CONTRACT OF SALE
XXXXXXXXX BUSINESS CENTER
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Contract of Sale made as of the 7th day of March, 2001 between CEDAR INCOME FUND
PARTNERSHIP, L.P., a Delaware limited partnership, with an address at 00 Xxxxx
Xxxxxx Xxxxxx, Xxxx Xxxxxxxxxx, XX 00000 ("Seller") and BUSINESS PROPERTY TRUST,
LLC, an Oregon limited liability company, with an address at Suite 230, 0000 XX
Xxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxx 00000 ("Purchaser").
W I T N E S S E T H:
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For and in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
1. Agreement to Sell. Seller agrees to sell to Purchaser, and Purchaser agrees
to buy from Seller all that certain lot, tract or parcel of land and premises,
together with all buildings and improvements thereon, located at 3608-3710 West
2100 South and 0000-0000 Xxxx 0000 Xxxxx, Xxxx Xxxx Xxxx, Xxxx and more
particularly described in Exhibit A attached hereto (the "Premises").
2. Purchase Price. Purchaser agrees to pay to Seller, and Seller agrees to
accept as and for the purchase price for the Premises the sum of Five Million
Three Hundred Thousand Dollars ($5,300,000) which sum (the "Purchase Price")
shall be paid as follows:
(a) Upon execution of this Contract, Purchaser shall deliver a
certified or bank check in the amount of $100,000 (the "First Deposit")
to be held by Fidelity National Title Insurance Company of Oregon
("Escrow Agent") at its office at 000 XX 0xx Xxxxxx, Xxxxxxxx, Xxxxxx
00000 (attn: Xxxxxx Xxxxxxxx and Xxxxxxx Xxxxxxx, 503-222-2424), in
accordance with the terms of this Contract; and
(b) Upon the satisfaction or waiver of the financing contingency
described in Section 6 hereof, Purchaser shall deliver a certified or
bank check in the amount of $50,000 (the "Second Deposit") to be added
to the First Deposit and to be held by the Escrow Agent in accordance
with the terms of this Contract (the First Deposit and the Second
Deposit, once delivered, together with any interest thereon, are
referred to collectively as the "Xxxxxxx Money"); and
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(c) Upon closing of title, the balance of the Purchase Price, subject
to apportionments pursuant to Paragraph 13 hereof, shall be paid to
Seller. All monies in excess of $500 in the aggregate payable under
this Contract, unless otherwise agreed to by Seller, shall be paid by
unendorsed certified check of Purchaser, or official check of any bank,
savings bank, trust company or savings and loan association having a
banking office in the State of New York or, at Seller's or Purchaser's
election, by wire transfer to Seller's account or Escrow Agent.
3. Title to Premises. Purchaser acknowledges that the Premises are to be
conveyed subject to the following matters, which matters shall not be deemed to
be title defects rendering Seller's title to the Premises unmarketable or
unsatisfactory to Purchaser (each constituting a "Permitted Exception"):
(a) Zoning ordinances and other applicable governmental regulations and
requirements, provided same does not prohibit the maintenance of the existing
use of the Premises;
(b) All matters described on Schedule B, Part I and Schedule A, Item 5
of Xxxxxxx Title Company Title Policy No F52-389441 dated May 11, 2000;
(c) Liens for taxes, assessments, water charges and sewer rents not yet
due and payable, subject to adjustment as hereinafter set forth;
(d) Standard conditions and exceptions to title contained in the
standard form of Owner's Title Insurance Policy; and
(e) Leases (subject to Purchaser's right of due diligence review set
forth in Section 5) and matters affecting the interests or leasehold estates of,
or personal property or fixtures owned or leased from third parties by, tenants
under such Leases or under leases previously in effect.
