FORM 10-QSB--QUARTERLY OR TRANSITIONAL REPORT UNDER SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Quarterly or Transitional Report
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-QSB
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the quarterly period ended June 30, 2000
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the transition period from _________to _________
Commission file number 0-13408
CENTURY PROPERTIES FUND XX
(Exact name of small business issuer as specified in its charter)
California 94-2930770
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
55 Beattie Place, PO Box 1089
Greenville, South Carolina 29602
(Address of principal executive offices)
(864) 239-1000
(Issuer's telephone number)
Check whether the issuer (1) filed all reports required to be filed by Section
13 or 15(d) of the Exchange Act during the past 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days. Yes X No___
<PAGE>
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
a)
CENTURY PROPERTIES FUND XX
STATEMENT OF NET ASSETS IN LIQUIDATION
(unaudited)
(in thousands, except unit data)
June 30, 2000
Assets
Cash and cash equivalents $ 2,395
Receivables and deposits 385
Debt trustee escrow 17,565
Investment properties 5,680
26,025
Liabilities
Accounts payable 31
Tenant security deposit liabilities 33
Accrued property taxes 38
Other liabilities 304
Non-recourse promissory notes (Note A) 18,342
Estimated costs during the period of liquidation 391
19,139
Net assets in liquidation $ 6,886
See Accompanying Notes to Financial Statements
<PAGE>
b)
CENTURY PROPERTIES FUND XX
STATEMENT OF CHANGES IN NET ASSETS IN LIQUIDATION
(Unaudited)
(in thousands)
Six Months Ended June 30, 2000
Net liabilities in liquidation at beginning of period $ (373)
Changes in net liabilities in liquidation attributed to:
Increase in cash and cash equivalents 677
Decrease in receivables and deposits (293)
Increase in debt trustee escrow 15,295
Decrease in investment properties (26,461)
Decrease in accounts payable 51
Decrease in tenant security deposit payable 92
Decrease in accrued property taxes 204
Increase in other liabilities (128)
Decrease in Non-Recourse Promissory Notes and interest 18,213
Increase in estimated costs during the period of liquidation (391)
Net assets in liquidation at end of period $ 6,886
See Accompanying Notes to Financial Statements
<PAGE>
c)
CENTURY PROPERTIES FUND XX
STATEMENT OF OPERATIONS
(Unaudited)
(in thousands, except unit data)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, 1999 June 30, 1999
Revenues:
<S> <C> <C>
Rental income $ 2,067 $ 4,004
Other income 153 412
Income from deficiency certificate settlement 91 91
Total revenues 2,311 4,507
Expenses:
Operating 651 1,376
General and administrative 154 457
Depreciation 434 859
Interest to promissory note holders 627 1,255
Property taxes 159 316
Total expenses 2,025 4,263
Net income $ 286 $ 244
Net income allocated to general partner (2%) $ 6 $ 5
Net income allocated to limited partners (98%) 280 239
$ 286 $ 244
Net income per limited partnership unit (61,814
units authorized and outstanding) $ 4.53 $3.87
</TABLE>
See Accompanying Notes to Financial Statements
<PAGE>
d)
CENTURY PROPERTIES FUND XX
STATEMENT OF CASH FLOWS
(Unaudited)
(in thousands, except unit data)
Six months Ended June 30, 1999
Cash flows from operating activities:
Net income $ 244
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation 859
Amortization of deferred charges 116
Deferred interest on non-recourse promissory notes 627
Change in accounts:
Receivables and deposits (1,012)
Other assets (113)
Accounts payable 8
Tenant security deposit liabilities (2)
Accrued property taxes 43
Accrued interest-promissory notes 627
Other liabilities (4)
Net cash provided by operating activities 1,393
Cash flows from investing activities:
Property improvements and replacements (162)
Lease commissions paid (53)
Net cash used in investing activities (215)
Cash flows used in financing activities:
Loan costs paid (390)
Net increase in cash and cash equivalents 788
Cash and cash equivalents at beginning of period 9,197
Cash and cash equivalents at end of period $9,985
See Accompanying Notes to Financial Statements
<PAGE>
e)
CENTURY PROPERTIES FUND XX
NOTES TO FINANCIAL STATEMENTS
(Unaudited)
Note A - Basis of Presentation
As of December 31, 1999, Century Properties Fund XX (the "Partnership" or
"Registrant") adopted the liquidation basis of accounting due to the imminent
loss of its remaining investment properties.
The Partnership's Nonrecourse Promissory Notes (the "Notes") of approximately
$18,342,000 in principal and accrued interest were in default due to nonpayment
upon maturity on November 30, 1998. The Notes are secured by a deed of trust on
all properties owned by the Partnership. The Promissory Notes bear interest at
eight percent per annum except that interest of up to four percent was deferred,
provided the Partnership made interest payments on the unpaid principal balance
of at least four percent per annum. The deferred interest does not bear
interest. Fox Capital Management Corporation ("FCMC" or the "Managing General
Partner"), the general partner of the Partnership's general partner, previously
contacted the indenture trustee for the Notes and certain holders of the Notes
regarding this default. On October 28, 1999 the Partnership entered into a
forbearance agreement with the indenture trustee for a period of 390 days. The
Trustee has indicated, however, that it will extend the forbearance period to
accommodate the completion of the sale of the Partnership's remaining property.
In turn, the Partnership agreed to (a) deliver to the indenture trustee for the
benefit of the note holders all of the accumulated cash of the Partnership, less
certain reserves and anticipated operating expenses, (b) market all of its
properties for sale, (c) deliver all cash proceeds from any sales to the
indenture trustee until the notes are fully satisfied and (d) comply with the
reporting requirements under the indenture. Based on the proceeds received to
date from sales of Partnership assets and the anticipated net proceeds from the
sale of the Partnership's remaining property, it is unlikely the sales of the
Partnership's assets will generate sufficient proceeds to pay off the
Nonrecourse Promissory Notes in full. If the Partnership cannot sell its
property for sufficient value, in accordance with the terms of the forbearance
agreement, it is likely that the Partnership will lose its property through
delivery to an auctioneer who would sell the assets for the benefit of the Note
holders.
As a result of the decision to liquidate the Partnership, the Partnership
changed its basis of accounting for its financial statements at December 31,
1999, to the liquidation basis of accounting. Consequently, assets have been
valued at estimated net realizable value and liabilities are presented at their
estimated settlement amounts. The valuation of assets and liabilities
necessarily requires many estimates and assumptions and there are substantial
uncertainties in carrying out the liquidation. The actual realization of assets
and settlement of liabilities could be higher or lower than amounts indicated
and is based upon the Managing General Partner's estimates as of the date of the
financial statements.
Included in liabilities in the statement of net assets in liquidation as of June
30, 2000 is approximately $391,000 of costs, net of income, that the Managing
General Partner estimates will be incurred during the period of liquidation
based on the assumption that the liquidation process will be completed by
December 31, 2000. Because the success in realization of assets and the
settlement of liabilities is based on the Managing General Partner's best
estimates, the liquidation period may be shorter than projected or it may be
extended beyond the projected period.
<PAGE>
Note B - Transfer of Control
Pursuant to a series of transactions which closed on October 1, 1998 and
February 26, 1999, Insignia Financial Group, Inc. and Insignia Properties Trust
merged into Apartment Investment and Management Company ("AIMCO"), a publicly
traded real estate investment trust, with AIMCO being the surviving corporation
(the "Insignia Merger"). As a result, AIMCO acquired 100% ownership interest in
the Managing General Partner. The Managing General Partner does not believe that
this transaction has had or will have a material effect on the affairs and
operations of the Partnership.
Note C - Transactions with Affiliated Parties
The Partnership has no employees and is dependent on the Managing General
Partner and its affiliates for the management and administration of all
partnership activities. The Partnership Agreement provides for certain payments
to affiliates for services and as reimbursement of certain expenses incurred by
affiliates on behalf of the Partnership.
The following transactions with affiliates of the Managing General Partner were
incurred during the six month periods ended June 30, 2000 and 1999:
2000 1999
(in thousands)
Property management fees (included in operating expenses) $ 74 $ 78
Reimbursement for services of affiliates (included in
investment properties, operating and general
and administrative expenses) 76 87
During the six months ended June 30, 2000 and 1999, affiliates of the Managing
General Partner were entitled to receive 5% of gross receipts from both of the
Partnership's residential properties as compensation for providing property
management services. The Partnership paid to such affiliates approximately
$74,000 and $78,000 for the six months ended June 30, 2000 and 1999,
respectively. For the Partnership's commercial properties, these services were
provided by an unrelated party for the six month periods ended June 30, 2000 and
1999.
Affiliates of the Managing General Partner received reimbursement of accountable
administrative expenses amounting to approximately $76,000 and $87,000 for the
six months ended June 30, 2000 and 1999, respectively.
AIMCO and its affiliates currently own 3,601 limited partnership units in the
Partnership representing 5.826% of the outstanding units. A number of these
units were acquired pursuant to tender offers made by AIMCO or its affiliates.
It is possible that AIMCO or its affiliates will make one or more additional
offers to acquire additional limited partnership interests in the Partnership
for cash or in exchange for units in the operating partnership of AIMCO. Under
the Partnership Agreement, unitholders holding a majority of the Units are
entitled to take action with respect to a variety of matters. When voting on
matters, AIMCO would in all likelihood vote the Units it acquired in a manner
favorable to the interest of the Managing General Partner because of their
affiliation with the Managing General Partner.
<PAGE>
Note D - Contingency
On January 24, 1990, a settlement agreement was executed by and between the
Partnership and certain defendants in connection with legal proceedings at
Commonwealth Centre. Lincoln Property Company ("Lincoln"), one of the
defendants, provided the Partnership with a deficiency certificate totaling
$1,250,000 pursuant to Lincoln's company-wide debt restructuring plan. Effective
December 31, 1994, the obligators under this collateral pool agreement exercised
their right to extend the maturity date of the deficiency certificates to
December 31, 1997. The senior obligators have accepted an offer to settle the
outstanding amounts due from Lincoln at a discounted rate. The Managing General
Partner was obligated to accept the initial settlement which equated to
approximately $256,000. Prior to this settlement, the Partnership had not
recorded a receivable on the financial statements due to the uncertainty of
receiving any funds. The initial settlement related to the cash collateral pool,
and the Partnership received further funds of approximately $45,000 during the
remaining months of 1998 as well as approximately $91,000 during the six months
ended June 30, 1999. It is anticipated that the Partnership will not receive any
additional funds from the settlement.
With receipt of this settlement, the Partnership has recorded income from the
settlement in the financial statements. The current settlement relates to the
cash available to distribute in the collateral pool.
Note E - Segment Reporting
Description of the types of products and services from which the reportable
segment derives its revenues:
The Partnership has one remaining reportable segment: one commercial property.
The commercial property segment consists of one office complex in North
Carolina. The Partnership leases office space for terms that typically exceed
one year. The properties in the residential property segment were sold during
the six months ended June 30, 2000. Effective December 31, 1999, the Partnership
adopted the liquidation basis of accounting (see "Note A - Basis of
Presentation"). As a result, segment information is only provided for the three
and six month periods ended June 30, 1999.
Measurement of segment profit or loss:
The Partnership evaluates performance based on segment profit (loss) before
depreciation. The accounting policies of the reportable segment are the same as
those of the Partnership as described in Partnership's Annual Report on Form
10-KSB for the year ended December 31, 1999.
Factors management used to identify the enterprise's reportable segment:
The Partnership's reportable segment consists of investment properties that
offer different products and services. The reportable segments are each managed
separately because they provide distinct services with different types of
products and customers.
<PAGE>
Segment information for the three and six month periods ended June 30, 1999 is
shown in the tables below (in thousands). The "Other" column includes
partnership administration related items and income and expense not allocated to
the reportable segments.
<TABLE>
<CAPTION>
Three months ended
June 30, 1999 Residential Commercial Other Totals
<S> <C> <C> <C> <C>
Rental income $ 731 $ 1,336 $ -- $ 2,067
Other income 30 5 118 153
Income from settlement -- -- 91 91
Interest expense -- -- 627 627
Depreciation 115 319 -- 434
General and administrative
expense -- -- 154 154
Segment profit (loss) 306 552 (572) 286
Six months ended
June 30, 1999 Residential Commercial Other Totals
Rental income $ 1,455 $ 2,549 $ -- $ 4,004
Other income 57 7 348 412
Income from settlement -- -- 91 91
Interest expense -- -- 1,255 1,255
Depreciation 230 629 -- 859
General and administrative
expense -- -- 457 457
Segment profit (loss) 583 934 (1,273) 244
Total assets 11,033 21,911 10,148 43,092
Capital expenditures for
investment properties 120 39 -- 159
</TABLE>
Note F - Sale of Investment Properties
On March 27, 2000, the Partnership sold Linpro Park to an unaffiliated party for
$9,500,000. The net sales proceeds of approximately $9,002,000 were wired
directly to the Indenture Trustee as required by the forbearance agreement.
On April 7, 2000, the Partnership sold The Corners Apartments to an unaffiliated
third party for approximately $4,000,000. The net sales proceeds of
approximately $3,712,000 were wired directly to the Indenture Trustee as
required by the forbearance agreement.
On May 8, 2000, the Partnership sold Metcalf 103 Office Park to an unaffiliated
third party for approximately $3,120,000. The net sales proceeds of $2,878,000
were wired directly to the Indenture Trustee as required by the forbearance
agreement.
On June 20, 2000 the Partnership sold Harbor Club Downs for approximately
$11,000,000. The net sales proceeds of approximately $10,200,000 were wired
directly to the Indenture Trustee as required by the forbearance agreement.
Note G - Legal Proceedings
In March 1998, several putative unit holders of limited partnership units of the
Partnership commenced an action entitled Rosalie Nuanes, et al. v. Insignia
Financial Group, Inc., et al. in the Superior Court of the State of California
for the County of San Mateo. The plaintiffs named as defendants, among others,
the Partnership, its Managing General Partner and several of their affiliated
partnerships and corporate entities. The action purports to assert claims on
behalf of a class of limited partners and derivatively on behalf of a number of
limited partnerships (including the Partnership) which are named as nominal
defendants, challenging the acquisition of interests in certain general partner
entities by Insignia Financial Group, Inc. ("Insignia") and entities which were,
at one time, affiliates of Insignia; past tender offers by the Insignia
affiliates to acquire limited partnership units; the management of partnerships
by the Insignia affiliates; and the Insignia Merger. The plaintiffs seek
monetary damages and equitable relief, including judicial dissolution of the
Partnership. On June 25, 1998, the Managing General Partner filed a motion
seeking dismissal of the action. In lieu of responding to the motion, the
plaintiffs have filed an amended complaint. The Managing General Partner filed
demurrers to the amended complaint which were heard February 1999.
Pending the ruling on such demurrers, settlement negotiations commenced. On
November 2, 1999, the parties executed and filed a Stipulation of Settlement,
settling claims, subject to final court approval, on behalf of the Partnership
and all limited partners who owned units as of November 3, 1999. Preliminary
approval of the settlement was obtained on November 3, 1999 from the Court, at
which time the Court set a final approval hearing for December 10, 1999. Prior
to the December 10, 1999 hearing, the Court received various objections to the
settlement, including a challenge to the Court's preliminary approval based upon
the alleged lack of authority of prior lead counsel to enter the settlement. On
December 14, 1999, the Managing General Partner and its affiliates terminated
the proposed settlement. In February 2000, counsel for some of the named
plaintiffs filed a motion to disqualify plaintiff's lead and liaison counsel who
negotiated the settlement. On June 27, 2000, the Court entered an order
disqualifying them from the case. The Court will entertain applications for lead
counsel which must be filed by August 4, 2000. The Court has scheduled a hearing
on August 21, 2000 to address the issue of appointing lead counsel. The Managing
General Partner does not anticipate that costs associated with this case will be
material to the Partnership's overall operations.
The Partnership is unaware of any other pending or outstanding litigation that
is not of a routine nature arising in the ordinary course of business.
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATIONS
The matters discussed in this Form 10-QSB contain certain forward-looking
statements and involve risks and uncertainties (including changing market
conditions, competitive and regulatory matters, etc.) detailed in the
disclosures contained in this Form 10-QSB and the other filings with the
Securities and Exchange Commission made by the Partnership from time to time.
The discussion of the Partnership's business and results of operations,
including forward-looking statements pertaining to such matters, does not take
into account the effects of any changes to the Registrant's business and results
of operations. Accordingly, actual results could differ materially from those
projected in the forward-looking statements as a result of a number of factors,
including those identified herein.
The Partnership's investment property consists of one business park. The
following table sets forth the average occupancy of the property for the six
months ended June 30, 2000 and 1999:
Average Occupancy
Property 2000 1999
Highland Park Commerce Center (1) 84% 91%
Charlotte, North Carolina
(1) The decrease in occupancy at Highland Park Commerce Center is due to the
loss of seven tenants over the past twelve months occupying 17,885 square
feet, which represents approximately 16% of the total space.
As of December 31, 1999, Century Properties Fund XX (the "Partnership" or
"Registrant") adopted the liquidation basis of accounting due to the imminent
loss of its remaining investment properties. Pursuant to the terms of the Notes,
the Partnership was required to pay interest at a rate of 4% per annum on the
Notes, and accrue the additional 4% per annum due on the Notes. The Notes are
secured by the Partnership's property. The Notes, which had a balance of
principal and accrued interest of approximately $18,342,000 at June 30, 2000,
matured on November 30, 1998. As a result, the Partnership is currently in
default under the Nonrecourse Promissory Notes. On October 28, 1999 the
Partnership entered into a forbearance agreement with the indenture trustee for
a period of 390 days. In turn, the Partnership agreed to (a) deliver to the
indenture trustee for the benefit of the note holders all of the accumulated
cash of the Partnership, less certain reserves and anticipated operating
expenses, (b) market all of its properties for sale, (c) deliver all cash
proceeds from any sales to the indenture trustee until the notes are fully
satisfied and (d) comply with the reporting requirements under the indenture.
Based on the proceeds received to date from sales of Partnership assets and the
anticipated net proceeds from the sale of the Partnership's remaining property.
It is unlikely the sales of the Partnership's assets will generate sufficient
proceeds to pay off the Nonrecourse Promissory Notes in full. If the Partnership
cannot sell its properties for sufficient value, in accordance with the terms of
the forbearance agreement, it is likely that the Partnership will lose its
properties through delivery to an auctioneer who would sell the assets for the
benefit of the Note holders.
As a result of the decision to liquidate the Partnership, the Partnership
changed its basis of accounting for its financial statements at December 31,
1999 to the liquidation basis of accounting. Consequently, assets have been
valued at estimated net realizable value and liabilities are presented at their
estimated settlement amounts. The valuation of assets and liabilities
necessarily requires many estimates and assumptions and there are substantial
uncertainties in carrying out the liquidation. The actual realization of assets
and settlement of liabilities could be higher or lower than amounts indicated
and is based upon the Managing General Partner's estimates as of the date of the
financial statements.
<PAGE>
Included in liabilities in the statement of net assets in liquidation as of June
30, 2000 is approximately $391,000 of costs, net of income, that the Managing
General Partner estimates will be incurred during the period of liquidation
based on the assumption that the liquidation process will be completed by
December 31, 2000. Because the success in realization of assets and the
settlement of liabilities is based on the Managing General Partner's best
estimates, the liquidation period may be shorter than projected or it may be
extended beyond the projected period.
On March 27, 2000, the Partnership sold Linpro Park to an unaffiliated party for
$9,500,000. The net sales proceeds of approximately $9,002,000 were wired
directly to the Indenture Trustee as required by the forbearance agreement.
On April 7, 2000, the Partnership sold The Corners Apartments to an unaffiliated
third party for approximately $4,000,000. The net sales proceeds of
approximately $3,712,000 were wired directly to the Indenture Trustee as
required by the forbearance agreement.
On May 8, 2000, the Partnership sold Metcalf 103 Office Park to an unaffiliated
third party for approximately $3,120,000. The net sales proceeds of
approximately $2,878,000 were wired directly to the Indenture Trustee as
required by the forbearance agreement.
On June 20, 2000 the Partnership sold Harbor Club Downs for approximately
$11,000,000. The net sales proceeds of approximately $10,200,000 were wired
directly to the Indenture Trustee as required by the forbearance agreement.
As part of the ongoing business plan of the Partnership, the Managing General
Partner monitors the rental market environment of its remaining investment
property to assess the feasibility of increasing rents, maintaining or
increasing occupancy levels and protecting the Partnership from increases in
expenses. As part of this plan, the Managing General Partner attempts to protect
the Partnership from the burden of inflation-related increases in expenses by
increasing rents and maintaining a high overall occupancy level. However, due to
changing market conditions, which can result in the use of rental concessions
and rental reductions to offset softening market conditions, there is no
guarantee that the Managing General Partner will be able to sustain such a plan.
