FORM 8-K - CURRENT REPORT
(As last amended in Rel. No. 34-36968, eff. August 13, 1992.)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) November 10, 1999
CENTURY PROPERTIES FUND XX
(Exact name of registrant as specified in its charter)
California 0-13408 94-2930770
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification
Number)
55 Beattie Place
Post Office Box 1089
Greenville, South Carolina 29602
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (864) 239-1000
N/A
(Former name or former address, if changed since last report)
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
Crabtree Office Center located in Raleigh, North Carolina, was sold by Century
Properties Fund XX (the "Registrant") on November 10, 1999 to Bob L. Murray, an
unrelated party, for $6,700,000
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(b) Pro forma financial information.
The required pro forma financial information will be provided in the
Registrant's annual report on Form 10-KSB for the year ended December 31, 1999.
(c) Exhibits
10.1 Purchase and Sale Contract between Registrant and Bob L. Murray, dated
October 6, 1999.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ANGELES INCOME PROPERTIES, LTD. IV
By: Angeles Realty Corporation II
Its General Partner
By: /s/ Patrick J. Foye
Patrick J. Foye
Executive Vice President
Date:
Exhibit 10.1
PURCHASE AND SALE CONTRACT
BETWEEN
CENTURY PROPERTIES FUND XX,
A CALIFORNIA LIMITED PARTNERSHIP
AS SELLER
AND
BOBBY L. MURRAY
AN INDIVIDUAL
AS PURCHASER
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT ("Purchase Contract") is entered into as of
the _____day of October, 1999 (the "Effective Date") by and between CENTURY
PROPERTIES FUND XX, a California limited partnership, having a principal address
at 1873 South Bellaire Street, 17th Floor, Denver, Colorado 80222 ("Seller") and
BOBBY L. MURRAY, an individual, having a principal address at 1820 Capital
Boulevard, Raleigh, North Carolina 27604 ("Purchaser").
NOW, THEREFORE WITNESSETH: That for and in consideration of mutual
covenants and agreements herein after set forth, Seller and Purchaser hereby
agree as follows:
RECITALS
R-1. Seller holds legal title to the real estate located in Wake County, North
Carolina, as more particularly described in Exhibit A attached hereto and made a
part hereof. Improvements have been constructed on the property described in
this Recital.
R-2. Purchaser desires to purchase and Seller has agreed to sell such land,
improvements and certain associated property, defined below as the "Property" on
the terms and conditions set forth below, (which terms and conditions shall
control in the event of any conflict with these Recitals), such that on the
Closing Date (as hereinafter defined) the Property will be conveyed by special
warranty deed or equivalent deed to Purchaser.
R-3. Purchaser has agreed to pay to Seller the Purchase Price for the Property,
and Seller has agreed to sell the Property to Purchaser on the terms and
conditions set forth below.
R-4. Purchaser intends to make investigations regarding the Property, and
Purchaser's intended uses of each of the Property as Purchaser deems necessary
and desirable.
ARTICLE 1
DEFINED TERMS
1.1 Unless otherwise defined herein, terms with initial capital letters in
this Purchase Contract shall have the meanings set forth in this Article 1
below.
1.1.1 "BUSINESS DAY" means any day other than a Saturday or Sunday
or Federal holiday or legal holiday in the State of North Carolina.
1.1.2 "CLOSING" means the consummation of the purchase and sale and
related transactions contemplated by this Purchase Contract in accordance with
the terms and conditions of this Purchase Contract.
1.1.3 "CLOSING DATE" means the date on which date the Closing of the
conveyance of the Property is required to be held under the terms and conditions
of this Purchase Contract and on which date full payment of the Purchase Price
for the Property shall have been paid to and received by Seller in immediately
available U.S. funds.
1.1.4 "COMMERCIAL LEASE(S)" means the interest of Seller in and to
all leases, subleases and other occupancy agreements, whether or not of record,
which provide for the use or occupancy of space or facilities on or relating to
the Property and which are in force as of the Effective Date for the applicable
Property, including those identified in Exhibit 1.1.4.
1.1.5 "EXCLUDED PERMITS" means those Permits which, under applicable
law, are nontransferable and such other Permits as may be designated as Excluded
Permits on Exhibit 1.1.5, if any, attached hereto.
1.1.6 Intentionally Omitted.
1.1.7 "FIXTURES AND TANGIBLE PERSONAL PROPERTY" means all fixtures,
furniture, furnishings, fittings, equipment, machinery, apparatus, appliances
and other articles of tangible personal property now located on the Land or in
the Improvements as of the date of this Purchase Contract and used or usable in
connection with any present or future occupation or operation of all or any part
of the Property. The term "Fixtures and Tangible Personal Property" does not
include (i) equipment leased by Seller and the interest of Seller in any
equipment provided to the Property for use, but not owned or leased by Seller,
or (ii) property owned or leased by Tenants and guests, employees or other
persons furnishing goods or services to the Property or (iii) property and
equipment owned by Seller, which in the ordinary course of business of the
Property is not used exclusively for the business, operation or management of
the Property or (iv) the property and equipment, if any, expressly identified in
Exhibit 1.1.7.
1.1.8 "IMPROVEMENTS" means all buildings and improvements, located
on the Land taken "as is".
1.1.9 "LAND" means all of those certain tracts of land located in
the State of North Carolina described on Exhibit "A" attached hereto, and all
rights, privileges and appurtenances pertaining thereto.
1.1.10 "MISCELLANEOUS PROPERTY ASSETS" means all contract rights,
leases, concessions, warranties, plans, drawings and other items of intangible
personal property relating to the ownership or operation of the Property and
owned by Seller, excluding, however, (i) receivables, (ii) Property Contracts,
(iii) Commercial Leases, (iv) Permits, (v) cash or other funds, whether in petty
cash or house "banks," or on deposit in bank accounts or in transit for deposit,
(vi) refunds, rebates or other claims, or any interest thereon, for periods or
events occurring prior to the Closing Date, (vii) utility and similar deposits,
or (viii) insurance or other prepaid items or (ix) Seller's proprietary books
and records, except to the extent that Seller receives a credit on the closing
statement for any such item.
1.1.11 "PERMITS" means all licenses and permits granted by
governmental authorities having jurisdiction over the Property in respect of the
matter to which the applicable license or permit applies and owned by Seller and
used in or relating to the ownership, occupancy or operation of the Property or
any part thereof not subject to a Commercial Lease.
1.1.12 "PERMITTED EXCEPTIONS" means those exceptions or conditions
permitted to encumber the title to the Property in accordance with the
provisions of Section 6.2.
1.1.13 "PROPERTY" means the Land and Improvements and all rights of
Seller relating to the Land and the Improvements, including without limitation,
any rights, title and interest of Seller, if any, in and to (i) any strips and
gores adjacent to the Land and any land lying in the bed of any street, road, or
avenue opened or proposed, in front of or adjoining the Land, to the center line
thereof; (ii) any unpaid award for any taking by condemnation or any damage to
the Property by reason of a change of grade of any street or highway; (iii) all
of the easements, rights, privileges, and appurtenances belonging or in any way
appertaining to the Property; together with all Fixtures and Tangible Personal
Property, the right, if any and only to the extent transferable, of Seller in
and to Property Contracts and Commercial Leases, Permits other than Excluded
Permits and the Miscellaneous Property Assets owned by Seller which are located
on the Property and used in its operation.
1.1.14 "PROPERTY CONTRACTS" means all purchase orders, maintenance,
service, or utility contracts and similar contracts, which relate to the
ownership, maintenance, construction or repair and/or operation of the Property,
as identified in Exhibit 1.1.14, and which are not cancelable on 90 days' or
shorter Notice, except Commercial Leases.
1.1.15 "PURCHASE CONTRACT" means this Purchase and Sale Contract by
and between Seller and Purchaser.
1.1.16 "PURCHASE PRICE" means the total consideration to be paid by
Purchaser to Seller for the purchase of the Property.
1.1.17 "SURVEY" shall have the meaning ascribed thereto in Section
6.12.
1.1.18 "TENANT" means any person or entity entitled to occupy any
portion of the Property under a Commercial Lease.
1.1.19 "TITLE COMMITMENT" or "Title Commitments" shall have the
meaning ascribed thereto in Section 6.1.
1.1.20 "TITLE INSURER" shall have the meaning set forth in Section
6.1.
ARTICLE 2
PURCHASE AND SALE OF PROPERTY
2.1 Seller agrees to sell and convey the Property to Purchaser and
Purchaser agrees to purchase the Property from Seller, in accordance with the
terms and conditions set forth in this Purchase Contract.
ARTICLE 3
PURCHASE PRICE & DEPOSIT
3.1 The total purchase price ("Purchase Price") for the Property shall be
Six Million Seven Hundred Thousand Dollars ($6,700,000.00), which shall be paid
by Purchaser, as follows:
3.1.1 On the date hereof, Purchaser shall deliver to Chicago Title
Insurance Company ("Escrow Agent" or the "Title Insurer") a deposit in the sum
of Fifty Thousand and no/100 Dollars ($50,000.00), in cash, (such sum being
hereinafter referred to and held as the "Deposit"). Purchaser and Seller each
approve the form of Escrow Agreement attached as Exhibit B.
3.1.2 At or before 5:00 p.m. Eastern time on the date of expiration
of the Feasibility Period, provided Purchaser has not terminated this Purchase
Contract pursuant to Section 5.2 below, Purchaser shall deliver to Escrow Agent
an additional deposit in the sum of Fifty Thousand and no/100 Dollars
($50,000.00), in cash (such sum being hereinafter referred to as the "Additional
Deposit").
3.1.3 The Escrow Agent shall hold the Deposit and the Additional
Deposit and make delivery of the Deposit and the Additional Deposit to the party
entitled thereto under the terms hereof. Escrow Agent shall invest the Deposit
and the Additional Deposit in such short-term, high-grade securities,
interest-bearing bank accounts, money market funds or accounts, bank
certificates of deposit or bank repurchase agreements as Escrow Agent, in its
discretion, deems suitable, (provided that Escrow Agent shall invest the Deposit
and the Additional Deposit as jointly directed by Seller and Purchaser should
Seller and Purchaser each in their respective sole discretion determine to issue
such joint investment instructions to the Escrow Agent) and all interest and
income thereon shall become part of the Deposit and the Additional Deposit and
shall be remitted to the party entitled to the Deposit and the Additional
Deposit, as set forth below.
3.1.4 If the sale of the Property is closed by the date fixed
therefor (or any extension date provided for by the mutual written consent of
the parties hereto, given or withheld in their respective sole discretion),
monies held as the Deposit and the Additional Deposit shall be applied to the
Purchase Price on the Date of Closing. If the sale of the Property is not closed
by the date fixed therefor (or any such extension date) owing to failure of
satisfaction of a condition precedent to Purchaser's obligations, the Deposit
and the Additional Deposit shall be returned and refunded to Purchaser, and
neither party shall have any further liability hereunder, subject to and except
for Purchaser's liability under Section 5.3.
3.1.5 If the sale of the Property is not closed by the date fixed
therefor (or any such extension date) owing to failure of performance by Seller,
Purchaser shall be entitled to the remedies set forth in ARTICLE 12 hereof. If
the sale of the Property is not closed by the date fixed therefor (or any such
extension date) owing to failure of performance by Purchaser, the Deposit and
the Additional Deposit shall be forfeited by Purchaser and the sum thereof shall
go to Seller forthwith as liquidated damages for the lost opportunity costs and
transaction expenses incurred by Seller, as more fully set forth in ARTICLE 12
below.
ARTICLE 4
FINANCING
4.1 Purchaser assumes full responsibility to expeditiously and diligently
initiate and pursue all steps necessary to obtain the funds required for
settlement, and Purchaser's acquisition of such funds shall not be a contingency
to the Closing.