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4. Title Search. Purchaser shall promptly order a title search of the Premises
from Fidelity National Title Insurance Company of Oregon (the "Title Company")
and shall instruct the Title Company to deliver to both Seller and Purchaser
duplicate copies of all reports or other search results obtained related to the
Premises. If the title report discloses any title matter not provided for above
which operates to render title to Premises unsatisfactory to Purchaser in its
reasonable discretion (a "Title Defect"), then Purchaser shall give notice
thereof to Seller in writing within thirty (30) days of the date hereof ("Title
Objection Period"), and Seller shall have thirty (30) business days, at its
option, and in its sole discretion, to cure such title matters. If Seller is not
able or does not elect to cure, satisfy or discharge the same, then Purchaser's
sole right shall be to terminate this Contract on notice to Seller within five
(5) days after Seller notifies Purchaser that it will not or cannot cure,
satisfy or discharge same, and thereafter the Xxxxxxx Money shall be returned to
Purchaser and neither party shall have any further rights or obligations under
this Contract (except for the obligations set forth in Sections 5, 24 and 25
hereof). If Purchaser does not exercise its right to terminate this Contract,
then Purchaser shall accept such title as Seller is able to convey without
reduction or abatement of the Purchase Price and such uncured Title Defects(s)
shall constitute a "Permitted Exception". Any objection to title based on a
Title Defect existing on the date hereof not raised in accordance with the
provisions of this Section (other than liens in favor of Key Bank National
Association, which Seller hereby agrees to satisfy out of the proceeds of sale)
within the Title Objection Period shall be deemed waived, and thereafter shall
constitute a "Permitted Exception".
5. Due Diligence Review. Purchaser's obligations are subject to the following
contingencies, which are for Purchaser's sole benefit and may be exercised or
waived only by Purchaser, but if not exercised by Purchaser within the time
requirements set forth herein, shall be deemed waived:
a. Purchaser's review and approval of the existing leases, licenses,
and occupancy agreements (however denominated) affecting the Premises, any other
Due Diligence Documents (defined and listed on Exhibit D to this Contract), and
of the general financial feasibility of the purchase, within thirty (30) days
after Seller provides complete copies of the Due Diligence Documents to
Purchaser. Seller will provide complete copies of the Due Diligence Documents to
Purchaser within five (5) days after the date of this Contract. Purchaser shall
confirm in writing receipt of the Due Diligence Documents.
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b. Purchaser's review and approval of the state of title to the
Premises, as more specifically described in Section 4 above.
c. Purchaser's obtaining financing for at least 70% of the Purchase
Price, on terms reasonably acceptable to Purchaser, as more specifically
described in Section 6 below.
d. Purchaser's review and approval of the zoning and land use
regulations affecting the Premises, and of the physical condition of the
Premises, including any environmental, surveying, engineering or other review of
the Premises within thirty (30) days of the date of this Contract (the "Due
Diligence Review Period"), provided that Purchaser shall obtain Seller's written
consent prior to conducting any test which may cause damage to the Premises or
any part thereof and shall promptly repair any damage caused by any sampling or
other tests conducted on the Premises and shall indemnify and hold harmless
Seller for any loss, cost, liability or expense incurred by Seller as a result
of or arising from performance of such tests or any activity by Purchaser or its
representatives, agents or contractors on or about or concerning the Premises.
The foregoing obligations shall survive any termination of this Contract.
Purchaser shall promptly deliver to Seller duplicate copies of all reports, test
results or other materials prepared in connection with its review of the
Premises. In the event such review discloses deficient environmental or other
conditions, then Purchaser shall give notice thereof to Seller within the Due
Diligence Review Period, and Seller shall have thirty (30) business days, at its
option and in its sole discretion, to propose a cure of such deficient
condition. If Seller proposes a cure to Purchaser, then Purchaser will have ten
(10) days to elect whether to accept the proposed cure. If Seller proposes a
cure which is accepted by Purchaser, then Seller will diligently proceed with
the cure and closing will be delayed until after the cure is complete. If (a)
Purchaser , in its sole discretion, rejects Seller's proposed cure, or(b) Seller
notifies Purchaser that Seller does not elect to cure such deficient condition,
then Purchaser may terminate this Contract on notice to Seller within (a) five
(5) days after Seller notifies Purchaser that it is unable or elects not to cure
or , (b) simultaneously with Purchaser's rejection of Seller's proposed cure
(whichever is appropriate), and thereafter the Xxxxxxx Money shall be returned
to Purchaser and neither party shall have any further rights or obligations
under this Contract (except for the obligations set forth in this Section and in
Sections 24 and 25 hereof). In the event Purchaser does not timely exercise the
foregoing right to cancel, then Purchaser shall proceed to Closing without any
abatement of the Purchase Price.
