meridian agreements

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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF OREGON

EUGENE DIVISION

FIRST CITIZENS BANK & TRUST COMPANY, CASE NO. 10-6054-HOPI i f f , ORDER

v s .MISSCOM, LLC; DAN BERREY and FRANBERREY, t r u s t e e s o f th e Dan and FranBerrey t r u s t ; DAN BERREY;MICHAEL LIU; MICHAEL LIU, t r u s t e e o fth e L Living t r u s t ; CHERI WULF;CHERI WULF, Trus tee o f the Cher iWulf Revocable Living T ru s t ; PAULWULF; PAUL WULF, Trus tee of th e PaulR Wulf e Living t r u s t ; ROBERTCOOLEY, INGRID COOLEY; and th eMERIDIAN CONDOMINIUM ASSOCIATION, an

n o n p ro f i t o rg an i za t i o n ,Defendants .

A f t e r a hear ing on November 18, 2010, co u r t cons ideredMotion fo r Order Author iz ing Sa le o f Real r ty Pursuant

to Real Es ta t e Purchase Agreement with Cas logy RealEs ta t e Free and Clear o f a l l . , C , I n t e r e s t s andEncumbrances [#70], f i l e d by Scoule r & Company, as Receiver

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(Rece r ) , on August 2 7 ,2 0 1 0 , seek ing an order (Sale Order)approving, othe r th ings , t h a t c e r t Purchase Agreement ,dated as o f t 9, 2010 (Purchase ) , betweendefendan t ssCom LLC (MissCom), Buthor i ty o f th eRece r ( l e r ) , and Cascade Real Es ta t e , LLC("Purchaser" ) , pursuan t to which Se l l e r s agreed to s e l l toPurchase r c e r t a i n sp e c i f i c a l l y i d e n t i r e a l proper ty andimprovements l o ca t ed a t 777 Commerc 1 St re e t , S .E . , Salem,Oregon ( r t y ) , a s such t r a n sa c t (Sale Transact ion) i s morefu l l y s e t th e Motion and Purchase Agreement 1

co u r t a l so cons idered s t order appo in t iRece r ed Apri l 22, 2010, [#38] ; dec la ra t ion o f JohnRudd [#69J; th e Memorandum in of the Motion [ #71] ;Objec t ion o f MissCom (MissCom Object ion) and th e D e c l a r a t i o ~ Dan L. Ber suppor t ing t h a t objec t ion [#99; #100J; th e r s t -C i zens & T ru s t Company ly to th e MissCom Objec t ionth e Dec ion o f Denise K. S lz suppor t ing t h a t r ep l y[#102; #103J; t h e Rece i v e r ' s ly to th e MissCom Objec t ionth e Dec r a t i o n s o f Michael J . Mosar and John Rudd suppor t ing

[#105; #107J; MissCom's Sur-Reply [#110J;Rece r's Emergency Motion to e a Hear ing on Motionand Dec la ra t io n s o f Eugene Grant and Michael J . Mosar

Capi t a l i zed te rms f ined here in have th e ngs e t in th e Purchase (a t t ached as Exhib i t 1) . .Order Page 2



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suppor t ing t h a t motion [#121; #123]; th e arguments andr ep resen ta t i ons of couns made a t th e hear ings he ld on November16, 2010 and November 18, 2010, in connect ion with th e Motion;a l l o ther o r a l o r wri t t en arguments and th e record in t h i s cas e .

Based upon a l l o f ev idence and th e record andheld in connect ion Motion; I t h e r e f o r e f ind anddetermine t h a t :

A. The and conc lus ions s e t fo r th here inCour t ' s f ind ings o f f a c t and conc

o f law to Fed R Civ P 52. To th e ex ten tf ind ings o f f a c t c ons t i t u t e

conc law, they a re adopted as such, Toex ten t the fo l lowing conc lus ions o f lawc ons t i t u t e f ind ings o f f a c t , they a re adopted as

B. s Court has f edera l d i ve r s i t y j u r i s d i c t i on over scase and l l a r y s u b j e c t m at te r j u r i s d i c t i o n to

the Motion and e n t e r t h i s Sale r .s Court i s empowered to hear , determine andre I f reques ted in the Motion pursuan t to s

Cou r t 's Order Appoin t ing Receiver , dated 1 22, 2010(Rece r Order) and 28 U.S.C. 1651(a) .

C. i v e r Order was en te r ed upon th e s t a t ion of1 above-capt ioned p l a i n t i f f s and s .

D. Receiver Order , th e Cour t appo in ted S r &

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Company as Rece MissCom.E. The Rece r r author ized the Receiver to ,

o ther , " ...s e l l and explore the poss saa l l or subs tan t ia l ly a l l of the Asse t s , whether onesa le or a se r ie s of sa l e s . " [#38J .

F. The Rece r not ice of the Motion, the r onMotion approval of the Purchase , the

Sale , t ransac t ion contemplated thet the procedures to be fol lowed bypar ty wi to bid on the PropertYI by se

\\ e Notice") upon (a ) a l l persons or en t sre to be served pursuant to orders s Court ;(b) a l l ie s which, based on a tit from atitle , presen t ly hold or c la im a 1 orsecur i ty t Proper ty ; (c ) a l l i nd iv i I s oren t s which have contacted the Rece to ress

r e s t purchasing the Proper ty; (d) knowncounsel fo r any of the foregoing. Receiver alsocaus the pub l ica t ion of the e Notice once per week

weeks pr io r to the sa le a newspaper ofrcu la t ion (The Oregonian) Marion County,

(the county in which y i s loca ted ) .G. not ice was proper , t imely, , appropr ia te ,

su f c ien t not ice of th e Motion, the hear ing on the

Order - - 4



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Motion, the oppor tuni ty to t a bid to puchase theProper ty, approval of se Agreement and theSale Trans act ion, and was reasonably ca lcu la ted toreach and i se 1 1 s of l i ens , c la ims,encumbrances, S ~ S f and prospec t ive b idders ,and no other or r no t ice of the Motion, thehear ing or en t ry of t s Sale Order i s requ i red .

H. All, in te res ted persons and en t s have been affordeda reasonable to ob jec t to , bid , o r be heardregarding the r e l i e f s ted the Motion.

I. The Proper ty cons t i tu te s only a por t ion of the a s se t sowned by MissCom or to the Sale Transact ion, and thePurchase ement does not concern a l l orsubs tan t ia l ly 1 of MissCom's asse t s or opera t ions .

J. Purchaser wi l l not consummate the Sale Transac t ion ifthe sa le o f y i s not free and c l e a r of a l ll i ens , , encumbrances, redemption r i gh t s , and

r e s t s and an order acceptable to the Purchaser i sente

K. Rece r s caused the Proper ty to be marextens s th e ent ry of the ReceiverBecause of these e f f o r t s , the re has been adequatemar of the Proper ty and a reasonabie oppo ty

g to any in te res ted par ty to rna a r

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o r t e r o f r th e Proper ty . o r be t t e r o f f e r fo rr t y .

L. se Agreement r e f l e c t s th e exe rc i se o f theRecB r's sound bus iness judgment and a properexe Rece i v e r ' s f iduc ia ry d u t i e s . Thea l o f king spaces to the Purchase r i s

e and reasonab le under th e c i rcumstances .M. a t t h i s t ime of th e Purchase Agreement, and

the t r an s ac t contemplated thereby , i s th e b e s te re s t s o f MissCom, i t s c r ed i t o r s , and othe r p a r t i e s

e r e s t .N. te rms and cond i t ions o f the Purchase Agreement a re

ir r easo n ab le . The Purchase Agreement sen t ss t and bes t o f fe r fo r the Proper ty , and

se p r i c e payable thereunder i s f a i r andreasonab le and co n s t i t u t e s reasonab ly equ iva len t value

ir cons ide ra t ion under th e laws tedS t a t e s ( inc lud ing th e United Sta te s Ban cy Code) ,any s t a t e , t e r r i t o r y , possess ion , o r s t c t o fCQlumbia.

o. The Purchase Agreement was negot sed , anden tered in to by the p a r t i e s wi thout good

i th and from a rm ' s - l eng th ba ions .Purchase r i s not an a f f i l i a t e o f , o r se re l a t ed

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to , MissCom or t r defendan ts in t h i s ac t ion , th eReceiver , o r r s t -C i t i z e n s Bank & Trus t Company_ Therei s no common i t y among Purchase r and MissCom'so f ce rs , r ec to r s or mater i equi ty owners.Purchase r i s a buyer good fa i th of the Proper ty and,as , i s e n t i t to any pro tec t ions to be af fo rdedon account reo f .