The following is a general description of the tax consequences that may result
to a limited partner upon the sale of the Partnership's remaining property. Each
limited partner should consult with his or her own tax advisor to determine his
or her particular tax consequences. The taxable gain and income resulting from
the sale of the Partnership's property will pass through to the limited
partners, and will likely result in income tax liability to the limited partners
without any distribution of cash from the Partnership.
Highland Park Commerce Center
During the six months ended June 30, 2000, the Partnership completed
approximately $46,000 of capital improvements at Highland Park Commerce Center
consisting primarily of tenant improvements. The property is currently being
marketed for sale; therefore, no funds have been budgeted for capital
improvements for the year 2000. Capital improvements will be made as necessary
until the property is sold.
<PAGE>
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
In March 1998, several putative unit holders of limited partnership units of the
Partnership commenced an action entitled Rosalie Nuanes, et al. v. Insignia
Financial Group, Inc., et al. in the Superior Court of the State of California
for the County of San Mateo. The plaintiffs named as defendants, among others,
the Partnership, its Managing General Partner and several of their affiliated
partnerships and corporate entities. The action purports to assert claims on
behalf of a class of limited partners and derivatively on behalf of a number of
limited partnerships (including the Partnership) which are named as nominal
defendants, challenging the acquisition of interests in certain general partner
entities by Insignia Financial Group, Inc. ("Insignia") and entities which were,
at one time, affiliates of Insignia; past tender offers by the Insignia
affiliates to acquire limited partnership units; the management of partnerships
by the Insignia affiliates; and the Insignia Merger. The plaintiffs seek
monetary damages and equitable relief, including judicial dissolution of the
Partnership. On June 25, 1998, the Managing General Partner filed a motion
seeking dismissal of the action. In lieu of responding to the motion, the
plaintiffs have filed an amended complaint. The Managing General Partner filed
demurrers to the amended complaint which were heard February 1999.
Pending the ruling on such demurrers, settlement negotiations commenced. On
November 2, 1999, the parties executed and filed a Stipulation of Settlement,
settling claims, subject to final court approval, on behalf of the Partnership
and all limited partners who owned units as of November 3, 1999. Preliminary
approval of the settlement was obtained on November 3, 1999 from the Court, at
which time the Court set a final approval hearing for December 10, 1999. Prior
to the December 10, 1999 hearing, the Court received various objections to the
settlement, including a challenge to the Court's preliminary approval based upon
the alleged lack of authority of prior lead counsel to enter the settlement. On
December 14, 1999, the Managing General Partner and its affiliates terminated
the proposed settlement. In February 2000, counsel for some of the named
plaintiffs filed a motion to disqualify plaintiff's lead and liaison counsel who
negotiated the settlement. On June 27, 2000, the Court entered an order
disqualifying them from the case. The Court will entertain applications for lead
counsel which must be filed by August 4, 2000. The Court has scheduled a hearing
on August 21, 2000 to address the issue of appointing lead counsel. The Managing
General Partner does not anticipate that costs associated with this case will be
material to the Partnership's overall operations.
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
a) Exhibits:
Exhibit 10.6, Purchase and Sale Contract between Registrant and
Galaxy Investments, Inc., an unrelated Delaware Corporation,
effective March 27, 2000, regarding the sale of Linpro Park.
Exhibit 10.7, Purchase and Sale Contract between Registrant and
Pennsylvania Realty Group, Inc., an unrelated Pennsylvania
Corporation, effective April 7, 2000, regarding the sale of The
Corners Apartments.
Exhibit 10.8, Amendment to Purchase and Sale Contract between
Registrant and Pennsylvania Realty Group, Inc., an unrelated
Pennsylvania Corporation, effective April 7, 2000, regarding the
sale of The Corners Apartments.
Exhibit 10.9, Second Amendment to Purchase and Sale Contract
between Registrant and Pennsylvania Realty Group, Inc., an
unrelated Pennsylvania Corporation, effective April 7, 2000,
regarding the sale of The Corners Apartments.
Exhibit 10.10, Third Amendment to Purchase and Sale Contract
between Registrant and Pennsylvania Realty Group, Inc., an
unrelated Pennsylvania Corporation, effective April 7, 2000,
regarding the sale of The Corners Apartments.
Exhibit 10.11, Purchase and Sale Contract between Registrant and
Chambers & Associates Commercial Real Estate Services, L.L.C., an
unrelated Kansas limited liability company, effective May 8,
2000, regarding the sale of Metcalf Office Park.
Exhibit 10.12, Amendment to Purchase and Sale Contract between
Registrant and Chambers & Associates Commercial Real Estate
Services, L.L.C., an unrelated Kansas limited liability company,
effective May 8, 2000, regarding the sale of Metcalf Office Park.
Exhibit 10.13, Second Amendment to Purchase and Sale Contract
between Registrant and Chambers & Associates Commercial Real
Estate Services, L.L.C., an unrelated Kansas limited liability
company, effective May 8, 2000, regarding the sale of Metcalf
Office Park.
Exhibit 10.14, Third Amendment to Purchase and Sale Contract
between Registrant and Chambers & Associates Commercial Real
Estate Services, L.L.C., an unrelated Kansas limited liability
company, effective May 8, 2000, regarding the sale of Metcalf
Office Park.
Exhibit 10.15, Agreement of Purchase Agreement and Assumption
between Chambers & Associates Commercial Real Estate Services,
L.L.C., and Metcalf Associates-2000, L.L.C., dated April 7,
2000, regarding the sale of Metcalf Office Park.
Exhibit 10.16, Purchase and Sale Contract between Registrant and
Housing Systems, Inc., an unrelated Georgia Corporation,
effective June 20, 2000, regarding the sale of Harbor Club Downs.
Exhibit 10.17, Amendment to Purchase and Sale Contract between
Registrant and Housing Systems, Inc., an unrelated Georgia
Corporation, effective June 20, 2000, regarding the sale of
Harbor Club Downs.
Exhibit 27, Financial Data Schedule, is filed as an exhibit to
this report.
b) Reports on Form 8-K:
None filed during the quarter ended June 30, 2000.
<PAGE>
SIGNATURES
In accordance with the requirements of the Exchange Act, the Registrant caused
this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
CENTURY PROPERTIES FUND XX
By: FOX PARTNERS III
Its General Partner
By: FOX CAPITAL MANAGEMENT CORPORATION
Its Managing General Partner
By: /s/Patrick J. Foye
Patrick J. Foye
Executive Vice President
By: /s/Martha L. Long
Martha L. Long
Senior Vice President
and Controller
Date:
<PAGE>
Exhibit 10.6
PURCHASE AND SALE CONTRACT
BETWEEN
CENTURY PROPERTIES FUND XX,
a California limited partnership
AS SELLER
AND
GALAXY INVESTMENTS, INC.,
a Delaware corporation
AS PURCHASER
<PAGE>
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT ("Purchase Contract") is entered into as
of the 27th day of January, 2000 (the "Effective Date") by and between CENTURY
PROPERTIES FUND XX, a California limited partnership, having a principal address
at Tower Two, 2000 South Colorado Boulevard, Suite 2-1000, Denver, Colorado
80222 ("Seller") and GALAXY INVESTMENTS, INC., a Delaware corporation, having a
principal address at 560 Herndon Parkway, Suite 210, Herndon, Virginia 20170
("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 Fairfax County,
Virginia, 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 limited
warranty 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 Commonwealth of Virginia.
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.
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
Exhibit1.1.7.
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 Commonwealth of Virginia 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
issued 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, 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 Nine
Million Five Hundred Thousand Dollars ($9,500,000.00), which shall be paid by
Purchaser, as follows:
3.1.1 On the date hereof, Purchaser shall deliver to Commercial Title Group,
Ltd. ("Escrow Agent" or the "Title Insurer") a deposit in the sum of One Hundred
Thousand and no/100 Dollars ($100,000.00), in cash, (such sum being hereinafter
referred to and held as the "Deposit"). Purchaser and Seller each approve the
form of Escrow Agreement attached as Exhibit B.
3.1.2 On 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 One Hundred Thousand and no/100 Dollars
($100,000.00), 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 (or credited
against the Purchase Price), 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 February 29, 2000 if the Effective
Date is January 19, 2000, but in no event later than February 25, 2000 from the
date hereof through March 6, 2000 (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, and Seller shall use reasonable efforts to cooperate with Purchaser:
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 other
than Seller's proprietary information, including, without limitation, auditing
the Property books and records.
5.1.4 To review all Materials (as hereinafter
defined). During the Feasibility Period, Seller will also furnish to Purchaser
such additional information in Seller's possession or control (other than
Seller's proprietary information) which Purchaser may reasonably request with
respect to the Property, or the operations of the Property.
5.2 Should the results of any of the matters referred to in sub-paragraphs 5.1.,
5.1.2, 5.1.3 and 5.14 above appear unsatisfactory to Purchaser for any reason,
then Purchaser shall have the right to terminate this Purchase Contract by
giving written Notice to that effect to Seller and Escrow Agent on or before
5:00 p.m. EST on or before 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 then 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 to be conditions precedent to this Purchase
Contract.
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.
Purchaser shall maintain casualty insurance and comprehensive public liability
insurance with broad form contractual and personal injury liability endorsements
with respect to the Property and Purchaser's activities carried on therein, in
amounts (including deductible amounts) and with such insurance carriers as shall
be approved by Seller and naming Seller and its affiliates as loss payees or
additional insureds (at the option of Seller), with endorsements acceptable to
Seller, including a waiver of defenses of the insurer based on the actions or
inaction of Purchaser (which insurance must be reasonably approved by Seller).
Such liability insurance shall provide coverages of not less than $1,000,000.00
for injury or death to any one person and $1,500,000.00 for injury or death to
more than one person and $500,000.00 with respect to property damage, by water
or otherwise). The 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 Purchaser shall only divulge such information to
its Consultants, agents and employees, and any third parties engaged by
Purchaser as reasonably necessary 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 three (3) calendar days from the
Effective Date copies of all leases, including all Commercial Leases and a rent
roll, contracts, Property Contracts, engineering studies, surveys and other
materials described on Exhibit 5.5 attached hereto (collectively, 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 ten (10) calendar days,
return all such Materials to Seller.
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 Commercial Title Group, Ltd. ("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, Owner title policy and new survey or Survey update, but each party
shall be responsible for its own legal fees, consultant fees and inspection
costs. In addition, Purchaser agrees to pay the cancellation fees of Fidelity
National Title Company in an amount not to exceed $700.00, for title work on the
Property previously ordered by Seller.
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, which must be approved by
Purchaser during the Feasibility Period, all of which shall be deemed "Permitted
Exceptions" and Purchaser agrees to accept the deed and title subject thereto:
6.2.1 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 The rights of
Tenants, as Tenants only, under all Commercial Leases; and
6.2.3 All Property
Contracts and any other existing contracts created in the ordinary course of
business by Seller, which are not identified for termination by Purchaser during
the Feasibility Period; and
6.2.4 Real estate and property taxes for the
calendar year in which closing occurs to the extent not due and payable; and
6.2.5 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 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 deleted;
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 disapproved by Purchaser. Seller, at its sole option,
and upon notice to Purchaser, may elect to cure any objection or unfulfilled
condition. If Seller makes such election, then Purchaser and Seller shall delay
the closing for a reasonable period of time for Seller to cure any such title
objection, such period not to exceed thirty (30) calendar days. Should Seller be
able to cure such title objection or condition 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 during the period of cure Seller is unable or unwilling, in its sole
discretion or opinion, to eliminate such title objection 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 that
have been approved in writing by Purchaser in the ordinary course of business
with Purchaser's prior written consent, which consent may not be unreasonably
withheld, conditioned or delayed; 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. If during
the Feasibility Period Purchaser unreasonably disapproves of any proposed action
in connection with Commercial Leases (as determined by Seller in its reasonable
discretion), Seller shall have the option to terminate this Purchase Contract
upon five (5) days written notice to Purchaser. Upon Purchaser's receipt of such
termination notice, Purchaser shall have the right to either accept the
termination (in which case the Deposit and Additional Deposit shall be returned
to Purchaser and neither party shall have any obligation to the other, except as
expressly set forth herein for provisions which survive termination), or
Purchaser may approve the proposed action (which was previously disapproved),
and permit the Purchase Contract to continue. If notice of approval of the
proposed action is not delivered to Seller within five (5) days after
Purchaser's receipt of the termination notice, Purchaser shall be deemed to have
accepted Seller's termination. Seller shall not have the foregoing right of
termination after the expiration of the Feasibility Period. Except as expressly
provided above and in Section 8.1.1.12, 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 approved in writing by Purchaser.
6.11 Intentionally deleted.
6.12 Seller shall deliver to Purchaser a copy of the survey prepared by Dewberry
& Davis in March 1999 ("Survey"). Purchaser at Purchaser's sole cost and
expense, may cause to be prepared an update of the Survey or, at Purchaser's
sole cost and expense, a new survey, and Purchaser may at Purchaser's sole cost
and expense, cause to be prepared an environmental report for the Property
("Environmental Report").
6.12.1 Purchaser shall have the right to object to any matter shown on the
Survey within the Feasibility Period in accordance with the procedures set forth
in ARTICLE 5 and 6 above.
6.12.2 Pursuant to the payment terms of Section 6.1 hereof, Purchaser agrees to
make payment in full of all costs of obtaining any update to the Survey or any
new survey 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 thirty (30) calendar days after the
expiration of the Feasibility Period, 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 to Escrow Agent by overnight air
courier, U.S. mail or other means.
7.1.2 The Closing Date may be extended without penalty at the option of Seller
to a date not later than thirty (30) days following the Closing Date specified
above to satisfy a condition to be satisfied by Seller, or such later date as is
mutually acceptable to Seller and Purchaser. Provided Purchaser is not in
default of the terms hereunder, Purchaser may extend the Closing Date at its
option, for any reason or for no reason, to a date not later than thirty (30)
days following the Closing Date, upon Purchaser's advance written notice to
Seller to exercise such option and Purchaser's delivery of an additional deposit
in the amount of One Hundred Thousand Dollars ($100,000.00) by 5:00 p.m. E.S.T.
at the end of the Feasibility Period, which amount shall be added to the sum of
the Initial Deposit and Additional Deposit and shall be subject to the terms of
Sections 3.1.3, 3.1.4 and 3.1.5 hereof.
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 and interest
earned thereon, if any, shall be transferred by Seller to Purchaser at the
Closing. Seller shall pay at Closing any accrued but unpaid tenant improvement
allowances and l easing commissions under Commercial Leases executed prior to
the Effective Date. Purchaser shall assume or pay at Closing any tenant
improvement allowances and leasing commissions under Commercial Leases approved
in writing by Purchaser and executed after the Effective Date, together with any
payments due parties under the Property Contracts assumed by Purchaser and
approved in writing 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 sixty (60) days after the Closing Date; provided, however, the Proration
Period for prorating property taxes shall continue until sixty (60) days after
the tax bills for the applicable period are received. 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.
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 prorated and
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, to the period of time before the Closing Date. If
Delinquent Rent or any portion thereof received by 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 provided further, in no event will
Purchaser be deemed to have acted unreasonably if it doesn't consent to eviction
proceedings against Tenant), 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 Virginia Grantor's tax. Purchaser shall pay the cost of all
other transfer taxes (including, without limitation, the state recordation tax
and the Fairfax County recordation tax), excise taxes, recordation taxes,
grantor's 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,
and each party shall pay for its own legal fees.
7.2 Items To Be Delivered Prior To Or At Closing.
7.2.1 Seller. At Closing, Seller shall deliver to Purchaser, each of the
following items, all of which shall constitute conditions precedent to
Purchaser's obligation to close hereunder:
7.2.1.1 Special Warranty deed in the form attached as Exhibit 7.2.1.1 to
Purchaser. The acceptance of the 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, 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,
including, without limitation, of 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, in the form set forth on Exhibit 7.2.1.5 attached
hereto, 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 A rent roll certified to the best of Seller's knowledge, to be true and
correct as of the date of Closing.
7.2.1.8 Original notice of sale letters,
executed by Seller in form and substance satisfactory to Purchaser, advising
Tenants under the Commercial Leases of the sale of the Property to Purchaser and
directing that all rents and other payments thereafter becoming due be sent to
Purchaser or as Purchaser may direct.
7.2.1.9 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.
7.2.1.10 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. To the extent any
deposits are in a form other than cash, if any, such deposits shall be
transferred by Seller to Purchaser at Closing in a manner reasonably acceptable
to Purchaser.
7.2.1.11 An original resolution of Seller authorizing the
execution of this Purchase Contract, the conveyance documents and all other
documents to be executed by Seller and the performance by Seller hereunder and
thereunder together with a good standing certificate of Seller.
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.
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, Warranties and Covenants 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 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;
8.1.1.8 To the best of Seller's knowledge, as of
the date of the Agreement there are no leases, subleases, licenses or other
rental agreements or occupancy agreements (written or verbal) which grant any
possessory interest in and to any space situated on or in any of the Property or
that otherwise give rights with regard to use of any portions of any of the
Property other than the Commercial Leases delivered pursuant to Article 5;
8.1.1.9 To the best of Seller's knowledge, neither the entering into of this
Purchase Contract nor the consummation of the transaction contemplated hereby
will constitute or result in a violation or breach by Seller of any judgment,
order, writ, injunction or decree issued against or imposed upon it.
8.1.1.10 To
the best of Seller's knowledge, Seller has not received written notice: (a) from
any federal, state, county or municipal authority alleging any material fire,
health, safety, building, pollution, environmental, zoning or other violation of
law in respect of the Property or any part thereof, including, without
limitation, the occupancy or operation thereof, which has not been corrected;
(b) concerning the possible or anticipated condemnation of any part of the
Property, or the widening, change of grade or limitation on use of streets
abutting the same or concerning any special taxes or assessments levied or to be
levied against the Property or any part thereof; (c) concerning any change in
the zoning classification of the Property or any part thereof.
Pursuant to the foregoing, if any such notice is received prior to
the Closing, Seller shall promptly notify Purchaser thereof.
8.1.1.11 After the
expiration of the Feasibility Period, Seller shall continue to operate and
maintain the Property in accordance with Seller's past practices. Provided
Purchaser is not in default of the terms of this Purchase Contract, after the
expiration of the Feasibility Period until the Closing, Seller will not enter
into any agreements which survive the Closing Date without Purchaser's written
consent, which consent may be granted or withheld in Purchaser's sole
discretion. Provided Purchaser is not in default of the terms of this Purchase
Contract, after the expiration of the Feasibility Period until the Closing,
Seller shall not permit the modification, alteration, amendment, extension,
renewal, termination or cancellation of any Commercial Lease (except in
accordance with the terms of such Commercial Lease) without the prior written
consent of Purchaser, which consent may be granted or withheld in Purchaser's
sole discretion.
8.1.1.12 If Seller receives written notice from any federal, state, county or
municipal authority alleging any violation of law in respect of the Property
which has not previously been remedied, Seller agrees to use diligent efforts to
remedy such violation; provided, however, that Seller shall not be required to
expend more than Ten Thousand Dollars ($10,000.00) in the aggregate under the
foregoing covenant.
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 or Broker or statements, representations or
warranties, express or implied, made by or enforceable directly against Seller
or 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 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. 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, except as otherwise expressly stated
in this Agreement. 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). Seller agrees that if prior to the Closing Seller becomes aware
that any representation or warranty contained in Section 8.1 becomes untrue,
Seller agrees to provide Purchaser with written notice thereof (the "Seller
Breach Notice") on a timely basis, and Purchaser shall have seven (7) calendar
days after receipt of the Seller's Breach Notice to terminate this Purchase
Contract. If Purchaser does not provide a written termination notice to Seller
within such seven (7) day period, Purchaser shall be deemed to have waived any
right of termination in connection therewith. If Purchaser elects to close this
Purchase Contract after receipt of any Seller Breach Notice, Purchaser shall be
deemed to have waived any right of recovery against Seller in connection with
such breach. In the event that Seller breaches any representation contained in
Section 8.1 and Purchaser had knowledge of such breach prior to Closing and did
not provide written disclosure of such knowledge and disapproval thereof prior
to Closing, Purchaser shall be deemed to have waived any right of recovery and
Seller shall not have any liability in connection therewith. 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 Patricia Proano,
general manager, SSR/Metric Property Management, (650) 756-7370.
8.2 Representations, Warranties and Covenants 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 Purchaser is corporation duly organized, validly existing and in good
standing under the laws of Delaware.
8.2.2.2 Purchaser, acting through any of its or their duly empowered and
authorized officers or members, has all necessary power and authority to own and
use its properties and to transact the business in which it is engaged, and has
full power and authority to enter into this Purchase Contract, to execute and
deliver the documents and instruments required of Purchaser herein, and to
perform its obligations hereunder; and no consent of any of Purchaser's officers
or members are required to so empower or authorize Purchaser.