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Upon either (a) notice from Purchaser that there are no deficient conditions or
any deficient condition has been cured or (b) expiration of the Due Diligence
Review Period and the period for Seller's cure, if applicable, without Seller
receiving notice of cancellation of the Contract pursuant to this Section,
whichever is first to occur ("Due Diligence Completion"), the contingency
provided for in this Section shall be deemed satisfied and Purchaser shall
accept the Premises in such condition as existing on the date of such notice or
expiration of the applicable period, subject to reasonable wear and tear prior
to closing of title, without abatement of the Purchase Price set forth above.
6. Financing Contingency. Purchaser intends to obtain a new first mortgage loan
at prevailing rates and terms (including maturity, charges and fees, prepayment
and recourse provisions) and in so doing, Purchaser shall (a) submit in any such
loan application truthful, accurate and complete information as required by the
proposed lender(s); (b) promptly and completely reply to any request for
additional information or documentation by the proposed lender(s) and (c) comply
with all reasonable or customary requirements of the proposed lender(s). Within
ten (10) days after Due Diligence Completion (and at Financing Contingency
Expiration) Purchaser shall deliver to Seller a complete list of all lenders to
whom Purchaser shall have applied and the date(s) of such application(s). If
Purchaser fails through no fault of Purchaser, and despite Purchaser's diligent
efforts, to obtain a commitment for financing (whether or not conditional upon
any factor) in the minimum principal amount of seventy (70%) percent of the
Purchase Price (or any lesser loan amount acceptable to Purchaser) on terms
reasonably acceptable to Purchaser (provided that prevailing market terms shall
be deemed to be acceptable) by the date which is thirty (30) days after Due
Diligence Completion ("Financing Contingency Expiration"), then Purchaser shall
have the option of terminating this Contract upon notice to Seller ("Financing
Failure Notice") not later than the Financing Contingency Expiration. If Seller
does not receive the Financing Failure Notice prior to Financing Contingency
Expiration, then the financing contingency shall be deemed waived and of no
further effect, Purchaser shall make the Second Deposit and Purchaser shall
proceed to closing in accordance with Section 12 hereof. In the event Seller has
not received the Financing Failure Notice by the Financing Contingency
Expiration, then the failure of Purchaser to make the Second Deposit by the
Financing Contingency Expiration shall constitute a default hereunder.
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Upon receipt of Purchaser's Financing Failure Notice, Seller shall have the
option (but not the obligation) of (x) attempting to place the loan or (y)
providing purchase money financing for all or a portion of the Purchase Price.
In the event Seller elects such option, Seller shall notify Purchaser within
fifteen (15) days of the Financing Failure Notice, including in Seller's notice
the terms of Seller's proposed financing to Purchaser if Seller elects to offer
such financing, and in which event the Financing Contingency Expiration shall be
extended for a period of thirty (30) days thereafter. In the event Seller elects
either (x) or (y) above, generally prevailing market rates and terms shall be
deemed to be acceptable and Purchaser shall be obligated to accept financing on
such terms. Purchaser shall also make available to Seller within five (5) days
of such notice to Purchaser by Seller, all correspondence with respect to any
loan application made by Purchaser with respect to the Premises. If Purchaser
accepts Seller's financing proposal, or if Seller locates other financing
reasonably acceptable to Purchaser, then the transaction will close as soon as
financing documents can be drafted and agreed upon, Purchaser agreeing to use in
best efforts to conclude such documentation as expeditiously as possible. But if
Purchaser is not obligated to accept the financing as provided above and (a)
Purchaser does not accept Seller's financing proposal, or (b) Seller neither
offers financing to Purchaser nor locates other financing reasonably acceptable
to Purchaser, then the Xxxxxxx Money will be refunded to Purchaser and the
Contract will terminate.