P. The s e t by th e Court and re f l ec ted in th eNotice s passed , and no pa r ty has submi t ted a

d t o re Proper ty .Q. t r a n s f e r of the Proper ty pursuan t to th e Purchase

(a ) wi l l .be a l ega l , v a l id , and e f f e c t i v et r ans of such Proper ty to Purchaser , and (b ) w i l lves t se r with title and i n t e r e s t in th e Proper tyf ree and c r o f any and a l l l i e n s , i n t e r e s t s ,

s , and othe r i n t e r e s t s , inc lud ing redemptionr s ,

R. The t r a n s fe r of th e Proper ty pursuan t to Purchasei s a j ud i c i a l sa le and not an execu t s a l e .

Because the sa le of the Proper ty i s a j c i a l s a l e ,n e i t h e r MissCom, th e Rece iver , nor any r pa r ty haveany r igh t s of redemption with re Proper ty .In th e a l t e rn a t i v e , to th e ex ten t any r i g h t ofredemption e x i s t s , such r i g h t i s s s ly wa undE2r

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terms o f Paragraphs 4 5 (among others) o f thes t l a t ed Receiver Order .

S. r the s t i p u l a t e d Rece ra re a l i e n , encumbrance, or c

ch the Proper ty could soP r ty i s to be sold f ree c

s .T. The publ i ca t ion of the Sa Notice

redemption r igh t si n t e r e s t from

and c l e a r . Theof any redempt

and with the o t rac t ions taken by the Rece r s a t i s fy the prov i s s of28 USC 2001 and 2002 connect ion with the SaleTransac t ion .

IT IS THEREFORE ORDERED THAT:

l. The Motion [#70] i s2. 1 objec t ions to Motion or th e r e l i e f reques

t h e r e in t h a t have not en withdrawn, waived, moot ors e t t l e d , and a l l re se rva t ions of r igh t s included

r e in , are overru d on the mer i t s ;3. The terms and cond i t ions t r ansac t ions contemplat

by th e Purchase Agreement a re approved in a l l re s ,and the Sale Transac t i s approved and au thor i z i

4 . Se l l e r i s author iz and empowered to assume,perform under , consummate and implement th e PurchaseAgreement, t oge the r wi a l l add i t iona l inst ruments anddocuments t ha t may reasonably necessary or des i e

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to implement se Agreement and th et r a n s a c t i o n s cont thereby , and to t ak e a l lf u r th e r ac t i o n s as may reasonab ly be n eces sa ry o rappropr ia te to formance of the S e l l e r ' s

Lobl iga t ions as contempla ted by th e Purchase Agreement;5 . S i s i z , d i r e c t e d , and empowered to pay

th e o f Sa Transac t ion to F i r s t t i z en sBank & T ru s t Company, n e t o f c l o s i n g and r e l a t ed cos t s ;

6. S e l l e r i s au thor ized to conduct th e Sa le Transac tw it n e c e s s i t y of complying with any s t a t e o rl o c a l k t r a n s fe r laws o r requ i rements ;

7 . Upon os under th e Purchase Agreement lY 1 be t r an s f e r r ed to Purchase r

c l e a r o f a l l l i e n s , c la ims , i n t e r e s t s , and swhich be a s s e r t e d a g a i n s t th e Proper ty , withsueh 1 , c la ims , i n t e r e s t s and encumbrancesa t t a to th e proceeds o f th e s a l e ; and

8 . Subjec t to prov i s ions o f , and excep t asse Agreement, t h i s Court r e t a in s j u r i s e t ion

( i) to and implement th e terms and sof the Purchase Agreement, a l l amendments t h e r e t o , anywa r s and consen t s t h e reu n d er , and of each o f

s executed in connec t ion therewi th , ( i i ) tore any sp u t e s , con t rove rs i e s , o r a r i s

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out of o r r e l a t to the Purchase Agreement, ( i i i ) toi n t e rp r e t , imp and enforce the provis ions oft h i s Sale ( iv) to reso lve asse r t ion ofany l i e n , encumbrance, or othe r i n t e r e s t , of anykind or natu re soever , aga ins t th e ; and

9. To the ex ten t , th e provis ions of Fed R Civ P62(a) s taying ef c t iveness o f t h i s Sa Order a rehereby wa , and t h i s Sale Order s 11 be e f fec t ive ,and th e pa r t i e s may consummate the Sale Transac t ionimmediately en t ry o f t h i s Sale

IT IS SO ORDERED. DATED t h i s /df{day o f November, .2010.

Order - - Page 10

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Case 6:10-cv-06054-HO Document 129 Filed 11/18/10 Page 10 of 27 PageID#:1202

Exhibit 1 to Sale OrderPURCHASE AGREEMENT (Cascade Cardiology; Commercial Unit 5)

TIDS PURCHASE AGREEMENT ("Agreement") dated. as of August 9)2010("Effective Date"), is made by and between MISSCOM, LLC, an Oregon limited liabilitycompany ("Seller!!) and CASCADE CARDIOLOGY REAL ESTATE, LLC., an Oregon limitedliability company ("Buyerlf), and constitutes (1) a contract of purchase and sale between Sellcrand Buyer.RECITALS

A. Seller owns and holds fee simple title to the Property subject to the encumbrancesto be described in the Title Commitment (defined below).B, Seller desires to sell and Buyer desires to purchase all of Seller's right, title andinterest in and to the Property, upon the terms and subject to the conditions set fbrth below.NOW, T H E R E F O R E ~ based upon the foregoing Recitals and the mutual covenantshereinafter set forth; the parties agree as follows:

AGREEMENT1. Agreement to Sell and Bay. This Agreement constitutes a binding agreement bySeller to sell and Buyer to buy the Property upon the terms and conditions set forth in thisAgreement. This Agreement l including the attached Exhibits, constitutes the entire agreementbetween Seller and Buyer. Any terms or conditions contained in other writings previously

execllted by Seller and Buyer and any prior .or contemporaneous arrangements andunderstandings between Seller and Buyer are superseded. No agreements, statements or.promises about the. Properly shall be binding or valid unless contained herein Of in asupplemental written agreement.2. Property [neluded in Sale. The following comprise the property ("Pl'operty")that Seller is selling to Buyer and Buyer is purchasing from Seller:

2.1. Commercial Unit 5 of TIIB MERIDIAN CONDOMINIUM, more fullydescribed in the Condominium DeclarationFor The Meridian Condominium. recorded June 15,2009. in the deed recQrds of Marion County, Oregon; as Instrument No. 250346 at Reel 3073beginning at Page 81, together with general and limited common elements appertaining fa saidUnit as therein descLibed comprising the commercial space commonly known as Suite 103 on thesouth side of the flIst floor of the building located at 777 Commercial Street Southeast, Salem,OR 97301 (collectively, the UReal Property'!), Unit S contains 9,936 square feet offioor area asshown on the MERIDIAN CONDOMINIUM PLAT recorded in the Marion County Book ofTown Plats on June 15,2009, at Volume R47, beginning at page 13. All references to the RealProperty shall include all right, title and interest of.Seller in and to: (a) all appurtenances,hereditaments, and r i g h t s ~ o f - w a y , (b) all land and improvements that are a part of the RealPage 1 - PURCHASE AGREEMENT 08/11/104:14l>M