ARTICLE 5
FEASIBILITY PERIOD
5.1 Subject to the terms of Section 5.3 below, for thirty (30) calendar
days following the Effective Date (i.e., through November 3, 1999 if the
Effective Date is October 4, 1999), but in no event later than November 6, 1999
(the "Feasibility Period"), Purchaser, and its agents, contractors, engineers,
surveyors, attorneys, and employees ("Consultants") shall have the right from
time to time to enter onto the Property:
5.1.1 To conduct and make any and all customary studies, tests,
examinations and inspections, or investigations of or concerning the Property
(including without limitation, engineering and feasibility studies, evaluation
of drainage and flood plain, soil tests for bearing capacity and percolation and
surveys, including topographical surveys).
5.1.2 To confirm any and all matters which Purchaser may reasonably
desire to confirm with respect to the Property.
5.1.3 To ascertain and confirm the suitability of the property for
Purchaser's intended use of the Property.
5.1.4 To review all Materials (as hereinafter defined) other than
Seller's proprietary information.
5.2 Should the results of any of the matters referred to in sub-paragraphs
5.1.1, 5.1.2, 5.1.3 and 5.1.4 above appear unsatisfactory to Purchaser for any
reason or no reason, then Purchaser shall have the right to terminate this
Purchase Contract by giving written Notice of termination to Seller and Escrow
Agent on or before 5:00 p.m. EST on the date of expiration of the Feasibility
Period. If Purchaser exercises such right to terminate, this Purchase Contract
shall terminate and be of no further force and effect, subject to and except for
Purchaser's liability under Section 5.3, and Escrow Agent shall promptly return
the Deposit to Purchaser. If Purchaser fails to provide Seller with written
Notice of cancellation prior to the end of the Feasibility Period in strict
accordance with the Notice provisions of this Purchase Contract, this Purchase
Contract shall remain in full force and effect and Purchaser's obligation to
purchase the Property shall be non-contingent and unconditional except only for
satisfaction of the conditions expressly stated in this ARTICLE 5 and in ARTICLE
9.
5.3 Purchaser shall indemnify and hold Seller harmless for any actions
taken by Purchaser and its Consultants on the Property. Purchaser shall
indemnify, defend (with attorneys selected by Seller) and hold Seller harmless
from any and all claims, damages, costs and liability which may arise due to
such entries, surveys, tests, investigations and the like. Seller shall have
the right, without limitation, to disapprove any and all entries, surveys,
tests, investigations and the like that in their reasonable judgment would
result in any injury to the Property or breach of any agreement, or expose
Seller to any liability, costs, liens or violations of applicable law, or
otherwise adversely affect the Property or Seller's interest therein. No
consent by the Seller to any such activity shall be deemed to constitute a
waiver by Seller or assumption of liability or risk by Seller. Purchaser hereby
agrees to restore the Property to the same condition existing immediately prior
to Purchaser's exercise of its rights pursuant to this ARTICLE 5 at Purchaser's
sole cost and expense. The indemnification and restoration provisions of this
Section shall survive the Closing or termination of this Purchase Contract.
5.4 Purchaser shall not permit any mechanic's or materialman's liens or any
other liens to attach to the Property by reason of the performance of any work
or the purchase of any materials by Purchaser or any other party in connection
with any studies or tests conducted by or for Purchaser. Purchaser shall give
notice to Seller a reasonable time prior to entry onto the Property, shall
deliver proof of insurance coverage required above to Seller and shall permit
Seller to have a representative present during all investigations and
inspections conducted with respect to the Property. Purchaser shall take all
reasonable actions and implement all protections necessary to ensure that all
actions taken in connection with the investigations and inspections of the
Property, and all equipment, materials and substances generated, used or brought
onto the Property pose no material threat to the safety of persons or the
environment and cause no damage to the Property or other property of Seller or
other persons. All information made available by Seller to Purchaser in
accordance with this Purchase Contract or obtained by Purchaser in the course of
its investigations shall be treated as confidential information by Purchaser,
and, prior to the purchase of the Property by Purchaser, Purchaser shall use its
best efforts to prevent its Consultants, agents and employees from divulging
such information to any unrelated third parties except as reasonably necessary
to third parties engaged by Purchaser for the limited purpose of analyzing and
investigating such information for the purpose of consummating the transaction
contemplated by this Purchase Contract, including Purchaser's attorneys and
representatives, prospective lenders and engineers.
5.5 Seller shall deliver to Purchaser within ten (10) calendar days from
the Effective Date copies of all leases, contracts, engineering studies, surveys
and other materials (the "Materials") in Seller's possession or control relating
to the Property (other than proprietary information of Seller). If the sale of
the Property is not closed by the date fix therefor, Purchaser shall, within
five (5) calendar days, return all such Materials to Seller.
5.6 During the Feasibility Period, Seller shall use reasonable effort to
procure from each Tenant a "Tenant Estoppel Certificate" in form and substance
acceptable to Purchaser, provided however that delivery of such certificates
shall not be a condition to Closing.
ARTICLE 6
TITLE
6.1 Purchaser shall promptly secure a commitment for title insurance for
the Property in an amount equal to the Purchase Price ("Title Commitment,")
issued by Chicago Title Insurance Company ("Title Insurer") for an owner's title
insurance policy on the most recent standard American Land Title Association
("ALTA") Policy form, together with legible copies of all instruments identified
as exceptions therein and shall cause a copy thereof to be delivered to Seller
during the Feasibility Period. Purchaser agrees that it shall be solely
responsible for payment of all costs relating to procurement of the Title
Commitment and any Owner title policy.
6.2 Purchaser agrees to accept title to the Land and Improvements, so long
as the same is insurable at ordinary rates and any conveyance by special
warranty deed or equivalent deed pursuant to this Purchase Contract shall be
subject to the following, all of which shall be deemed "Permitted Exceptions"
and Purchaser agrees to accept the deed and title subject thereto:
6.2.1 Unless Purchaser objects to same during the Feasibility
Period, all exceptions shown in the Title Commitment (other than mechanics'
liens and taxes due and payable in respect of the period preceding Closing) and
all exceptions noted in Exhibit 6.2.1 attached hereto; and
6.2.2 Such exceptions and matters as approved by Purchaser and as
the Title Company shall be willing to omit as exceptions to coverage; and
6.2.3 All Commercial Leases and any other occupancy, residency,
lease, tenancy and similar agreements entered into in the ordinary course of
business; and
6.2.4 All Property Contracts and any other existing contracts
created in the ordinary course of business by Seller, which are approved by
Purchaser during the Feasibility Period; and
6.2.5 Real estate and property taxes for the calendar year in which
closing occurs to the extent not due and payable; and
6.2.6 Intentionally deleted.
6.3 The existence of other mortgages, liens, or encumbrances shall not be
objections to title, provided that properly executed instruments in recordable
form necessary to satisfy and remove the same of record are delivered to the
Purchaser at Closing or, in the alternative, with respect to any mortgage or
deed of trust liens, that payoff letters from the holder of the mortgage or deed
of trust liens shall have been delivered to and accepted by the Title Insurer
(sufficient to remove the same from the policy issued at Closing), together in
either case, with recording and/or filing fees.
6.4 Unpaid liens for taxes, charges, and assessments shall not be
objections to title, but the amount thereof plus interest and penalties thereon
shall be deducted from the Purchase Price to be paid for the applicable Property
hereunder and allowed to Purchaser, subject to the provisions for apportionment
of taxes and charges contained in ARTICLE 7 herein.
6.5 Unpaid franchise or business corporation taxes of any corporations in
the chain of title shall not be an objection to title, provided that the Title
Insurer agrees to insure against collection out of the property or otherwise
against Purchaser or its affiliates, and provided further that the Title Insurer
agrees to omit such taxes as exceptions to coverage with respect to any lender's
mortgagee insurance policy.
6.6 Intentionally Omitted.
6.7 If on the Closing Date, the state of title is other than in accordance
with the requirements set forth in this Purchase Contract or if any condition to
be fulfilled by Seller shall not be satisfied, Purchaser shall provide Seller
with written Notice thereof at such time, or such title objection or unfulfilled
condition shall be deemed waived by Purchaser in which case Purchaser and Seller
shall proceed to consummate the Closing on the Closing Date. If Purchaser
timely gives Seller such Notice, Seller at its sole option and upon Notice to
Purchaser within Seven (7) calendar days following receipt of such Notice may
elect to cure such objection or unfulfilled condition for up to ninety (90)
calendar days. Should Seller be able to cure such title objection or condition,
or should Seller be able to cause title insurance over the same by the Closing
Date or any postponed Closing Date, or should Purchaser waive such objection or
condition within such period for cure, then the Closing shall take place on or
before thirty (30) calendar days after Notice of such cure or waiver.
6.8 If Seller does not elect to cure such objection or unfulfilled
condition or during the period of cure Seller is unable or unwilling, in its
sole discretion or opinion, to eliminate such title objection or cause Title
Insurer to insure over such matter or satisfy such unfulfilled condition, Seller
shall give Purchaser written Notice thereof, and if Purchaser does not waive
such objection by written Notice delivered to Seller and the title company
issuing the Title Commitment on or before Seven (7) calendar days following the
date Seller gives such Notice, then this Purchase Contract shall automatically
terminate and the parties hereto shall have no further obligations to each
other, except for Purchaser's obligations pursuant to Section 5.3 above, and the
Deposit and the Additional Deposit (if then paid) shall be immediately returned
to Purchaser.
6.9 Seller covenants that it will not voluntarily create or cause any lien
or encumbrance to attach to the Property between the date of this Purchase
Contract and the Closing Date (other than Commercial Leases and Property
Contracts in the ordinary course of business); any such monetary lien or
encumbrance so attaching by voluntary act of Seller shall be discharged by the
Seller at or prior to Closing on the Closing Date or any postponed Closing Date.
Except as expressly provided above, Seller shall not be required to undertake
efforts to remove any other lien, encumbrance, security interest, exception,
objection or other matter, to make any expenditure of money or institute
litigation or any other judicial or administrative proceeding and Seller may
elect not to discharge the same.
6.10 Anything to the contrary notwithstanding, Purchaser shall not have any
right to terminate this Purchase Contract or object to any lien, encumbrance,
exception or other matter that is a Permitted Exception, that has been waived or
deemed to have been waived by Purchaser.
6.11 Intentionally deleted.
6.12 Purchaser, at Purchaser's sole cost and expense, may cause to be
prepared a survey for the Property ("Survey") to be delivered to Purchaser and
Seller within the Feasibility Period. The Survey (i) shall be prepared in
accordance with and shall comply with the minimum requirements of the ALTA;
(ii) shall be in a form, and shall be certified as of a date satisfactory to
Title Insurer to enable Title Insurer to delete standard survey exceptions from
the title insurance policy to be issued pursuant to the Title Commitments,
except for any Permitted Exceptions; (iii) shall specifically show all
improvements, recorded easements to the extent locatable, set back lines, and
such other matters shown as exceptions by the Title Commitments; (iv) shall
specifically show the right of way for all adjacent public streets; (v) shall
specifically disclose whether (and, if so, what part of) any of the Property is
in an area designated as requiring flood insurance under applicable federal laws
regulating lenders; (vi) shall contain a perimeter legal description of the
Property which may be used in the special warranty deed or equivalent deed;
(vii) shall be certified to Purchaser, Purchaser's lender, Seller and Title
Insurer as being true and correct; and (viii) shall certify that the legal
description set forth therein describes the same, and comprises all of, the real
estate comprising the Property to be purchased by Purchaser pursuant to the
terms of this Purchase Contract. In the event the perimeter legal description
of the Property contained in the Survey differs from that contained in the deed
or deeds by which Seller took title to the Property, the latter description
shall be used in the special warranty deed delivered to Purchaser at Closing,
and the Survey legal shall be used in a quitclaim deed to the Property which
also shall be delivered to Purchaser at Closing. Purchaser, at Purchaser's sole
cost and expense, may also cause to be prepared an environmental report for the
Property ("Environmental Report").