7. No Representations. Purchaser to date and during the Due Diligence Period
will have made such examination of the Premises, the operation, income and
expenses thereof and all other matters affecting or relating to this transaction
as Purchaser shall deem necessary. Purchaser affirms that Seller has not made
nor has Purchaser relied upon any representation, warranty or promise made by
Seller or any broker or any representative or agent of Seller, nor has Purchaser
relied on any information or material provided by Seller or any broker or any
representative or agent of Seller, with respect to any of the following
("Premises Conditions"): the Premises or its physical or legal condition,
income, expenses, operation or use, or the laws, ordinances, rules and
regulations applicable to the Premises or compliance of the Premises therewith,
or any other matter or thing affecting or related to the Premises, except as
specifically set forth in this Contract. It is understood and agreed that,
except for the representations explicitly set forth herein, Purchaser is
acquiring and will accept conveyance of the Premises and the equipment and
fixtures therein in their "as is" condition, subject to reasonable wear and tear
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prior to closing of title. Purchaser hereby releases and agrees that it shall
not seek recourse of any kind against Seller or any of its employees,
contractors, attorneys, partners, agents or representatives for any claims,
loss, cost or expense of any kind related to or arising from any of the Premises
Conditions, other than the limited recourse against Seller only for breach of
the representations specifically set forth herein, subject to the limitations
described herein.
8. Seller's Limited Representations and Warranties. Seller represents and
warrants to Purchaser as follows:
(a) Seller has received no written notice of any action for eminent
domain from any governmental instrumentality having jurisdiction over the
Premises.
(b) Seller has received no written notice issued by insurance or
casualty companies regarding the Premises, with respect to violations affecting
the same as to use or operation.
(c) There are no service contracts affecting the Premises for elevator
service, air conditioning and heating service, except as listed on Exhibit B
annexed hereto.
(d) There are no outstanding contracts with any labor unions affecting
employees who may be used in connection with the operation of the Premises.
(e) Seller owns fee title to the Premises.
(f) Seller has the power and authority to enter into this Contract and
to fulfill its obligations under this Contract.
(g) Seller has received no notice from any governmental authority of
any violation of law, regulation, or code affecting the Premises, except only
for notices relating to violations which have been cured.
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(h) Seller has received no notice from any tenant at the Premises of
any default or breach of Seller's obligations under any lease, license, or
occupancy agreement affecting the Premises, nor of any tenant's intention to
terminate its lease, license, or occupancy agreement pursuant to any right to
terminate contained within the lease, except as set forth on Exhibit C.
(i) To the best of Seller's knowledge, the copies of the leases,
licenses, and occupancy agreements which Seller has provided or will provide to
Purchaser are all the leases, licenses, and occupancy agreements which affect
the Premises, and are complete copies of those leases, licenses, and occupancy
agreements.
(j) To the best of Seller's knowledge, no tenant has an option or right
of first refusal to acquire title to the Premises, except as contained in the
copies of the leases (and other agreements) provided or to be provided by Seller
to Purchaser and to the best of Seller's knowledge, no tenant has an option to
renew or extend the term of its lease, except as contained in the copies of the
leases (and other agreements) provided or to be provided by Seller to Purchaser.
For the purposes of this Contract, or any of Seller's closing documents, the
phrase "to the knowledge of Seller", or phrases of similar import, shall mean
the actual knowledge of Xxxxxx X. Xxxxxx, Vice President of Cedar Income Fund,
Ltd. and Xxx X. Xxxxxx, President of Cedar Income Fund, Ltd., without having
conducted, or undertaken to so conduct, any independent investigations or
studies as to the accuracy or completeness of same, or having undertaken any
past, present, or future duty to so investigate same.
9. Personalty and Fixtures. All right, title, and interest of Seller in and to
the personalty and fixtures that are in or on the Premises, and are due to be
transferred at the time of Closing, shall be deemed transferred to Purchaser
under the deed to be delivered at Closing. No part of the Purchase Price shall
be deemed to have been paid by Purchaser for the personalty and fixtures. In the
event a taxing authority shall determine that a sales tax is due on the
personalty, Purchaser agrees to pay the same. This provision shall survive
Closing.
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10. Destruction or Condemnation. (A) If, prior to the Closing, all or any
portion of the Premises becomes the subject of an actual or threatened eminent
domain proceeding, (a) Seller shall notify Purchaser of such fact; (b) this
Contract shall be unaffected thereby; (c) Seller shall assign to Purchaser all
of its rights to any condemnation proceeds awarded with respect to such
condemnation; and (d) Seller shall convey the Premises to Purchaser without an
abatement of the Purchase Price or obligation on the part of Seller to restore
the damage.