Exhibit 1DWT 15150213'\140092399-1100001 Page 1 of 18



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Case 6:.1 0-cv-060S4-HO Document 129 Filed 11/18/10 Page 11 of 27 Page ID#:, 1203

Property, and (0) any other rights 01' privileges appurtenant to the Real Pt'operty or used inconneotion with the Real Property; and '2.2. The right to lease two (2) additional Condominium Parldng Units of Sellds choice underneath the Condomini,un building, for doetor's or busmess managers' use. Any parking spaces Seller leases to Buyer shall be by means ofSener's standard form ofparking lease and shall be at Seller's scheduled parking ,lent as the same may be adjusted from time to time. I f at any titrie in the future Buyer elects not to lease one or inore of the additional parldng staUs then Seller shall . be free to lea,se' sllch parking stalls to third parties and Buyer's right to lease the same willterminate. In a d d i t i o ~ subject to availability, Buyer may tempol'arily lease two tnore Parking Unitsof Seller's choice underneath the building; but only until such Parking Units are needed for a:residents of the Condominium. and Seller may tenninate Buyer!s lease of such Parking Units upon. thirty (30) days prior written notice ifand when in Sellers sale discretion enough residential units ofthe Property are sold or leased that it becomes desirable to allocate such Parking Units io residents.

Seller will make reasonable efforts' to amend the Condominium Declaration to allocate seven (7) .parking stalls on the upper parking deck for Buyers ex.clusive use during business hours ascommercial limited common elements assigned to Commercial Unit 5 (Suite 103). The amendmentis subject to being approved by the State of Oregon Real Estate CommissiollCilr and CountyAssessor. Seller will file a request for approval with tbe relevant authorities within 10 business daysof the Effective Date and will use reasonable efforts to obtain sucb approval prior to Closing. Sellermay record such amendmentwithin 10 days ofthe Closing Date defined below.2.3. The right to share in the use of the basement level Limited Common Element parking areas assigned to all oftha Commercial Units in the Condominium. Seller shall maintaina commercial parking ratio (including all commercial reserved parking spaces and commercial shared parking spaces) of 3.3 parldng spaces per 1,000 square feet of CommerciaL Unit floor M'ea in the Condominium. 111e Parldng ratio shall not be inclusive of the gated Parking Units on the basement level intended for purchase and use by Residential Unit OWDers. 2.4. All other intangible rights whioh shall mean all licenses. pennits, approvals, certificates of occupancy, and franchises relating to the zoning, lalld use, ownership, operation, occupancy, construotion,ormaintenance of he Real Property,

3. Purchase Price. The purchase plice ("Purchase PriceU) for the Property is OneMillion Seven Hundred Eighty-Eight Thousand, Four Hundred Eighty and noll 00 Donars($1,788,480.00) to be paid to Seller. The Purchase Price shall be payable as follows:3J. Earnest Money. Within two (2) days after the Effective D ~ t e , Buyer shandeposit with Escrow Agent a promissory note in the form marked Exhibit A; attached hereto, inthe principal amount of Twenty Five Thousand Dollars ($25,000) ("Deposit Note") which shallbe converted to cash and deposited with Escrow Agent within two (2) days after the end of theReview PerIod ("Cash Deposit!). The Deposit Note, and upon conversion of1be Cash Deposit)shall constitute the earnest money deposit (''Earnest Money Deposit") under this Agreement. TheCash Deposit shall remain in esorow until Closing and shall be invested in a non-interest beating

a c ~ o u n t . Notwithstanding the Earnest Money Deposit, i fBuyer exercises any l'ight to temlinate .this Agreement (or is deemed to have tenninated this Agreement as provided herein), or SellerPage 2 - PURCHASEAGREEMENT 08111110 4:14 PM

Exhibit 1DWT 15150213v4 0092399.(100001 Page 2 of 18

http:///reader/full/1,788,480.00http:///reader/full/1,788,480.00


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exercises any right to terminate this Agreement, other tban as a result ofBuyer's default or dueto inability to obtain financing, Buyer shall be entitled to a return of the Earnest Money Deposit.If this Closing occurs, the Earnest Money Deposit shall be for the benefit of Buyer and applieddollar-for-dollar to the Purchase Price. I f Closing does not occur, the Earnest Money Depositshall be paid to the party entitled thereto pursuant to this Agreement.

3.2. Closing Funds. Subject to any adjustment provided h e r e i n ~ at the Closeof Escrow (defilled below), Buyer shall deposit with Escrow Agent the remainder of thePurchase Price plus Buyer's share of the Closing (defined below) costs, in cash or otherinunediately available funds, with a credit for the Cash Deposit... 4. Escrow. The sale shall be consummated in a Closing escrow ("Escrow") throughCindy Gardner, Escrow Agent at AmeriTitIe, Inc., an Oregon corporation (the IIThIe Company)and the EaOlest Money shall be deposited with the Title Company at the following branch 1255

Lee Street SE, Suite 110, Salem, OR 973024.1. Closing Date. The close of Escrow (nClose of Escrow") or closing("Closing") shall aceill' on or before September 23, 2010, or upon such other date as Buyer andSeller may hereafter agree upon in writing. Due to the default status of the S e l 1 e r ~ s loan securedby the Propelty, time is particularlyof the essence with respect to Closing Date and all deadlinesin this Agreement. Buyer 118S no right to extend the Closing Date or any other deadline) anythingto the contrary herein notwithstanding.4.2. Location of Closing. The Closing shall take place in the Title Companyoffice ofEscrow Agent set forth above, or at such other place as Seller and Buyer may hereafteragree upon in.writing.4.3. Documents to be Delivered for the Closing. As a conditionprecedent toBuyer's Closing obligations, Seller shall have deposited into Escrow the following documents,instruments and other items at least one (1) business day prior to the Close ofRscrow (or sooner,

if so required elsewhere in this Agreement):4.3.1. A Statutory Bargain and Sale Deed substantially in the formattached hereto as ExhibitB;4.3.2. A Nonforeign Affidavit as defined in Section 1445 of the InteI11alRevenue Code;4.3.3: The true and complete originals or copies, as applicable, ofdocuments described il l subsection 5.2, if SeUer has not previously delivered all such originals to

Buyer;4.3.4. An affidavit in favor of and in fonn acceptable to Buyer and theTitle Company certifying that no construction or improvement work has occurred on the RealProperty within seventy-five (75) days of the Close of Escrow except as disclosed therein,together with such other affidavits or letters of indemnity as may be reasonably required by the

Page 3 - PURCHASE AGREEMENT 08l1ll104:14 PMExhibit 1DWT IS150213v4 0092399-000001 Page 3 of 18



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Title Compa,ny to enable Buyer's title to the Real Property to be insured without exception forunfiled const111ctioO) mechanic's or materialmen's liens;4.3.5. An affidavit and/ol' indemnity in fonn and substance acceptable tothe Title Company and B u y e I ~ certifying to ~ h e Title Company and Buyer that as of he Close ofEscrow, there will be no parties in possession of the Real Property or parties entitled to suchpossession;4.3.6. A IIclosing". or "pre-audit settlement" statement prepared byEscrow Agent and signed by S e I I e r ~ in form and substance satisfactory to Buyer; aud4.3.7. A payoff letter from the Seller's bank having a lien on the RealProperty setting forth the amount that wiil be disbursed to the bank at Closing in excbange for arelease of the Real Property from the bank's lien4.3.8. A fully executed amendment of the Condominium Declatation jBylaws and Plat to effectuate the terms of conditions of the Purchase and Sale Agreement inform and content approved by Buyer. which approval shall not be unreasonably withheld,conditioned or delayed.4.3.9. A certified true copy of an order from the judge presiding overSeller's receivership approving this purchase and sale and authorizing the receiver to complete1he closing of this transaotion.