6.12.1 Should such Survey disclose conditions that give rise to a
title exception other than a Permitted Exception, Purchaser shall have the right
to object thereto within the Feasibility Period in accordance with the
procedures set forth in ARTICLE 5 above.
6.12.2 Purchaser agrees to make payment in full of all costs of
obtaining Surveys required by this Purchase Contract on or before Closing or
termination of this Purchase Contract.
ARTICLE 7
CLOSING
7.1 DATES, PLACES OF CLOSING, PRORATIONS, DELINQUENT RENT AND CLOSING
COSTS.
7.1.1 The Closing shall occur no later than November 10, 1999,
unless extended in writing by both Purchaser and Seller, through an escrow with
Escrow Agent, whereby the Seller, Purchaser and their attorneys need not be
physically present at the Closing and may deliver documents by overnight air
courier or other means. Seller acknowledges that it is a material inducement to
Purchaser to structure this transaction as a Like Kind Exchange under Internal
Revenue Code Section 1031 in accordance with Section 16.18 of this Purchase
Contract, and that Buyer will suffer significant losses if the Closing does not
occur on or before November 10, 1999. Purchaser and Seller agree and
acknowledge that Sections 12.1 and 12.2 herein provide the only available
remedies for any and all losses sustained by either party.
7.1.2 Intentionally Omitted.
7.1.3 All normal and customarily proratable items, including,
without limitation, Rents (as defined below), operating expenses, personal
property taxes, other operating expenses and fees, shall be prorated as of the
Closing Date, Seller being charged or credited, as appropriate, for all of same
attributable to the period up to the Closing Date (and credited for any amounts
paid by Seller attributable to the period on or after the Closing Date, if
assumed by Purchaser) and Purchaser being responsible for, and credited or
charged, as the case may be, for all of same attributable to the period on and
after the Closing Date. All unapplied deposits under Tenant leases, if any,
shall be transferred by Seller to Purchaser at the Closing. Purchaser shall
assume at Closing the obligation to pay any accrued but unpaid tenant
improvement allowances and leasing commissions under Commercial Leases executed
after the Effective Date, together with any payments due parties to other
agreements affecting the Property which survive Closing (and are approved for
assumption by Purchaser) or under the Property Contracts (which are approved for
assumption by Purchaser), provided all of the foregoing have been prorated. Any
real estate ad valorem or similar taxes for the Property, or any installment of
assessments payable in installments which installment is payable in the calendar
year of Closing, shall be prorated to the date of Closing, based upon actual
days involved. The proration of real property taxes or installments of
assessments shall be based upon the assessed valuation and tax rate figures for
the year in which the Closing occurs to the extent the same are available;
provided, that in the event that actual figures (whether for the assessed value
of the Property or for the tax rate) for the year of Closing are not available
at the Closing Date, the proration shall be made using figures from the
preceding year. The proration shall be final and unadjustable except as
provided in the following paragraph. For purposes of this Section 7.1.3 and
Section 7.1.4 and 7.1.5 the terms "Rent" and "Rents" shall include, without
limitation, base rents, additional rents, percentage rents and common area
maintenance charges. The provisions of this Section 7.1.3 shall apply during
the Proration Period (as defined below).
7.1.4 If any of the items subject to proration hereunder cannot be
prorated at the Closing because the information necessary to compute such
proration is unavailable, or if any errors or omissions in computing prorations
at the Closing are discovered subsequent to the Closing, then such item shall be
reapportioned and such errors and omissions corrected as soon as practicable
after the Closing Date and the proper party reimbursed, which obligation shall
survive the Closing for a period (the "Proration Period") from the Closing Date
until one (1) year after the Closing Date. Neither party hereto shall have the
right to require a recomputation of a Closing proration or a correction of an
error or omission in a Closing proration unless within the Proration Period one
of the parties hereto (i) has obtained the previously unavailable information or
has discovered the error or omission, and (ii) has given Notice thereof to the
other party together with a copy of its good faith recomputation of the
proration and copies of all substantiating information used in such
recomputation. The failure of a party to obtain any previously unavailable
information or discover an error or omission with respect to an item subject to
proration hereunder and to give Notice thereof as provided above within the
Proration Period shall be deemed a waiver of its right to cause a recomputation
or a correction of an error or omission with respect to such item after the
Closing Date. Any Rents that have accrued, but have not yet been paid shall be
prorated in accordance with estimates based upon the prior years' information
(or reasonable estimates of Seller if no such prior years' information is
available), and shall be subsequently readjusted and reapportioned upon receipt.
Purchaser shall pay Seller for Rents that have accrued, but are not yet due and
payable, at Closing.
7.1.5 If on the Closing Date any Tenant is in arrears in any Rent
payment under any Tenant lease (the "Delinquent Rent"), any Delinquent Rent
received by Purchaser and Seller from such Tenant after the Closing shall be
applied to amounts due and payable by such Tenant during the following periods
in the following order of priority: (i) first, to the period of time after the
Closing Date, and (ii) second, the period of time before the Closing Date. If
Delinquent Rent or any portion thereof received by Seller or Purchaser after the
Closing are due and payable to the other party by reason of this allocation, the
appropriate sum, less a proportionate share of any reasonable attorneys' fees
and costs and expenses expended in connection with the collection thereof, shall
be promptly paid to the other party. Any monies received by Seller after
closing shall be forwarded to Purchaser for disbursement in accordance with the
order of payment provided herein above. After the Closing, Seller shall
continue to have the right, but not the obligation, in its own name, to demand
payment of and to collect Delinquent Rent owed to Seller by any Tenant, which
right shall include, without limitation, the right to continue or commence legal
actions or proceedings against any Tenant (provided, that Seller shall not
commence any legal actions or proceedings against any Tenant which continues as
a Tenant at the Property after Closing without the prior consent of Purchaser,
which will not be unreasonably withheld or delayed), and the delivery of the
Assignment as defined in Section 7.2.1.3 shall not constitute a waiver by Seller
of such right. Purchaser agrees to cooperate with Seller at no cost or
liability to Purchaser in connection with all efforts by Seller to collect such
Delinquent Rent and to take all steps, whether before or after the Closing Date,
as may be necessary to carry out the intention of the foregoing, including,
without limitation, the delivery to Seller, within seven (7) days after a
written request, of any relevant books and records (including, without
limitation, rent statements, receipted bills and copies of tenant checks used in
payment of such rent), the execution of any and all consents or other documents,
and the undertaking of any act reasonably necessary for the collection of such
Delinquent Rent by Seller; provided, however, that Purchaser's obligation to
cooperate with Seller pursuant to this sentence shall not obligate Purchaser to
terminate any Tenant lease with an existing Tenant or evict any existing Tenant
from the Property. The provisions of this Section 7.1.5 shall apply during the
Proration Period.
7.1.6 Seller shall pay the cost of all transfer taxes (e.g. excise
stamp taxes), and recording costs with respect to the Closing. Seller and
Purchaser shall share equally in the costs of the Escrow Agent for escrow fees.
7.2 ITEMS TO BE DELIVERED PRIOR TO OR AT CLOSING.
7.2.1 SELLER. Three (3) business days prior to the Closing, Seller
shall deliver to the Escrow Agent (and at the Closing, the Escrow Agent shall
deliver to Purchaser), each of the following items, as applicable:
7.2.1.1 Special Warranty Deed in the form attached as Exhibit
7.2.1.1 to Purchaser. The acceptance of such deed at Closing shall be deemed to
be full performance of, and discharge of, every agreement and obligation on
Seller's part to be performed under this Purchase Contract, except for those
that this Purchase Contract specifically provides shall survive Closing.
7.2.1.2 A Bill of Sale without recourse or warranty in the form
attached as Exhibit 7.2.1.2 covering all Property Contracts that Purchaser
agrees to assume, Commercial Leases, Permits (other than Excluded Permits) and
Fixtures and Tangible Personal Property required to be transferred to Purchaser
with respect to such Property. Purchaser shall countersign the same so as to
effect an assumption by Purchaser of, among other things, Seller's obligations
thereunder.
7.2.1.3 An Assignment (to the extent assignable and in force and
effect) without recourse or warranty in the form attached as Exhibit 7.2.1.3 of
all of Seller's right, title and interest in and to the Miscellaneous Property
Assets, subject to any required consents. Purchaser shall countersign the same
so as to effect an assumption by Purchaser, including, without limitation, of
Seller's obligations thereunder.
7.2.1.4 A closing statement executed by Seller.
7.2.1.5 A vendor's affidavit or at Seller's option an indemnity,
as applicable, in the customary form reasonably acceptable to Seller to enable
Title Insurer to delete the standard exceptions to the title insurance policy
set forth in this Purchase Contract (other than matters constituting any
Permitted Exceptions and matters which are to be completed or performed post-
Closing) to be issued pursuant to the Title Commitments; provided that such
affidavit does not subject Seller to any greater liability, or impose any
additional obligations, other than as set forth in this Purchase Contract; and
7.2.1.6 A certification of Seller's non-foreign status pursuant
to Section 1445 of the Internal Revenue Code of 1986, as amended.
7.2.1.7 Except for the items expressly listed above to be
delivered at Closing, delivery of any other required items shall be deemed made
by Seller to Purchaser, if Seller leaves such documents at the Property in their
customary place of storage or in the custody of Purchaser's representatives.
7.2.1.8 To the extent in Seller's possession or control,
original copies of the Commercial Leases and Property Contracts, lease files,
keys to the property, Seller's books and records (other than proprietary
information) regarding the Property, and original copies of the tenant
estoppels.
7.2.2 PURCHASER. At Closing, Purchaser shall deliver to the Title
Company (for disbursement to Seller upon the Closing) the following items with
respect to the Property being conveyed at such Closing:
7.2.2.1 The full Purchase Price as required by ARTICLE 3 hereof
plus or minus the adjustments or prorations required by this Purchase Contract.
If at Closing there are any liens or encumbrances on the Property that Seller is
obligated or elects to pay and discharge, Seller may use any portion of the
Purchase Price for the Property(s) to satisfy the same, provided that Seller
shall have delivered to Title Company, on such Closing instruments in recordable
form sufficient to satisfy such liens and encumbrances of record (or, as to any
mortgages or deeds of trust, appropriate payoff letters, acceptable to the Title
Insurer), together with the cost of recording or filing such instruments.
Purchaser, if request is made within a reasonable time prior to Closing, agrees
to provide at Closing separate certified or cashier's checks as requested,
aggregating not more than the amount of the balance of the portion of Purchase
Price, to facilitate the satisfaction of any such liens or encumbrances. The
existence of any such liens or encumbrances shall not be deemed objections to
title if Seller shall comply with the foregoing requirements.
7.2.2.2 A closing statement executed by Purchaser.
7.2.2.3 A countersigned counterpart of the Bill of Sale in the
form attached as Exhibit 7.2.1.2.
7.2.2.4 A countersigned counterpart of the Assignment in the
form attached as Exhibit 7.2.1.3.
7.2.2.5 Such other instruments, documents or certificates as are
required to be delivered by Purchaser to Seller in accordance with any of the
other provisions of this Purchase Contract.
ARTICLE 8
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER
8.1 REPRESENTATIONS AND WARRANTIES OF SELLER.
8.1.1 For the purpose of inducing Purchaser to enter into this
Purchase Contract and to consummate the sale and purchase of the Property in
accordance herewith, Seller represents and warrants to Purchaser the following
as of the Effective Date and as of the Closing Date:
8.1.1.1 Seller is lawfully and duly organized, and in good
standing under the laws of the state of its formation set forth in the initial
paragraph of this Purchase Contract; and has or at the Closing shall have the
power and authority to sell and convey the Property and to execute the documents
to be executed by Seller and prior to the Closing will have taken as applicable,
all corporate, partnership, limited liability company or equivalent entity
actions required for the execution and delivery of this Purchase Contract, and
the consummation of the transactions contemplated by this Purchase Contract.