(B) If, prior to the Closing, all or any portion of the Premises is
damaged or destroyed by fire or other casualty (excepting normal wear and tear),
and (i) the cost to repair the damage or destruction is $100,000 or less, then
Seller shall notify Purchaser of the event and proceed forthwith to repair the
damage or destruction. The Contract shall be otherwise unaffected. (ii) If the
cost to repair the damage or destruction is more than $100,000 but the damage or
destruction does not reduce the rental income of the Premises (i.e., does not
result in any tenant having a right to xxxxx rent, not covered by insurance, or
terminate its lease), then Seller shall notify Purchaser of the event, assign to
Purchaser its rights to any insurance proceeds payable to Seller on account of
the event, and credit to Purchaser against the Purchase Price that amount, if
any, by which the insurance proceeds fall short of the estimated cost to repair
the damage or destruction (but in no event exceeding $5,000). The Contract shall
be otherwise unaffected, provided however that if the total insurance proceeds
shortfall exceeds $10,000, then Purchaser shall have the right to elect within
fifteen (15) days whether to terminate this Contract (which election Seller may
nullify by notifying Purchaser within fifteen (15) days of Purchaser's exercise
of its election that Seller agrees to reimburse Purchaser for the amount that
the insurance shortfall exceeds $10,000). (iii) If the cost to repair the damage
or destruction is more than $100,000 and the damage or destruction reduces the
rental income of the Premises, then Seller shall notify Purchaser of the event
and Purchaser shall have the right to elect within fifteen (15) days whether to
terminate this Contract.
If Purchaser delivers timely notice to Seller of its election to terminate this
Contract in accordance with subsection (ii) or (iii) above, then Purchaser shall
receive return of the Xxxxxxx Money and the other obligations of the parties
will end, except for the obligations set forth in Sections 5, 24 and 25 hereof),
otherwise the parties shall proceed as under subsection (ii) of this paragraph
(without reference to any right of termination).
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11. Leases. The Premises are sold and shall be conveyed subject to the leasehold
interests and tenancies (the "Leases") listed on Exhibit C attached hereto and
made a part hereof. Purchaser acknowledges that by Due Diligence Completion it
shall have had an opportunity to examine copies of the Leases and will accept
title subject thereto. Seller does not warrant that any particular Lease will be
in force or effect at the Closing or that the tenant will have performed its
obligations thereunder, but Seller does covenant that after Due Diligence
Completion Seller will not terminate any Lease or materially reduce the
financial obligations of any tenant by agreement with the tenant without the
prior consent of Purchaser, which Purchaser will not unreasonably withhold or
delay. Failure of Purchaser to respond within five (5) business days shall be
deemed to be consent. Prior to Due Diligence Completion, Seller shall only be
obligated to notify Purchaser of such termination or modification. The
termination of any Lease, the removal of any tenant or vacation by any tenant
prior to the Closing shall not affect the obligations of Purchaser under this
Contract in any manner or entitle Purchaser to any abatement of or credit
against Purchaser's obligations or give rise to any other claim of Purchaser. If
Purchaser shall, subsequent to the date of Closing, collect rentals from any
tenants in arrears, such rentals shall first be applied to rentals due for a
period of thirty (30) days prior to the date of Closing, which amounts shall be
remitted to Seller promptly after receipt thereof. Purchaser agrees to xxxx the
applicable tenants as soon as practicable and to promptly remit to Seller the
portion of any additional rent attributable to the period prior to the date of
Closing as and when collected. This obligation shall survive the Closing.