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 is duly authorized to execute and deliver, acting through its
duly empowered and authorized officers and members, respectively, and perform
this Purchase Contract and all documents and instruments and transactions
contemplated hereby or incidental hereto, and such execution, delivery and
performance by Purchaser does not (i) violate any of the provisions of their
respective certificates of incorporation or bylaws, (ii) violate any provision
of any law, governmental rule or regulation currently in effect, (iii) violate
any judgment, decree, writ, injunction, award, determination or order currently
in effect that names or is specifically directed at Purchaser or its property,
and (iv) require the consent, approval, order or authorization of, or any filing
with or notice to, any court or other governmental authority.
8.2.2.5 The joinder of no person or entity other than Purchaser is necessary to
consummate the transactions to be performed by Purchaser and Purchaser has all
necessary right and authority to perform such acts as are required and
contemplated by this Purchase Contract.
8.2.3 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 Without limiting any of the rights of Purchaser provided herein, 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 Seller covenants that between
the Effective Date and the Closing Date, the following shall constitute
conditions precedent to Purchaser's obligation to close hereunder:
9.1.4.1
Seller shall use reasonable, good faith efforts to obtain estoppel certificates
from all tenants on the Property. Prior to the expiration of the Feasibility
Period, Seller shall deliver to Purchaser an estoppel certificate in the form
attached hereto as Exhibit 9.1.4.1 (the "Tenant Estoppels"), or in the form
described or contemplated in the lease, from tenants whose leases constitute in
the aggregate not less than seventy percent (70%) of the rentable square footage
of the Improvements, and which seventy percent (70%) must include a tenant
estoppel from Logicon (collectively, the "Minimum Tenant Estoppels Required");
provided, however, Seller's failure to deliver such Minimum Tenant Estoppels
Required shall permit Purchaser to terminate the Contract, but shall not
constitute a default or breach of this Purchase Contract by Seller. In addition
to delivery of the Minimum Tenant Estoppels Required, Seller agrees to deliver
to Purchaser at the Closing estoppels substantially in the form attached hereto
as Exhibit 9.1.4.1 executed by Seller (but limited to the best of Seller's
knowledge) for each tenant for which a tenant estoppel is not obtained (each, a
"Seller's Best Knowledge Estoppel"). Purchaser agrees that if after the Closing
Purchaser receives a tenant estoppel from any tenant for which Seller has given
a Seller's Best Knowledge Estoppel, the Seller's Best Knowledge Estoppel for
such tenant shall be voided and returned to Seller.
9.1.5 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 Seller.
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 If applicable,
Purchaser shall have produced evidence reasonably satisfactory to Seller of
Purchaser's compliance with Hart-Scott-Rodino Act requirements or of the
non-applicability thereof to the transactions contemplated by this Purchase
Contract.
ARTICLE 10
BROKERAGE
10.1 Seller represents and warrants to Purchaser that it has dealt only with
Pinnacle Realty Management Company, 7316 Wisconsin Avenue, Suite 300, Bethesda,
Maryland 20814-2925 ("Broker") in connection with this Purchase Contract. Seller
and Purchaser each represents and warrants to the other that other than Broker,
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.
10.2 Seller agrees to pay Broker a commission according to the terms of a
separate agreement. Broker shall not be deemed a party or third party
beneficiary of this Purchase Contract.
10.3 Broker assumes no responsibility for the condition of the Property or
representation for the performance of this Purchase Contract by the Seller or
Purchaser.
ARTICLE 11
POSSESSION
11.1 Possession 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
12.1 In the Event Purchaser terminates this Purchase Contract following the
Feasibility Period for any reason other than Seller's inability to convey title
as required by this Purchase Contract, or defaults hereunder 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.
12.2 Provided that Purchaser has not terminated this Purchase Contract and is
not otherwise in default hereunder, if the Closing does not occur as a result of
Seller's default hereunder, Purchaser's sole remedy shall be to elect to
terminate this Purchase Contract and receive reimbursement of the Deposit and
the Additional Deposit (or so much thereof as has been received by Escrow Agent)
or to seek specific performance of this Purchase Contract.
ARTICLE 13
RISK OF LOSS OR CASUALTY
13.1 The 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. If prior to the Closing, the Property or
any "material" portion thereof is damaged or destroyed by fire or casualty, then
Purchaser shall have the option, exercisable by written notice given to Seller
at or prior to the Closing, either to (a) terminate this Purchase Contract,
whereupon all obligations of all parties hereto shall cease, the Deposit and the
Additional Deposit shall be returned to Purchaser and this Purchase Contract
shall be void and without recourse to the parties hereto except for provisions
which are expressly stated to survive such termination; or (b) proceed with the
purchase of the Property, and in such case, unless Seller shall have previously
restored the Property to its condition prior to the occurrence of any such
damage or destruction, Seller shall pay over or assign to Purchaser, without
recourse, all amounts received or due (plus an amount equal to the sum of any
deductible under any insurance policy covering the Property) from, and all
claims against, any insurance company as a result of such destruction. Within
thirty (30) days after receipt of written notice of such casualty, Purchaser
will advise Seller in writing whether Purchaser desires to proceed with this
transaction in light of such casualty or condemnation. The term "material" as
used in this Section shall mean damage or destruction in an amount equal to or
greater than $500,000. Notwithstanding any of the foregoing, Seller shall not,
in any event, be obligated to effect any repair, replacement, and/or
restoration, but may do so at its option in which case Seller may apply the
insurance proceeds to the costs of restoration.
ARTICLE 14
RATIFICATION
14.1 This Purchase Contract shall be null and void unless fully executed by both
parties hereto on or before February 4, 2000.
ARTICLE 15
EMINENT DOMAIN
15.1 In the event that at the time of Closing all or any part of the Property is
(or has previously been) acquired, or is about to be acquired, by authority of
any governmental agency in purchase in lieu thereof (or in the event that at
such time there is any notice of any such acquisition 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
thirty (30) 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, and any
claims against any governmental entity as a result of such taking. 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 Purchaser, its shareholders,
officers or directors have an interest (including a participating interest) in
the purchasing entity, and Purchaser is not released from its liability
hereunder.
16.3 Binding Effect
This Purchase Contract shall be binding upon and inure to the benefit of
Seller and Purchaser, and their respective successors, heirs and permitted
assigns.
16.4 Captions
The captions, headings, and arrangements used in this Purchase Contract
are for convenience only and do not in any way affect, limit, amplify, or modify
the terms and provisions hereof.
16.5 Number And Gender Of Words
Whenever herein the singular number is used, the same shall include the
plural where appropriate, and words of any gender shall include each other
gender where appropriate.
16.6 Notices
All Notices, demands, requests and other communications required pursuant
to the provisions of this Purchase Contract ("Notice") shall be in writing and
shall be deemed to have been properly given or served for all purposes (i) if
sent by Federal Express or the nationally recognized overnight carrier for next
business day delivery, on the first business day following deposit of such
Notice with such carrier, or (ii) if personally delivered, on the actual date of
delivery or (iii) if sent by certified mail, return receipt requested postage
prepaid, on the Fifth (5th) business day following the date of mailing, or (iv)
if sent via facsimile, on the date sender obtains confirmation of delivery (with
a copy thereof also sent by first class mail), addressed as follows:
If to Seller: If to Purchaser:
Century Properties Fund XX Galaxy Investments, Inc..
Tower Two 560 Herndon Parkway
2000 South Colorado Boulevard Suite 210
Suite 2-1000 Herndon, Virginia 20170
Denver, Colorado 80222 Attn: Mr. Andrew J. Czekaj
Attn: Mr. Harry Alcock Facsimile No. _____________
Facsimile No. (303) 692-0786
And
With a copy to:
Argent Real Estate
1401 Brickell Avenue, Suite 520 Hale and Dorr LLP
Miami, Florida 33131 1455 Pennsylvania Avenue, NW
Attn: Mr. David Marquette Suite 1000
Facsimile No. (305) 371-6898 Washington D.C. 20004
Attn: Steven Snider, Esq.
Facsimile No. (202) 942-8484
With a copy to:
Loeb & Loeb
1000 Wilshire Boulevard, Suite
1800
Los Angeles, California 90017
Attn: Andrew S. Clare, Esq.
Karen N. Higgins, Esq.
Facsimile No. (213) 688-3460
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 Commonwealth of Virginia 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. Purchaser 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 unless otherwise
expressly included herein. Purchaser shall not in any way be entitled to rely
upon the accuracy of such information. Such information is also confidential and
except as otherwise provided for in Section 5.4 herein, 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. The
provisions of this Section 16.13 shall terminate upon the Closing.
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 in
the Commonwealth of Virginia, 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,
including without limitation all actual attorney's fees, 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 and shall reimburse Purchaser for any costs
thereof, including, without limitation, actual attorney's fees.
16.19 No Personal Liability of Officers, Trustees or directors of Seller's
Partners
Purchaser acknowledges that this Agreement 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 Agreement or any document executed in
connection with the transactions contemplated by this Agreement.
16.20 No Exclusive Negotiations
Seller shall have the right, at all times, until the Deposit becomes
non-refundable and the Feasibility Period has expired, 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 Agreement, 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 Agreement 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:
Signed, sealed and delivered CENTURY PROPERTIES FUND XX, a California
In the presence of: limited partnership
________________________ By: Fox Partners III, a California general
Witness partnership, general partner
------------------------
Witness By: Fox Capital Management Corporation,
general partner
By:
Its:
Signed, sealed and delivered Purchaser:
in the presence of:
GALAXY INVESTMENTS, INC., a Delaware
________________________ corporation
Witness
------------------------
Witness By:___________________________________
Andrew Czekaj, Its Authorized Officer
<PAGE>
VIRGINIA ACKNOWLEDGEMENTS
State of _____________, _____________ County, to wit:
I HEREBY CERTIFY that on _____________ __, 2000, before me, a Notary
Public of the State aforesaid, personally appeared ________________________, who
acknowledged himself/herself to be the ________________________ of Galaxy
Investments, Inc. (the "Corporation"), and that he/she, as such officer, being
authorized so to do, executed the foregoing instrument on behalf of the
Corporation for the purposes therein contained by signing the name of the
Corporation by himself/herself as such officer.
WITNESS my hand and Notarial Seal.
-------------------------
Notary Public
My Commission Expires:
State of _____________, _____________ County, to wit:
I HEREBY CERTIFY that on _____________ __, 2000, before me, a Notary
Public of the State aforesaid, personally appeared ________________________, who
acknowledged himself/herself to be the ________________________ of Fox Capital
Management Corporation. (the "Corporation"), and that he/she, as such officer,
being authorized so to do, executed the foregoing instrument on behalf of the
Corporation acting in its capacity as general partner of Fox Partners III, a
California general partnership, general partner of CENTURY PROPERTIES FUND XX, a
California limited partnership, for the purposes therein contained by signing
the name of the Corporation by himself/herself as such officer.
WITNESS my hand and Notarial Seal.
-------------------------
Notary Public
My Commission Expires:
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION FOR LINPRO OFFICE BUILDING
Tract 1
All that tract of land situate in the County of Fairfax, Virginia, and more
particularly described as follows:
Parcel 1-B, being part of Block 1, Section 911, Reston, containing 4.41172 acres
as the same appears duly dedicated, platted and resubdivided in Deed Book 5644,
Page 764, among the land records of Fairfax County, Virginia.
Being the same property conveyed to Century Properties Fund XX, a California
limited partnership, by deed from Reston Partners Limited, a Virginia limited
partnership, dated March 21, 1985, recorded March 21, 1985, in Deed Book 6114,
Page 1241, in the Clerk's Office, Circuit Court, County of Fairfax, Virginia.
LESS AND EXCEPT ALL THAT CERTAIN 0.1357 acre, more or less, taken by the
Commonwealth of Virginia for the construction, reconstruction, alteration,
maintenance and repair of Route 267 as more particularly described in
Certificate of Deposit recorded September 17, 1996, in Deed Book 9807, Page
1716.
And being more particularly described by metes and bounds as follows:
Beginning at a point marking the northeasterly corner of Parcel 1-A,
Section 911, Block 1, Reston; thence with the northerly line of said Parcel 1-A
the following courses: N67(0)05'00"W, 35.00 feet; N22(0)55'00"E, 9.00 feet;
N67(0)05'00"W, 142.00 feet; S22(0)55'00"W, 36.00 feet; N67(0)05'00"W, 128.00
feet; N22(0)55'00"E, 34.00 feet; N67(0)05'00"W, 47.50 feet; N75(0)44'09"W, 23.26
feet and N67(0)05'00"W, 26.05 feet to a point on the easterly line of Wiehle
Avenue (Route 828); thence with the easterly line of Wiehle Avenue the following
courses: N22(0)55'32"E, 380.94 feet; with a curve to the left whose radius is
3904.28 feet and whose chord is N22(0)51'59"E, 8.04 feet, an arc distance of
8.04 feet and N66(0)07'59"E, 85.63 feet to a point on the southerly line of
Sunset Hills Road (Route 675); thence with the southerly line of Sunset Hills
Road S70(0)56'11"E, 343.64 feet to a point marking the northwesterly corner
Section 911, Block 2, Reston; thence with the westerly line of the said Block 2,
and containing with the westerly line of Section 911, Block 3, Reston
S22(0)55'00"W, 477.99 feet to the point of beginning, containing 4.27943 acres
of land.
<PAGE>
Tract II
TOGETHER WITH THE FOLLOWING:
Sanitary Sewer Easement across a portion of Block 3, Section 911, Reston,
recorded in Deed Book 5626, Page 1250 among the aforesaid land records.
A ten (10) foot Sanitary Sewer Easement recorded in Deed Book 2870, Page 526 and
as shown on plat recorded in Deed Book 4775, Page 139, among the aforesaid land
records.
Easements contained in Declaration of Covenants and Cross-Easement Agreement
recorded in Deed Book 2845, Page 517 and in Deed Book 5821, Page 4; and First
Amendment to Declaration of Covenants and Cross-Easement Agreement recorded in
Deed Book 9707, Page 717.
<PAGE>
EXHIBIT 1.1.5
LIST OF EXCLUDED PERMITS
To Be Inserted, If Any
<PAGE>
EXHIBIT 1.1.7
LIST OF EXCLUDED PERSONAL PROPERTY OR EQUIPMENT
None
<PAGE>
EXHIBIT 5.5
LIST OF DUE DILIGENCE MATERIALS
Intentionally Deleted
<PAGE>
EXHIBIT 6.2.1
ADDITIONAL TITLE EXCEPTIONS
[To Be Attached]
<PAGE>
EXHIBIT 7.2.1.1
FORM OF SPECIAL WARRANTY DEED
Prepared by and after recording return to:
Galaxy Investments, Inc.
c/o Steven S. Snider, Esq.
Hale and Dorr LLP 1455 Pennsylvania Avenue, N.W.
Washington DC 20004
SPECIAL WARRANTY DEED
THIS SPECIAL WARRANTY DEED, dated ____________ __, 2000, from CENTURY
PROPERTIES FUND XX, a California limited partnership, having a principal address
of Tower Two, 2000 South Colorado Boulevard, Suite 2-1000, Denver, Colorado
80222, Grantor, to GALAXY INVESTMENTS, INC., a Delaware corporation, with a
principal address of 560 Herndon Parkway, Suite 210, Herndon, Virginia 20170,
Grantee.
The Grantor, for and in consideration of Ten Dollars ($10.00), and other
good and valuable consideration, the receipt of which is hereby acknowledged,
hereby grants, bargains, conveys and assigns unto Grantee with Special Warranty,
in fee simple, the real property located in Fairfax County, Virginia, and
described on Exhibit A attached hereto, together with all improvements
thereupon, and the rights, alleys, ways, waters, easements, privileges,
appurtenances and advantages belonging or appertaining thereto (the "Property").
This conveyance is made subject to any matters identified on Exhibit B
attached hereto.
To have and to hold the property hereby conveyed unto Grantee, its
successors and assigns, in fee simple, forever.
The Grantor hereby warrants specially the property hereby conveyed and
agrees to execute such further assurances thereof as may be requisite.
[Signature and Acknowledgement contained on the following page]
<PAGE>
In witness whereof, the Grantor has caused this Deed to be executed and
delivered under seal, as of the date first above written.
WITNESS: GRANTOR:
CENTURY PROPERTIES FUND XX, a California
limited partnership
By: Fox Partners III, a California
general partnership, general partner
By: Fox Capital Management
Corporation, general partner
By: (Seal)
Name:
Title:
State of _____________, _____________ County, to wit:
I HEREBY CERTIFY that on _____________ __, 2000, before me, a Notary
Public of the State aforesaid, personally appeared ________________________, who
acknowledged himself/herself to be the ________________________ of Fox Capital
Management Corporation. (the "Corporation"), Grantor, and that he/she, as such
officer, being authorized so to do, executed the foregoing instrument on behalf
of the Corporation acting in its capacity as general partner of Fox Partners
III, a California general partnership, general partner of CENTURY PROPERTIES
FUND XX, a California limited partnership, the within Grantor, for the purposes
therein contained by signing the name of the Corporation by himself/herself as
such officer.
WITNESS my hand and Notarial Seal.
-------------------------
Notary Public
My Commission Expires:
<PAGE>
EXHIBIT "A"
LEGAL DESCRIPTION FOR LINPRO OFFICE BUILDING
Tract 1
All that tract of land situate in the County of Fairfax, Virginia, and more
particularly described as follows:
Parcel 1-B, being part of Block 1, Section 911, Reston, containing 4.41172 acres
as the same appears duly dedicated, platted and resubdivided in Deed Book 5644,
Page 764, among the land records of Fairfax County, Virginia.
Being the same property conveyed to Century Properties Fund XX, a California
limited partnership, by deed from Reston Partners Limited, a Virginia limited
partnership, dated March 21, 1985, recorded March 21, 1985, in Deed Book 6114,
Page 1241, in the Clerk's Office, Circuit Court, County of Fairfax, Virginia.
LESS AND EXCEPT ALL THAT CERTAIN 0.1357 acre, more or less, taken by the
Commonwealth of Virginia for the construction, reconstruction, alteration,
maintenance and repair of Route 267 as more particularly described in
Certificate of Deposit recorded September 17, 1996, in Deed Book 9807, Page
1716.
And being more particularly described by metes and bounds as follows:
Beginning at a point marking the northeasterly corner of Parcel 1-A,
Section 911, Block 1, Reston; thence with the northerly line of said Parcel 1-A
the following courses: N67(0)05'00"W, 35.00 feet; N22(0)55'00"E, 9.00 feet;
N67(0)05'00"W, 142.00 feet; S22(0)55'00"W, 36.00 feet; N67(0)05'00"W, 128.00
feet; N22(0)55'00"E, 34.00 feet; N67(0)05'00"W, 47.50 feet; N75(0)44'09"W, 23.26
feet and N67(0)05'00"W, 26.05 feet to a point on the easterly line of Wiehle
Avenue (Route 828); thence with the easterly line of Wiehle Avenue the following
courses: N22(0)55'32"E, 380.94 feet; with a curve to the left whose radius is
3904.28 feet and whose chord is N22(0)51'59"E, 8.04 feet, an arc distance of
8.04 feet and N66(0)07'59"E, 85.63 feet to a point on the southerly line of
Sunset Hills Road (Route 675); thence with the southerly line of Sunset Hills
Road S70(0)56'11"E, 343.64 feet to a point marking the northwesterly corner
Section 911, Block 2, Reston; thence with the westerly line of the said Block 2,
and containing with the westerly line of Section 911, Block 3, Reston
S22(0)55'00"W, 477.99 feet to the point of beginning, containing 4.27943 acres
of land.
<PAGE>
Tract II
TOGETHER WITH THE FOLLOWING:
Sanitary Sewer Easement across a portion of Block 3, Section 911, Reston,
recorded in Deed Book 5626, Page 1250 among the aforesaid land records.
A ten (10) foot Sanitary Sewer Easement recorded in Deed Book 2870, Page 526 and
as shown on plat recorded in Deed Book 4775, Page 139, among the aforesaid land
records.
Easements contained in Declaration of Covenants and Cross-Easement Agreement
recorded in Deed Book 2845, Page 517 and in Deed Book 5821, Page 4; and First
Amendment to Declaration of Covenants and Cross-Easement Agreement recorded in
Deed Book 9707, Page 717.
<PAGE>
EXHIBIT "B"
LIST OF PERMITTED EXCEPTIONS
[To Be Attached]
<PAGE>
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 GALAXY INVESTMENTS,
INC., a Delaware corporation ("Purchaser").
Seller and Purchaser, have entered into that certain Purchase and Sale
Contract and dated as of January 27, 2000 ("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 the
purchase orders, maintenance, service or utility contracts or similar contracts
which relate to the ownership, maintenance, construction or repair or operation
of the Project listed on Exhibit A.
b. Leases. All of Seller's rights and interests in and to the 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 listed on Exhibit B.
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. After the Closing Date, Purchaser expressly agrees to
assume and hereby assumes all liabilities and obligations of the Seller in
connection with the Property arising after the Closing Date 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, attributable to acts arising from and after the Closing Date.
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 Commonwealth of Virginia.