Each party shall execute and deliver to Escrow Agent such other documents as are customary inc01l11ection with transactions of this type in the Salem, Oregon, Metropolitan Area or asotherwist} may reasonably be required by Escrow Agent or the Title Company to consummatethe transaction contempla.ted hereby. All of such documents and instruments shall be dulyexecuted and, where appropriate, acknowledged in the manner required by law.

. .4.4. Title Policy. At Close ofEscrow, Seller shall cause the Title Compan.y to issue in favor of Buyer the Title Policy and Endorsements) as defined ill subsection 5.1, issued and underwritten by a licensed and creditworthy Oregon title insurance company selected by the Escrow Agent subject to the approval of the Buyer (which shall not be unreasonably withheld, conditioned or delayed) and insuring title to the Real Property in Buyer, subject only to (a) the usual conditions and stipulations contailied in the printed form of such an extended coverage policy; and (b) the Permitted Exceptions (defined below). . 5. Obligations of Seller Pending Closing. As conditions precedent to Buyer's obligation to close lUlder this Agreement, Seller shall perfonn the following:

5.1. Title Comnlitments allld Title Insurance. Not later than five (5) days after the Effective Date, Seller shall cause Esorow Agent to dellverto Buyer a current preliminary title commitment ("Title Commitment") disclosing all matters of record and all other matters affecting the RealPl'opelty known by Escrow Agent or Seller. The Title Commitment shaU be, accompanied with the most legible copies reasonably available of all instruments referred to therein including but not limited to the Declaration, Bylaws and Piat of Page 4 - PURCHASE AGREEMENT OS/ll/104:141'M

Exhibit 1OWL l5150213v4 0092399.()OOOOI Page 4 of18



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, '"

Case 6: 1O-cv-06054-HO Document 129 Filed 11/18/10 Page 14 of 27 Page ID#:1206

the Condominium. Buyer hereby acknowledges its prior receipt, review and approval of a copyof S e I l e l ' ~ s proposed amendment of such Condominium documents, which Seller has alreadysubmitted to the governmental authorities required to review.' approve and execute such'amendment. Buyer further acknowledges that any signs visible from the exterior of the RealProperty are subject to not only City of Salem approval but also the approval of the Seller onbehalf of the Condominium Association pursuant to the Declaration and Bylaws, whlchapprovalSeller will not unreasonably withhold, condition or delay during tbe Review Period describedbelow, it being intended that such approvals be sought from and determined by theCondominium Association as a palt of Buyer's review and approval of the Property conditionsduring the Review Period. The Title Commitment shall include a commitment from TitleCompany to issue Buyer at the Close of Escrow an extended coverage owner's policy of titleins'!lrance in the full amOl.ll1t of the Purchase Price (nTitle Polley"), along with suchendorsements as Buyer shall deem desirable C'EndorsementsO),ali in form and contentacceptable to Buyer. At Close of Escrow, Seller shall cause Title Company to i s s ~ l e in favor ofBuyer the title policy and endorsements insuring title to the Real Property in an amount equal totbe Purchase Price, subject only to (a) tho usual conditions and stipulations contained .in the, printed form of such extended coverage owner's policy of title insurance; and (b) the PermittedExceptions.

5.2. Information. Within five (5) days aftet'the Effective Date, Seller, at itsown expense, shall deliver to Buyer flue and complete originals or copies, applicable, of hefollowing items:5.2.1. Euvil'C)Dmental Reports, Any report, or certification in Seller'spossession or control regarding the past or present enviromnental conditions on, in or utidel' theReal Property; ,5.2.2. Government Reports Correspondence and, Noticcs. Allcorrespolldence and reports in Sellers possession or within Seller's reasonable control withrespect to the Property from any governmental body having jurisdiction over any part of theProperty. togetber with any notices of violation or alleged violation received by Seller from anygovernmental or quasigovemmentsl body ha.ving jUlisdiction over any p01'tion of the Property;5.2.3. Studies and Tests. Any and all studies and tests or rcpOltsrelating to the condition'(including but not limited to environmental conditions) of the RealProperty in Seller's possession and all information pertaining to any work performed as a resultthereof; .5.2.4. Other. All other consultant reports and studies) appraisals t utilityreports, governmental p o l i c i e s ~ assessments and other documents, instruments,building plansand blueprints, specifications, and informa1ionpertaining to the Property in Seller's possessionor control This does not include Seller documents pertaining to the entire condominiumdevelopment as distinct from the Seller's documents pertaining to the Property that is the subject

of this sale.

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5.3. Preservation of Property. Except as otherwise provided herein, Sellershall deliver the Property at Close ofEscrow in substantially the same condition as the conditionon the Effective Date. No leases ,with third parties shall be signed affecting the Real Propertyprior to Closing 01' the termination of this Agreement.

6. Certain Conditions. In addition to the other conditions herein, the followingconditions apply: . .6.1. Review Period and Financing. Buyer shall have until 11 :59 p.m., Salem,Oregon tune, on September 10,2010 (I1Revicw Periodll), to inspect and investigate the Propertyand all aspects thereof. During such time, Buyer may review and investigate the Property) thecondition of title,. the feasibility of Buyer's intended use, the availability of public and privatepermits, consents and approvals Buyer deems necessary 01' desirable, and such other pertinentinformation as Buyer deems advisable. Notwithstanding allythingherein to the contrary, Buyer's

investigations shall in no way void, diminish or constitute a waiver of ~ of Seller's warranties,representations or covenants. Until the expiration of the Review Period, Buyer shall have theright to terminate this Agreement for OOy reason within Buyer's sole and absolute discretion andobtain from Escrow Agent a return of the Deposit Note. Buyer shall have until 11 :59 p.m.,Salem, Oregon time, on September 8, 2010 (UFinancing Periodll). to obtain satisfactoryfinancing for this purchase of the Property as determined in Buyer's sole but reasonablediscretion. Buyet aoknowledges that it must use commercially reasonable efforts in g o o ~ faith toobtain financing for its purchase of the Property based upon generally prevailing financialmarket conditions. Buyer shall apply for financing to at least one reasonably qualifiedcommercial lender. Buyer warrants and represents that it does not need financing for at least30% of the Purchase Price. Until the expiration oftne Finance Period, Buyer shall have the rightto terminate this Agreement and obtain from Escrow Agent II return of the Deposit Note ifBuyerhas reasonably determined that despite its reasonable efforts Buyer cannot obtain such financing.6.2. Seller's Cure. Buyer shall have not later than five (5) business days aftel'receipt of the latest update to the Prelitninaxy Commitment, together with legible copies of alldocUlnents SllOWIl therein as exceptions to title, within which to give notice in writing to Seller ofany objection to title or to any liens or encumbrances affecting the Property. I fBuyer fails to raiseany such objection within suoh time period, then, except as set forth il l subsection6A or set forthbelow, all conditions and exceptions to title set forth in such Preliminary Commibnent shall bePennitted Exceptions (defined below). If Buyer objects to an exception to tille, Seller shall beobligated to notify Buyer within three (3) business days after notice of such objection whetherSeller. s wllling.and able to remove such exception. I fSeller is willing and able to remove such exception,Seller shall do so at or prior to Closing. If Seller is not wnling and able to remove the objected-toexception, Buyer, by written notice to Seller within three (3) business days after notice of Seller's

unwillingness or inability to remove BUell exception, may terminate this Agreement and receive a.return of its Eamest MOlley Deposit or Buyer may elect to acquire the Real Property' subject to sllchexception. All exceptions described in the Preliminary Commitment and not removed or to beremoved pursuant to this subseotion 6.2 or pursuant tOI!ul2section 6.4 shall be "PermittedExceptions." Notwitilstanding the foregoing, Seller shall be obligated to satisfy1 on or beforeC l o s i n ~ any exceptions c r e ~ t e d or suffered to be created by Seller that serve as security for payment

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of a sum of money (including mortgages, trust d e e d s ~ tax liens, construction liens and judgment liens).