12. Closing of Title. The closing of title ("Closing") shall be held at the
offices of the Escrow Agent, or such other place as the parties shall mutually
agree at a mutually agreeable date and time within thirty (30) days after the
Financing Contingency Expiration (the "Closing Date"), except as may be extended
for financing or for repair of damage or destruction pursuant to the terms
herein contained. The following actions shall take place at Closing:
(a) Seller shall deliver to Purchaser a special warranty deed, properly
executed in proper form for recording so as to convey the title required by this
Contract and will cause the Title Company to deliver to Purchaser an ALTA
Owner's Policy of title insurance insuring marketable title to the Premises in
Purchaser subject only to Purchaser's acquisition financing, the usual
preprinted exceptions, and the Permitted Exceptions, at Purchaser's expense;
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(b) Purchaser shall pay to Seller the balance of the Purchase Price, as
provided in Paragraph 2 of this Contract and Escrow Agent shall release the
Xxxxxxx Money to Seller (along with the balance of the Purchase Price if paid by
Purchaser to Escrow Agent);
(c) Apportionments shall be made pursuant to Paragraph 13 hereof and
Seller and Purchaser shall each pay closing costs as is customary for commercial
transactions in Salt Lake City, Utah, except as may be explicitly provided
otherwise herein;
(d) Purchaser shall cause the deed to be recorded;
(e) Seller and Purchaser shall each deliver to the other a consent of
partners, board resolutions or other appropriate evidence of authority to enter
into the transactions described herein; and
(f) Seller shall deliver the original Leases, licenses, and occupancy
agreements to Purchaser and shall assign to Purchaser all Leases and security
deposits held in connection therewith and Purchaser shall assume all of the
obligations of Seller that are to be performed under the Leases following the
Closing; and
(g) Purchaser shall deliver to Seller an agreement indemnifying and
agreeing to defend Seller against any claims made by tenants with respect to
tenants' security deposits to the extent assigned to Purchaser and claims by
real estate brokers (except for claims by affiliates of Seller, such as Brentway
Management LLC and Cedar Bay Realty Advisors, Inc.) with respect to claims
arising from renewals, expansions or other modifications or new leases entered
into after the Closing Date.
13. Apportionments. The following are to be apportioned between Seller and
Purchaser as of midnight of the day before the date of Closing:
(a) Rents collected from the Premises as of the Closing Date; and
(b) Charges under transferable service contracts;
(c) Real estate taxes, assessments and water and sewer rents; and
(d) Utility usage for vacant tenant spaces.
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14. Brokerage. Purchaser and Seller each represent to the other that it did not
deal with any broker except CB Xxxxxxx Xxxxx, Inc., Xxxxx Lang LaSalle Americas,
Inc. and Brentway Management LLC (the "Brokers") in connection with this
transaction. Purchaser and Seller each represent to the other that no broker
other than the aforementioned Brokers was instrumental in bringing about this
sale. In the event any claim is made by a broker, finder or similar person
(other than one of the Brokers) based on actual dealings with either party
hereto, such party with whom said broker claims to have dealt shall indemnify
and hold harmless the other from and against any and all claims, loss, liability
and expense (including without limitation reasonable legal fees) in connection
with any such claims. The Brokers shall be paid a real estate sales commission
by the Seller in accordance with separate agreements between the Brokers and the
Seller.
15. Liability for Breach of Contract. The liability of Seller hereunder is
hereby limited to return of the Xxxxxxx Money (except only in the case of
Seller's willful refusal to close in violation of the terms hereof where
Purchaser is not in default and is ready, willing and able to close, in which
case such limit shall include reimbursement of Purchaser's out-of-pocket
expenses actually incurred in its due diligence and investigation of the
Premises after the date of this Contract up to a maximum aggregate of $10,000),
upon which return the liability of Seller shall wholly cease, and Purchaser
shall have no further claim against Seller for any default, breach or violation
hereof. Upon the default or failure of Purchaser to perform its agreements
hereunder, Seller shall be entitled to the full amount of the Xxxxxxx Money as
liquidated damages, which sum Purchaser agrees is not a penalty and which sum
Seller and Purchaser agree is a reasonable estimation of Seller's damages, such
damages being difficult to calculate at this time.
16. Further Assurances. Each of the parties hereby agrees to execute,
acknowledge and deliver such other documents or instruments as the other may
reasonably require from time to time to carry out the purposes of this Contract.