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: January __, 2000
Seller:
CENTURY PROPERTIES FUND XX, a California
limited partnership
By: Fox Partners III, a California general
partnership, general partner
By: Fox Capital Management Corporation,
general partner
By:
Its:
Purchaser:
GALAXY INVESTMENTS, INC., a Delaware
corporation
By:___________________________________
Andrew Czekaj, Its Authorized Officer
<PAGE>
EXHIBIT "A"
LIST OF PROPERTY CONTRACTS
[To Be Attached]
<PAGE>
EXHIBIT "B"
LEASES
[To Be Attached]
<PAGE>
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 GALAXY
INVESTMENTS, INC., a Delaware corporation ("Purchaser").
Seller and Purchaser, have entered into that certain Purchase and Sale
Contract and dated as of January 27, 2000 ("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
tenants under leases at the Project of consent as provided therein.
3. Assumption. After the Closing Date, 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 arising after the Closing
Date. 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, on or before the
date hereof.
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 Commonwealth of Virginia.
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.
<PAGE>
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: January __, 2000
Seller:
CENTURY PROPERTIES FUND XX, a California
limited partnership
By: Fox Partners III, a California general
partnership, general partner
By: Fox Capital Management Corporation,
general partner
By:
Its:
Purchaser:
GALAXY INVESTMENTS, INC., a Delaware
corporation
By:___________________________________
Andrew Czekaj, Its Authorized Officer
<PAGE>
EXHIBIT 7.2.1.5
SELLER'S AFFIDAVIT
[See Attached]
<PAGE>
Exhibit B
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Escrow Agreement") made this _____ day of January,
2000 by and among CENTURY PROPERTIES FUND XX, a California limited partnership
("Seller"), and GALAXY INVESTMENTS, INC., a Delaware corporation ("Purchaser");
and COMMERCIAL TITLE GROUP, LTD. ("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 27th day of January,
2000; and
Whereas, the Purchase Contract requires that Purchaser provide an initial
deposit in the amount of One Hundred Thousand and No/100 Dollars ($100,000.00)
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, on 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 One Hundred Thousand and
no/100 Dollars ($100,000.00) 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 One
Hundred Thousand and No/100 dollars ($100,000.00) 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 Seller 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.
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 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 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, or if sent via facsimile, on the date sender obtains
confirmation of delivery with a copy thereof also sent by first class mail, and
addressed as set forth below:
(a) If to Seller:
Century Properties Fund XX
Tower Two
2000 South Colorado Boulevard
Suite 2-1000
Denver, Colorado 80222
Attn: Mr. Harry Alcock
Facsimile No. (303) 692-0786
<PAGE>
and
Argent Real Estate
1401 Brickell Avenue, Suite 520
Miami, Florida 33131
Attn: Mr. David Marquette
Facsimile No. (303) 371-6898
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.
Facsimile No. (213) 688-3460
(b) If to Purchaser:
Galaxy Investments, Inc.
560 Herndon Parkway, Suite 210
Reston, Virginia 20170
Attn: Mr. Andrew J. Czekaj
Facsimile No. _______________
With a copy to:
Hale and Dorr LLP
1455 Pennsylvania Avenue, NW
Suite 1000
Washington D.C. 20004
Attn: Steven Snider, Esq.
Facsimile No. (202) 942-8484
(c) If to Escrow Agent:
Commercial Title Group, Ltd.
============================
----------------------------
Attn: _______________________
Facsimile No. ________________
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 an fee of $300.00 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 fee 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 Commonwealth of Virginia.
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
limited partnership
By: Fox Partners III, a California general
partnership, general partner
By: Fox Capital Management Corporation,
general partner
By:
Its:
Purchaser:
GALAXY INVESTMENTS, INC., a Delaware
corporation
By:___________________________________
Andrew Czekaj, Its Authorized Officer
<PAGE>
COMMERCIAL TITLE GROUP, LTD.
By: _____________________________________
Title:
<PAGE>
Exhibit 9.1.4.1
TENANT ESTOPPEL CERTIFICATE
To: Galaxy Investments, Inc., its successors, assigns and lender
Attention:
RE: Lease dated ____________, 19___, between ,
a , as "Landlord", and
____________________________________, as "Tenant" (which together with any
modifications in Paragraph 5 are collectively referred to as the "Lease"),
demising premises located and addressed as:
____________________________________ (the "Leased Premises") being part of
the Shopping Center in ,
(the "Property")
Gentlemen:
The undersigned Tenant, having the power and authority to do so, hereby
states, certifies and affirms to all to whom this Certificate may be presented
as follows:
1. Landlord has fully performed all obligations relating to construction of
the Leased Premises and leasehold improvements as described in the Lease, and
Tenant has unconditionally accepted the Leased Premises. No monies, including,
but not limited to any tenant allowances, are owed by Landlord to Tenant except
the following: __________________________________ for . [insert "None" if none]
2. Landlord has not breached or failed to comply with any term of the
Lease, and Landlord is not in default in the performance by Landlord of its
obligations under the Lease.
3. Tenant has not breached or failed to comply with any term of the Lease,
and Tenant is not in default of the Lease. Tenant has not transferred, assigned
or sublet, or agreed to transfer, assign, or sublet, its interest in the Lease
or any part thereof, except as follows:
.
[insert "None" if none]
4. The Lease term commenced on ________________, and shall expire (unless
sooner terminated or extended as in the Lease provided) on _______________; and
the Lease contains the following renewal options:
.
[insert "None" if none].
5. The Lease has not been modified, altered or amended except as follows:
[list all amendments
and modifications or write "None" if none].
6. No free rent, reduced or deferred rental has been granted except as set
forth on the Lease or as follows:
[insert "None" if none].
7. The current minimum monthly rental is $___________. No rent under the
Lease has been paid more than thirty (30) days in advance of its due date.
Tenant acknowledges that all additional rent (charges for taxes, insurance,
percentage rent, if any, maintenance, common areas, etc.) are payable pursuant
to the terms of the Lease.
8. The amount of the security deposit [initially] deposited by Tenant
under the Lease is $_______ [and the amount of the security deposit which
continues to be held by Landlord under the Lease is now $_________]. [insert
"None" if none].
9. Tenant has been granted no option or other right to purchase the
Property or Leased Premises or any portion thereof.
10. There has not been filed by or against, nor, is there threatened
against or contemplated by Tenant, a petition in bankruptcy, voluntary or
otherwise, any assignment for the benefit of creditors, any petition seeking
reorganization or arrangement under the bankruptcy laws of the United States or
the debtor relief laws of any state, or any other action brought under such
bankruptcy or debtor relief laws.
11. Tenant acknowledges that Landlord is currently contemplating a sale
and/or refinancing of the Property and agrees that the information furnished
herein may be supplied to any or all of the proposed purchaser, purchaser or
lender and others of the Property (or any portion thereof) or any successor or
assign of any of the foregoing or others and that such proposed purchaser,
purchaser or lender and others and any successor or assign may rely upon this
Certificate and all of the statements herein contained as being true and
accurate.
IN WITNESS WHEREOF, the undersigned has caused this Certificate to be duly
executed, under seal, and delivered as of the day and year first above written.
TENANT:
By:________________________________
Name:______________________________
<PAGE>
Page(s)
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINED TERMS...................................................2
ARTICLE 2 PURCHASE AND SALE OF PROPERTY...................................4
ARTICLE 3 PURCHASE PRICE & DEPOSIT........................................5
ARTICLE 4 FINANCING.......................................................6
ARTICLE 5 FEASIBILITY PERIOD..............................................6
ARTICLE 6 TITLE...........................................................8
ARTICLE 7 CLOSING........................................................10
ARTICLE 8 REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND
PURCHASER 15
ARTICLE 9 CONDITIONS PRECEDENT TO CLOSING................................19
ARTICLE 10 BROKERAGE......................................................21
ARTICLE 11 POSSESSION.....................................................21
ARTICLE 12 DEFAULTS AND REMEDIES..........................................21
ARTICLE 13 RISK OF LOSS OR CASUALTY.......................................22
ARTICLE 14 RATIFICATION...................................................22
ARTICLE 15 EMINENT DOMAIN.................................................23
ARTICLE 16 MISCELLANEOUS..................................................23
<PAGE>
Exhibit 10.7
PURCHASE AND SALE CONTRACT
BETWEEN
CENTURY PROPERTIES FUND XX,
a California limited partnership
AS SELLER
AND
PENNSYLVANIA REALTY GROUP, INC.,
a Pennsylvania corporation
AS PURCHASER
<PAGE>
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT ("Purchase Contract") is entered into as
of the 15 day of December, 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
PENNSYLVANIA REALTY GROUP, INC., a Pennsylvania corporation, having a principal
address at 2701 East Luzerne Street, Philadelphia, Pennsylvania 19137
("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 Spartanburg County,
South 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 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 South 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 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 Closing Date for the Property.
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 Effective Date 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
primarily 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" as of the end of the Feasibility Period (as hereinafter defined),
subject to the provisions of Article 13 and Section 16.21 below.
1.1.9 "Land"
means all of those certain tracts of land located in the State of South 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, including all of Seller's rights and interests in and to the name
"Corners Apartments" if any, but 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, (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.
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, 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 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 Four
Million Four Hundred Fifty Thousand and no/100 Dollars ($4,450,000.00), which
shall be paid by Purchaser, as follows:
3.1.1 On the date hereof, Purchaser shall deliver to Camperdown Title Services,
Inc. ("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 "Initial 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 (as hereinafter defined), 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"). The Additional Deposit shall be non-refundable when
paid except in the event the sale of the Property is not consummated due to a
default by Seller and/or the failure of any condition specified in Section 9.1.
3.1.3 If Purchaser shall exercise Purchaser's Extension Option (as hereinafter
defined) to extend the Closing (as hereinafter defined), Purchaser shall deliver
to Escrow Agent at or before 5:00 p.m. Eastern time on the thirtieth (30th) day
following expiration of the Feasibility Period, the additional sum of
Twenty-Five Thousand Dollars ($25,000.00) (which sum shall hereinafter be
referred to as the "Extension Option Deposit"). The Extension Option Deposit
shall be non-refundable when paid except in the event the sale of the Property
is not consummated due to a default by Seller and/or the failure of any
condition specified in Section 9.1.
3.1.4 As used herein, the term "Deposit"
shall mean, collectively, the Initial Deposit, the Additional Deposit and the
Extension Option Deposit (or such portion thereof that has theretofore been
delivered to Escrow Agent). The Escrow Agent shall hold the Deposit and make
delivery of the Deposit to the party entitled thereto under the terms hereof.
Escrow Agent shall invest the Deposit, in such short-term, high-grade
securities, interest-bearing bank accounts, money market funds or accounts, bank
certificates of deposit or bank repurchase agreements as Escrow Agent, in its
discretion, deems suitable, (provided that Escrow Agent shall invest the Deposit
as jointly directed by Seller and Purchaser should Seller and Purchaser each in
their respective sole discretion determine to issue such joint investment
instructions to the Escrow Agent) and all interest and income thereon shall
become part of the Deposit and shall be remitted to the party entitled to the
Deposit , as set forth below.
3.1.5 If the sale of the Property is closed by the Closing Date (as hereinafter
defined) (or any extension date provided for by the mutual written consent of
the parties hereto, given or withheld in their respective sole discretion),
monies held as the Deposit shall be applied to the Purchase Price on the Closing
Date. If the sale of the Property is not closed by the Closing Date (or any such
extension date) owing to failure of satisfaction of a condition precedent to
Purchaser's obligations, the Deposit shall be returned and refunded to
Purchaser, and neither party shall have any further liability hereunder, subject
to and except for Purchaser's liability under Section 5.3.
3.1.6 If the sale of the Property is not closed by the Closing Date (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 Closing Date (or any such extension date) owing to
failure of performance by Purchaser, the Deposit shall be forfeited by Purchaser
and the sum thereof shall go to Seller forthwith as liquidated damages and as
Seller's sole remedy 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 (e.g., through January 3, 2000 if the Effective
Date is December 3, 1999), but in no event later than January 15, 2000 (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, environmental 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, in Purchaser's sole discretion, then Purchaser
shall have the right to terminate this Purchase Contract by giving written
Notice (as hereinafter defined) to that effect 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 claims,
losses, demands, causes of action, or liability, including court costs and
attorneys' fees resulting from actions taken by Purchaser and its Consultants on
the Property. Purchaser shall indemnify, defend (with attorneys approved by
Seller, such approval not to be unreasonably withheld) 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 Seller's reasonable judgment could result in
any injury to the Property or breach of any agreement, or expose Seller to any
liability, costs, liens or violations of applicable law, or otherwise adversely
affect the Property or Seller's interest therein. No consent by the Seller to
any such activity shall be deemed to constitute a waiver by Seller or assumption
of liability or risk by Seller. Purchaser hereby agrees to restore the Property
to the same condition existing immediately prior to Purchaser's exercise of its
rights pursuant to this ARTICLE 5 at Purchaser's sole cost and expense.
Purchaser shall maintain comprehensive public liability insurance with broad
form contractual and personal injury liability endorsements with respect to the
Property and Purchaser's activities carried on therein, in amounts (including
deductible amounts) and with such insurance carriers as shall be reasonably
approved by Seller and naming Seller and its affiliates as additional insureds,
with endorsements acceptable to Seller, including a waiver of defenses of the
insurer based on the actions or inaction of Purchaser (which insurance must be
reasonably approved by Seller). Such liability insurance shall provide coverages
of not less than $1,000,000.00 for injury or death to any one person and
$3,000,000.00 for injury or death to more than one person and $500,000.00 with
respect to property damage, by water or otherwise). The provisions of this
Section 5.3 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,
except as may be required by law, and, prior to the purchase of the Property by
Purchaser, Purchaser shall use good faith 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,
environmental reports, 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
fixed therefor, Purchaser shall, within five (5) calendar days, return all such
Materials to Seller.
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 Camperdown Title Services, Inc., as agent for Fidelity National Title
Insurance Company ("Title Insurer") for an owner's title insurance policy on the
most recent standard American Land Title Association ("ALTA") Policy form,
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 Seller shall convey, and Purchaser agrees to accept, title to the
Land and Improvements, so long as the same is insurable at ordinary rates, by
special warranty deed or equivalent deed pursuant to this Purchase Contract
subject only 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 All exceptions shown in the Title Commitment (other than mechanics' liens
and taxes due and payable in respect of any 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 disclosed to Purchaser; and
6.2.4 All Property
Contracts and any other existing contracts created in the ordinary course of
business by Seller, which are not identified for termination 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;
6.2.6 Intentionally deleted; and
6.2.7 All matters of public record as of the
effective time of the Title Commitment (as approved by Purchaser).
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. The amount of such mortgages,
liens or encumbrances shall be payable at Closing out of the Purchase Price
proceeds.
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 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 or entity taxes of any corporations or entities 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 If on the Closing Date there shall be conditional bills of
sale or Uniform Commercial Code financing statements that were filed on a day
more than five (5) years prior to such Closing, and such financing statements
have not been extended by the filing of UCC-3 continuation statements within the
past five (5) years prior to such Closing, such financing statements shall not
be deemed an objection to title.
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 thirty (30) calendar days; provided, however, that if Purchaser's
lender terminates its financing commitment during such extension period,
Purchaser shall have the right to terminate this Purchase Contract by giving
written Notice to that effect to Seller and Escrow Agent, in which event 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.. 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 ten (10) 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 (or so much thereof as has been delivered
to Escrow Agent) shall be immediately returned to Purchaser.
6.9 Notwithstanding
Section 6.8 above, 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 for an ALTA/ACSM survey; (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 thirty (30) calendar days after the
expiration of the Feasibility Period, 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.
7.1.2 The original Closing Date may be extended at the option of
Purchaser (the "Extension Option") to a date not later than thirty (30) Days
following the original Closing Date specified above upon the satisfaction of,
and subject to, the following conditions: (i) concurrently with the delivery of
the Extension Notice (defined below), Purchaser shall deliver to Escrow Agent
the Extension Option Deposit; (ii) Purchaser shall not have breached any of its
obligations hereunder; and (iii) all of Purchaser's representations and
warranties contained in Section 8.2 hereof shall be true and correct as of the
date on which Purchaser notifies Seller and Escrow Agent of Purchaser's exercise
of its Extension Option. Purchaser's Extension Option shall be exercised, if at
all, by prior written notice to Seller and Escrow Agent (the "Extension
Notice"), received no later than five (5) business days prior to the expiration
of the original scheduled Closing Date.
7.1.3 The Closing Date may be extended
without penalty at the option of Seller to a date not later than seven (7) days
following the Closing Date specified above to satisfy a condition to be
satisfied by Seller, or such later date as is mutually acceptable to Seller and
Purchaser.
7.1.4 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 any payments due parties under the Property Contracts assumed
by Purchaser, provided that any payments under the Property Contracts 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, and any utility or other charges payable by Tenants.
The provisions of this Section 7.1.3 shall apply during the Proration Period (as
defined below).
7.1.5 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.
7.1.6 If on the Closing Date any Tenant is in arrears in any Rent payment under
any Commercial Lease (the "Delinquent Rent"), any Delinquent Rent received by
Purchaser and Seller from such Tenant after the Closing shall be applied to
amounts due and payable by such Tenant during the following periods in the
following order of priority: (i) first, to the period of time before the Closing
Date, and (ii) second, to the period of time after the Closing Date. If
Delinquent Rent or any portion thereof received by Seller or Purchaser after the
Closing are due and payable to the other party by reason of this allocation, the
appropriate sum, less a proportionate share of any reasonable attorneys' fees
and costs and expenses expended in connection with the collection thereof, shall
be promptly paid to the other party. 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 (other than termination of any Commercial Lease or eviction
proceeding) 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 (other than termination of any Commercial Lease or
eviction proceeding), 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 Commercial 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.
7.1.7 Seller shall pay the cost of all recording
costs with respect to the Closing and the cost of all transfer taxes and deed
stamps (e.g., excise stamp taxes). Seller and Purchaser shall share equally in
the costs of the Escrow Agent for escrow fees, if any.
7.2 Items To Be Delivered Prior To Or At Closing.
7.2.1 Seller. At Closing, Seller shall deliver to Purchaser, each of the
following items, as applicable:
7.2.1.1 Special Warranty Deed 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 (other than as to title) in
the form attached as Exhibit 7.2.1.2 covering all Property Contracts, 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 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 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 items 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, Permits 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, net of the Deposit, 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 to satisfy the same, provided that Seller
shall have delivered to Title Company at 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. 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 To Seller's knowledge, Seller has received no notice from any
governmental authority having jurisdiction over any part of the Property citing
any uncorrected violation of any applicable building, safety or fire ordinances;
8.1.1.8 To Seller's knowledge, Seller has received no notice of future increased
real estate assessments affecting the Property.
8.1.1.9 Nothing herein shall
require Purchaser to hire any of Seller's employees nor be responsible for any
labor or employment-related liability which has arisen or might arise on account
of Seller's status as an employer, if any; and
8.1.1.10 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, but is not relying upon any
information provided by Seller or Seller's Broker or Purchaser's Broker (as
hereinafter defined) or statements, representations or warranties, express or
implied, made by or enforceable directly against Seller or 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 herein). 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 or Purchaser'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. 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, in a manner reasonably
consistent with Seller's past practices, 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 actual
knowledge of such breach prior to Closing, 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 Janice Vinson of NPI Property
Management Corporation, the Property Manager for the Property.
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 Purchaser is corporation duly organized,
validly existing and in good standing under the laws of Pennsylvania.
8.2.2.2 Purchaser, acting through any of its or their duly empowered and
authorized officers or members, has all necessary power and authority to own and
use its properties and to transact the business in which it is engaged, and has
full power and authority to enter into this Purchase Contract, to execute and
deliver the documents and instruments required of Purchaser herein, and to
perform its obligations hereunder; and no consent of any of Purchaser's officers
or members are required to so empower or authorize Purchaser.
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 is duly
authorized to execute and deliver, acting through its duly empowered and
authorized officers and members, respectively, this Purchase Contract. Purchaser
is, or prior to closing shall be, duly authorized to perform this Purchase
Contract and all documents and instruments and transactions contemplated hereby
or incidental hereto, and such execution, delivery and performance by Purchaser,
does not (i) violate any of the provisions of their respective certificates of
incorporation or bylaws, (ii) violate any provision of any law, governmental
rule or regulation currently in effect, (iii) violate any judgment, decree,
writ, injunction, award, determination or order currently in effect that names
or is specifically directed at Purchaser or its property, and (iv) require the
consent, approval, order or authorization of, or any filing with or notice to,
any court or other governmental authority.
8.2.2.5 The joinder of no person or
entity other than Purchaser is necessary to consummate the transactions to be
performed by Purchaser and Purchaser has, or prior to Closing, shall have, all
necessary right and authority to perform such acts as are required and
contemplated by this Purchase Contract.
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, other than
Seller's Broker or Purchaser's Broker.