The compliance with or fulfillment of the terms and conditions hereof will not
conflict with, or result in a breach of, the terms, conditions or provisions of,
or constitute a default under, any Purchase Contract to which Seller is a party
or by which Seller is otherwise bound. Seller has not made any other Purchase
Contract for the sale of, or given any other person the right to purchase, all
or any part of any of the Property;
8.1.1.2 Seller owns insurable, fee title to the Property,
including all real property contained therein required to be sold to Purchaser,
subject only to the Permitted Exceptions (provided, however, that if this
representation is or becomes untrue, Purchaser's remedies shall be limited to
the remedies set forth in Section 6.7 hereof and Seller shall have no other
liability as a result thereof, either before or after Closing);
8.1.1.3 There are no adverse or other parties in possession of
the Property, except for occupants, guests and tenants under the Commercial
Leases (provided, however, that if this representation is or becomes untrue,
Purchaser's remedies shall be limited to the remedies set forth in Section 6.7
hereof).
8.1.1.4 The joinder of no person or entity other than Seller is
necessary to convey the Property, fully and completely, to Purchaser at Closing,
or to fulfill Seller's obligations and Seller has all necessary right and
authority to convey and assign to Purchaser all contract rights and warranties
required to be conveyed and assigned to Purchaser hereunder;
8.1.1.5 Purchaser has no duty to collect withholding taxes for
Seller pursuant to the Foreign Investors Real Property Tax Act of 1980, as
amended;
8.1.1.6 To Seller's knowledge, there are no actions,
proceedings, litigation or governmental investigations or condemnation actions
either pending or threatened against the Property, as applicable;
8.1.1.7 Seller has no knowledge of any claims for labor
performed, materials furnished or services rendered in connection with
constructing, improving or repairing any of the Property, as applicable, caused
by Seller and which remain unpaid beyond the date for which payment was due and
in respect of which liens may or could be filed against any of the Property, as
applicable;
8.1.2 Except for the representations and warranties expressly set
forth above in Subsection 8.1.1, the Property is expressly purchased and sold
"AS IS," "WHERE IS," and "WITH ALL FAULTS." The Purchase Price and the terms
and conditions set forth herein are the result of arm's-length bargaining
between entities familiar with transactions of this kind, and said price, terms
and conditions reflect the fact that Purchaser shall have the benefit of, and is
not relying upon any information provided by Seller, Seller's Broker or
Purchaser's Broker or statements, representations or warranties, express or
implied, made by or enforceable directly against Seller, Seller's Broker or
Purchaser's Broker, including, without limitation, any relating to the value of
the Property, the physical or environmental condition of the Property, any
state, federal, county or local law, ordinance, order or permit; or the
suitability, compliance or lack of compliance of the Property with any
regulation, or any other attribute or matter of or relating to the Property
(other than any covenants of title contained in the deeds conveying the Property
and the representations set forth above). Purchaser represents and warrants
that as of the date hereof and as of the Closing Date, it has and shall have
reviewed and conducted such independent analyses, studies, reports,
investigations and inspections as it deems appropriate in connection with the
Property. If Seller provides or has provided any documents, summaries, opinions
or work product of consultants, surveyors, architects, engineers, title
companies, governmental authorities or any other person or entity with respect
to the Property, including, without limitation, the Offering prepared by
Seller's Broker, Purchaser and Seller agree that Seller has done so or shall do
so only for the convenience of both parties, Purchaser shall not rely thereon
and the reliance by Purchaser upon any such documents, summaries, opinions or
work product shall not create or give rise to any liability of or against
Seller, Seller's partners or affiliates or any of their respective partners,
officers, directors, participants, employees, contractors, attorneys,
consultants, representatives, agents, successors, assigns or
predecessors-in-interest. Except for Subsection 8.1.1, Purchaser shall rely
only upon any title insurance obtained by Purchaser with respect to title to the
Property. Purchaser acknowledges and agrees that no representation has been
made and no responsibility is assumed by Seller with respect to current and
future applicable zoning or building code requirements or the compliance of the
Property with any other laws, rules, ordinances or regulations, the financial
earning capacity or expense history of the Property, the continuation of
contracts, continued occupancy levels of the Property, or any part thereof, or
the continued occupancy by tenants of any Commercial Leases or, without limiting
any of the foregoing, occupancy at Closing. Prior to Closing, Seller shall have
the right, but not the obligation, to enforce its rights against any and all
Property occupants, guests or tenants. Except as otherwise set forth herein,
Purchaser agrees that the departure or removal, prior to Closing, of any of such
guests, occupants or tenants shall not be the basis for, nor shall it give rise
to, any claim on the part of Purchaser, nor shall it affect the obligations of
Purchaser under this Purchase Contract in any manner whatsoever; and Purchaser
shall close title and accept delivery of the deed with or without such tenants
in possession and without any allowance or reduction in the Purchase Price under
this Purchase Contract. Purchaser hereby releases Seller from any and all
claims and liabilities relating to the foregoing matters, except as provided in
Section 8.1.3 below.
8.1.3 Seller and Purchaser agree that those representations
contained in Section 8.1 shall survive Closing for a period of One (1) year
(that is, any proceeding based on the breach of a representation contained in
Section 8.1 that survives Closing must be commenced within One (1) year
subsequent to the date of such representation). In the event that Seller
breaches any representation contained in Section 8.1 and Purchaser had knowledge
of such breach, Purchaser shall be deemed to have waived any right of recovery
and Seller shall not have any liability in connection therewith.
8.1.4 Representations and warranties above made to the knowledge of
Seller shall not be deemed to imply any duty of inquiry. For purposes of this
Purchase Contract, the term Seller's "knowledge" shall mean and refer to only
actual knowledge of the Designated Representative (as hereinafter defined) of
the Seller and shall not be construed to refer to the knowledge of any other
partner, officer, director, agent, employee or representative of the Seller, or
any affiliate of the Seller, or to impose upon such Designated Representative
any duty to investigate the matter to which such actual knowledge or the absence
thereof pertains, or to impose upon such Designated Representative any
individual personal liability. As used herein, the term Designated
Representative shall refer to Victoria Webster of SSR Realty Advisors/Metric
Management.
8.2 REPRESENTATIONS AND WARRANTIES OF PURCHASER
8.2.1 For the purpose of inducing Seller to enter into this Purchase
Contract and to consummate the sale and purchase of the Property in accordance
herewith, Purchaser represents and warrants to Seller the following as of the
Effective Date and as of the Closing Date:
8.2.2 With respect to Purchaser and its business, Purchaser
represents and warrants, in particular, that:
8.2.2.1 Intentionally Omitted.
8.2.2.2 Intentionally Omitted.
8.2.2.3 No pending or, to the knowledge of Purchaser, threatened
litigation exists which if determined adversely would restrain the consummation
of the transactions contemplated by this Purchase Contract or would declare
illegal, invalid or non-binding any of Purchaser's obligations or covenants to
Seller.
8.2.2.4 Purchaser's execution, delivery and performance of this
Purchase Contract and all documents and instruments and transactions
contemplated hereby or incidental hereto does not (i) violate any provision of
any law, governmental rule or regulation currently in effect, (ii) violate any
judgment, decree, writ, injunction, award, determination or order currently in
effect that names or is specifically directed at Purchaser or its property, and
(iii) require the consent, approval, order or authorization of, or any filing
with or notice to, any court or other governmental authority.
8.2.2.5 The joinder of no person or entity other than Purchaser
is necessary to consummate the transactions to be performed by Purchaser.
8.2.3 Purchaser has not dealt with any broker, finder or any other
person, in connection with the purchase of or the negotiation of the purchase of
the Property that might give rise to any claim for commission against Seller or
lien or claim against the Property.
8.2.4 Intentionally Omitted.
ARTICLE 9
CONDITIONS PRECEDENT TO CLOSING
9.1 Purchaser's obligation to close under this Purchase Contract, shall be
subject to and conditioned upon the fulfillment of each and all of the following
conditions precedent:
9.1.1 All of the documents required to be delivered by Seller to
Purchaser at the Closing pursuant to the terms and conditions hereof shall have
been delivered and shall be in form and substance reasonably satisfactory to
Purchaser;
9.1.2 Each of the representations and warranties of Seller contained
herein shall be true in all material respects as of the Closing Date;
9.1.3 Seller shall have complied with, fulfilled and performed in
all material respects each of the covenants, terms and conditions to be complied
with, fulfilled or performed by Seller hereunder;
9.1.4 Notwithstanding anything to the contrary, there are no other
conditions on Purchaser's obligation to Close except as expressly set forth
above.
9.2 Without limiting any of the rights of Seller elsewhere provided for in
this Purchase Contract, Seller's obligation to close with respect to conveyance
of a particular Property under this Purchase Contract shall be subject to and
conditioned upon the fulfillment of each and all of the following conditions
precedent:
9.2.1 Purchaser's representations and warranties set forth in this
Purchase Contract shall have been true and correct in all material respects when
made, and shall be true and correct in all material respects on the Closing Date
and as of the Effective Date as though such representations and warranties were
made at and as of such date and time.
9.2.2 Purchaser shall have fully performed and complied with all
covenants, conditions, and other obligations in this Purchase Contract to be
performed or complied with by it at or prior to Closing including, without
limitation, payment in full of the Purchase Price.
9.2.3 There shall not be pending or, to the knowledge of either
Purchaser or Seller, any litigation or threatened litigation which, if
determined adversely, would restrain the consummation of any of the transactions
contemplated by this Purchase Contract or declare illegal, invalid or nonbinding
any of the covenants or obligations of the Purchaser.
9.2.4 Intentionally Omitted.
9.2.5 Intentionally Omitted.
9.2.6 A survey of the Property prepared by James S. Murphy
("Surveyor"), shall be certified and delivered to Seller. Such survey must be
in form and substance satisfactory to Seller, and must contain a certification
that the Property (which will be conveyed to Purchaser pursuant to the Special
Warranty Deed) is exactly the same property described in that certain Vesting
Deed recorded on December 31, 1984, in Book 3408 at Page 519, made by Crabtree
Center Associates to Seller.
ARTICLE 10
BROKERAGE
10.1Seller represents and warrants to Purchaser that it has dealt only with
Pinnacle Realty Management Company, 7316 Wisconsin Avenue, Suite 300, Bethesda,
Maryland 20814-2925 ("Seller's Broker") in connection with this Purchase
Contract. Purchaser represents and warrants to Seller that it has dealt only
with Yeargan Commercial Realty ("Purchaser's Broker") ") in connection with this
Purchase Contract. Seller and Purchaser each represents and warrants to the
other that other than Seller's Broker and Purchaser's Broker, respectively, it
has not dealt with or utilized the services of any other real estate broker,
sales person or finder in connection with this Purchase Contract, and each party
agrees to indemnify the other party from and against all claims for brokerage
commissions and finder's fees arising from or attributable to the acts of
omissions of the indemnifying party.
10.2Seller agrees to pay Seller's Broker a commission according to the
terms of a separate agreement. Purchaser agrees to pay Purchaser's Broker a
commission according to the terms of a separate agreement. Neither Seller's
Broker nor Purchaser's Broker shall be deemed a party or third party beneficiary
of this Purchase Contract.
10.3Neither Seller's Broker nor Purchaser's Broker assumes any
responsibility for the condition of the Property or representation for the
performance of this Purchase Contract by the Seller or Purchaser.