6.3. Satisfadion of Conditions. The conditions described in this Section 6 are for the sole benefit of Buyer (except for approval of the transaction by Seller's bank and the receivership judge pet Section 6.6 below which conditions are for the benefit of both parties). . The Buyer's conditions shall be deemed to be satisfied or waived unless Buyer gives Senel'timely noticeof termination) in which event this Agreement shall be of no fiIrther force or effect,and the Eal'l1eSt Money Deposit shall be returned to Buyer. A notice of termination shall be. timely ifBuyer gives Seller such notice (a) by the end of the Review Period or Financing Periodas the case may be or (b) in the case of new matters of title under subsection 6.4; within the timerequired iIi subseotion 6.41 that Buyer's conditions under this Section 6 have not been satisfied orwaived, provided no such notice shall waive or limit Buyer's rights and remedies against Sellerfor any breach by Seller of any covenant, o b l i g a t i o n ~ representation or warranty of Seller underthis Agreement. IfBuyer shall fail to give timely written nonce to Seller then Buyer's conditionsunder tlus Section 6 shallbe deemed satisfied or waived and this Agreement shall not tenninate.Upon a tepnination of this Agreement pursuant to this subsection 6.4, Buyer shall deliver toSeUeralldocuments that Seller delivered to Buyer in connection with Buyer's due diligenceinvestigation together with any additional items of due diligence that Buyer developed duriugsuch period and both parties shall sign any instrllctions reasonably required by the TitleCompany to olose its account on this tral1saction. Upon the delivery of such documents and thereturn of the Eatnest Money Deposit, neither party shall have any further rigbts nor liabilitieshereunder except as expressly set forth herein .

6.4. Additional Title Documents. I f Title Company issnes an updated TitleCommitment after the Permitted ExceptLolls have been determined pursuant to subseotion .6.3,then Buyer shall have an additioul;tl ten (10) days after receipt of the updated Title Conunitment,accompanied by legible copies of all instruments referred to therein and not previo\lsly deliveredto Buyer pursuant to subsection 5.1 withln. which to give notice in writing to Seller of anyobjections to new title matters. If Buyer fails to raise any such objections within the 1 0 ~ d a y period, then all new exceptions reflected in the updated Title Commitment will also be PermittedExceptions. If Buyer objects to a new exception appearing in the updated Title Commitment)8e11et' shall be obligated to notify Buyer within three (:3) business days after notice of theobjection. whether Seller is able to remove the o b j e c t e d ~ t o exception. If Seller is able to removethe objected-to exception, Seller shall do so at or prior to Closing. If Seller is not able to removethe objected-to exception, Buyer, by written notice to Seiler, within three (3) business days afternotice of Seller's inability to remove the objected-to exception, may terminate tWs Agreement-and receive a return of the Earnest Money Deposit or Buyer may elect to acquire the RealP r o p e ~ subject to all such llew exceptions. This right to tenninatc the Agreement and receive areturn of the Earnest Money Deposit is intended tp be an additional right of termination beyondthat set forth in subsection 6 . ' ~ ..

6.5. Cancellation. I f B u y ~ r cancels this Agreement pursuant to this Section 6,Escrow Agent or Seller, as applicable;, shall, without further instruction from either party or an)'other personJ promptly return andlor refund the Earnest Money Deposit to Buyer and thisAgreement shall thereafter have no further force or effect. .Page 7- PURCHASE AGREEMENT 08111/10 4:14PM

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6.6. ApprovalslPermits. At all times prior to the Close of Escrow. Selleragrees to join in executing any applications reasonably required by Buyer in connection withBuyerls attempts to obtain use, building or other necessary permits and approvals) with respect tothe Real Property, whether from private or public bodies or persons, pro-vided that ifihe samewould bind Seller or the Real Property before the Close ofEscrow, the effectiveness of the sameshall be conditioned UPOl), Closillg unless Seller agrees otherwise or as otherwise provIded in thisAgreement. This Agreement js sul:>ject to approval by First-Citizens Bank & Trust Company andthe United States District Court for the District of Oregon in Ca.'le No. CV-10.6054, and is. further subject to the procedures and provisions set forth in the Stipulated Order AppointingReceIver entered in that case 011 April 22. 2010. .

6.7. . Negation of Agency, Partnership. Nothing in this Agreement shall beconstrued as making cilher party an agent or partner ofthe other party:7. R e p r C l ! e n t ~ t l o n s and Warranties; As Is Purchase. Seller represents that, to theSellers knowledge: (a) Seller has received no written notices ofviolation of any laws (includingbut not limited to the ADA and envlronmentallaws), codes, rules, or regulations applicable tothe Property ("Laws"); (b) Seller has d i s c 1 o ~ e d to Buyel' all known defects in thephysJcalcondition of the Property, which are described in the draft updated Condominium DisclosureStatement delivered to Buyer concurrently herewith. Seller is addressing known physical defeotswith its general contractor under the one year construction contract warranty. Risk of loss 01'damage to the Property shall be Seller's until Closing and Buyerts at and after Closing. No agentof Buyer or Seller has lllade any representations regarding the Property. Except fo, Seller'srepresentations set forth in this section 7, Buyer shall acquire the Property "as is" with all faultsand Buyer shall rely 011 the results of its own inspection and investigation in Buyer's acquisitionof the Property. It shall be a condition of Buyerls obligation to close, and of Sellees right toretain the Earnest Money as of Closing, that aU of the Seller'S representations and warrantiesstated in this Agreement are materially true and correct on the Closing. Sellets representationsand warranties stated in this AgreementshaU survive Closing for one (1) year until the firstanniversary o f t h ~ Closing Date,

A2. used herein, tIle terms nsener's kttowledge," Ilknowledge of Seller". andsimilar phrases refer to the actual knowledge of John Rudd and Lars Parkin and based only uponsuch inquiry as they have actually made in their capacity as officials of the receiver assigned tothis Property. .7,1, Buyer represents, warrants and covenants as follows:

7.1.1. Buyer has fuU right, power and authority to enter into thisAgreement and to consummate the transaction contemplated hereby.7.'1.2. Upon execution of this Agreement by Buyer and by Seller, thisAgreement shall be binding and enforceable against Buyer in accordance with its terms.

7.2. Waiver of Certain Claims. As pali of the consideration for thisAgreement, Buyer agrees that except for any breach by Seller of an express wananty stated inPage 8 - PURCHASE AGREEMENT 08/11/104:14 PM

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this Agreement, Seller bas no liability, and Buyer hereby waives any elain::is and releases Sellerfor a l l l i a b i l i t y ~ for a.ny title, physical condition, or any other aspect of the Property, whetherdirect or indirect, absolute or contingent, foreseen or unforeseen, and known or unknown. Thewaiver and release extend to Seller and Se11er's affiliates. successors, ulembers. partners,shareholders, directors, officers, employees; and agents, and their respective heirs, successors,and assigns. Without limiting the generality of the foregoing, Buyer waives all rights tocontribution, offsets, and damages that in any manner relate to the compliance of the Propeliywith any law or regulation applicable thereto, including, without limitation, the Americans withDisabilities Aot, 42 USC 12101-12213; the Fair Housing Act, 42 USC 3601-3631; theComprehensive Environmental Response, Compensation, and Liability Act, 42 USC 96019675; the Resource Conservation and Recovery Act, 42 USC 6901-6992k; the Clean WaterAct, 33 USC 1251-1387; the Safe Drinking Water Act, 42 USC 300f-300j-26; theHazardous Materials Transportation Act, 49 USC 5101-5128; the Toxic Substances ControlAct, 15 USC 2601-2692; and any and aU other federal, s t a t e ~ and local personal disabilitiesand environmental laws or regulations.

