEED RECORDED APRIL 21, 1980 AS DOCUMENT NO.
1175339 IN BOOK 1216, OFFICIAL RECORDS, XXXXX COUNTY NEVADA.
EXHIBIT D
BLANKET CONVEYANCE, XXXX OF SALE AND ASSIGNMENT
STATE OF Nevada '
' KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF Xxxxx '
By a Grant, Bargain, Sale Deed (the "Deed") of even date with the date
hereof, Angeles Income Properties, Ltd. 6, a California limited partnership
("Seller"), conveyed to Xxxx Xxxxxxxxx and Xxxxx Xxxxxxxxx, husband and wife as
joint tenants as to an undivided 25% interest; Xxxxxxx Xxxxx Xxxxxxxx and
Xxxxxxxx X. Xxxxxxxx, husband and wife as joint tenants as to an undivided 25%
interest; Xxxx X. Xxxxxx, a married man as his sole and separate property as to
an undivided 16.67% interest; Xxxxxxx Xxxxxxxx and Xxxxxxxx Xxxxxxxx, husband
and wife as joint tenants as to an undivided 16.66% interest; and Xxxx Xxxxx, a
married man as his sole and separate property as to an undivided 16.67%
interest, (collectively, "Purchaser" whether one or more), the real property
(the "Real Property") described on Exhibit "A" attached hereto and made a part
hereof for all purposes, together with all improvements located thereon.
As consideration for (a) the conveyance of the Real Property, (b) the
conveyance of the personal property described herein, and (c) the assignments
contained herein, Purchaser has paid the sum of TEN AND NO/100 DOLLARS ($10.00)
and other good and valuable consideration to the Seller.
NOW, THEREFORE, for the consideration above specified, the receipt and
sufficiency of which are expressly acknowledged:
1. The Seller has GRANTED, CONVEYED, SOLD, TRANSFERRED, SET-OVER and
DELIVERED, and by these presents does hereby GRANT, CONVEY, SELL, TRANSFER, SET-
OVER and DELIVER unto the Purchaser, all of Seller's right, title and interest
in and to all items of tangible personal property located on or attached to the
Real Property including, without limitation, all items of personal property
described on Exhibit A hereto (all of the property described in this paragraph 1
is hereinafter referred to as the "Personal Property") (the Real Property and
Personal Property sometimes collectively referred to herein as the "Property").
2. The Seller has ASSIGNED, TRANSFERRED and SET-OVER, and by these
presents does ASSIGN, TRANSFER and SET-OVER unto the Purchaser (to the extent
they are assignable) all of its right, title and interest in and to all service
contracts listed on Exhibit A hereto, all bonds, warranties and guaranties in
Seller's possession which relate to the Real Property or Personal Property.
PURCHASER ACCEPTS THE PROPERTY DESCRIBED IN THIS DOCUMENT (THE "PROPERTY"),
AND ACKNOWLEDGES THAT THE CONVEYANCE OF THE PROPERTY TO PURCHASER IS MADE BY
SELLER, ON AN "AS IS, WHERE IS, AND WITH ALL FAULTS" BASIS. PURCHASER EXPRESSLY
ACKNOWLEDGES THAT EXCEPT AS EXPRESSLY SET FORTH IN THE CONTRACT OF SALE BETWEEN
SELLER AND PURCHASER DATED JULY 1, 1997_, OR ANY DOCUMENTS DELIVERED PURSUANT
THERETO, SELLER MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND, ORAL OR
WRITTEN, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW WITH RESPECT TO THE
PROPERTY REFERRED TO HEREIN, 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 SET FORTH IN THE DEED
DELIVERED TO PURCHASER), ZONING, TAX CONSEQUENCES, PHYSICAL OR ENVIRONMENTAL
CONDITION, UTILITIES, OPERATING HISTORY OR PROJECTIONS, VALUATION, GOVERNMENTAL
APPROVALS, THE COMPLIANCE OF THE PROPERTY WITH GOVERNMENTAL LAWS, THE TRUTH,
ACCURACY OR COMPLETENESS OF ANY INFORMATION PROVIDED BY OR ON BEHALF OF SELLER
TO PURCHASER, OR ANY OTHER MATTER OR THING REGARDING THE PROPERTY.
Purchaser hereby assumes and agrees to perform from the effective date
hereof forward all of the covenants and obligations contained in the contracts
assigned hereunder (to the extent such contracts are listed on Exhibit A hereto)
which are to be performed by Seller and hereby indemnifies Seller and agrees to
hold Seller harmless from and against all liability, cost, loss, damage or
expense, including reasonable attorneys' fees, suffered or incurred by Seller as
a result of any alleged failure of Purchaser to perform such covenants or
obligations.
This Blanket Conveyance, Xxxx of Sale and Assignment is binding and shall
inure to the benefit of the parties hereto, and their respective successors and
assigns.
TO HAVE AND TO HOLD the Property unto Purchaser, its successors and assigns
forever, and Seller does hereby bind itself, its successors and assigns, to
forever WARRANT AND DEFEND the title to the Property unto Purchaser, its
successors and assigns, against any person whomsoever lawfully claiming, or to
claim the same or any part thereof, by, through or under Seller, but not
otherwise.
EXECUTED effective as of the 6th day of October, 1997.
SELLER:
ANGELES INCOME PROPERTIES, LTD. 6
a California limited partnership
By: Angeles Realty Corporation II,
its general partner
By: /s/ Xxxxxx X. Xxxx, Xx.
Its:Vice President
Dated: October 6, 1997
PURCHASER:
Dated: October 6, 1997
/s/ Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxx
/s/ Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx
/s/ Xxxxxxx Xxxxx Xxxxxxxx
Xxxxxxx Xxxxx Xxxxxxxx
/s/ Xxxxxxxx X. Xxxxxxxx
Xxxxxxxx X. Xxxxxxxx
/s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
/s/ Xxxxxxx Xxxxxxxx
Xxxxxxx Xxxxxxxx
/s/ Xxxxxxxx Xxxxxxxx
Xxxxxxxx Xxxxxxxx
/s/ Xxxx Xxxxx
Xxxx Xxxxx
EXHIBIT A
PROPERTY DESCRIPTION
PARCEL ONE (1):
THE EAST HALF (E 1/2) OF THE NORTHWEST QUARTER (NW 1/4) OF THE SOUTHEAST QUARTER
(SE 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF
SECTION 32, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.B. & M.
EXCEPTING THEREFROM THE NORTH 30.00 FEET FOR ROAD AND INCIDENTAL PURPOSES
CONVEYED TO THE COUNTY OF XXXXX BY DEED RECORDED APRIL 21, 1980 AS DOCUMENT NO
1175339 IN BOOK 1216, OFFICIAL RECORDS, XXXXX COUNTY, NEVADA.
PARCEL TWO (2):
THE WEST HALF (W 1/2) OF THE NORTHWEST QUARTER (NW 1/4) OF THE SOUTHEAST QUARTER
(SE 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF
SECTION 32, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.B. & M.
EXCEPTING THEREFROM THE NORTH 30.00 FEET FOR ROAD AND INCIDENTAL PURPOSES
CONVEYED TO THE COUNTY OF XXXXX BY DEED RECORDED APRIL 21, 1980 AS DOCUMENT NO.
1175339 IN BOOK 1216, OFFICIAL RECORDS, XXXXX COUNTY NEVADA.