ARTICLE 11
POSSESSION
11.1Possession of the Property subject to the Permitted Exceptions shall be
delivered to Purchaser at the Closing, subject to Purchaser's right of entry for
inspection as set forth in ARTICLE 5.
ARTICLE 12
DEFAULTS AND REMEDIES
12.1In the Event Purchaser terminates this Purchase Contract following the
Feasibility Period for any reason other than Seller's inability to convey title
as required by this Purchase Contract, or defaults hereunder on or prior to the
Closing Date and consummation of the Closing does not occur by reason of such
termination or default by Purchaser, Seller and Purchaser agree that it would be
impractical and extremely difficult to estimate the damages which Seller may
suffer. Therefore, Seller and Purchaser hereby agree that, except for the
Purchaser's obligations to Seller under Section 5.3, the reasonable estimate of
the total net detriment that Seller would suffer in the event that Purchaser
terminates this Purchase Contract or defaults hereunder on or prior to the
Closing Date is and shall be, as Seller's sole remedy (whether at law or in
equity), the right to receive from the Escrow Agent and retain the full amount
of the Deposit and the Additional Deposit. The payment and performance of the
above as liquidated damages is not intended as a forfeiture or penalty within
the meaning of applicable law and is intended to settle all issues and questions
about the amount of damages suffered by Seller in the applicable event, except
only for damages under Section 5.3 above, irrespective of the time when the
inquiry about such damages may take place. Upon any such failure by Purchaser
hereunder, this Purchase Contract shall be terminated, and neither party shall
have any further rights or obligations hereunder, each to the other, except for
the Purchaser's obligations to Seller under Section 5.3 above, and the right of
Seller to collect such liquidated damages to the extent not theretofore paid by
Purchaser.
12.2Provided that Purchaser is not in default hereunder, if the Closing
does not occur as a result of Seller's default hereunder, Purchaser's sole
remedy shall be either (i) to elect to terminate this Purchase Contract and
receive reimbursement of the Deposit and the Additional Deposit (or so much
thereof as has been received by Escrow Agent) and reimbursement of actual
reasonable costs and expenses up to a maximum of Twenty-Five Thousand Dollars
($25,000), or (ii) to seek specific performance of this Purchase Contract.
ARTICLE 13
RISK OF LOSS OR CASUALTY
13.1The risk of loss or damage to the Property by fire or other casualty
until the deed of conveyance is recorded is assumed by the Seller, provided that
the Seller's responsibility shall be only to the extent of any recovery from
insurance now carried on the Property. Upon assignment to Purchaser of any
insurance proceeds in respect of fire or other casualty occurring between the
date of ratification of this contract and the time of settlement, Purchaser
shall have no right to terminate this Purchase Contract on account thereof, but
Seller shall assign to Purchaser its interest in and to any insurance policies
and proceeds thereof payable as a result of such damage or destruction. Seller
shall not, in any event, be obligated to effect any repair, replacement, and/or
restoration, but may do so at its option in which case Seller may apply the
insurance proceeds to the costs of restoration.
ARTICLE 14
RATIFICATION
14.1This Purchase Contract shall be null and void unless fully ratified by
Purchaser and Seller on or before October 8, 1999.
ARTICLE 15
EMINENT DOMAIN
15.1In the event that at the time of Closing all or any part of the
Property is (or has previously been) acquired, or is about to be acquired, by
authority of any governmental agency in purchase in lieu thereof (or in the
event that at such time there is any notice of any such acquisition or intent to
acquire by any such governmental agency), Purchaser shall have the right, at
Purchaser's option, to terminate this Purchase Contract by giving written Notice
within Fifteen (15) days of Purchaser's receipt from Seller of the occurrence of
such event and recover the Deposit and the Additional Deposit (if paid)
hereunder, or to settle in accordance with the terms of this Purchase Contract
for the full Purchase Price and receive the full benefit or any condemnation
award. It is expressly agreed between the parties hereto that this paragraph
shall in no way apply to customary dedications for public purposes which may be
necessary for the development of the Property.
ARTICLE 16
MISCELLANEOUS
16.1 EXHIBITS AND SCHEDULES
All Exhibits and Schedules annexed hereto are a part of this Purchase
Contract for all purposes.
16.2 ASSIGNABILITY
Subject to Section 16.18, this Purchase Contract is not assignable without
first obtaining the prior written approval of the non-assigning party, except
that Purchaser may assign all or an undivided interest in this Purchaser
Contract to one or more entities so long as (i) Purchaser or its affiliate
remains a part of the purchasing entity(ies), (ii) Purchaser is not released
from its liability hereunder, and (iii) Purchaser has concurrently provided
written notice to Seller of such assignment.
16.3 BINDING EFFECT
This Purchase Contract shall be binding upon and inure to the benefit of
Seller and Purchaser, and their respective successors, heirs and permitted
assigns.
16.4 CAPTIONS
The captions, headings, and arrangements used in this Purchase Contract are
for convenience only and do not in any way affect, limit, amplify, or modify the
terms and provisions hereof.
16.5 NUMBER AND GENDER OF WORDS
Whenever herein the singular number is used, the same shall include the
plural where appropriate, and words of any gender shall include each other
gender where appropriate.
16.6 NOTICES
All Notices, demands, requests and other communications required pursuant
to the provisions of this Purchase Contract ("Notice") shall be in writing and
shall be deemed to have been properly given or served for all purposes (i) if
sent by Federal Express or a nationally recognized overnight carrier for next
business day delivery, on the first business day following deposit of such
Notice with such carrier, or (ii) if personally delivered, on the actual date of
delivery or (iii) if sent by certified mail, return receipt requested postage
prepaid, on the Fifth (5th) business day following the date of mailing addressed
as follows:
If to Seller: If to Purchaser:
Century Properties Fund XX Mr. Bobby L. Murray
1873 South Bellaire Street, 17th 1820 Capital Boulevard
Floor Raleigh, North Carolina 27604
Denver, Colorado 80222 Attn: Brent King
Attn: Mr. Harry Alcock
And With a copy to:
Argent Real Estate Kennedy, Covington, Lobdell
1401 Brickell Avenue, Suite 520 & Hickman
Miami, Florida 33131 Two Hanover Square, Suite 1900
Attn: Mr. David Marquette 434 Fayetteville Street Mall
Raleigh, North Carolina 27601
Attn: Michael R. Thornton, Esq.
With a copy to:
Loeb & Loeb LLP
1000 Wilshire Boulevard, Suite
1800
Los Angeles, California 90017
Attn: Andrew S. Clare, Esq.
Karen N. Higgins, Esq.
Any of the parties may designate a change of address by Notice in writing
to the other parties. Whenever in this Purchase Contract the giving of Notice
by mail or otherwise is required, the giving of such Notice may be waived in
writing by the person or persons entitled to receive such Notice.
16.7 GOVERNING LAW AND VENUE
The laws of the State of North Carolina shall govern the validity,
construction, enforcement, and interpretation of this Purchase Contract, unless
otherwise specified herein except for the conflict of laws provisions thereof.
All claims, disputes and other matters in question arising out of or relating to
this Purchase Contract, or the breach thereof, shall be decided by proceedings
instituted and litigated in the United States District Court for the district in
which the Property is situated, and the parties hereto expressly consent to the
venue and jurisdiction of such court.
16.8 ENTIRETY AND AMENDMENTS
This Purchase Contract embodies the entire Purchase Contract between the
parties and supersedes all prior Purchase Contracts and understandings, if any,
relating to the Property, and may be amended or supplemented only by an
instrument in writing executed by the party against whom enforcement is sought.
16.9 SEVERABILITY
If any provision of this Purchase Contract is held to be illegal, invalid,
or unenforceable under present or future laws, such provision shall be fully
severable. The Purchase Contract shall be construed and enforced as if such
illegal, invalid, or unenforceable provision had never comprised a part of this
Purchase Contract; and the remaining provisions of this Purchase Contract shall
remain in full force and effect and shall not be affected by the illegal,
invalid, or unenforceable provision or by its severance from this Purchase
Contract. In lieu of such illegal, invalid, or unenforceable provision, there
shall be added automatically as a part of this Purchase Contract a provision as
similar in terms to such illegal, invalid, or unenforceable provision as may be
possible to make such provision legal, valid, and enforceable.
16.10 MULTIPLE COUNTERPARTS
This Purchase Contract may be executed in a number of identical
counterparts. If so executed, each of such counterparts is to be deemed an
original for all purposes and all such counterparts shall, collectively,
constitute one Purchase Contract. In making proof of this Purchase Contract, it
shall not be necessary to produce or account for more than one such
counterparts.
16.11 FURTHER ACTS
In addition to the acts and deeds recited herein and contemplated and
performed, executed and/or delivered by Seller and Purchaser, Seller and
Purchaser agree to perform, execute and/or deliver or cause to be performed,
executed and/or delivered any and all such further acts, deeds, and assurances
as may be necessary to consummate the transactions contemplated hereby.
16.12 CONSTRUCTION
No provision of this Purchase Contract shall be construed in favor of, or
against, any particular party by reason of any presumption with respect to the
drafting of this Purchase Contract; both parties, being represented by counsel,
having fully participated in the negotiation of this instrument.
16.13 CONFIDENTIALITY
Purchaser shall not disclose the terms and conditions contained in this
Purchase Contract, shall keep the same confidential, provided that Purchaser may
disclose the terms and conditions of this Purchase Contract (i) as required by
law, (ii) to consummate the terms of this Purchase Contract, or any financing
relating thereto, or (iii) to Purchaser's or Seller's lenders, attorneys and
accountants. Any information provided by Seller to Purchaser under the terms of
this Purchase Contract is for informational purposes only. In providing such
information to Purchaser, Seller makes no representation or warranty, express,
written, oral, statutory, or implied, and all such representations and
warranties are hereby expressly excluded. Purchaser shall not in any way be
entitled to rely upon the accuracy of such information. Such information is
also confidential and Purchaser shall be prohibited from making such information
public to any other person or entity other than its agents and legal
representatives, without Seller's prior written authorization, which may be
granted or denied in Seller's sole discretion.
16.14 TIME OF THE ESSENCE
It is expressly agreed by the parties hereto that time is of the essence
with respect to this Purchase Contract.
16.15 CUMULATIVE REMEDIES AND WAIVER
No remedy herein conferred or reserved is intended to be exclusive of any
other available remedy or remedies herein conferred or referred, but each and
every such remedy shall be cumulative and shall be in addition to every other
remedy given under this Purchase Contract. No delay or omission to exercise any
right or power accruing upon any default, omission, or failure of performance
hereunder shall impair any right or power or shall be construed to be a waiver
thereof, but any such right and power may be exercised from time to time and as
often as may be deemed expedient. No waiver, amendment, release, or
modification of this Purchase Contract shall be established by conduct, custom,
or course of dealing.
16.16 LITIGATION EXPENSES
In the event either party hereto commences litigation against the other to
enforce its rights hereunder, the prevailing party in such litigation shall be
entitled to recover from the other party its reasonable attorneys' fees and
expenses incidental to such litigation.
16.17 TIME PERIODS
Should the last day of a time period fall on a weekend or legal holiday,
the next Business Day thereafter shall be considered the end of the time period.
16.18 EXCHANGE
At Seller's sole cost and expense, Seller may structure the sale of the
Property to Purchaser as a Like Kind Exchange under Internal Revenue Code
Section 1031 whereby Seller will acquire certain property (the "Like Kind
Exchange Property") in conjunction with the sale of the Property (the "Like Kind
Exchange"). Purchaser shall cooperate fully and promptly with Seller's conduct
of the Like Kind Exchange, provided that all costs and expenses generated in
connection with the Like Kind Exchange shall be borne solely by Seller, and
Purchaser shall not be required to take title to or contract for the purchase of
any other property. If Seller uses a qualified intermediary to effectuate the
exchange, any assignment of the rights or obligations of Seller hereunder shall
not relieve, release or absolve Seller of its obligations to Purchaser. In no
event shall the Closing Date be delayed by the Like Kind Exchange. Seller shall
indemnify and hold harmless Purchaser from and against any and all liability
arising from and out of the Like Kind Exchange.