8. Allocation of Costs and Deposits . 8.1. Seller shall pay the cost of a standard coverage owner's policy in theamount of the Purchase Price, and Buyer shall pay the additional premium for the extendedcoverage owner's policy and the endorsements requested by Buyer. All escrow fees shall be splitequally between Buyer and SeHer. Any and all other costs or expenses shall be paid by the partyto whom they are specificaUy allocated hereafter or in accordance with Escrow Agentts localcustom.

8.2. All real property taxes for the then current tax year, if any, shall beprorated by Escrow Agent as of the Close of Escrow) based upon fue most current availableinformation. Buyer shall pay at Closing the initial reserve and operating assessmentcontributions to the Association as required by the Declaration and Bylaws including reserveassessments from the creatlon of the Condominium: by recording the Declaration and Bylaws.

8.3. Seller shall notifY all utility companies servicing the Real Property of thechange of ownership and direct that all future billings for service after the Close of Escrow bemade to Buyer at the address of the Real Property or at such other address Buyer may direct,with 110 interruption of service. Any deposits or other monies in place with any utility companiesfol' the benefit oftha Real Property sha1I be credited to Buyer.9. Nonforeign .status. If Seller fails to deliver the Nomoreign Affidavit, EscrowAgent shall withhold, upon the Close of E s c r o w ~ from the sums otherwise to be delivered to orfor the benefit of Seller at Close of Escrow, an amount equal to ten percent (10%) of the

Purchase Price pursuant to Section 1445(a) of the Internal Revenue Code, which sum shall bepaid to the United Stated Treasury by the Escrow Agent pursuant to the requirements of Section1445. Notwithstanding the foregoing, any sums withheld upon tire Close ofRscrow under thlsSection shall be considered, for all purposes, as having beell paid by Buyer and applied againstthe Purchase Price.

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10. ' Inspection. From and after the Effective Date, Buyer and Buyer's agents, servants, employees and independent contractors .shall have full, free and repeated aocess to.the Real Property for the purpose of inspecting, testing and surveying the same, and for any other purpose that relates to the potential acquisition, use, occupancy, operation or development of 11e Real Property. Buyer shall indemnifY' and hold Seller hannless against liability, loss, cost, damage or expense to the extent such may arise out of any personal injury or physical damage to . property resulting from such entry upon the Real Property by Buyer, except and to the extent thatsuch personallnjury or propel1y damage is caused by or contributed to by the conduct of Selleror Seller's agep.ts, sel'vanta, employees or independent conttactors. Buyer shall provide Sellerproof ofliability insurance prior to Buyer's entry onto the Real Property.

11. Risk of Loss. The risk of loss with respect to the Property to and until the Close of Escrow, i n c l u d i n g ~ without limitation, loss or damage to the Property by fire,wind, storm, tornado or any other casualty, whether an act of God or otherwise, shall be borne by Seller, except as may otherwise be expressly provided in this Agreement.

12. Condemnation. If condemnation or eminent domain proceedings or an agreementwith a govenunental agency in lieuof such proceedings should affect all or part of the Real Property prior to the Close of Escrow, B u y e l ~ at its option, may either (a) tenninate this Escrow and Agreement by written nonee to Seller, in whioh event the Earnest Money Depol3it shall be returned to Buyer, and neither Buyer nor Seller shall have any further liability hereunder or (b) elect to consummate this transaction, in which event Seller shall assign to Buyer at Close ofRscrow all of its right, title and interest in and to any award made or to be made in connection with such condemnation or eminent domain proceedings and shall permit Buyer to conduct all negotiations and enter into all agreements with respect thereto. Buyer's rights h ~ r e u n d e r sball be cumulative, a:p.d Buyer shall have the forgoing rights in the. case of each such condemnation or eminent domain proceeding. 13. Remedies.

13.1. I f any statement, representation or warranty of Seller contained in thisAgreement is incomplete, misleading or incorrect prior to the Close ofEscrow, Buyer shall havethe .right (a) to proceed to close this Escrow and take title to the Property; provided, however,that the cOl1suminanon of this Agreement shall not be deemed a waiver or relinquishment of anyrights or remedies' Buyer may have against ScHer in connection with the representation orwarranty, including, with01.1tlimitation, the remedy of specific perfonnance; or. a l t e r n a t i v e l y ~ (b)to cancel.this A g r e e m e n t ~ in which event Escrow Agent shalL without further inStructiOfis fromtbe. parties, return to Buyer the Earnest Money Deposit and this Agreement shall thereafter be ofno further force or effect; or (0) pursue any other right or remedy avru1able to Buyer at law or inequity; inclUdu18; without limitation. the remedy of specific performance.. . .13 .2. Except as otherwise expressly set forth herein to the. contrary and in theevent of any other default by Seller, Buyer may either cancel the Escrow and this Agreement bywritten notice to Seller and Escrow Agent and immediately recover the Earnest Money Depositor exercise any other rights or r e m e d i ~ available to Buyer at law or in equity. including, withoutlimitation, the remedy of specific performance.Page 10 - PURCHASE AGRBEMENTo81l 1110 4:14 PM

Exhibit 1DlVT IS1502 I.3v4 0092399-000001 Page 10 of 18

http:///reader/full/with01.1thttp:///reader/full/with01.1t


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13.3. IN THE EVENT THAT BUYER WRONGFULLY FAILS TO CLOSEESCROW IN ACCORDANCE WITH THIS AGREEMENT, TIUS AGREEMENT SHALL BETERMINATED AND SELLER SHALL BE ENTITLED TO LIQUIDATED DAMAGES, BYINITIALING THIS SECTION, BUYER AND SELLER AGREE THAT SELLER'S ACTUALDAMAGES WOULD BE DIFFICt1LT AND IMPRACTICAL TO ASCERTAIN, THAT THEEARNEST MONEY DEPOSIT IS A REASONABLE ESTIMATE OF SELLER'S ACTUALDAMAGES, THAT TllS ESTIMATE IS REASONABLE UNDER THE CIRCUMSTANCESEXISTING ON nm EFFECTIVE DATE, THAT SELLER SHALL BE ENTITLED TO THEEARNEST MONEY DEPOSIT AS LIQUIDATED DAMAGES, AND THAT SUCHLIQUIDATED DAMAGES SHALL CONSTITUTE SELLER'S SOLE REMEDY FORBUYER1S WRONGFUL FAILURE TO CLOSE ESCROW IN ACCORD CE WITH THIS" .' .AGREEMENT.

Illitials of. .. . "

14. Sales Commissions. Each party represents and warrants to the other that 110 rcalestate sales or brokerage commissions or like commissions are 01' will be due from the otherparty in connection with this transaotion except for the commission of Mike Mosa! of ColdwellBanker Commercial Mountain West Real Estate. LLC. which are the agents of both Seller andBuyer ("Disclosed Limited Agenci '). Further, each party agrees to indemirlfy and hold harm Lessthe other party for, from and against auy and all liability, loss, cost, damage 01' expense,including, but not limited to, court costs and reasonable attorney fees, resulting from anyassertion of al'ight to a brokerage commission as a consequence of any act or omission of suchindemnifying party. II5. Nutices. Any notice required or permitted under this Agreement shaU be inwriting and shall be given as follows:

15.1. notice may be given by certified mail, return. receipt requested, addressed tothe addressee at the address set forth below or at such other address as one party may indicate bywritten notice to the other party, andshaU be effective forty-eight (48) hours after having beendeposited in the United States mail;15.2. notice may be given by personal delivery and shall be effective upon the dateofdelivery;15.3. notice may be given by facsimile transmission to the facsimile number setforth below or at such other facsimile number as one party may indicate by written notice to the

other party and shall be effective upon the date of successful transmission, provided tha, thesender's facsinille machine provides evidence of a successful transmission and provided further thata duplicate copy of the notice is sent on the same day by :first class mail, addressed to the addresseeat the address set forth below or at such other address as one party may Indicate by written notice tothe other party; and