8.2.4 Intentionally Omitted.
ARTICLE 9
CONDITIONS PRECEDENT TO CLOSING
9.1 Without limiting any of the rights of Purchaser provided for elsewhere in
this Purchase Contract, 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 the Property under this Purchase Contract
shall be subject to and conditioned upon the fulfillment of each and all of the
following conditions precedent:
9.2.1 Purchaser's representations and warranties
set forth in this Purchase Contract shall have been true and correct in all
material respects when made, and shall be true and correct in all material
respects on the Closing Date and as 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 Fidelity National Title Insurance Company
shall have delivered to Seller an Insured Closing Letter in form and substance
satisfactory to Seller.
ARTICLE 10
BROKERAGE
10.1 Seller 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 First Union Mortgage Corporation ("Purchaser's Broker") and Seller'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, 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.
10.2 Seller 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.
10.3 Neither 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
11.1 Possession 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
12.1 In the Event Purchaser terminates this Purchase Contract following the
Feasibility Period for any reason other than Seller's default hereunder or
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 so 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. 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 termination or default
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.
12.2 Provided that Purchaser has not terminated this Purchase Contract and is
not otherwise in default hereunder, if the Closing does not occur as a result of
Seller's default hereunder, Purchaser's sole remedy shall be to elect to (1)
terminate this Purchase Contract and receive reimbursement of the Deposit (or so
much thereof as has been received by Escrow Agent) or (2) seek specific
performance of this Purchase Contract. If Seller willfully defaults hereunder,
and Purchaser elects remedy (1) above, then Seller shall also reimburse
Purchaser for Purchaser's reasonable out-of-pocket expenses (including, without
limitation, reasonable attorneys' fees, charges and disbursements) incurred in
connection with the negotiation of this Purchase Contract and Purchaser's due
diligence efforts, provided however, that the amount of such reimbursement shall
not exceed $20,000.00).
ARTICLE 13
RISK OF LOSS OR CASUALTY
13.1 Seller shall maintain all current insurance policies with respect to the
Property in effect until the Closing Date. Prior to the Closing , the risk of
loss or damage to the Property by fire or other casualty shall be borne and
assumed by Seller. If, prior to the Closing, any "Material Damage" (as
hereinafter defined) occurs to any portion of the Property as a result of fire
or other casualty, Seller shall immediately notify Purchaser of such fact. In
such event, Purchaser shall have the option to terminate this Purchase Contract
upon written notice to Seller given not later than thirty (30) days after
receipt of any such notice from Seller. Purchaser shall have no right to
terminate this Purchase Contract as a result of any damage or destruction of any
portion of the Property that does not constitute Material Damage. If Purchaser
does not elect or has no right to terminate this Purchase Contract, Seller shall
assign and turn over, and Purchaser shall be entitled to receive and keep, all
insurance proceeds payable with respect to such damage or destruction (which
shall then be repaired or not at Purchaser's option and cost) and the parties
shall proceed to the Closing pursuant to the terms hereof without modification
of the terms of this Purchase Contract. If Purchaser does not elect or has no
right to terminate this Purchase Contract by reason of any casualty, Purchaser
shall have the right to participate in any adjustment of the insurance claim. If
the insurance proceeds payable with respect to any damage do not cover the full
replacement cost of such damage, Seller shall credit Purchaser for the
difference between the insurance proceeds and the actual reasonable expenses
necessary to repair such damage; provided however that such credit shall not
exceed the lesser of (1) twenty percent (20%) of the total repair costs, or (2)
$100,000. As used herein, the term "Material Damage" shall mean damage or
destruction the cost of repair of which exceeds $250,000.00.
ARTICLE 14
RATIFICATION
14.1 This Purchase Contract shall be null and void unless fully executed by
Purchaser and Seller on or before December 17, 1999.
ARTICLE 15
EMINENT DOMAIN
15.1 In the event that prior to 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 or by 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), Seller shall promptly notify Purchaser thereof, and
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 Notice of the occurrence of such event and
recover the Deposit (or so much thereof as has been delivered to Escrow Agent)
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. If Purchaser does not elect to terminate this Purchase Contract, Seller
shall assign to Purchaser at the Closing, all rights in connection therewith. If
Purchaser does not elect to terminate this Purchase Contract, Seller shall not
agree to any conveyance in lieu of a taking or acquisition, or settle any claim
on account of any taking or acquisition prior to Closing without Purchaser's
consent, which consent shall not be unreasonably withheld or delayed.
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 principals or
affiliates remains a part of the purchasing entity(ies), (ii) Purchaser is not
released from its liability hereunder, and (iii) Seller consents thereto (which
consent shall not be unreasonably withheld or delayed).
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 permitted or
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 only (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 Pennsylvania Realty Group, Inc.
Tower Two 2701 East Luzerne Street
2000 South Colorado Boulevard Philadelphia, Pennsylvania 19137
Suite 2-1000 Attn: Mr. Steven A. Berger
Denver, Colorado 80222
Attn: Mr. Harry Alcock
And
With a copy to:
Argent Real Estate
1401 Brickell Avenue, Suite 520 Alan N. Escott, Esq.
Miami, Florida 33131 McCausland, Keen & Backman
Attn: Mr. David Marquette Suite 160, Radnor Court
259 N. Radnor-Chester Road
Radnor, Pennsylvania 19087
With a copy to:
Loeb & Loeb
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. Notices may be
given by a party's attorney on such party's behalf.
16.7 Governing Law And Venue
The laws of the State of South 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 counterpart.
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, and 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 and advisors. 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 lenders,
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
Notwithstanding anything to the contrary herein, 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.
16.19 No Personal Liability of Officers, Trustees or Directors
No individual officer, trustee, director or representative of the partners
of Seller or of Purchaser 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.
16.21 Maintenance of Property
From and after the expiration of the Feasibility Period, Seller hereby
agrees to operate and maintain the Property in a manner reasonably consistent
with Seller's past practices.
<PAGE>
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 limited partnership
By: Fox Partners III,
a California general partnership,
its general partner
By: Fox Capital Management Corporation,
a California corporation,
its managing general partner
By: ______________________________
Name: ________________________
Its: _________________________
Purchaser:
PENNSYLVANIA REALTY GROUP, INC.,
a Pennsylvania corporation
By: ______________________________________
Name: _______________________________
Title: ______________________________
<PAGE>
ACKNOWLEDGEMENTS
SELLER
STATE OF __________________ )
------ ------ )
COUNTY OF ________________ )
I, the undersigned notary public for the State of _______________, do hereby
certify that _________________________, the ________________________ of Fox
Capital Management Corporation, the General Partner of Fox Partners III, the
General Partner of Century Properties Fund XX, personally appeared before me
this day and acknowledged the due execution of the foregoing instrument.
Witness my hand and official seal this the _____ day of __________, 1999.
------------------------------------------------------------------------
Notary Public for __________________
My Commission Expires: ____________
PURCHASER
STATE OF __________________ )
------ ------ )
COUNTY OF ________________ )
I, the undersigned notary public for the State of _______________, do hereby
certify that _________________________, the ________________________ of
Pennsylvania Realty Group, Inc., personally appeared before me this day and
acknowledged the due execution of the foregoing instrument.
Witness my hand and official seal this the _____ day of __________, 1999.
------------------------------------------------------------------------
Notary Public for __________________
My Commission Expires: ____________
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION FOR THE CORNERS APARTMENTS
All that parcel of land, containing 8.10 acres, more or less, located on the
east side of Fernwood Drive in the City of Spartanburg, County of Spartanburg,
State of South Carolina and being more particularly described as follows:
BEGINNING at an iron pin on the east side of the curb on the east side of
Fernwood Drive, which stands 583.00 feet in a southerly direction from the
intersection of Fernwood Drive and Peach Shed Road, and running thence south
85.00 east 391.30 feet to an iron pin; thence south +/-7-45 east a distance of
419.50 feet to an old iron pin; thence south +/-1-09 east a distance of 125.40
feet to an old iron pin; thence south 26-43 west a distance of 275.50 feet to an
old iron pin; thence north 63-17 west a distance of 311.50 feet to a point;
thence south 84-25 west a distance of 192.30 feet to an old iron pin on the east
side of the curb on the east side of Fernwood Drive, and running thence with the
east side of the curb on the east side of Fernwood Drive the following courses
and distances: north 00-07 east a distance of 110.00 feet to an old iron pin,
north 03-41 east a distance of 64.50 feet to an old iron pin, and north 05-00
east a distance of 508.20 feet to an old iron pin at the POINT OF BEGINNING;
being shown on plat of property of Lincoln Property Company made by Gooch and
Associates Surveyors, dated January 12, 1973, and recorded in Plat Book 70 at
page 271, R.M.C. office for the County and State aforesaid. Also, as shown on a
more recent survey dated June, 1974 and updated August 12, 1985 entitled "A
Final as-Built Survey for Corners Apartments" Shelter Properties IV,
Spartanburg, South Carolina certified to Shelter Properties IV, Century
Properties Fund XX and Lawyers Title Insurance Corporation by James M.
Honeycutt, South Carolina Registered Land Surveyor No. 5027.
PROPERTY ADDRESS 151 Fernwood Drive
______ ______Spartanburg, South Carolina 29302
This is the same property conveyed to Century Properties Fund XX, a California
limited partnership, by deed of Thomas J. DeZern, Master in and for the County
aforesaid, recorded in Deed Book 59-R at page 559.
<PAGE>
EXHIBIT 1.1.5
LIST OF EXCLUDED PERMITS
None
<PAGE>
EXHIBIT 1.1.7
LIST OF EXCLUDED PERSONAL PROPERTY OR EQUIPMENT
None
<PAGE>
EXHIBIT 6.2.1
ADDITIONAL TITLE EXCEPTIONS
1. All easements, restrictions and matters of record.
<PAGE>
EXHIBIT 7.2.1.1
FORM OF LIMITED WARRANTY DEED
STATE OF SOUTH CAROLINA_)
______ ______ ) LIMITED WARRANTY DEED
COUNTY OF SPARTANBURG___)
KNOW ALL MEN BY THESE PRESENTS, that Century Properties Fund XX, a
California limited partnership, Grantor, in the State aforesaid, for and in
consideration of ________ and No/100 ($_________) Dollars, and other valuable
consideration, to it in hand paid at and before the sealing of these presents,
by ___________ Grantee of the State aforesaid, the receipt of which is hereby
acknowledged, has granted, bargained, sold and released, and by these presents
does grant, bargain, sell and release unto the said Grantee, and Grantee's
heirs, successors and assigns, the following described property:
SEE EXHIBIT "A" ATTACHED HERETO AND
INCORPORATED HEREIN BY REFERENCE
TMS No.______________
Grantee's Address:______
------ ------
Together with all and singular, the rights, hereditaments and
appurtenances belonging or in anywise incident or appertaining.
TO HAVE AND TO HOLD, subject to the rights, conditions, and restrictions
herein, subject to easements, restrictions and matters of record, all and
singular, the property before mentioned unto the said Grantee(s).
And the Grantor does hereby bind itself and its successors and assigns, to
warrant and forever defend all and singular the said premises unto the said
Grantee, Grantee's heirs, successors and assigns, against the claims of persons
owning or claiming, by, through or under Grantor, the same or any part thereof.
<PAGE>
IN WITNESS WHEREOF, Grantor has signed and sealed this instrument the day
and year first above written.
Signed, sealed and delivered CENTURY PROPERTIES, FUND XX,
in the Presence of: a California limited partnership
______ By: Fox Partners III,
Witness No. 1 a California general partnership,
its general partner
------
Witness No. 2 By: Fox Capital Management Corporation,
a California corporation,
its managing general partner
By: ______________________________
Name: ________________________
Its: _________________________
<PAGE>
STATE OF _______________)
------------)
COUNTY OF ______________)
PERSONALLY appeared before me the undersigned witness who made oath that
(s)he saw the within named ____________________________,
_____________________________ by _______________________, its
_________________________, sign and seal as its act and deed and deliver the
within written instrument and that (s)he with the other witness subscribed above
witnessed the execution thereof.
------------ ------------------------------
____________ Witness No. 1
SWORN to and subscribed before me this ____day of ______________, 1999.
_____________________________(L.S.)
Notary Public for _______________
My Commission Expires: ______________
<PAGE>
EXHIBIT "A"
LEGAL DESCRIPTION
All that parcel of land, containing 8.10 acres, more or less, located on the
east side of Fernwood Drive in the City of Spartanburg, County of Spartanburg,
State of South Carolina and being more particularly described as follows:
BEGINNING at an iron pin on the east side of the curb on the east side of
Fernwood Drive, which stands 583.00 feet in a southerly direction from the
intersection of Fernwood Drive and Peach Shed Road, and running thence south
85.00 east 391.30 feet to an iron pin; thence south +/-7-45 east a distance of
419.50 feet to an old iron pin; thence south +/-1-09 east a distance of 125.40
feet to an old iron pin; thence south 26-43 west a distance of 275.50 feet to an
old iron pin; thence north 63-17 west a distance of 311.50 feet to a point;
thence south 84-25 west a distance of 192.30 feet to an old iron pin on the east
side of the curb on the east side of Fernwood Drive, and running thence with the
east side of the curb on the east side of Fernwood Drive the following courses
and distances: north 00-07 east a distance of 110.00 feet to an old iron pin,
north 03-41 east a distance of 64.50 feet to an old iron pin, and north 05-00
east a distance of 508.20 feet to an old iron pin at the POINT OF BEGINNING;
being shown on plat of property of Lincoln Property Company made by Gooch and
Associates Surveyors, dated January 12, 1973, and recorded in Plat Book 70 at
page 271, R.M.C. office for the County and State aforesaid. Also, as shown on a
more recent survey dated June, 1974 and updated August 12, 1985 entitled "A
Final as-Built Survey for Corners Apartments" Shelter Properties IV,
Spartanburg, South Carolina certified to Shelter Properties IV, Century
Properties Fund XX and Lawyers Title Insurance Corporation by James M.
Honeycutt, South Carolina Registered Land Surveyor No. 5027.
PROPERTY ADDRESS__151 Fernwood Drive
____________Spartanburg, South Carolina 29302
This is the same property conveyed to Century Properties Fund XX, a California
limited partnership, by deed of Thomas J. DeZern, Master in and for the County
aforesaid, recorded in Deed Book 59-R at page 559.
<PAGE>
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
____________________________, a ___________________________________
("Purchaser").
Seller and Purchaser, have entered into that certain Purchase and Sale
Contract dated as of December ___, 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 those
purchase orders, maintenance, service or utility contracts or similar contracts
which relate to the ownership, maintenance, construction or repair or operation
of the Project listed on Schedule 1 attached hereto.
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. Seller hereby 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 with respect to periods prior to the date hereof.
3. Assumption. Purchaser expressly agrees to assume and hereby assumes all
liabilities and obligations of the Seller in connection with the Property with
respect to periods from and after the date hereof, 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 with
respect to periods from and after the date hereof.
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 South 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.
<PAGE>
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 limited partnership
By: Fox Partners III,
a California general partnership,
its general partner
By: Fox Capital Management Corporation,
a California corporation,
its managing general partner
By: ______________________________
Name: ________________________
Its: _________________________
Purchaser:
PENNSYLVANIA REALTY GROUP, INC.,
a Pennsylvania corporation
By: ______________________________________
Name: _______________________________
Title:
<PAGE>
SCHEDULE 1
PROPERTY CONTRACTS
[To Be Attached]
<PAGE>
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
__________________________, a _________________________ ("Purchaser").
Seller and Purchaser, have entered into that certain Purchase and Sale
Contract dated as of December ___, 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.
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 South 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.
<PAGE>
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 limited partnership
By: Fox Partners III,
a California general partnership,
its general partner
By: Fox Capital Management Corporation,
a California corporation,
its managing general partner
By: ______________________________
Name: ________________________
Its: _________________________
Purchaser:
PENNSYLVANIA REALTY GROUP, INC.,
a Pennsylvania corporation
By: ______________________________________
Name: _______________________________
Title:
<PAGE>
Exhibit B
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Escrow Agreement") made this ___ day of December,
1999 by and among CENTURY PROPERTIES FUND XX, a California limited partnership
("Seller"), and PENNSYLVANIA REALTY GROUP, INC., a Pennsylvania corporation
("Purchaser"); and CAMPERDOWN TITLE SERVICES, INC. ("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 December,
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, on 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.
Whereas, if Purchaser shall exercise its extension option to extend the
Closing (as defined in the Purchase Contract), the Purchase Contract requires
that, on or before 5:00 p.m. Eastern time on the thirtieth (30th) day following
expiration of the Feasibility Period, Purchaser shall provide an additional
deposit in the sum of Twenty-Five Thousand and no/100 Dollars ($25,000.00) in
cash (the "Extension Option 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, the Additional Deposit and the Extension Deposit, if paid
(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 Seller 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, Seller shall give notice to the Escrow
Agent and Purchaser, and 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.
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 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 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:
If to Seller: If to Purchaser:
Century Properties Fund XX Pennsylvania Realty Group, Inc.
1873 South Bellaire Street, 2701 East Luzerne Street
17th Floor Philadelphia, Pennsylvania 19137
Denver, Colorado 80222 Attn: Mr. Steven A. Berger
Attn: Mr. Harry Alcock
And
With a copy to:
Argent Real Estate
1401 Brickell Avenue, Suite 520 Alan N. Escott, Esq.
Miami, Florida 33131 McCausland, Keen & Backman
Attn: Mr. David Marquette Suite 160, Radnor Court
259 N. Radnor-Chester Road
Radnor, Pennsylvania 19087
With a copy to: If to Escrow Agent:
Loeb & Loeb Camperdown Title Services, Inc.
1000 Wilshire Boulevard, Suite 44 East Camperdown Way
1800 Greeneville, South Carolina
Los Angeles, California 90017 29601
Attn: Andrew S. Clare, Esq. Attn: Ms. Sandy Grubbs
Karen N. Higgins, Esq.
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 a fee of $300.00 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 fee 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 South 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.
<PAGE>
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 limited partnership
By: Fox Partners III,
a California general partnership,
its general partner
By: Fox Capital Management Corporation,
a California corporation,
its managing general partner
By: ______________________________
Name: ________________________
Its: _________________________
Taxpayer ID No. __________________________
Purchaser:
PENNSYLVANIA REALTY GROUP, INC.,
a Pennsylvania corporation
By: ______________________________________
Name: _______________________________
Title: _______________________________
Taxpayer ID No. __________________________
CAMPERDOWN TITLE SERVICES, INC.
By: ______________________________________
Name: ________________________________
Title: _______________________________
<PAGE>
Page(s)
TABLE OF CONTENTS
Page
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.....................................................19
ARTICLE 12 DEFAULTS AND REMEDIES..........................................19
ARTICLE 13 RISK OF LOSS OR CASUALTY.......................................20
ARTICLE 14 RATIFICATION...................................................20
ARTICLE 15 EMINENT DOMAIN.................................................20
ARTICLE 16 MISCELLANEOUS..................................................21
<PAGE>
Exhibit 10.8
AMENDMENT TO PURCHASE AND SALE CONTRACT
(Corners Apartments)
This Amendment To Purchase and Sale Contract (this "Amendment") is entered
into as of the 14th day of January, 2000, by and between CENTURY PROPERTIES FUND
XX, a California limited partnership ("Seller"), and PENNSYLVANIA REALTY GROUP,
INC., a Pennsylvania corporation ("Purchaser"), with respect an escrow
established with Camperdown Title Services.
Reference is made to that certain Purchase and Sale Contract dated as of
December 15, 1999 between Purchaser and Seller (the "Contract"). Capitalized
terms not otherwise defined herein shall have the meanings ascribed to them in
the Contract.
Purchaser and Seller desire to further amend the Contract pursuant to the
terms set forth below.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Contract is hereby amended as
follows:
1. Extension of Feasibility Period. Section 5.1 of the Contract is
hereby amended to provide that with respect to the Environmental Due Diligence
(as hereinafter defined) only, the Feasibility Period shall expire at 5:00 p.m.,
Eastern time on January 28, 2000. Provided Purchaser has not terminated the
Purchase Contract pursuant to Section 5.2 of the Purchase Contract with respect
to the issues relating to the Environmental Due Diligence on or before 5:00 p.m.
Eastern time on January 28, 2000, Purchaser Shall deliver to Escrow Agent at
or before 5:00 p.m. Eastern time on January 28, 2000, the $50,000 Additional
Deposit.
2. Closing Date. Based on the extension of the Feasibility Period to
January 28, 2000, the Closing shall occur on February 28, 2000, subject to
extension rights set forth in Sections 7.1.2 and 7.1.3 of the Contract.
3. Waiver of Contingencies Other Than Environmental Due Diligence.
Purchaser hereby rescinds its notice of termination of the Contract sent to
Seller by letter dated January 13, 2000, and agrees and acknowledges that other
than completing an environmental review and an analysis of the Property (the
"Environmental Due Diligence"), all of the contingencies relating to the
Feasibility Period have been satisfied or waived. Seller and Purchaser agree
that Purchaser shall have until January 28, 2000 to satisfy its due diligence
relating to the Environmental Due Diligence.