At Purchaser's sole cost and expense, Purchaser may structure the purchase
of the Property from Seller as a Like Kind Exchange under Internal Revenue Code
Section 1031. Seller shall cooperate fully and promptly with Purchaser's
conduct of the Like Kind Exchange, provided that all costs and expenses
generated in connection with the Like Kind Exchange shall be borne solely by
Purchaser, and Seller shall not be required to take title to or contract for the
purchase of any other property. If Purchaser uses a qualified intermediary to
effectuate the exchange, any assignment of the rights or obligations of
Purchaser hereunder shall not relieve, release or absolve Purchaser of its
obligations to Seller. In no event shall the Closing Date be delayed by the
Like Kind Exchange. Purchaser shall indemnify and hold harmless Seller from and
against any and all liability arising from and out of the Like Kind Exchange.
16.19 NO PERSONAL LIABILITY OF OFFICERS, TRUSTEES OR DIRECTORS OF
SELLER'S PARTNERS
Purchaser acknowledges that this Purchase Contract is entered into by
Seller which is a California limited partnership, and Purchaser agrees that no
individual officer, trustee, director or representative of the partners of
Seller shall have any personal liability under this Purchase Contract or any
document executed in connection with the transactions contemplated by this
Purchase Contract.
16.20 NO EXCLUSIVE NEGOTIATIONS
Seller shall have the right, at all times, to solicit backup offers and
enter into discussions, negotiations, or any other communications concerning or
related to the sale of the Property with any third-party; provided, however,
that such communications are subject to the terms of this Purchase Contract, and
that Seller shall not enter into any contract or binding agreement with a third-
party for the sale of the Property unless such agreement is contingent on the
termination of this Purchase Contract without the Property having been conveyed
to Purchaser.
NOW WHEREFORE, the parties hereto have executed this Purchase Contract
under seal as of the date first set forth above.
SELLER:
CENTURY PROPERTIES FUND XX, A CALIFORNIA
[Corporate Seal] LIMITED PARTNERSHIP [SEAL]
By: Fox Partners III,
a California general partnership,
ATTEST: its general partner [SEAL]
___________________________ By: Fox Capital Management Corporation,
___________________Secretary a California corporation
its general partner [SEAL]
By: [SEAL]
Name:
Its:
PURCHASER:
[SEAL]
BOBBY L. MURRAY, an individual
EXHIBIT A
LEGAL DESCRIPTION OF CRABTREE OFFICE BUILDING
ALL THAT TRACT OR PARCEL OF LAND LYING AND BEING SITUATE IN HOUSE CREEK
TOWNSHIP, WAKE COUNTY, NORTH CAROLINA AND BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
BEGINNING AT A CORNER HAVING NORTH CAROLINA GRID COORDINATES OF Y=762,366.77 AND
X=2,095,159.47; RUNNING THENCE SOUTH 21 DEGREES 34 MINUTES 25 SECOND EAST 232.96
FEET TO A POINT; THENCE SOUTH 24 DEGREES 45 MINUTES 48 SECONDS WEST 297.94 FEET
TO A POINT; THENCE SOUTH 40 DEGREES 50 MINUTES 18 SECONDS WEST 130.78 FEET TO A
POINT ON THE NORTHEAST RIGHT-OF-WAY LINE OF MARRIOTT DRIVE (60 FOOT RIGHT OF
WAY); THENCE ALONG AND WITH THE NORTHEAST RIGHT-OF-WAY LINE OF MARRIOTT DRIVE,
THE FOLLOWING COURSES AND DISTANCES: NORTH 29 DEGREES 21 MINUTES 23 SECOND WEST
98.82 FEET TO A POINT; NORTH 26 DEGREES 42 MINUTES 19 SECONDS WEST 96.84 FEET TO
A POINT; NORTH 23 DEGREES 52 MINUTES 46 SECONDS WEST 94.79 FEET TO A POINT;
NORTH 21 DEGREES 22 MINUTES 18 SECONDS WEST 92.26 FEET TO A POINT; AND NORTH 19
DEGREES 25 MINUTES 27 SECONDS WEST 67.90 FEET TO A POINT; THENCE LEAVING THE
NORTHEAST RIGHT-OF-WAY LINE OF MARRIOTT DRIVE NORTH 60 DEGREES 22 MINUTES 57
SECONDS EAST 357.91 FEET TO THE POINT OF BEGINNING; AND BEING MORE PARTICULARLY
SHOWN ON PLAT OF AS-BUILT SURVEY OF CRABTREE CENTER DATED DECEMBER 13, 1984,
PREPARED BY JAMES S. MURPHY, NORTH CAROLINA REGISTERED LAND SURVEYOR NO. L-2477.
EXHIBIT 1.1.4
LIST OF COMMERCIAL LEASES
[See Attached]
EXHIBIT 1.1.5
LIST OF EXCLUDED PERMITS
None
EXHIBIT 1.1.7
LIST OF EXCLUDED PERSONAL PROPERTY OR EQUIPMENT
To Be Inserted, If Any
EXHBIIT 1.1.14
LIST OF PROPERTY CONTRACTS
Service Contracts
Vendor Name/Contact Nature of Service Monthly Cost Exp. Date Cancellation
Provision &
Comments
Southern Tree Landscape Svc $ 828.00 month-to Weekly
Landscaping month service, 30
P.O. Box 654 Apex, day notice
N.C. 27502 required
(919) 362-4706
Piedmont Air H.V.A.C. $ 1,315.00 month-to Service as
Conditioning month needed, 30
1310 Nowell Road day notice
Raleigh, N.C. 27607- required
5195 (919) 851-8300
Otis Elevator, One Elevator 2558.1 month-to Service as
Farms Spring, Quarter1 month needed, 30
Farmington, CT 06032 day notice
(919) 781-1555 required
Waste Industries Trash removal $ 244.20 month-to Weekly
3741 Conquest Drive month service, 30
Garner, NC 27529 day notice
(919) 662-7100 required
Servicemaster Carpet $ 54.00 month-to Service as
920-E8 Paverstone maintenance month needed, 30
Drive, Raleigh, NC day notice
919-676-0036 required
Gray, Inc/Protection Fire alarm $ 91.67 month-to Daily
One, P.O. Box 521769 monitoring month service, 30
Longwood, FL 32750- day notice
1769 (800) 818-2024 required
M.H. Faulkner, Security $ 495.00 month-to Daily
Faulkner Security month service, 30
& Detective Agency day notice
P.O. Box 19341 required
Raleigh, NC 27619
Foliage Concepts Indoor Plants $ 110.00 month-to Weekly
P.O. Box 18346 month service, 30
Raleigh, NC 27619 day notice
(919) 876-3275 required
Frye Exterminating Pest control $ 60.00 month-to Monthly
7713-54 Leadmine Rd month service, 30
Raleigh, NC day notice
27615-4805 required
(919) 676-7778
Active Cleaning Interior cleaning $ 3,106.50 month-to Daily
Service, Kevin month service, 30
Lackey P.O. Box day notice
20471 required
Raleigh, NC 27619
CB Richard Ellis On site mgmt. $ 800.00 month-to Daily
333 Fayetville month service, 30
Street Mall day notice
Suite 100 required
Raleigh, NC 27601
EXHIBIT 6.2.1
ADDITIONAL TITLE EXCEPTIONS
[To Be Attached]
EXHIBIT 7.2.1.1
FORM OF SPECIAL WARRANTY DEED
Drawn by and
Return after recording to:
_____________________
_____________________
_____________________
================================================================================
SPECIAL WARRANTY DEED
THIS DEED made this _____ day of _________________, 1999, by and between
Century Properties Fund XX, a California limited partnership having a principal
address at 1873 South Bellaire Street, 17th Floor, Denver, Colorado 80222
("GRANTOR") and Bobby L. Murray, an individual having an address of 1820 Capital
Boulevard, Raleigh, North Carolina 27604 ("GRANTEE") (the designation Grantor
and Grantee as used herein shall include said parties, their heirs, successors
and assigns, and shall include singular, plural, masculine, feminine or neuter
as required by context);
WITNESSETH:
That Grantor, for a valuable consideration paid by the Grantee, the receipt
of which is hereby acknowledged, has granted and sold and by these presents does
grant, bargain, sell and convey unto the Grantee in fee simple those certain
lots or parcels of land situated in House Creek Township, Wake County, North
Carolina, which are more particularly described as follows:
See Exhibit A attached hereto and incorporated herein.
TOGETHER with all and singular the hereditaments and appurtenances thereto
belonging, or in anywise appertaining, and the reversion and reversions,
remainder and remainders, rents, issues and profits thereof, and all the estate,
right, title interest, claim and demand whatsoever of Grantor, either in law or
equity, of, in and to the above bargained premises, with the hereditaments,
easements, rights of way and appurtenances, and with all of Grantor's interest,
if any, in and to any and all minerals, water, ditches, wells, reservoirs and
drains, and all water, ditch, well, reservoir and drainage rights which are
appurtenant to, located on, now or hereafter acquired under or above or used in
connection with the property.
The property hereinabove described was acquired by Grantor by instrument
recorded in Book ____, Page ______, and Book _____, Page _______, Wake County,
North Carolina Public Registry.
TO HAVE AND TO HOLD the aforesaid lots or parcels of land and all
privileges and appurtenances thereto belonging to the Grantee in fee simple.
And the Grantor covenants with the Grantee, that Grantor has done nothing
to impair such title as Grantor received, and that Grantor will warrant and
defend the title against the lawful claims of all persons claiming by, under or
through Grantor, except for the exceptions hereinafter stated.
Title to the property hereinabove described is subject to the following
exceptions:
All easements, rights of way, conditions and restrictions of record, and ad
valorem taxes for the year 1999.
IN WITNESS WHEREOF, the Grantors' general partner has caused this
instrument to be duly executed by its duly authorized officers and its seal to
be hereunto affixed for and on behalf of and under seal of Grantor, the day and
year first above written.
GRANTOR: CENTURY PROPERTIES FUND XX
a California limited partnership [SEAL]
[Corporate Seal] By: Fox Partners III,
a California general partnership,
its general partner [SEAL]
ATTEST: By: Fox Capital Management Corporation,
a California corporation,
its general partner [SEAL]
___________________________
_____________________Secretary By: ______________________[SEAL]
Name:_______________________
Its:________________________
STATE OF ________________
COUNTY OF ______________
I, _____________________________________, a Notary Public of the County and
State aforesaid, certify that ____________________________ personally came
before me this day and acknowledged that he/she is ________________ Secretary of
Fox Capital Management Corporation, a California corporation, which is the
general partner of Fox Partners III, a California general partnership, which is
the general partner of Century Properties Fund XX, a California limited
partnership, and that, by authority duly given and as the act of the corporation
in its capacity as general partner of Fox Partners III, and as the act of said
general partnership in its capacity as general partner of Century Properties
Fund XX, the foregoing agreement was signed in its name by its
__________________ President, sealed with its corporate seal, and attested by
________________________, as its ______________________Secretary.
WITNESS my hand and notarial seal, this _____ day of ___________________,
1999.