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15.4. Notice may be given by email t r a n s t n i ~ s i o l l to the email address set forthbelow or at such other email address as one party may indicate by written notice tQ the other partyand shall be effective if and when the addressee acknowledges by retorn email that the addresseehas received the emailed notice. For a notice to be effective byemrul, itmust include this statementin the subjeot or reference lute: "TIllS IS A FORMAL NOTICE GIVEN JN ACCORDANCEwrm THE PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS." All such noticesshall be addressed as follows or to such other address or addresses as the parties or EscrowAgent may from time to time specify inwriting delivered as provided in this Section:I f to Seller: Lars B. ParkinSCOULER & C O : M P A N Y ~ LLC1800 Century Park EastSuite 600Los Angeles, CA 90067

Office; (310)407-5113Email: Address:[email protected] With copy to: Eugene L. Grant Davis Wright Tremaine LLP1300 SW Sill Avenue, Suite 2300Portland OR 97201Telephone No.: (503) 778 5427Facsimile No.: (503) 778 5499Email Address:[email protected] f to Buyer: Kirk W. Walker, M.D., F.A.C.C.Cascade Cardiology

875 Oak St SE, Suite 5080,Salem, OR 97301Office (503) 485"4787 . J [, IEmail Address: k W ~ \ \ ( e J r @ (11)@OlLQ;:hVC:lID!C


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provided in this Section, Buyer's assignee shall assume all obligations and duties of I?uyer h e r e u n d e r ~ and Buyer shall thereafter be l'eHeved of any and all obligations, liabilities 01' duties under this Agreement or otherwise in connection with the Property.

17. Further Assurances. Promptly upon the request of the other or upon the request of Escrow Agent., eachparty shan do such further acts and shall execute, have acknowledged and deliver to the other party or to Escrow Agent, as appropriate, any .and all further documents or inshuments reasonably requested in order to carry out the intent and purpose oftms Agreement. 18. Other Provisions.

18,1. Modification and Waive!', Except as expressly provided herein to the cOlltrat'Y, no supplement, modification or amendment or any term of this Agreement shall be deemed bindillg or effective unless in writing and signed by the parties hereto.. No waiver of any of the provisions of this Agreement shall constitute or be deemed a waiver of any other provision, nor shall allY waiver be a continuing waiver. Except as otherwise expressly provided herein, no waiver shall be binding unless executed inwriting by the partymaking the waiver.

18.2. Exhibits. The Exhibits referred to herein and attached hereto (the "Exhibits") are incorporated herein by reference. 18.3. Jury Trial Waiver; AttorneyFees. The parties w a i v ~ t h e rlghtto ajury trial in the event of any litigation between them. I f any controversy or claim arises under tWs Agreement, the prevailing party shall be entitled to its reasonable c o s t s ~ disbursements and attorney fees, together with all expenses that it may reasonably incur in taking such action, including, but not limited to, costs incurred in searching records, expert witness and consulting fees. discovery depositions, whether or not introduced into evidence in the trial, hearing or other proceeding, and

travel expenses in any arbitration, trial or other proceeding, :including any proceeding brought to enforce an award to judgment and ally and all appeals taken therefrom. _ 18.4. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be valid under applicable law, but i f any provision of tlus . Agreement shall be deemed invalid or prohibited t h e r e u n d e r ~ such provision shall be ineffectiveonly to the extent of such prohibition or invalidity and the remainder of such provision or theremaining provisions ofthia Agreement shall notbe affected.

18.5. SUCCesSOl'S Rnd Assigns. Except as otherwise provided herein, tllis Agreement shall be binding upon, inure to the benefit of, and be enforceable by and against the parties to this Agreement and their respective heirs, executors, administrators, personal .representatives, Sllccessors and assigns.18.6. Counterparts; Facsimile. This Agreement may be executed by the signing in counterparts. The execution of this instrument by eaoh of the parties signing a countetpart hereof shall CQnstitute a valid execution, and this instrument and all of its cOlmterpatis so executed shall be deemed for all purposes to be a single instrument. Signatures transmitted by facsimile shall be binding as origInals.

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:.;!j

18.7. Applieable Laws. This Agreement shall be governed by, and oonstruedand enforced in accordance with, the internal substantive laws of the staie of Oregon, withoutregard to the applicable choice-of-Iaws rules.18.8. Possession. Upon the Close of Escrow, exc1usive possession of theProperty will be transferred to Buyer..18.9. Headings. The h e ~ d i n g 5 of the Sections of this Agreement are insertedfor convenience only and shall not define, limit, extend, control or affect the meaning orconstruotion of any provision hereof.18.10. Survival. Except as expressly set forth herein to the contrary. all covenants, warranties, representations and obligations shall survive the Close ofEscrow. 18.11. Parties in Interest . Nothing in this Agreement (whether express 01'implied) is intended to confer upon any third party any rights or remedies under or by reason of.this Agreement, nor is anything in this Agreement intended to relieve or discharge the liability ofany party hereto, nor shall any provision hereof give any entity any right of subrogation againstor action over or against any party.18.12. Construction. The parties agree that each patti andlor such party's counsel have reviewed and revised this Agreement (or have bad the opportunity to do so) and that any rule of construction to the effect ;hat ambiguities are to be resolved against the drafting party shall not apply in the interpretation oftbis Agreement. 18.13. Gender and Terminology. All personal pronouns used in this Agreement, whether used in the masculine, feminine or neuter gender, shall include all other

genders, and Ute singular shall include the plural and vise versa. The use herein. of the words "including, for example:' lIincluding, without limitatiOn,tl "including, hut not limited toll or words of similar import, when following any general statemen.t, term or matter. $aLl not be construed to limit such statement,. term or matter to the specific items or matters set forth immediately following such word$ or to similar items or matters.

18.14. Time. rime is of the essence of this Agreement and each. and every provision hereof. Notwithstanding anything to the contrary in this Agreement, in the event any period allowed or provided in this Agreement would otherwise violate any applicable rule against perpetuities or similar limit on the vesting of rights, the period state in this Agreement withhi which such vesting must occur shall be deemed to be the longest period allowed under . applicable law without violating such rule or limit. As used herein, "day" or "days" meanscalendar days unless otherwise provided herein. and the expression llbusiness dayll means everyday otllerthan a Saturday, Sunday or federal or state of Oregon legal holiday. In any case, where. a payment is due, an act is to be perfonned, a notice is to be delivered or a period expires on aday that is ilot a business day, such occurrence or due date shall be deferred until the nextsucceeding business day. .

18.15. Statutory Disclaimer.. THE PROPERTY DESCRIBED IN TIllS INSTRUMENT MAY NOT BE WITHIN A FIRE PROTECTION DISTRICT PROTECTlNG Page 14 - PURCHASE AGREEMENT0811 lfl0 4:14 PM

Exhibit 1Page 14 of 18PWT IS150213v4 0092399'()OOOOI



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,Case 6:10-cv-06054-HO Document 129 Filed 11/18/10 Page 24 of 27 Page 10#:1216

STRUCTURES. THE PROPERTY IS SUBJECT TO LAND USE LAWS ANDREGl}LATIONS THAT, IN FARM OR FOREST ZONES, MAY NOT AUTHORIZECONSTRUCTION OR SITTI'lG OF A RESIDENCE AND THAT LIMIT LAWSUITSAGAINST FARMING OR FOREST PRACTICES, AS DEFINED IN ORS 30.930,IN ALLZONES. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSONTRANSFERRING FEE TITLE SHOULD INQUIRE ABOUT THE PERSONJS RIGHTS, IFANY, UNDER ORS 195.300, 195.301 AND 195.305 TO 195.336 AND SECTIONS 5 TO 11,CHAPTER 424, OREGON LAWS 2007, AND SECTIONS 2 TO 9 AND 17, CHAP1ER 855,OREGON LAWS 2009. BEFORE SIGNm'G OR ACCEPTING THIS INSTRUMENT, THEPERSON ACQUIRING FEE mLE TO THE PROPERTY SHOULD CImCK WITH THEAPPROPRIATE CITY 9R COUNTY PLANNING DEPARTMENT TO VERlFYTHAT THEUNIT OF LAND BEING TRANSFERRED IS A LAWFULLY ESTABLISHED LOT ORPARCEL, AS DEFINED IN DRS 92.010 OR 215.010, TO VERIFY THE APPROVED USESOF THE LOT OR PARCEL, TO VERIFY THE EXISTENCE OF FIRE PROTECTION FORSTRUCTURES AND TO lNQUIRE ABOUT THE RIGHI'S 'OF NEIGHBORING PROPERTYOWNERS, IF ANY, UNDER ORS 195.300, 195.301 AND 195.305 TO 195.336 ANDSECTIONS 5 TO 11. CHAPTER 424, OREGON LAWS 2007, AND SECTIONS 2 TO 9 AND .17, CHAPTER 855) OREGON LAWS 2009.