4. Delivery of Additional Study Reports to Seller. Within five (5)
days after Purchaser's receipt thereof, Purchaser agrees to deliver to Seller
copies of all reports and studies including, without limitation, the Phase I
environmental report obtained by Purchaser in connection with its Environmental
Due Diligence.
5. Counterparts. This Amendment may be executed in counterparts, each of
which when compiled together shall constitute one and the same original.
All other terms and conditions of the Contract remain unmodified and in
full force and effect.
IN WITNESS WHEREOF, Seller and Purchaser have entered into this Amendment
as of the date written above.
Seller:
CENTURY PROPERTIES, FUND XX,
a California limited partnership
By: Fox Partners III,
a California general partnership,
its general partner
By: Fox Capital Management Corporation,
a California corporation,
its managing general partner
By: ______________________________
Name: ________________________
Its: _________________________
Purchaser:
PENNSYLVANIA REALTY GROUP, INC.,
a Pennsylvania corporation
By: ______________________________________
Name: _______________________________
Title: ______________________________
<PAGE>
Exhibit 10.9
SECOND AMENDMENT TO PURCHASE AND SALE CONTRACT
(Corners Apartments)
This Second Amendment To Purchase and Sale Contract (this "Amendment") is
entered into as of the 10th day of February, 2000, by and between CENTURY
PROPERTIES FUND XX, a California limited partnership ("Seller"), and
PENNSYLVANIA REALTY GROUP, INC., a Pennsylvania corporation ("Purchaser"), with
respect an escrow established with Camperdown Title Services.
Reference is made to that certain Purchase and Sale Contract dated as of
December 15, 1999 between Purchaser and Seller, as amended by that certain
Amendment to Purchase and Sale Contract dated as of January 14, 2000
(collectively, the "Contract"). Capitalized terms not otherwise defined herein
shall have the meanings ascribed to them in the Contract.
Purchaser and Seller desire to further amend the Contract pursuant to the
terms set forth below.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Contract is hereby amended as
follows:
1. Reduction of Purchase Price/Waiver of all Contingencies. For valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Purchase Price is hereby reduced by the sum of Four Hundred Fifty Thousand
Dollars from $4,450,000 to $4,000,000. In consideration of the foregoing,
Purchaser hereby waives all contingencies relating to the Feasibility Period,
and agrees that the Deposit has become non-refundable.
2. Additional Deposit. On or before 5 p.m. Eastern time on February 11, 2000,
Purchaser shall deliver the $50,000 Additional Deposit to the Escrow Agent,
which Additional Deposit shall become non-refundable when paid.
3. Closing Date. The Closing shall occur on March 13, 2000, subject to the
extension rights set forth in Sections 7.1.2 and 7.1.3 of the Contract.
4. Rescission of Termination Notice. Purchaser hereby rescinds its notice of
termination of the Contract sent to Seller by letter dated January 27, 2000.
5. Counterparts. This Amendment may be executed in counterparts, each of which
when compiled together shall constitute one and the same original.
All other terms and conditions of the Contract remain unmodified and in
full force and effect.
<PAGE>
IN WITNESS WHEREOF, Seller and Purchaser have entered into this Second
Amendment as of the date written above.
Seller:
CENTURY PROPERTIES, FUND XX,
a California limited partnership
By: Fox Partners III,
a California general partnership,
its general partner
By: Fox Capital Management Corporation,
a California corporation,
its managing general partner
By: ______________________________
Name: ________________________
Its: _________________________
Purchaser:
PENNSYLVANIA REALTY GROUP, INC.,
a Pennsylvania corporation
By: ______________________________________
Name: _______________________________
Title: ______________________________
<PAGE>
Exhibit 10.10
THIRD AMENDMENT TO PURCHASE AND SALE CONTRACT
(Corners Apartments)
This Third Amendment To Purchase and Sale Contract (this "Amendment") is
entered into as of the ____ day of March, 2000, by and between CENTURY
PROPERTIES FUND XX, a California limited partnership ("Seller"), PENNSYLVANIA
REALTY GROUP, INC., a Pennsylvania corporation ("Purchaser"), and NEW CORNERS
ASSOCIATES, L.L.C., a South Carolina limited liability company ("Assignee"),
with respect to an escrow established with Camperdown Title Services, Inc.
Reference is made to that certain Purchase and Sale Contract dated as of
December 15, 1999, between Purchaser and Seller, as amended by that certain
Amendment to Purchase and Sale Contract dated as of January 14, 1999, and that
certain Second Amendment to Purchase and Sale Contract dated as of February 10,
2000 (collectively, the "Contract"). Capitalized terms not otherwise defined
herein shall have the meanings ascribed to them in the Contract.
Purchaser, Assignee and Seller desire to further amend the Contract
pursuant to the terms set forth below.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Contract is hereby amended as follows:
1. Assignment by Purchaser. Purchaser hereby nominates Assignee as Purchaser
under the Contract. Purchaser hereby assigns to Assignee its interests under the
Contract, and Assignee hereby agrees to assume all of Purchaser's obligations
and liabilities under the Contract. Seller hereby agrees to the foregoing
nomination, assignment and assumption on the condition that Purchaser shall not
be released from its liability and obligations under the Contract in the event
of a breach of the Contract by Assignee.
2. Counterparts. This Amendment may be executed in counterparts, each of
which when compiled together shall constitute one and the same original.
All other terms and conditions of the Contract remain unmodified and in
full force and effect.
[Remainder of page intentionally left blank]
<PAGE>
IN WITNESS WHEREOF, Seller, Assignee and Purchaser have entered into this
Amendment as of the date written above.
Seller:
CENTURY PROPERTIES, FUND XX,
a California limited partnership
By: Fox Partners III,
a California general partnership,
its general partner
By: Fox Capital Management Corporation,
a California corporation,
its managing general partner
By:
Name: _________________________
Its: ____________________________
Purchaser:
PENNSYLVANIA REALTY GROUP, INC.,
a Pennsylvania corporation
By: ______________________________________
Name: ________________________________
Title: _______________________________
Assignee:___
NEW CORNERS ASSOCIATES L.L.C.,
a South Carolina limited liability company
By:
Jon J. Goodman
President
<PAGE>
Exhibit 10.11
PURCHASE AND SALE CONTRACT
BETWEEN
CENTURY PROPERTIES FUND XX,
a California limited partnership
AS SELLER
AND
CHAMBERS & ASSOCIATES COMMERCIAL REAL ESTATE SERVICES, L.L.C,
a Kansas limited liability company
AS PURCHASER
<PAGE>
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT ("Purchase Contract") is entered into as
of the ____ day of January, 2000 (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
CHAMBERS & ASSOCIATES COMMERCIAL REAL ESTATE SERVICES, L.L.C, a Kansas limited
liability company, having a principal address at 7000 West 105th Street,
Overland Park, Kansas 66212 ("Purchaser").
NOW, THEREFORE WITNESSETH: That for and in consideration of mutual
covenants and agreements hereinafter set forth, Seller and Purchaser hereby
agree as follows:
RECITALS
R-1. Seller holds legal title to the real estate located in Johnson County,
Kansas, 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,
Purchaser's intended uses of the Property, and certain due diligence materials
to be delivered to Purchaser by Seller, 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 Kansas.
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 Closing Date for the applicable
Property.
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
Kansas 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, building names, all pre-paid accounts
payable, 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, (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 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. Purchaser further agrees not to
cause or permit the recordation of this Purchase Contract in the official
records of any state or county.
ARTICLE 3
PURCHASE PRICE & DEPOSIT
3.1 The total purchase price ("Purchase Price") for the Property shall be Three
Million Three Hundred Fifty Thousand and no/100 ($3,350,000.00), which shall be
paid by Purchaser, as follows:
3.1.1 On the date hereof, Purchaser shall deliver to Fidelity National Title
Company ("Escrow Agent" or the "Title Insurer") a deposit in the sum of Fifty
Thousand and no/100 ($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 [Intentionally Omitted]
3.1.3 The Escrow Agent shall hold the Deposit and make delivery of the Deposit
to the party entitled thereto under the terms hereof. Escrow Agent shall invest
the Deposit in such short-term, high-grade securities, interest-bearing bank
accounts, money market funds or accounts, bank certificates of deposit or bank
repurchase agreements as Escrow Agent, in its discretion, deems suitable,
(provided that Escrow Agent shall invest the Deposit as jointly directed by
Seller and Purchaser should Seller and Purchaser each in their respective sole
discretion determine to issue such joint investment instructions to the Escrow
Agent) and all interest and income thereon shall become part of the Deposit and
shall be remitted to the party entitled to the Deposit, as set forth below.
3.1.4 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 shall be applied to the Purchase Price on the Closing Date. If the sale
of the Property is not closed by the date fixed therefor (or any such extension
date), the Deposit shall be returned pursuant to the terms of the Escrow
Agreement, subject to the terms of Section 5.2 herein, Purchaser's liability
under Section 5.3 herein and to each party's liability to the other set forth in
Article 12 herein.
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 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 forty-five (45) calendar days
following the Effective Date (i.e., through March 6, 2000 if the Effective Date
is January 21, 2000), but in no event later than March 9, 2000 (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 Purchaser shall have the right to terminate this Purchase Contract for any
reason by giving written Notice to that effect 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. If Purchaser does not terminate this Purchase Contract as provided in this
Section 5.2, Purchaser shall be deemed to have approved and agreed to assume all
contracts, leases, and other agreements existing with respect to the Property as
of the expiration of the Feasibility Period as well as all Commercial Leases.
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 could result in
any injury to the Property or breach of any agreement, or expose Seller to any
liability, costs, liens or violations of applicable law, or otherwise adversely
affect the Property or Seller's interest therein. No consent by the Seller to
any such activity shall be deemed to constitute a waiver by Seller or assumption
of liability or risk by Seller. Purchaser hereby agrees to restore the Property
to the same condition existing immediately prior to Purchaser's exercise of its
rights pursuant to this ARTICLE 5 at Purchaser's sole cost and expense.
Purchaser shall maintain casualty insurance and comprehensive public liability
insurance with broad form contractual and personal injury liability endorsements
with respect to the Property and Purchaser's activities carried on therein, in
amounts (including deductible amounts) and with such insurance carriers as shall
be approved by Seller and naming Seller and its affiliates as loss payees or
additional insureds (at the option of Seller), with endorsements acceptable to
Seller, including a waiver of defenses of the insurer based on the actions or
inaction of Purchaser (which insurance must be reasonably approved by Seller).
Such liability insurance shall provide coverages of not less than $1,000,000.00
for injury or death to any one person and $3,000,000.00 for injury or death to
more than one person and $500,000.00 with respect to property damage, by water
or otherwise). The 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, including, but only to the extent such items are in Seller's
possession or control, those items listed in Exhibit 5.5 attached hereto;
provided however that in no event shall Purchaser be entitled to receive any
proprietary information of Seller. If the sale of the Property is not closed by
the date fixed therefor, Purchaser shall, within five (5) calendar days, return
all such Materials to Seller.
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 Fidelity National Title Insurance Company ("Title Insurer") for an owner's
title insurance policy on the most recent standard American Land Title
Association ("ALTA") Policy form (the "Owner's Policy"), 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. Seller and
Purchaser agree that they shall share equally in the cost of the Title
Commitment and the Owner's Policy up to a maximum cost of $2,400.00, with Seller
to pay any cost for the Owner's Policy in excess of that amount; provided,
however, that Purchaser shall be solely responsible for the cost of any
endorsements to the Owner's Policy or for any other title insurance that
Purchaser may choose to obtain.
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 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
6.2.4 Any other occupancy, residency, lease, tenancy and similar agreements
entered into in the ordinary course of business, to the extent such other
agreements have been disclosed to and accepted by Purchaser; and
6.2.5 All Property Contracts and any other existing contracts created in the
ordinary course of business by Seller, which are not identified for termination
by Purchaser during the Feasibility Period; and
6.2.6 Real estate and property taxes for the calendar year in which closing
occurs to the extent not due and payable;
6.2.7 Intentionally deleted; and
6.2.8 All matters of public record as of the effective time of the Title
Commitment (as approved by Purchaser).
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 Deleted]
6.7 Except as otherwise provided in this agreement, 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; provided, however,
that if the cost to cure such objection or unfulfilled condition will, in
Seller's reasonable determination, be $15,000 or less, Seller shall be required
to use reasonable efforts to make such cure or fulfill such condition, but in no
event shall Seller be required to spend more than $15,000 to make such cure or
fulfill such condition. 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 To the extent Seller is not obligated by the terms of this Purchase Contract
to cure such objection or unfulfilled condition, 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, in which event 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 (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 in
writing by Purchaser.
6.11 Intentionally deleted.
6.12 Seller shall deliver to Purchaser during the Feasibility Period the most
recent as-built survey of the Property, in Seller's possession or control, if
any. Purchaser, at Purchaser's sole cost and expense, may update such survey or
cause to be prepared a new 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 thirty (30) calendar days after the
expiration of the Feasibility Period, 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.
7.1.2 The Closing Date may be extended without penalty at the option of Seller
to a date not later than thirty (30) days following the Closing Date specified
above to satisfy a condition to be satisfied by Seller, or such later date as is
mutually acceptable to Seller and Purchaser.
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 and approved by Purchaser, together with any payments
due parties to other agreements affecting the Property which survive Closing or
under the Property Contracts assumed by Purchaser, provided that any payments
under the Property Contracts 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 Sections 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).
Any Rent that is delinquent on the Closing Date shall not be prorated at the
Closing, but shall be governed pursuant to the provisions of Section 7.1.5
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.
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, to 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 and Purchaser shall share equally in the costs 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.
7.1.7 Purchaser shall pay the cost of any taxes or fees (e.g., mortgage
registration fees, deed of trust recording fees) arising as a result of
Purchaser's financing, if any, with respect to its purchase of the Property.
7.2 Items To Be Delivered Prior To Or At Closing.
7.2.1 Seller. At Closing, Seller shall deliver to Purchaser, each of the
following items, as applicable:
7.2.1.1 Special Warranty Deed 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, 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 all Seller's
obligations that Purchaser has, or is deemed to have, agreed to assume
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 Commitment; provided that such affidavit does not subject
Seller to any greater liability, or impose any additional obligations, other
than as set forth in this Purchase Contract; 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
7.2.1.9 Original Tenant Estoppel Certificates, in the form attached as Exhibit
7.2.1.9 , or the form required by the Tenant's Lease, for a maximum of eighty
percent (80%) of the space leased by Tenants at the Property. 1.1.1.1
7.2.10 Seller shall make reasonable efforts prior to Closing to assist
Purchaser, at Purchaser's sole cost and expense, in obtaining Subordination
Agreements in form and substance acceptable to Purchaser, from the Tenants.
However, delivery of such Subordination Agreements shall not be a condition to
the Closing.
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 A fully executed Kansas Real Estate Sales Validation Questionnaire, as
required by Johnson County, in the form attached as Exhibit 7.2.2.5
7.2.2.6 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 To Seller's knowledge, each of the Materials to be delivered to
Purchaser during the Feasibility Period are, or will be, complete, true and
correct in all material respects, and further, all Materials that are to be so
delivered and are in Seller's possession or control, have been, or will be,
delivered to Purchaser.
8.1.1.8 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 or Broker or statements, representations or
warranties, express or implied, made by or enforceable directly against Seller
or 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 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. 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 Mr. Michael Greene of Metric Management, Inc..
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 Purchaser is limited liability company duly organized, validly existing
and in good standing under the laws of Kansas.
8.2.2.2 Purchaser, acting through any of its or their duly empowered and
authorized officers or members, has all necessary power and authority to own and
use its properties and to transact the business in which it is engaged, and has
full power and authority to enter into this Purchase Contract, to execute and
deliver the documents and instruments required of Purchaser herein, and to
perform its obligations hereunder; and no consent of any of Purchaser's officers
or members are required to so empower or authorize Purchaser.
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 is duly authorized to execute and deliver, acting through its
duly empowered and authorized officers and members, respectively, and perform
this Purchase Contract and all documents and instruments and transactions
contemplated hereby or incidental hereto, and such execution, delivery and
performance by Purchaser does not (i) violate any of the provisions of their
respective certificates of incorporation or bylaws, (ii) violate any provision
of any law, governmental rule or regulation currently in effect, (iii) violate
any judgment, decree, writ, injunction, award, determination or order currently
in effect that names or is specifically directed at Purchaser or its property,
and (iv) require the consent, approval, order or authorization of, or any filing
with or notice to, any court or other governmental authority.
8.2.2.5 The joinder of no person or entity other than Purchaser is necessary to
consummate the transactions to be performed by Purchaser and Purchaser has all
necessary right and authority to perform such acts as are required and
contemplated by this Purchase Contract.
8.2.3 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 Purchaser hereby discloses that Chambers & Associates and its principal,
Mr. Mike Chambers, are licensed real estate brokers, and Seller hereby
acknowledges that such disclosure has been made.
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 of Section 7.2.1 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 Title Company shall be prepared to issue to Purchaser the Title Policy as
required by Article 6 hereof;
9.1.5 Notwithstanding anything to the contrary, there are no other conditions on
Purchaser's obligation to Close except as expressly set forth above.
9.2 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 If applicable, Purchaser shall have produced evidence reasonably
satisfactory to Seller of Purchaser's compliance with Hart-Scott-Rodino Act
requirements or of the non-applicability thereof to the transactions
contemplated by this Purchase Contract.
ARTICLE 10
BROKERAGE
10.1 Seller represents and warrants to Purchaser that it has dealt only with
Pinnacle Realty Management Company, 7316 Wisconsin Avenue, Suite 300, Bethesda,
Maryland 20814-2925 ("Broker") in connection with this Purchase Contract. Seller
and Purchaser each represents and warrants to the other that other than Broker,
it has not dealt with or utilized the services of any other real estate broker,
sales person or finder in connection with this Purchase Contract, and each party
agrees to indemnify the other party from and against all claims for brokerage
commissions and finder's fees arising from or attributable to the acts or
omissions of the indemnifying party.
10.2 Seller agrees to pay Broker a commission according to the terms of a
separate agreement. Broker shall not be deemed a party or third party
beneficiary of this Purchase Contract.
10.3 Broker assumes no responsibility for the condition of the Property or
representation for the performance of this Purchase Contract by the Seller or
Purchaser.
10.4 Seller acknowledges the disclosure made by Purchaser in Section 8.2.4 of
this Agreement that Chambers & Associates, and its principal, Mr. Mike Chambers,
are licensed real estate brokers.
ARTICLE 11
POSSESSION
11.1 Possession 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
12.1 In the event Purchaser terminates this Purchase Contract following the
Feasibility Period for any reason other than Seller's inability to convey title
as required by this Purchase Contract, or defaults hereunder 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. 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.
12.2 Provided that Purchaser has not terminated this Purchase Contract and is
not otherwise in default hereunder, if the Closing does not occur as a result of
Seller's default hereunder, Purchaser's sole remedy shall be to elect (1) to
terminate this Purchase Contract and receive reimbursement of the Deposit (or so
much thereof as has been received by Escrow Agent) and reimbursement for
Purchaser's actual reasonable out-of-pocket expenses (including, without
limitation, reasonable attorneys' fees, charges and disbursements) incurred in
connection with the negotiation of this Purchase Contract and Purchaser's due
diligence efforts, provided, however, that the amount of such reimbursement
shall not exceed $20,000.00; or (2) to seek specific performance of this
Purchase Contract.
ARTICLE 13
RISK OF LOSS OR CASUALTY
13.1 Seller shall maintain all current insurance policies with respect to the
Property in effect until the Closing Date. Prior to the Closing , the risk of
loss or damage to the Property by fire or other casualty shall be borne and
assumed by Seller. If, prior to the Closing, any "Material Damage" (as
hereinafter defined) occurs to any portion of the Property as a result of fire
or other casualty, Seller shall immediately notify Purchaser of such fact. In
such event, Purchaser shall have the option to terminate this Purchase Contract
upon written notice to Seller given not later than ten (10) days after receipt
of any such notice from Seller. Purchaser shall have no right to terminate this
Purchase Contract as a result of any damage or destruction of any portion of the
Property that does not constitute Material Damage. If Purchaser does not elect
or has no right to terminate this Purchase Contract, Seller shall assign and
turn over, and Purchaser shall be entitled to receive and keep, all insurance
proceeds payable with respect to such damage or destruction (which shall then be
repaired or not at Purchaser's option and cost) and the parties shall proceed to
the Closing pursuant to the terms hereof without modification of the terms of
this Purchase Contract. If Purchaser does not elect or has no right to terminate
this Purchase Contract by reason of any casualty, Purchaser shall have the right
to participate in any adjustment of the insurance claim. If the insurance
proceeds payable with respect to any damage do not cover the full replacement
cost of such damage, Seller shall credit Purchaser for the difference between
the insurance proceeds and the actual reasonable expenses necessary to repair
such damage; provided however that such credit shall not exceed the lesser of
(1) fifteen percent (15%) of the total repair costs, or (2) $100,000. As used
herein, the term "Material Damage" shall mean damage or destruction the cost of
repair of which exceeds $350,000.00.