17. Notices. All notices, requests, consents, approvals or other communications
under this Contract shall be in writing and sent by overnight delivery service
requiring the recipient's signature or mailed by certified mail, return receipt
requested, postage prepaid, addressed (a) if to Seller, at Cedar Income Fund
Partnership, L.P., 00 Xxxxx Xxxxxx Xxxxxx, Xxxx Xxxxxxxxxx, Xxx Xxxx 00000 Attn:
Xxxxxx X. Xxxxxx, with a copy to Xxxxxx X. Xxxxxxxx, General Counsel, Cedar Bay
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Realty Advisors, Inc., 00 Xxxxx Xxxxxx Xxxxxx, Xxxx Xxxxxxxxxx, Xxx Xxxx 00000
and (b) if to Purchaser, at Suite 230, 0000 XX Xxxxxx Xxxxxxxxx, Xxxxxxxx,
Xxxxxx 00000, with a copy to Xxxx X. Xxxxxxxx, Esq., Xxxx Xxxxxx Xxxxxx Lubersky
LLP, Suite 2100, 000 XX 0xx Xxxxxx, Xxxxxxxx, Xxxxxx 00000; or at such other
address as either party shall designate by giving notice thereof to the other
party in the manner above provided. Such notice shall be deemed effective upon
delivery to or refusal by the intended recipient thereof.
18. Merger. The acceptance of a deed by Purchaser shall be deemed to be a full
performance by Seller of, and shall discharge Seller from, all obligations
hereunder, and thereafter, Seller shall have no liability hereunder to
Purchaser, or to any other person, firm, corporation or public body with respect
to the Premises, except as herein specifically provided. In the event that any
representation of Seller hereunder shall be discovered by Purchaser before
Closing to be false, Purchaser's sole right shall be to terminate this Contract
and obtain return of the Xxxxxxx Money and neither party shall have any further
rights or obligations hereunder (except for the obligations under Sections 5, 24
and 25 hereof). The representations and indemnities of Seller shall not survive
the Closing , except for the representations set forth in Section 8(c), (d), (f)
and (g), which shall survive for a period of twelve (12) months after Closing,
provided however that in no event shall any post-closing liability arising from
the representations set forth in Section 8(c), (d) and/or (g) exceed Purchaser's
actual out-of-pocket loss up to $5,000 in the aggregate.
19. Binding Effect; Entire Agreement. This Contract, once executed by both
parties, shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, legal representatives, successors and permitted
assigns. This Contract contains the entire agreement between the parties, and
may not be modified except by a writing executed by the party against whom
enforcement is sought. Prior to execution by both parties, this Contract shall
not constitute an offer nor confer any rights upon Purchaser.
20. Recording. This Contract of Sale shall not be recorded by either party.
21. No Assignment. None of the rights or obligations under this Contract shall
be assignable by the Purchaser without prior written consent of Seller and any
such attempted assignment shall be without force or effect. However, Purchaser,
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upon notice to Seller at least five (5) business days prior to Closing, may
assign its rights to any entity which is owned or controlled by Purchaser
without the prior consent of Seller, but no such assignment will relieve
Purchaser of its obligations under this Contract. Purchaser shall deliver to
Seller a fully executed copy of any qualifying assignment (which must contain an
assumption of all liabilities hereunder) along with the notice required herein.
22. Governing Law. This Contract of Sale shall be construed in accordance with
and governed by the laws of the State of Utah.
23. Time of the Essence. Time is of the essence with respect to the performance
of each of the obligations described herein.
24. Obligations Upon Termination. In the event this Contract is terminated for
any reason, Purchaser shall immediately deliver to Seller all documents, plans,
reports or other materials provided to Purchaser or prepared by Purchaser or its
agents, contractors or representatives related to the Premises.
25. Confidentiality. All information, materials and documents provided by Seller
or prepared by Purchaser or its contractors in connection with this Contract or
the Premises shall be treated by Purchaser as strictly confidential and shall
not be disclosed to any third party except as necessary to perform the
evaluations described herein (in which case such third party shall be required
to adhere to such confidentiality requirement and Purchaser shall be responsible
for any breach thereof by such third party) or as required by applicable law.
The obligations contained in this Section shall survive any termination of this
Contract.
26. Attorneys Authorized to Extend Time. The respective attorneys for each of
Seller and Purchaser are authorized to consent in writing to the extension of
any time period set forth herein.
27. Costs. Except as explicitly provided otherwise herein, any action to be
performed by any party herein shall be performed by such party at its sole cost
and expense.
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28. Waiver of Trial by Jury. THE PARTIES HERETO EACH WAIVE THE RIGHT TO TRIAL BY
JURY WITH RESPECT TO ANY DISPUTE ARISING FROM OR RELATED TO THIS CONTRACT OR ANY
PROVISION CONTAINED HEREIN.