19. Exprration of Offer. Prior to the full CKecution and delivery of this Agreementby both p a r t i e s ~ this Agreement shall be deemed an offer to sen, subject to withdrawal by Seller.If this Agreement;, as provided above) has not been executed and delivered by Seller to theEscrow Agent before 5:00 p.m. Salem, Oregon time on August 12, 2010, this Agreement shall bedeemed an u n a c c e p t ~ d and withdrawn offer and such offer and this Agreement shallautomatically be null. void, andof no force or effect.

IN WITNESS WHEREOF the parties have eKecuted this Agreement with the intent that it be effective as of the Effective Date. BUYER SELLER

MISSCOM, LLC, an Oregon limited liabilitycompany, by its receiver Seouler & Company,LLC, a Delaware limited liability company

By: .Lars B. P a r ~ Consultant

Page 15 PURCHASE AGREEMENTo8/1lI104:14 PMExhibit 1Page 15 of 18DWT iS150213v4 0092399'()OOOOl



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Case 6:10-cv-06054-HO Document 129 Filed 11118/10 Page 25 of 27 Page 10#:, 121.7

EXHIBIT A. TO PURCHASE AGREEMENT ,EARNEST MONEY PROMISSORY NOTE

$25,000 AUgUst ]0,2010Salem, Oregon\FOR VALUABLE CONSIDERATION, the undersigned promises to pay to the order of11ISSCOM, LLC, an Oregon limited liability company, in care of its receiver Scouler &Company, LLC, a Delaware Hmited liability company or holder, clo Cindy Gardner, Escrow

Agent at AmedTitle, Inc., 1255 Lee S t r ~ t SE. Suite 110, Salem, OR 97302 ,the principal sumof Twenty Five Thousand Dollars ($25,000), together with interest thereon at the annual rate oftwelve percent 12% at such time and in accordance with 1he tenns and 'provisions of that cettainPurchase and Sale Agreement and Escrow Instruotions dated August 10, 2010, between the holderh e r e o ~ as Seller, and the maker hereof, as Buyer, covering land located in the city ofSalem, countyofMarion, and state ofOregon. . .

If legal action. is commenced ill connection with this promissory note, the prevailing partyshall be entitled to recover its reasonable attorney fees and costs incurred thel'ein in the samemanner in which the prevailing party would be entitled to recover attorney fees and costs in anaction under the Purchase Agreement and Escrow Instructions.

BARNBST MONEY PROMISSORY NOTE Exhibit 1Page 16 of 18DWT L5150213v4 0092399-000001



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Case 6:10-cv-06054-HO Document 129 Filed 11/18/10 Page 26 of 27 Page 10#:1218

EXIllBITB TO PURCBASEAGREEMENT

QUIT CLAIM DEED-STATUTORY FORM

RECORD AND RETURN TO: DAVIS WRIGHT TREMAINE 1300 SW 5th Avenue, Suite 2300 Portland, OR 97201 ATTN: Eugene L, Grant MAIL TAX STA.TEMENTS TO: Cascade Cardiology 875 Oak S.t SE, Suite 5080, Salem, OR 97301 Marlon County Tax I.D. NO($)..,-....,...,-__ ...,..-.

BARGAIN AND SALE DEEDMISSCOM, LLC, an Oregon limited liability company, Grantor, conveys to CASCADECARDIOLOGY REAL ESTATE, LLC., llIl.Oregon linilted liability company, Grantee, thefollowing described real property situated In Marion County, Oregon , described as follows: CommeroialUnit 5 of THE MERIDIAN CONDOMINIUM, more fully described in the CondominiwnDeolaration For The Meridian Condominium, recorded June 15, 2009, in the deed records ofMarlon County. Oregon, as Instrument No. 250346 at Ree13073 beginning at Page 81, togetherwith general and limited common elcplents appertaining to said Unit as therein described.The true and actual consideration for thIs conveyance Is $ 1,788,480.00.BEFORE SIGNING OR ACCEPTING TIllS' mS1RUMENT1 . THE PERSONTRANSFERRING FEE TITLE SHOULD INQUIRE ABOUT THE PERSON'S RIGlUS, IFANY, UNDER ORS 195.300, 195.301 AND 195.305 TO 195.336 AND SECTIONS 5 TO 11,CHAPTER 424, OREGON LAWS 2007, AND SECTIONS 2 TO 9 AND 17, CHAPTER 855,OREGON LAWS 2009. THIS IN'STRUMBNT DOES NOT ALLOW USE OF THEPROPERTY. DESCRIBED IN TillS mSTRUMENT IN VIOLATION OF APPLICABLELAND USE LAWS AND REGULATIONS. BEFORE SIGNING OR ACCEPTING TillSINSTRUMENT, THE PERSON ACQUIRING FEE TITLE TO THE PROPERTY SHOULD. CHECK WITH TIIE APPROPRIATE CITY OR COUNTY PLANNING DEPARTMENT TOVERIFY TIIAT THE UNIT OF LAND BEING TRANSFERRED IS A LAWFULLYESTABLISHED LOT OR PARCEL, AS DEFINED m ORS 92.010 OR 215..010, TO VERIFYTHE APPROVED USES OF THE LOT OR PARCEL, TO DETERMlNE ANY LIMITS ONLAWSUITS AGAINST FARMING OR FOREST PRACTICES, AS DBFrnBD 1N ORS 3 0 . 9 3 0 ~ Page 1-Deed OSfllllO 4:14 PMDWT 15tS02l3y4 0092399.()OOOOl Exhibit 1Page 17 of 18

http:///reader/full/1,788,480.00http:///reader/full/1,788,480.00


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Case 6:10-cv-06054-HO Document 129 Filed.11/18/10 Page 27 of 27 Page 10#:1219

AND TO INQUIRE ABOUT THE RIGlITS OF NEIGHBORING PROPERTY OWNERS, IFANY, UNDBRORS 195.300, 195.301 AND 195.305 TO 195.336 AND SECTIONS 5 TO 11.CHAPTER 424, OREGON LAWS 2007, AND SECTIONS 2 TO 9 AND 17, CHAPTER 855,OREGON LAWS 2009.Dated this . .,...--'---:--.-_day o ~ , . . . . . _-=- - - - - ' -_ - ' - - - - - ' - , f 201O.

MISSCOM, LtC, an Oregon limited liabilitycompany, its receiver Scouler &bompany,LLC, a Delaware Ilmlted.llabllllycompany

STATE OFOREOON )) ss.County ofMarlon )This instrument was aoknowledged before me on this day of

O'--____ - - - " ' - ~ . . . ; : > . ; , 2010, .by Lars B. Parkin, as a Consultant of Scouler & C o m p a n y ~ a____ ...--".,and the receiver ofMISSCOM. LLC, an Oregon limited liability company.NOTARY PUBLIC FOR OREGONMy Commission Expires: _____ __

Page2-Deed 08/111104;14PMExhibit 1