ARTICLE 14
RATIFICATION
14.1 This Purchase Contract shall be null and void unless fully ratified by
Purchaser and Seller on or before January 25, 2000.
ARTICLE 15
EMINENT DOMAIN
15.1 In the event that at the time of Closing all or any part of the Property is
(or has previously been) acquired, or is about to be acquired, by authority of
any governmental agency in purchase in lieu thereof (or in the event that at
such time there is any notice of any such acquisition 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 (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), and (ii) Purchaser is not released
from its liability hereunder.
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 Chambers & Associates
Tower Two Commercial Real Estate
2000 South Colorado Blvd. Services, L.L.C
Suite 2-1000 7000 West 105th Street
Denver, Colorado 80222 Overland Park, Kansas 66212
Attn: Mr. Harry Alcock Attn: Mr. Mike Chambers
Phone: 303 691-4300 Phone: ______________
Fax: 303 692-0786 Fax: ________________
And With a copy to
Argent Real Estate Levy and Craig, P.C.
1401 Brickell Avenue, Suite 520 911 Main Street, Suite 2000
Miami, Florida 33131 Kansas City, Missouri 64105
Attn: Mr. David Marquette Attn: Patricia McDonald, Esq.
Phone: 305 371-9299 Phone: 816 460-1829
Fax: 305 371-6898 Fax: 816 471-2186
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.
Phone: 213 688-3820
Fax: 213 688-3460
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 Kansas 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,
financial advisors, consultants, 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.
16.19 No Personal Liability of Officers, Trustees or directors of Seller's
Partners
Purchaser acknowledges that this Agreement 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 Agreement or any document executed in
connection with the transactions contemplated by this Agreement.
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 Agreement, 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 Agreement without the Property having been conveyed to
Purchaser.
16.21 Indemnification Post Closing
Provided the transaction contemplated herein is consummated, Seller agrees
to indemnify, defend and hold harmless from and against any and all cost, loss,
harm or damage which may arise in connection with the Property with respect to
periods prior to the Closing Date. Purchaser 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 with respect to periods from and
after the Closing Date.
16.22 Covenants Regarding Leases
Seller agrees to timely provide Purchaser with copies of any lease
proposals (including new leases and requests for any lease modifications) and
Seller agrees not to enter into any new leases on the Property, or terminate or
modify any existing leases on the Property without the prior written consent of
Purchaser (which consent shall not be unreasonably withheld). If Seller desires
to enter into any new lease, or terminate or modify any existing leases, Seller
shall provide Purchaser written notice thereof. If Purchaser fails to deliver
written disapproval thereof to Seller within five (5) days after Purchaser's
receipt of such notice, Purchaser shall be deemed to have approved the proposed
action. If during the Feasibility Period Purchaser unreasonably disapproves of
any proposed action (as determined by Seller in its reasonable discretion),
Seller shall have the option to terminate this Purchase Contract upon five (5)
days written notice to Purchaser. Upon Purchaser's receipt of such termination
notice, Purchaser shall have the right to either accept the termination (in
which case the Deposit shall be returned to Purchaser and neither party shall
have any obligation to the other, except as expressly set forth herein for
provisions which survive termination), or Purchaser may approve the proposed
action (which was previously disapproved), and permit the Purchase Contract to
continue. If notice of approval of the proposed lease is not delivered to Seller
within five (5) days after Purchaser's receipt of the termination notice,
Purchaser shall be deemed to have accepted Seller's termination. Seller shall
not have the foregoing right of termination after the expiration of the
Feasibility Period.
<PAGE>
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 limited partnership
By:_____________________Fox Partners III,
a California general partnership,
Its general partner
By:Fox Capital Management Corporation,
a California corporation,
Its general partner
By:
Name:
Title:
Purchaser:
CHAMBERS & ASSOCIATES COMMERCIAL REAL ESTATE
SERVICES, L.L.C
a Kansas limited liability company
By:
Name:
Title:
<PAGE>
ACKNOWLEDGEMENTS
STATE OF__________ )
)
COUNTY OF ________________ )
On _____________________, before me, _____________________________________, a
Notary Public, personally appeared _________________________________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity (ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
-----------------------------------
Notary Public
STATE OF__________ )
)
COUNTY OF ________________ )
On _____________________, before me, _____________________________________, a
Notary Public, personally appeared _________________________________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity (ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
-----------------------------------
Notary Public
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION FOR METCALF 103
That certain property located in the City of Overland Park, County of Johnson,
State of Kansas, described as follows:
Tract 2 and an undivided 9.8 percent interest in Tract C, METCALF 103 OFFICE
PARK, a subdivision in the City of Overland Park, Johnson County, Kansas,
according to plat of said subdivision recorded in Book 54, Page 18.
Tract 3 and an undivided 9.5 percent of interest in Tract C, METCALF 103 OFFICE
PARK, a subdivision in the City of Overland Park, Johnson County, Kansas,
according to plat of said subdivision recorded in Book 54, Page 18.
Tract 4 and an undivided 23.4 percent of interest in Tract C, METCALF 103 OFFICE
PARK, a subdivision in the City of Overland Park, Johnson County, Kansas,
according to plat of said subdivision recorded in Book 54, Page 18.
Tract 5 and an undivided 7.9 percent of interest in Tract C, METCALF 103 OFFICE
PARK, a subdivision in the City of Overland Park, Johnson County, Kansas,
according to plat of said subdivision recorded in Book 54, Page 18.
Tract 6 and an undivided 8.0 percent of interest in Tract C, METCALF 103 OFFICE
PARK, a subdivision in the City of Overland Park, Johnson County, Kansas,
according to plat of said subdivision recorded in Book 54, Page 18.
<PAGE>
EXHIBIT 5.5
ADDITIONAL MATERIALS
Seller shall deliver to Purchaser within ten (10) calendar days from the
Effective Date, the following documents, to the extent that such documents are
in Seller's possession or control:
A. Most recent property tax assessments and tax bills;
B. A current title report including complete and legible copies of all
documents (whether or not recorded) which are referenced therein as title
exceptions;
C. The most recent ALTA (and all other more recent) surveys of the Property;
D. All Soils reports covering the site;
E. All Plans and specifications for to improvements;
F. Copies of all existing leases, including concessions and a written summary
of any leases currently in negotiation, specifying the tenant, premises to
be leased, rents, and term and outlining all other material deal points;
G. All current insurance policies, together with a written summary of
insurance coverages and premiums by policy types;
H. All certificates of occupancy;
I. All contractor, vendor, manufacturer and other warranties with respect to
all real property improvements, fixtures, equipment and personal property
to be conveyed;
J. All service and vendor contracts (including all amendments and side-letter
agreements relating thereto);
K. All environmental (hazardous substances), engineering, physical inspection,
marketing and feasibility studies, assessments and reports;
L. Income and expense reports for the previous 36 months of ownership of the
Property;
M. A written summary of all pending or threatened litigation;
N. All reports, assessments or studies regarding actions required to bring the
Property into compliance with the Americans with Disabilities Act or any
similar state statute or local ordinance or code;
O. A schedule of special assessment districts;
P. A schedule of allowances or rebates due on tenant improvements;
Q. All collective bargaining agreements covering any of the Property
personnel;
R. All materials evidencing or describing multi-employer, benefit plans
covering any of the Property personnel, including the most recent annual
and quarterly reports filed with the Department of Labor with respect
thereto;
S. An insurance claim loss run for the last five (5) years;
T. A list of all repairs at the Property in amounts exceeding $2,500 for the
last five (5) years.
<PAGE>
EXHIBIT 6.2.1
ADDITIONAL TITLE EXCEPTIONS
[To Be Attached]
<PAGE>
EXHIBIT 7.2.1.1
FORM OF LIMITED WARRANTY DEED
THIS INDENTURE, made this _____ day of ________________, 1999 by and
between CENTURY PROPERTIES FUND XX, a California limited partnership ("Grantor")
and ___________________________________, ("Grantee")
WITNESSETH, That Grantor, in consideration of the sum of ONE DOLLAR
($1.00) and other good and valuable consideration, the receipt of which is
hereby acknowledged, does by these presents, Sell and Convey unto Grantee, its
successors and assigns, all of Grantor's interest in the lot, tract, or parcel
of land, lying, being and situate in the County of Johnson and State of Kansas,
as described in Exhibit "A" attached hereto and made a part hereof, subject to
easements, reservations, restrictions, encumbrances and taxes, if any.
TO HAVE AND TO HOLD THE SAME, Together with all and singular the
tenements, hereditaments and appurtenances thereto belonging or in any wise
appertaining, forever. Grantor, for its successors, executors or administrators,
does hereby covenant, promise and agree to and with Grantee that, at the
delivery of these presents, said interest in said premises is free, clear,
discharged and unencumbered of and from all former and other grants, titles,
charges, estates, judgments, taxes, assessments and encumbrances, of whatsoever
nature or kind, by, through, or under Grantor except as above stated. Grantor
will warrant and forever defend said interest of said premises unto Grantee, its
successors and assigns, against Grantor, its successors and assigns, and all and
every person or persons whomsoever, lawfully claiming or to claim the same by,
through or under Grantor.
IN WITNESS WHEREOF, Grantor has hereunto set its hand the day and year
first above written.
CENTURY PROPERTIES FUND XX,
a California limited partnership
By: Fox Partners III,
a California general partnership,
its general partner
By: Fox Capital Management Corporation,
a California corporation,
its general partner
By:
Name:
Title:
<PAGE>
STATE OF )
)
COUNTY OF )
BE IT REMEMBERED, That on this ____ day of ______________, A.D., 1999,
before me, appeared ___________________, to me personally known, who being by me
duly sworn, did say that he/she is the _______________ of Fox Capital Management
Corporation, the managing general partner of Fox Partners III, the general
partner of Century Properties Fund XX, a California general partnership, and
that said instrument was signed in behalf of said partnership, and said
_____________________ acknowledged said instrument to be the free act and deed
of said partnership.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial
seal at my office the day and year last above written
-----------------------------------
Notary Public
My Commission Expires: ____________
<PAGE>
Exhibit "A" to EXHIBIT 7.2.1.1
LEGAL DESCRIPTION
That certain property located in the City of Overland Park, County of Johnson,
State of Kansas, described as follows:
Tract 2 and an undivided 9.8 percent interest in Tract C, METCALF 103 OFFICE
PARK, a subdivision in the City of Overland Park, Johnson County, Kansas,
according to plat of said subdivision recorded in Book 54, Page 18.
Tract 3 and an undivided 9.5 percent of interest in Tract C, METCALF 103 OFFICE
PARK, a subdivision in the City of Overland Park, Johnson County, Kansas,
according to plat of said subdivision recorded in Book 54, Page 18.
Tract 4 and an undivided 23.4 percent of interest in Tract C, METCALF 103 OFFICE
PARK, a subdivision in the City of Overland Park, Johnson County, Kansas,
according to plat of said subdivision recorded in Book 54, Page 18.
Tract 5 and an undivided 7.9 percent of interest in Tract C, METCALF 103 OFFICE
PARK, a subdivision in the City of Overland Park, Johnson County, Kansas,
according to plat of said subdivision recorded in Book 54, Page 18.
Tract 6 and an undivided 8.0 percent of interest in Tract C, METCALF 103 OFFICE
PARK, a subdivision in the City of Overland Park, Johnson County, Kansas,
according to plat of said subdivision recorded in Book 54, Page 18.
<PAGE>
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
____________________________, a ___________________________________
("Purchaser").
Seller and Purchaser, have entered into that certain Purchase and Sale
Contract and dated as of January ___, 2000 ("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:
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:
1. 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.
a. 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.
b. 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.
c. 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 and
subject to Purchaser indemnity provided in paragraph 3 herein. 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 Property
with respect to periods prior to the date hereof.
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
subject to Seller's indemnity provided in paragraph 2 herein. 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
with respect to periods from and after the date hereof.
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 Kansas.
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: , 2000
Seller:
CENTURY PROPERTIES FUND XX
a California limited partnership
By:_____________________Fox Partners III,
a California general partnership,
Its general partner
By:Fox Capital Management Corporation,
a California corporation,
Its general partner
By:
Name:
Title:
Purchaser:
a
By:
Name:
Title:
<PAGE>
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
__________________________, a _________________________ ("Purchaser").
Seller and Purchaser, have entered into that certain Purchase and Sale
Contract and dated as of January __, 2000 ("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 Kansas.
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.
[Remainder of Page Intentionally Left Blank]
<PAGE>
WITNESS the signatures and seals of the undersigned.
Seller:
CENTURY PROPERTIES FUND XX
a California limited partnership
By:_____________________Fox Partners III,
a California general partnership,
Its general partner
By:Fox Capital Management Corporation,
a California corporation,
Its general partner
By:
Name:
Title:
Purchaser:
a
By:
Name:
Title:
<PAGE>
Exhibit 7.2.1.9
FORM OF TENANT ESTOPPEL
[See Attached]
<PAGE>
Exhibit 7.2.2.5
KANSAS REAL ESTATE SALES VALIDATION QUESTIONNAIRE
[Johnson County Form to be Attached]
<PAGE>
Exhibit B
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Escrow Agreement") made this ____ day of January,
2000 by and among CENTURY PROPERTIES FUND XX, a California limited partnership
("Seller"), and CHAMBERS & ASSOCIATES COMMERCIAL REAL ESTATE SERVICES, L.L.C, a
Kansas limited liability company ("Purchaser"); and FIDELITY NATIONAL 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 January,
2000; and
Whereas, the Purchase Contract requires that Purchaser provide an initial
deposit in the amount of Fifty Thousand and no/100 ($50,000.00) in cash (the
"Initial Deposit"), to be held pursuant to an escrow agreement approved by
Purchaser and Seller; and
Now, therefore, the parties agree to the following:
1. Establishment of Escrow. Escrow Agent hereby acknowledges receipt of Fifty
Thousand and no/100 ($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 (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 Seller 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. As between Seller and Purchaser, nothing
contained herein shall amend the terms of the Purchase Contract If any
provisions contained herein conflict with the terms of the Purchase Contract,
the terms of the Purchase Contract shall prevail. By this reference, the terms
of the Purchase Contract are incorporated herein, and made a part hereof.
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 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 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:
If to Seller: If to Purchaser:
Century Properties Fund XX Chambers & Associates
Tower Two, Commercial Real Estate
2000 South Colorado Boulevard, Services, L.L.C
Suite 2-1000 7000 West 105th Street
Denver, Colorado 80222 Overland Park, Kansas 66212
Attn: Mr. Harry Alcock Attn: Mr. Mike Chambers
Phone: 303 691-4300 Phone: ________________
Fax: 303 692-0786 Fax: __________________
And With a copy to
Argent Real Estate Levy and Craig, P.C.
1401 Brickell Avenue, Suite 520 911 Main Street, Suite 2000
Miami, Florida 33131 Kansas City, Missouri 64105
Attn: Mr. David Marquette Attn: Patricia McDonald, Esq.
Phone: 305 371-9299 Phone: 816 460-1829
Fax: 305 371-6898 Fax: 816 471-2186
With a copy to If to Escrow Agent:
Loeb & Loeb, LLP Fidelity National Title
1000 Wilshire Boulevard, Suite Insurance Company
1800 700 Louisiana Street, Suite 2400
Los Angeles, California 90017 Houston, Texas 77002
Attn: Andrew S. Clare, Esq. Attn: Ms. Lolly Avant
Karen N. Higgins, Esq.
Phone: 213 688-3820
Fax: 213 688-3460
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 a fee of $300.00 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 fee 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 Kansas.
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 limited partnership
By:_____________________Fox Partners III,
a California general partnership,
Its general partner
By:Fox Capital Management Corporation,
a California corporation,
Its general partner
By:
Name:
Title:
Purchaser:
CHAMBERS & ASSOCIATES COMMERCIAL REAL ESTATE
SERVICES, L.L.C
a Kansas limited liability company
By:
Name:
Title:
FIDELITY NATIONAL TITLE INSURANCE COMPANY
By:
Title:
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINED TERMS...................................................2
ARTICLE 2 PURCHASE AND SALE OF PROPERTY...................................4
ARTICLE 3 PURCHASE PRICE & DEPOSIT........................................5
ARTICLE 4 FINANCING.......................................................5
ARTICLE 5 FEASIBILITY PERIOD..............................................6
ARTICLE 6 TITLE...........................................................7
ARTICLE 7 CLOSING........................................................11
ARTICLE 8 REPRESENTATIONS, WARRANTIES AND COVENANTS
OF SELLER AND PURCHASER........................................15
ARTICLE 9 CONDITIONS PRECEDENT TO CLOSING................................18
ARTICLE 10 BROKERAGE......................................................19
ARTICLE 11 POSSESSION.....................................................20
ARTICLE 12 DEFAULTS AND REMEDIES..........................................20
ARTICLE 13 RISK OF LOSS OR CASUALTY.......................................20
ARTICLE 14 RATIFICATION...................................................21
ARTICLE 15 EMINENT DOMAIN.................................................21
ARTICLE 16 MISCELLANEOUS..................................................22
<PAGE>
Exhibit 10.12
AMENDMENT TO PURCHASE AND SALE CONTRACT
(Metcalf 103 Office Park)
March 24, 2000
This Amendment to Purchase and Sale Contract (the "Amendment") is entered
into as of the 24th day of March, 2000, by and between CENTURY PROPERTIES FUND
XX, a California limited partnership ("Seller") and CHAMBERS & ASSOCIATES
COMMERCIAL REAL ESTATE SERVICES, L.L.C., a Kansas limited liability company
("Purchaser"), with respect to an escrow established with Fidelity National
Title Company.
Reference is made to that certain Purchase and Sale Contract dated as of
January 25, 2000, between Purchaser and Seller, as amended by that certain
letter agreement dated as of March 7, 2000, agreed to and accepted by Seller
(collectively, the "Contract"). Capitalized terms not otherwise defined herein
shall have the meanings ascribed to them in the Contract. Purchaser and Seller
desire to further amend the Contract pursuant to the terms set forth below.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Contract is hereby amended as follows:
1. Reduction of Purchase Price/Waiver of All Contingencies. The Purchase Price
is hereby reduced by the sum of Two Hundred Thirty Thousand and No/100 Dollars
($230,000.00) from Three Million Three Hundred Fifty Thousand and No/100 Dollars
($3,350,000.00) to Three Million One Hundred Twenty Thousand and No/100 Dollars
($3,120,000.00). In consideration of the foregoing, Purchaser hereby waives all
contingencies relating to the Feasibility Period, and agrees the Deposit shall
be non-refundable upon execution of this Amendment by both parties.
2. Closing Date. The Closing shall occur on April 24, 2000, subject to extension
rights set forth in Section 7.1 of the Contract.
3. Rescission of Termination. Purchaser hereby rescinds its notice of
termination of the Contract set forth in Purchaser's letters to Seller dated
March 14, 2000, and March 20, 2000.
4. Counterparts. This Amendment may be executed in counterparts, each of which
when compiled together shall constitute one and the same original.
All other terms and conditions of the Contract remain unmodified and in
full force and effect.
IN WITNESS WHEREOF, Seller and Purchaser have entered into this Amendment
as of the date written above.
Seller: CENTURY PROPERTIES FUND XX,
a California limited partnership
By: Fox Partners III,
a California general partnership
Its: General Partner
By: Fox Capital Management Corporation,
a California corporation
Its: Managing General Partner
By.
Its:
Purchaser: CHAMBERS & ASSOCIATES COMMERCIAL
REAL ESTATE SERVICES, L.L.C.,
a Kansas limited liability company
By.
Michael J. Chambers
Its: Managing Member
<PAGE>
Exhibit 10.13
SECOND AMENDMENT TO PURCHASE AND SALE CONTRACT
(Metcalf 103 Office Park)
April 24, 2000
This Second Amendment to Purchase and Sale Contract (the "Second
Amendment") is entered into as of the 24th day of April, 2000, by and between
CENTURY PROPERTIES FUND XX, a California limited partnership ("Seller") and
CHAMBERS & ASSOCIATES COMMERCIAL REAL ESTATE SERVICES, L.L.C., a Kansas limited
liability company ("Purchaser"), with respect to an escrow established with
Fidelity National Title Company.
Reference is made to that certain Purchase and Sale Contract dated as of
January 25, 2000, between Purchaser and Seller, as amended by that certain
letter agreement dated as of March 7, 2000, agreed to and accepted by Seller and
the Amendment to Purchase and Sale Contract dated March 23, 2000 (collectively,
the "Contract"). Capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Contract. Purchaser and Seller desire to
further amend the Contract pursuant to the terms set forth below.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Contract is hereby amended as follows:
1. Closing Date. The Closing shall occur on May 8, 2000, subject to extension
rights set forth in Section 7.1 of the Contract.
2. Counterparts. This Amendment may be executed in counterparts, each of which
when compiled together shall constitute one and the same original.