_______________________________________
Notary Public
My commission expires:
____________________
[NOTARY SEAL]
EXHIBIT "A"
LEGAL DESCRIPTION
ALL THAT TRACT OR PARCEL OF LAND LYING AND BEING SITUATE IN HOUSE CREEK
TOWNSHIP, WAKE COUNTY, NORTH CAROLINA AND BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
BEGINNING AT A CORNER HAVING NORTH CAROLINA GRID COORDINATES OF Y=762,366.77 AND
X=2,095,159.47; RUNNING THENCE SOUTH 21 DEGREES 34 MINUTES 25 SECOND EAST 232.96
FEET TO A POINT; THENCE SOUTH 24 DEGREES 45 MINUTES 48 SECONDS WEST 297.94 FEET
TO A POINT; THENCE SOUTH 40 DEGREES 50 MINUTES 18 SECONDS WEST 130.78 FEET TO A
POINT ON THE NORTHEAST RIGHT-OF-WAY LINE OF MARRIOTT DRIVE (60 FOOT RIGHT OF
WAY); THENCE ALONG AND WITH THE NORTHEAST RIGHT-OF-WAY LINE OF MARRIOTT DRIVE,
THE FOLLOWING COURSES AND DISTANCES: NORTH 29 DEGREES 21 MINUTES 23 SECOND WEST
98.82 FEET TO A POINT; NORTH 26 DEGREES 42 MINUTES 19 SECONDS WEST 96.84 FEET TO
A POINT; NORTH 23 DEGREES 52 MINUTES 46 SECONDS WEST 94.79 FEET TO A POINT;
NORTH 21 DEGREES 22 MINUTES 18 SECONDS WEST 92.26 FEET TO A POINT; AND NORTH 19
DEGREES 25 MINUTES 27 SECONDS WEST 67.90 FEET TO A POINT; THENCE LEAVING THE
NORTHEAST RIGHT-OF-WAY LINE OF MARRIOTT DRIVE NORTH 60 DEGREES 22 MINUTES 57
SECONDS EAST 357.91 FEET TO THE POINT OF BEGINNING; AND BEING MORE PARTICULARLY
SHOWN ON PLAT OF AS-BUILT SURVEY OF CRABTREE CENTER DATED DECEMBER 13, 1984,
PREPARED BY JAMES S. MURPHY, NORTH CAROLINA REGISTERED LAND SURVEYOR NO. L-2477.
EXHIBIT 7.2.1.2
FORM OF BILL OF SALE
This Bill of Sale ("ASSIGNMENT") is executed by CENTURY PROPERTIES FUND XX,
a California limited partnership ("SELLER"), in favor of BOBBY L. MURRAY, an
individual ("PURCHASER").
Seller and Purchaser, have entered into that certain Purchase and Sale
Contract and dated as of October ____, 1999 ("PURCHASE CONTRACT"), in which
Seller has agreed to sell and Purchaser has agreed to purchase the real property
described in Exhibit "A" attached thereto and the improvements located thereon
(collectively, the "PROJECT").
Pursuant to the Purchase Contract, Seller has agreed to assign, without
recourse or warranty, to Purchaser all of Seller's right, title and interest, if
any, in and to the Property (as hereinafter defined).
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
1. As used herein, the term "PROPERTY" shall mean the following property
to the extent said property is owned by Seller and used in, held for use in
connection with, or necessary for the operation of the Project:
a.Property Contracts. All of Seller's rights and interests in and to purchase
orders, maintenance, service or utility contracts or similar contracts which
relate to the ownership, maintenance, construction or repair or operation of
the Project.
b.Leases. All of Seller's rights and interests in and to leases, subleases,
and other occupancy agreements, whether or not of record, which provide for
use or occupancy of space or facilities on or relating to the Project.
c.Licenses and Permits. All of Seller's rights and interests in and to all
licenses or permits granted by governmental authorities having jurisdiction
over the Project and utilized with respect to the Project.
d.Fixtures and Tangible Personal Property. All of Sellers rights and interests
in and to all fixtures, furniture, furnishings, fittings, equipment,
machinery, apparatus, appliances and other articles of tangible personal
property now located on the Project or in the improvements thereon and used
in connection with any present or future occupation or operation of all or
any part of the Project.
The term "PROPERTY" shall not include any of the foregoing: (i) to the
extent the same are excluded or reserved to Seller pursuant to the Purchase
Contract to which Seller and Purchaser are parties; and (ii) to the extent that
the sale or transfer thereof requires consent or approval of any third party,
which consent or approval is not obtained by Seller. Nothing herein shall
create a transfer or assignment of intellectual property or similar assets of
Seller.
2. Assignment. Seller hereby assigns, sells and transfers, without
recourse or warranty, to Purchaser all of Seller's right, title and interest, if
any, in and to the Property, subject to any rights of consent as provided
therein.
3. Assumption. Purchaser expressly agrees to assume and hereby assumes
all liabilities and obligations of the Seller in connection with the Property
and agrees to perform all of the covenants and obligations of Seller thereunder.
Purchaser further agrees to indemnify, defend and hold Seller harmless from and
against any and all cost, loss, harm or damage which may arise in connection
with the Property.
4. Counterparts. This Assignment may be executed in counterparts, each
of which shall be deemed an original, and both of which together shall
constitute one and the same instrument.
5. Attorneys' Fees. If any action or proceeding is commenced by either
party to enforce its rights under this Assignment, the prevailing party in such
action or proceeding shall be entitled to recover all reasonable costs and
expenses incurred in such action or proceeding, including reasonable attorneys'
fees and costs, in addition to any other relief awarded by the court.
6. Applicable Law. This Assignment shall be governed by and interpreted
in accordance with the laws of the State of North Carolina.
7. Titles and Section Headings. Titles of sections and subsections
contained in this Assignment are inserted for convenience of reference only, and
neither form a part of this Assignment or are to be used in its construction or
interpretation.
8. Binding Effect. This Assignment shall be binding upon and inure to
the benefit of the parties hereto and their respective transferees, successors,
and assigns.
9. Entire Agreement; Modification. This Assignment supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may not be altered or modified without the written consent of
all parties.
WITH RESPECT TO ALL MATTERS TRANSFERRED, WHETHER TANGIBLE OR
INTANGIBLE, PERSONAL OR REAL, SELLER EXPRESSLY DISCLAIMS A WARRANTY OF
MERCHANTABILITY AND WARRANTY FOR FITNESS FOR A PARTICULAR USE OR ANY OTHER
WARRANTY EXPRESSED OR IMPLIED THAT MAY ARISE BY OPERATION OF LAW OR UNDER THE
UNIFORM COMMERCIAL CODE FOR THE STATE IN WHICH THE PROPERTY IS LOCATED.
WITNESS the signatures and seals of the undersigned.
Dated: , 1999
SELLER:
CENTURY PROPERTIES FUND XX, A CALIFORNIA
[Corporate Seal] LIMITED PARTNERSHIP [SEAL]
By: Fox Partners III,
a California general partnership,
ATTEST: its general partner [SEAL]
___________________________ By: Fox Capital Management Corporation,
___________________Secretary a California corporation
its general partner [SEAL]
By: [SEAL]
Name:
Its:
PURCHASER:
[SEAL]
BOBBY L. MURRAY, an individual
EXHIBIT 7.2.1.3
GENERAL ASSIGNMENT
This General Assignment ("ASSIGNMENT") is executed by CENTURY PROPERTIES
FUND XX, a California limited partnership ("SELLER"), in favor of BOBBY L.
MURRAY, an individual ("PURCHASER").
Seller and Purchaser, have entered into that certain Purchase and Sale
Contract and dated as of October ______, 1999 ("PURCHASE CONTRACT"), in which
Seller has agreed to sell and Purchaser has agreed to purchase the real property
described in Exhibit "A" attached thereto and the improvements located thereon
collectively, the "PROJECT").
Pursuant to the Purchase Contract, Seller has agreed to assign, without
recourse or warranty, to Purchaser all of Seller's right, title and interest, if
any, in and to the Miscellaneous Property Assets (as hereinafter defined).
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
1. As used herein, the term "MISCELLANEOUS PROPERTY ASSETS" shall mean
all contract rights, leases, concessions, warranties, plans, drawings, and other
items of intangible personal property to the extent said property is owned by
Seller and used in, held for use in connection with, or necessary for the
operation of the Project.
The term "MISCELLANEOUS PROPERTY ASSETS" shall not include any of the
foregoing: (i) to the extent the same are excluded or reserved to Seller
pursuant to the Purchase Contract to which Seller and Purchaser are parties; and
(ii) to the extent that the sale or transfer thereof requires consent or
approval of any third party, which consent or approval is not obtained by
Seller. Nothing herein shall create a transfer or assignment of intellectual
property or similar assets of Seller.
2. Assignment. Seller hereby assigns, sells and transfers, without
recourse or warranty, to Purchaser all of Seller's right, title and interest, if
any, in and to the Miscellaneous Property Assets, subject to any rights of
consent as provided therein.
3. Assumption. Purchaser expressly agrees to assume and hereby assumes
all liabilities and obligations of the Seller in connection with the
Miscellaneous Property Assets and agrees to perform all of the covenants and
obligations of Seller thereunder. Purchaser further agrees to indemnify, defend
and hold Seller harmless from and against any and all cost, loss, harm or damage
which may arise in connection with the Miscellaneous Property Assets, pertaining
to acts arising on and after the date hereof. Seller further agrees to
indemnify, defend and hold Purchaser harmless from and against any and all cost,
loss, harm or damage which may arise in connection with the Miscellaneous
Property Assets.
4. Counterparts. This Assignment may be executed in counterparts, each
of which shall be deemed an original, and both of which together shall
constitute one and the same instrument.
5. Attorneys' Fees. If any action or proceeding is commenced by either
party to enforce its rights under this Assignment, the prevailing party in such
action or proceeding shall be entitled to recover all reasonable costs and
expenses incurred in such action or proceeding, including reasonable attorneys'
fees and costs, in addition to any other relief awarded by the court.
6. Applicable Law. This Assignment shall be governed by and interpreted
in accordance with the laws of the State of North Carolina.
7. Titles and Section Headings. Titles of sections and subsections
contained in this Assignment are inserted for convenience of reference only, and
neither form a part of this Assignment or are to be used in its construction or
interpretation.
8. Binding Effect. This Assignment shall be binding upon and inure to
the benefit of the parties hereto and their respective transferees, successors,
and assigns.
9. Entire Agreement; Modification. This Assignment supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may not be altered or modified without the written consent of
all parties.
WITH RESPECT TO ALL MATTERS TRANSFERRED, WHETHER TANGIBLE OR
INTANGIBLE, PERSONAL OR REAL, SELLER EXPRESSLY DISCLAIMS A WARRANTY OF
MERCHANTABILITY AND WARRANTY FOR FITNESS FOR A PARTICULAR USE OR ANY OTHER
WARRANTY EXPRESSED OR IMPLIED THAT
MAY ARISE BY OPERATION OF LAW OR UNDER THE UNIFORM COMMERCIAL CODE FOR THE STATE
IN WHICH THE PROPERTY IS LOCATED.
WITNESS the signatures and seals of the undersigned.
Dated: , 1999
SELLER:
CENTURY PROPERTIES FUND XX, A CALIFORNIA
[Corporate Seal] LIMITED PARTNERSHIP [SEAL]
By: Fox Partners III,
a California general partnership,
ATTEST: its general partner [SEAL]
___________________________ By: Fox Capital Management Corporation,
___________________Secretary a California corporation
its general partner [SEAL]
By: [SEAL]
Name:
Its:
PURCHASER:
[SEAL]
BOBBY L. MURRAY, an individual
EXHIBIT B
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Escrow Agreement") made this _____ day of October,
1999 by and among CENTURY PROPERTIES FUND XX, a California limited partnership
("SELLER"), and BOBBY L. MURRAY, an individual ("PURCHASER"); and CHICAGO TITLE
INSURANCE COMPANY ("ESCROW AGENT");
WITNESSETH:
Whereas Purchaser and Seller are parties to a certain Purchase and Sale
Contract (the "Purchase Contract") made and dated as of the ________ day of
October, 1999; and
Whereas, the Purchase Contract requires that Purchaser provide an initial
deposit in the amount of Fifty Thousand and No/100 Dollars ($50,000.00) in cash
(the "Initial Deposit"), to be held pursuant to an escrow agreement approved by
Purchaser and Seller; and
Whereas, the Purchase Contract requires that, at or before 5:00 p.m.