29. Construction of Agreement. This Contract has been fully negotiated between
the parties and the parties agree that no presumption shall be made based on
which party may have been responsible for the drafting of any provisions herein.
30. Escrow Provisions. It is hereby agreed that the Xxxxxxx Money shall not be
released by the Escrow Agent except upon the mutual written consent of both
parties hereto, or the Escrow Agent is instructed otherwise by a judgment of a
court of competent jurisdiction. In the event of such dispute, the Escrow Agent
shall also have the right to deposit said Xxxxxxx Money into a court of
competent jurisdiction and from and after the date such deposit is made the
Escrow Agent shall be released and discharged of all obligations with respect
thereto.
It is further agreed and understood: (1) that the Escrow Agent may deposit for
collection in the Escrow Agent's escrow bank account all checks tendered in
payment of the First Deposit without such deposit constituting in any way an
acceptance by the Seller of the Purchaser's offer contained in this Contract;
(2) that the Escrow Agent shall not be liable for the disposition of the Xxxxxxx
Money, except in case of its gross negligence or willful disregard of the
provisions of this Contract; and (3) that no compensation shall be paid to the
Escrow Agent for its services performed hereunder.
WITNESS: CEDAR INCOME FUND PARTNERSHIP, L.P.
By: Cedar Income Fund, Ltd.
_______________________________ By: _________________________
Xxxxxx X. Xxxxxx
Vice President
WITNESS: BUSINESS PROPERTY TRUST, LLC
_______________________________ By: _______________________________
Xxxxx X. Xxxxx
Manager
FIDELITY NATIONAL TITLE
INSURANCE COMPANY OF OREGON,
as Escrow Agent
By: ______________________________
Xxxxxxx X. Xxxxxxx
Vice President
15
EXHIBITS
--------
A - Legal Description
B - Service Contracts
C - Leases
D - Due Diligence Delivery Items
16
EXHIBIT A
---------
Legal Description
-----------------
Xxx 0, XXXXXXXXXX XXXXXXXXXX XXXX XXXXX I, according to the official plat
thereof as recorded in the office of the Salt Lake County Recorder.
Excepting therefrom all coal, oil, gas, mines, metals, gravel, and all other
minerals of whatsoever kind or nature in subject property as excepted by Union
Pacific Land Resources Corporation, a Corporation of the State of Utah, in that
certain Warranty Deed, dated September 9, 1975, recorded September 12, 1975, as
Entry No. 2741808 in Book 3967 at Page 300 of Official Records.
Parcel Identification Number 00-00-000-000.
17
EXHIBIT B
---------
Service Contracts
-----------------
[to be attached]
18
EXHIBIT C
---------
Description of Leases
---------------------
[to be attached]
19
EXHIBIT D
---------
(i) Statement of income and expense for the Premises for the last three
calendar years and the current year through the most recent
month-ending, including a list of all capital expenditures on the
Premises for such period.
(ii) Copies of all existing and proposed service and maintenance contracts,
guaranties and warranties relating to the Premises, including all
amendments and modifications thereto.
(iii) A complete and correct current rent roll for the Premises indicating
for each resident their name, current rent, concessions (if any),
deposits and lease expiration date.
(iv) ALTA survey of the Premises (if available in Seller's files).
(v) A list of personal Premises owned by Seller and used in connection with
the operation and maintenance of the Premises.
(vi) Copies of all plans and specifications, engineering reports,
environmental reports, all governmental licenses and permits with
respect to the use and occupancy of the Premises in Seller's possession
(if available in Seller's files).
(vii) A copy of the most recent available property tax xxxx for the Premises,
including a breakdown and copies of all bonds and assessments
encumbering the Premises.
(viii) Copies of Shell Certificates of Occupancy.
In addition to the items provided to Purchaser described above (such
items above being referred to as "Due Diligence Documents"), Seller
shall provide access to Purchaser to supporting books and records,
ledgers, records of income, expense, capital expenditures, utility
bills, county tax bills, and other supporting documentation for the
operation of the Premises at Seller's principal office upon reasonable
prior notice. Original tenant files, including rental agreements,
payment history and related material will be made available for
Purchaser's review and inspection at Seller's principal office, upon
reasonable prior notice.
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