Eastern time on the date of expiration of the Feasibility Period, Purchaser
shall provide an additional deposit in the sum of Fifty Thousand and no/100
Dollars ($50,000.00) in cash (the "Additional Deposit"), to be held by Escrow
Agent.
Now, therefore, the parties agree to the following:
1. Establishment of Escrow. Escrow Agent hereby acknowledges receipt of Fifty
Thousand and No/100 dollars ($50,000.00) in cash (constituting the Initial
Deposit), to be deposited, held, invested, and disbursed for the benefit of
Seller and Purchaser and their respective successors and assigns, as provided
herein and as provided in the Purchase Contract.
2. Investment of Escrow Fund. All funds received by Escrow Agent, including
the Initial Deposit and the Additional Deposit (collectively, the "Escrow
Fund"), shall be held in insured accounts and invested in such short-term, high-
grade securities, money market funds or accounts, interest bearing bank
accounts, bank certificates of deposit or bank repurchase agreements as Escrow
Agent, in its discretion, deems suitable (provided that Escrow Agent shall
invest the Escrow Fund as jointly directed by Seller and Purchaser should Seller
and Purchaser each in their respective sole discretion determine to issue such
joint investment instructions to the Escrow Agent) and all interest and income
thereon shall become part of the Escrow Fund and shall be remitted to the party
entitled to the Escrow Fund, as set forth below.
3. Application of Escrow Fund. Escrow Agent shall hold the Escrow Fund as
provided above and (a) if the sale of the Property is closed by the date fixed
therefor (or any extension date provided for by mutual written consent of the
parties hereto, given or withheld in their respective sole discretion), Escrow
Agent shall deliver the Escrow Fund to the closing attorney in immediately
available funds by wire transfer in accordance with the instructions of Seller
on the Closing Date as set forth in the Purchase Contract, (b) if the sale of
the Property is not closed by the date fixed therefor (or any such extension
date) owing to failure of satisfaction of a condition precedent to Purchaser's
obligations, the Escrow Agent shall return and refund the Escrow Fund to
Purchaser, (c) if the sale of the Property is not closed by the date fixed
therefor (or any such extension date) owing to failure of performance by Seller,
Purchaser shall give Notice to the Escrow Agent and Seller and in such Notice
shall state whether it elects as its remedy return of the Escrow Fund or
specific performance of the Purchase Contract; if Purchaser elects return of the
Escrow Fund, Escrow Agent shall return and refund the Escrow Fund to Purchaser,
(d) if the sale of the Property is not closed by the date fixed therefor (or any
such extension date) owing to failure of performance by Purchaser, Escrow Agent
shall forthwith deliver to Seller the Escrow Fund in immediately available funds
by wire transfer in accordance with the instructions of Seller, and (e) if
Purchaser shall have canceled the Purchase Contract on or before the expiration
of the Feasibility Period (as defined in the Purchase Contract), the Escrow
Agent shall return and refund the Escrow Fund to Purchaser. Escrow Agent shall
deliver to Seller a closing protection letter in form and substance reasonably
satisfactory to Seller.
If on or prior to the termination of the Escrow Agreement, a party claims
to be entitled to payment of the Escrow Fund under the provisions referred to,
such party shall give Notice to the Escrow Agent and the other party of the
claim in writing, describing in such Notice the nature of the claim, and the
provisions of the Purchase Contract on which the claim is based. Unless the
other party sends the Escrow Agent a written objection to the claim, with a copy
concurrently to the claiming party, within Ten (10) days after delivery of the
Notice of claim, the claim shall be conclusively presumed to have been approved.
In such case, or in the event of mutual written consent of the parties hereto,
given or withheld in their respective sole discretion, Escrow Agent shall,
within Two (2) business days thereafter, pay the claim as demanded.
Notwithstanding the foregoing, Escrow Agent shall deliver the Escrow Fund to
Seller forthwith upon Closing in accordance with the terms of subpart (a) of the
immediately preceding paragraph.
When all monies held by Escrow Agent have been finally distributed in
accordance herewith, this Escrow Agreement shall terminate.
4. Liability. Escrow Agent will be obligated to perform only the duties that
are expressly set forth herein. In case of conflicting demands upon Escrow
Agent, it may (i) refuse to comply therewith as long as such disagreement
continues and make no delivery or other disposition of any funds or property
then held (and Escrow Agent shall not be or become liable in any way for such
failure or refusal to comply with such conflicting or adverse claims or demands,
except for its failure to exercise due care, willful breach and willful
misconduct); and (ii) continue to so refrain and so refuse to act until all
differences have been adjusted by agreement and, Escrow Agent has been notified
thereof in writing signed jointly by Seller and Purchaser or (iii) to interplead
the portion of Escrow Fund in dispute.
5. No Obligation to Take Legal Action. Escrow Agent shall not be under any
obligation to take any legal action in connection with this Escrow Agreement or
for its enforcement, or to appear in, prosecute, or defend any action or legal
proceeding which, in its opinion, would or might involve it in any costs,
expense, loss, or liability, unless and as often as required by it, it is
furnished with satisfactory security and indemnity against all such costs,
expenses, losses, or liabilities.
6. Status of Escrow Agent. Escrow Agent is to be considered and regarded as a
depository only, and shall not be responsible or liable (except for its failure
to exercise due care, willful breach or willful misconduct) for the sufficiency
or correctness as to form, manner of execution, or validity of any instrument
deposited pursuant to this Escrow Agreement, nor as to the identity, authority,
or rights of any person executing the same. Escrow Agent's duties hereunder
shall be limited to the safekeeping of the Quitclaim Deed and the safekeeping
and investment of money, instruments, and securities received by it as Escrow
Agent and for their disbursement in accordance with the written escrow
instructions given it in accordance with this Escrow Agreement.
7. Written Instructions of Parties. Notwithstanding any contrary provision
contained herein, Escrow Agent shall, at all times, have full right and
authority and the duty and obligation to pay over and disburse the principal and
interest of the Escrow Fund and Quitclaim Deed in accordance with the joint
written instructions signed by Seller and Purchaser.
8. Notices. Any required or permitted Notice or other communication under
this Escrow Agreement ("Notice") shall be given as follows. All Notices,
requests, demands and other communications hereunder shall be deemed to have
been duly given if the same shall be in writing and shall be delivered
personally or sent by federal express or other recognized national overnight
courier service maintaining records of delivery, or sent by registered or
certified mail, postage pre-paid, and addressed as set forth below:
(a) If to Seller:
Century Properties Fund XX
1873 South Bellaire Street, 17th Floor
Denver, Colorado 80222
Attn: Mr. Harry Alcock
and
Argent Real Estate
1401 Brickell Avenue, Suite 520
Miami, Florida 33131
Attn: Mr. David Marquette
With a copy to:
Loeb & Loeb, LLP
1000 Wilshire Boulevard, Suite 1800
Los Angeles, California 90017
Attn: Andrew S. Clare, Esq.
Karen N. Higgins, Esq.
(b) If to Purchaser:
Mr. Bobby L. Murray
1820 Capital Boulevard
Raleigh, North Carolina 27604
Attn: Brent King
With a copy to:
Kennedy, Covington, Lobdell & Hickman
Two Hannover Square, Suite 1900
434 Fayetteville Street Mall
Raleigh, North Carolina 27601
Attn: Michael R. Thornton, Esq.
(c) If to Escrow Agent:
Chicago Title Insurance Company
P.O. Box 35587
Greensboro, North Carolina 27425-5587
Attn: Jeff Hrdlicka
Phone: (336) 665-1314
Fax: (336) 665-9652
Any party may change the address to which Notices are to be addressed by
giving the other parties Notice in the manner herein set forth. All such
Notices, requests, demands and other communications shall be deemed to have been
delivered (i) as of the day of receipt, in the case of personal delivery, or
(ii) as of the day of receipt or attempted delivery date in the case of delivery
by air courier, or (iii) as of the date of receipt or first attempted delivery,
as evidenced by the return receipt card, in the case of mailing by certified or
registered United States mail.
9. Fee. Escrow Agent shall receive no fee for its services hereunder, and be
paid or reimbursed for all expenses, disbursements and advances, including
reasonable attorney's fees, incurred or paid in connection with carrying out its
duties hereunder, the payment of all amounts to be shared equally by Purchaser
and Seller equally, and not out of the Escrow Fund. Non-payment of such
expenses by Purchaser shall not entitle Escrow Agent to refuse or fail to act as
required by this Escrow Agreement.
10. Titles and Section Headings. Titles of sections and subsections contained
in this Escrow Agreement are inserted for convenience of reference only, and
neither form a part of this Escrow Agreement or are to be used in its
construction or interpretation.
11. Counterparts. This Escrow Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
12. Non-Waiver. No waiver by either party of any breach of any term or
condition of this Escrow Agreement shall operate as a waiver of any other breach
of such term or condition or of any other term or condition. No failure to
enforce such provision shall operate as a waiver of such provision or of any
other provision hereof, or constitute or be deemed a waiver or release of any
other party for anything arising out of, connected with, or based upon this
Escrow Agreement.
13. Binding Effect. This Escrow Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective transferees, successors,
and assigns. The parties recognize and acknowledge that the powers and
authority granted Escrow Agent herein are each irrevocable and coupled with an
interest. Escrow Agent shall have no liability to Seller or Purchaser for any
mistakes in judgment in the performance of any function hereunder, except for
failure to exercise due care, willful breach and willful misconduct.
14. Nonlimitation of Liability. Nothing contained herein shall in any way
limit the liabilities, obligations and remedies of Seller and Purchaser as set
forth in the Purchase Contract.
15. Governing Law. This Escrow Agreement shall be governed by and construed in
accordance with the laws of the State of North Carolina.
16. Time of Essence. Time is of the essence of this Escrow Agreement.
17. Entire Agreement; Modification. This Escrow Agreement supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may not be altered or modified without the written consent of
all parties.
In witness whereof each of the parties hereto has caused this Escrow
Agreement to be executed under seal on its behalf by duly authorized persons,
all as of the day and year first above written.
SELLER:
CENTURY PROPERTIES FUND XX, A CALIFORNIA
[Corporate Seal] LIMITED PARTNERSHIP [SEAL]
By: Fox Partners III,
a California general partnership,
ATTEST: its general partner [SEAL]
___________________________ By: Fox Capital Management Corporation,
___________________Secretary a California corporation
its general partner [SEAL]
By: [SEAL]
Name:
Its:
PURCHASER:
[SEAL]
BOBBY L. MURRAY, an individual
CHICAGO TITLE INSURANCE COMPANY
By: __________________________________________________________________[SEAL]
Title: _____________________________________________________________________
ARTICLE 1 DEFINED TERMS 1
ARTICLE 2 PURCHASE AND SALE OF PROPERTY 3
ARTICLE 3 PURCHASE PRICE & DEPOSIT 4
ARTICLE 4 FINANCING 5
ARTICLE 5 FEASIBILITY PERIOD 5
ARTICLE 6 TITLE 7
ARTICLE 7 CLOSING 10
ARTICLE 8 REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER 14
ARTICLE 9 CONDITIONS PRECEDENT TO CLOSING 17
ARTICLE 10 BROKERAGE 18
ARTICLE 11 POSSESSION 18
ARTICLE 12 DEFAULTS AND REMEDIES 19
ARTICLE 13 RISK OF LOSS OR CASUALTY 19
ARTICLE 14 RATIFICATION 20
ARTICLE 15 EMINENT DOMAIN 20
ARTICLE 16 MISCELLANEOUS 20