All other terms and conditions of the Contract remain unmodified and in
full force and effect.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
IN WITNESS WHEREOF, Seller and Purchaser have entered into this Second
Amendment as of the date written above.
Seller: CENTURY PROPERTIES FUND XX,
a California limited partnership
By: Fox Partners III,
a California general partnership
Its General Partner
By: Fox Capital Management Corporation,
a California corporation
Its Managing General Partner
By:
Its:
Purchaser: CHAMBERS & ASSOCIATES COMMERCIAL
REAL ESTATE SERVICES, L.L.C.,
a Kansas limited liability company
By:
Michael J. Chambers
Its President
<PAGE>
Exhibit 10.14
THIRD AMENDMENT TO PURCHASE AND SALE CONTRACT
(Metcalf 103 Office Park)
This Third Amendment To Purchase and Sale Contract (this "Amendment") is
entered into as of the ____ day of May, 2000, by and between CENTURY PROPERTIES
FUND XX, a California limited partnership ("Seller"), CHAMBERS & ASSOCIATES REAL
ESTATE SERVICES, L.L.C., a Kansas limited liability company ("Purchaser"), and
METCALF ASSOCIATES-2000, L.L.C., a Kansas limited liability company
("Assignee"), with respect to an escrow established with Fidelity National Title
Company.
Reference is made to that certain Purchase and Sale Contract dated as of
January 25, 2000, between Purchaser and Seller, as amended by that certain
letter agreement dated as of March 7, 2000, agreed to and accepted by Seller,
that certain Amendment to Purchase and Sale Contract dated as of March 24, 2000,
and that certain Second Amendment to Purchase and Sale Contract dated as of
April 24, 2000 (collectively, the "Contract"). Capitalized terms not otherwise
defined herein shall have the meanings ascribed to them in the Contract.
Purchaser, Assignee and Seller desire to further amend the Contract
pursuant to the terms set forth below.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Contract is hereby amended as follows:
Assignment by Purchaser. Purchaser hereby nominates Assignee as Purchaser
under the Contract. Purchaser hereby assigns to Assignee its interests under the
Contract, and Assignee hereby agrees to assume all of Purchaser's obligations
and liabilities under the Contract. Seller hereby agrees to the foregoing
nomination, assignment and assumption on the condition that Purchaser shall not
be released from its liability and obligations under the Contract in the event
of a breach of the Contract by Assignee.
Counterparts. This Amendment may be executed in counterparts, each of
which when compiled together shall constitute one and the same original.
All other terms and conditions of the Contract remain unmodified and in
full force and effect.
[Remainder of page intentionally left blank]
<PAGE>
IN WITNESS WHEREOF, Seller, Assignee and Purchaser have entered into this
Amendment as of the date written above.
Seller:
CENTURY PROPERTIES, FUND XX,
a California limited partnership
By: Fox Partners III,
a California general partnership,
its general partner
By: Fox Capital Management Corporation,
a California corporation,
its managing general partner
By:
Name: _________________________
Its: ____________________________
Purchaser:
CHAMBERS & ASSOCIATES REAL ESTATE SERVICES, L.L.C.,
a Kansas limited liability company
By: ______________________________________
Michael J. Chambers
Managing Member
Assignee:__
METCALF ASSOCIATES-2000, L.L.C.,
a Kansas limited liability company
By: Metcalf 2000 Manager Corporation
its Manager
By:
Michael J. Chambers
President
<PAGE>
Exhibit 10.15
AGREEMENT OF PURCHASE
AGREEMENT AND ASSUMPTION
This Assignment of Purchase and Sale Contract made this 7th day of
April, 2000, between Chambers & Associates Commercial Real Estate Services,
L.L.C. ("Assignor") and Metcalf Associates-2000, L.L.C. ("Assignee").
Whereas Assignor and Century Properties Fund XX, entered into a Purchase
and Sale ("Contract") dated January 25, 2000 concerning certain real property in
Johnson County, Kansas described in Exhibit A hereto ("Property"); and
Whereas, pursuant to Article 16.2 of the Contract, Buyer elects to assign
all of its right, title and interest in the Contract to Assignee.
Now, therefore, for and in considerations of the mutual covenants and
conditions herein set for the:
1. Assignor, pursuant to Article 16.2 of the Contract, assigns all of its
right, title, and interest in the Contract to Assignee.
2. Assignee hereby assumes all of the obligations of Assignor under the
Contract.
3. Assignor and Assignee represent that Assignee is a party to whom the
Contract can be assigned without the Seller's consent.
4. Assignor agrees and acknowledges that nothing herein shall release
Assignor from its obligations under the Contract.
Dated this 7th April, 2000.
Assignor:
Chambers & Associates Commercial Real Estate
Services, Inc.
By:
Michael J. Chambers, Managing Member
Assignee:
Metcalf Associates-2000, L.L.C.
A Kansas Limited Liability Company
By: Metcalf 2000 Manager Corporation, its Manager
By:
Michael J. Chambers, President
<PAGE>
Exhibit 10.16
PURCHASE AND SALE CONTRACT
BETWEEN
CENTURY PROPERTIES FUND XX,
a California limited partnership
AS SELLER
AND
HOUSING SYSTEMS, INC.,
a Georgia corporation
AS PURCHASER
<PAGE>
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT ("Purchase Contract") is entered into as
of the 15th day of March, 2000 (the "Effective Date"), by and between CENTURY
PROPERTIES FUND XX, a California limited partnership, having a principal address
at 2000 South Colorado Boulevard, Tower Two, Suite 2-1000, Denver, Colorado
80222 ("Seller") and HOUSING SYSTEMS, INC. a Georgia corporation, having a
principal address at 5505 Interstate N. Parkway, N.W., Atlanta, Georgia
30328-3074 ("Purchaser").
NOW, THEREFORE WITNESSETH: That for and in consideration of mutual
covenants and agreements hereinafter set forth, Seller and Purchaser hereby
agree as follows:
RECITALS
R-1. Seller holds legal title to the real estate located in Pinellas County,
Florida, 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 limited
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 Florida.
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 "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.
1.1.5 Intentionally Omitted.
1.1.6 "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.
1.1.7 "Improvements" means all buildings and improvements, located on the Land
taken "as is".
1.1.8 "Land" means all of those certain tracts of land located in the State of
Florida described on Exhibit "A" attached hereto, and all rights, privileges and
appurtenances pertaining thereto.
1.1.9 "Miscellaneous Property Assets" means all contract rights, leases,
concessions, warranties, plans, drawings and other items of intangible personal
property relating to the ownership or operation of the Property and owned by
Seller, excluding, however, (i) receivables, (ii) Property Contracts, (iii)
Tenant 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.
1.1.10 "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.
1.1.11 "Permitted Exceptions" means those exceptions or conditions permitted to
encumber the title to the Property in accordance with the provisions of Section
6.2.
1.1.12 "Property" means the Land 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 Tenant 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.
1.1.13 "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 and which
are not cancelable on 90 days' or shorter Notice, except Tenant Leases.
1.1.14 "Purchase Contract" means this Purchase and Sale Contract by and between
Seller and Purchaser.
1.1.15 "Purchase Price" means the total consideration to be paid by Purchaser to
Seller for the purchase of the Property.
1.1.16"Survey" shall have the meaning ascribed thereto in Section 6.12.
1.1.17 "Tenant" means any person or entity entitled to occupy any portion of the
Property under a Commercial Lease.
1.1.18 "Tenant 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.
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 Eleven
Million Three Hundred Thousand and no/100 Dollars ($11,300,000.00), which shall
be paid by Purchaser, as follows:
3.1.1 On the date hereof, Purchaser shall deliver to First American Title
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 shall also deliver a quitclaim
deed to the Escrow Agent in the form attached as Exhibit 3.1.1. 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 One Hundred Thousand and no/100 Dollars
($100,000.00), 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
Closing Date. 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 date on which Seller delivers the Materials (defined in Section
5.5 below) to Purchaser (i.e., through April 14, 2000 if the Effective Date is
March 15, 2000), but in no event later than April 17, 2000 (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, then Purchaser shall have the right to terminate this Purchase Contract
by giving written Notice to that effect to Seller and Escrow Agent on or before
5:00 p.m. 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 forthwith deliver the Quitclaim Deed
of all of Purchaser's right and interest in the Property to Seller, and then
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 could result in
any injury to the Property or breach of any agreement, or expose Seller to any
liability, costs, liens or violations of applicable law, or otherwise adversely
affect the Property or Seller's interest therein. No consent by the Seller to
any such activity shall be deemed to constitute a waiver by Seller or assumption
of liability or risk by Seller. Purchaser hereby agrees to restore the Property
to the same condition existing immediately prior to Purchaser's exercise of its
rights pursuant to this ARTICLE 5 at Purchaser's sole cost and expense.
Purchaser shall maintain casualty insurance and comprehensive public liability
insurance with broad form contractual and personal injury liability endorsements
with respect to the Property and Purchaser's activities carried on therein, in
amounts (including deductible amounts) and with such insurance carriers as shall
be approved by Seller and naming Seller and its affiliates as loss payees or
additional insureds (at the option of Seller), with endorsements acceptable to
Seller, including a waiver of defenses of the insurer based on the actions or
inaction of Purchaser (which insurance must be reasonably approved by Seller).
Such liability insurance shall provide coverages of not less than $1,000,000.00
for injury or death to any one person and $3,000,000.00 for injury or death to
more than one person and $500,000.00 with respect to property damage, by water
or otherwise). The 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 fixed therefor, Purchaser shall, within
five (5) calendar days, return all such Materials to Seller.
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 First American 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 limited 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 All exceptions shown in the Title Commitment and approved by Purchaser
(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 Tenant 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 not identified for termination
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;
6.2.6 Intentionally deleted; and
6.2.7 All matters of public record which are shown on the Title Commitment (to
the extent approved by Purchaser).
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 If on the Closing Date there shall be conditional bills of sale or Uniform
Commercial Code financing statements that were filed on a day more than five (5)
years prior to such Closing, and such financing statements have not been
extended by the filing of UCC-3 continuation statements within the past five (5)
years prior to such Closing, such financing statements shall not be deemed an
objection to title.
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 thirty (30) 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 elect to terminate
this Purchase Contract by giving written Notice thereof to Seller and the title
company issuing the Title Commitment delivered on or before fourteen (14)
calendar days following the date Seller gives such Notice, then Purchaser shall
be deemed to have waived such objection.
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 Tenant 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) may be prepared in accordance with
and shall comply with the minimum requirements of the ALTA; (ii) may 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) may 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) may specifically show the right of
way for all adjacent public streets; (v) may 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) may
contain a perimeter legal description of the Property which may be used in the
limited warranty deed or equivalent deed; (vii) may be certified to Purchaser,
Purchaser's lender, Seller and Title Insurer as being true and correct; and
(viii) may 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 limited 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 thirty (30) calendar days after the
expiration of the Feasibility Period, 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.
7.1.2 The Closing Date may be extended without penalty at the option of Seller
to a date not later than thirty (30) days following the Closing Date specified
above to satisfy a condition to be satisfied by Seller, or such later date as is
mutually acceptable to Seller and Purchaser.
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 payments due under the Property
Contracts assumed by Purchaser, provided that any payments under the Property
Contracts 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
Sections 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.
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, to 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, Purchaser agrees to cooperate
with any request by Seller that Purchaser engage in efforts to demand payment of
and to collect Delinquent Rent owed to Seller by any Tenant. Seller agrees to
cooperate with Purchaser at no cost or liability to Seller in connection with
all efforts by Purchaser 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
Purchaser, 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 Purchaser. Purchaser's
obligation to cooperate with Seller pursuant to this Section 7.1.5 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 If five (5) days prior to the Closing Date there are any vacant units on
the Property, Seller shall make such units "rent-ready" as of the Closing Date
or if Seller elects not to make such units "rent-ready", Purchaser shall receive
a credit against the Purchase Price for the expense of making such units
"rent-ready." Seller shall have no obligation to make any units "rent-ready"
that become vacant during the period from the fourth (4th) day prior to the
Closing Date up through the Closing Date. As used herein, a unit shall be deemed
"rent-ready" if it has been cleaned, no hazardous conditions exist therein, and
all appliances therein are in normal working condition, all in accordance with
Seller's current operation of the Property. In no event shall Seller be
obligated to expend more than Five Hundred and no/100 Dollars ($500.00) in
making any particular unit "rent-ready," nor shall Purchaser receive a credit
against the Purchase Price in excess of such amount for any vacant unit which is
not "rent-ready."
7.1.7 Seller and Purchaser shall share equally in the costs of all transfer
taxes (e.g., excise stamp taxes) and recording costs with respect to the Closing
and 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. At Closing, Seller shall deliver to Purchaser, each of the
following items, as applicable:
7.2.1.1 Limited 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 in the form attached as Exhibit 7.2.1.2 covering all
Property Contracts, Tenant 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 Commitment; provided that such affidavit does not subject
Seller to any greater liability, or impose any additional obligations, other
than as set forth in this Purchase Contract; 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
Tenant 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.
7.2.1.9 Resolutions and certificates of good standing evidencing Seller's
authority to consummate this transaction.
7.2.1.10 A rent roll certified to the best of Seller's knowledge, to be true and
correct as of the Closing Date.
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 if this representation is or becomes untrue because
Seller does not own fee title to the Property, then Purchaser's remedies shall
also include payment by Seller of up to $20,000.00 of Purchaser's actual
out-of-pocket expenses incurred in conducting its due diligence 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 Tenant 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;
8.1.1.8 From the date of this Purchase Contract to the Closing Date, Seller
shall (i) operate and manage the Property in the same manner as maintained by
Seller prior to the execution of this Purchase Contract, (ii) refrain from
entering into (or extending) any Property Contracts which are not cancelable on
90 days' or shorter Notice, except Tenant Leases, and (iii) execute any new
Tenant Leases on Seller's standard lease agreement attached hereto as Exhibit C.
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 or Broker or statements, representations or
warranties, express or implied, made by or enforceable directly against Seller
or 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 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. 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 Tenant 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. Notwithstanding the foregoing, Purchaser shall have the
right to terminate this Purchase Contract if on the day immediately preceding
the Closing Date the Property is less than ninety percent (90%) occupied.
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 actual knowledge of such breach, Purchaser
shall be deemed to have waived any right of recovery and Seller shall not have
any liability in connection therewith.
8.1.4 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 Theresa Kruder, the property manager.
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 Purchaser is a corporation duly organized, validly existing and in good
standing under the laws of Georgia.
8.2.2.2 Purchaser, acting through any of its or their duly empowered and
authorized officers or members, has all necessary power and authority to own and
use its properties and to transact the business in which it is engaged, and has
full power and authority to enter into this Purchase Contract, to execute and
deliver the documents and instruments required of Purchaser herein, and to
perform its obligations hereunder; and no consent of any of Purchaser's officers
or members are required to so empower or authorize Purchaser.
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 is duly authorized to execute and deliver, acting through its
duly empowered and authorized officers and members, respectively, and perform
this Purchase Contract and all documents and instruments and transactions
contemplated hereby or incidental hereto, and such execution, delivery and
performance by Purchaser does not (i) violate any of the provisions of their
respective certificates of incorporation or bylaws, (ii) violate any provision
of any law, governmental rule or regulation currently in effect, (iii) violate
any judgment, decree, writ, injunction, award, determination or order currently
in effect that names or is specifically directed at Purchaser or its property,
and (iv) require the consent, approval, order or authorization of, or any filing
with or notice to, any court or other governmental authority.
8.2.2.5 The joinder of no person or entity other than Purchaser is necessary to
consummate the transactions to be performed by Purchaser and Purchaser has all
necessary right and authority to perform such acts as are required and
contemplated by this Purchase Contract.
8.2.3 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:
9.2.1Purchaser'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 If applicable, Purchaser shall have produced evidence reasonably
satisfactory to Seller of Purchaser's compliance with Hart-Scott-Rodino Act
requirements or of the non-applicability thereof to the transactions
contemplated by this Purchase Contract.
ARTICLE 10
BROKERAGE
10.1 Seller represents and warrants to Purchaser that it has dealt only with
Aztec Group, Inc., 2665 South Bayshore Drive, Ph II A, Coconut Grove, Florida
33133 ("Broker") in connection with this Purchase Contract. Seller and Purchaser
each represents and warrants to the other that other than Broker, it has not
dealt with or utilized the services of any other real estate broker, sales
person or finder in connection with this Purchase Contract, and each party
agrees to indemnify the other party from and against all claims for brokerage
commissions and finder's fees arising from or attributable to the acts or
omissions of the indemnifying party.
10.2 Seller agrees to pay Broker a commission according to the terms of a
separate agreement. Broker shall not be deemed a party or third party
beneficiary of this Purchase Contract.
10.3 Broker assumes no responsibility for the condition of the Property or
representation for the performance of this Purchase Contract by the Seller or
Purchaser.
ARTICLE 11
POSSESSION
11.1 Possession 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
12.1 In the event Purchaser terminates this Purchase Contract following the
Feasibility Period for any reason other than Seller's inability to convey title
as required by this Purchase Contract, or defaults hereunder 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.
12.2 Provided that Purchaser has not terminated this Purchase Contract and is
not otherwise in default hereunder, if the Closing does not occur as a result of
Seller's default hereunder, Purchaser's sole remedy shall be to elect to
terminate this Purchase Contract and receive reimbursement of the Deposit and
the Additional Deposit (or so much thereof as has been received by Escrow Agent)
or to seek specific performance of this Purchase Contract.
ARTICLE 13
RISK OF LOSS OR CASUALTY
13.1 In the event that the Property is damaged or destroyed by fire or other
casualty prior to Closing, and the cost of repair is more than $250,000, then
Seller will have no obligation to repair such damage or destruction and, at
Purchaser's option, this Purchase Contract shall terminate upon the giving of
written notice thereof by Purchaser to Seller within three (3) days of such
damage or destruction. If Purchaser elects not to terminate this Purchase
Contract and Seller elects to repair such damage or destruction before the
Closing (which at Seller's election may be extended for up to sixty (60) days to
permit such repairs), and Seller effects such repairs, this transaction shall be
closed in accordance with the terms of this Purchase Contract. In the event
Purchaser elects not to terminate this Purchase Contract, and Seller elects not
to effect such repairs, this transaction shall be closed in accordance with the
terms of this Purchase Contract, notwithstanding any such damage or destruction
and Purchaser shall receive all insurance proceeds pertaining thereto (plus a
credit against the Purchase Price in the amount of any deductible payable by
Seller in connection therewith) at Closing.
13.2 In the event that the Property is damaged or destroyed by fire or other
casualty prior to the Closing, and the cost of repair is less than $250,000,
this transaction shall be closed in accordance with the terms of this Purchase
Contract, notwithstanding the damage or destruction; provided, however, Seller
shall make such repairs if they can be reasonably effected before the Closing.
If Seller is unable to effect such repairs, then Purchaser shall receive all
insurance proceeds pertaining thereto (plus a credit against the Purchase Price
in the amount of any deductible payable by Seller in connection therewith) at
Closing.
ARTICLE 14
RATIFICATION
14.1 This Purchase Contract shall be null and void unless fully ratified by
Purchaser and Seller on or before March 21, 2000.
ARTICLE 15
EMINENT DOMAIN
15.1 In the event that at the time of Closing all or any part of the Property is
(or has previously been) acquired, or is about to be acquired, by authority of
any governmental agency in purchase in lieu thereof (or in the event that at
such time there is any notice of any such acquisition 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 Purchase 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 concurrently notifies Seller in writing 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 facsimile, when sent (as evidenced by a facsimile
confirmation sheet) provided that a copy of such facsimile and confirmation is
also sent by U.S. first class mail, or (iv) 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 Housing Systems, Inc.
2000 South Colorado Boulevard 5505 Interstate N. Parkway, N.W.
Tower Two, Suite 2-1000 Atlanta, Georgia 30328-3074
Denver, Colorado 80222 Attn: Mr. Russell Greer
Attn: Mr. Harry Alcock Fax No.: _______________
Fax No.: (303) 691-5662
And With a copy to
Argent Real Estate Schreeder, Wheeler & Flint, LLP
1401 Brickell Avenue, Suite 520 127 Peachtree Street, N.W.
Miami, Florida 33131 1600 Candler Building
Attn: Mr. David Marquette Atlanta, Georgia 30303-1845
Fax No.: (305) 371-6898 Attn: Clifford A. Barshay, Esq.
Fax No.: (404) 681-1046
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.
Fax No.: (213) 688-3460
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 Florida 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.
16.19 No Personal Liability of Officers, Trustees or directors of Seller's
Partners
Purchaser acknowledges that this Agreement 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 Agreement or any document executed in
connection with the transactions contemplated by this Agreement.
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 Agreement, 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 Agreement without the Property having been conveyed to
Purchaser.
16.21 Disclosures
Pursuant to the laws of the State of Florida and applicable municipal
regulations, Seller is required to, and hereby does, provide the following
notices to Purchaser.
16.21.1 Radon Gas. Radon is a naturally occurring radioactive gas that, when
accumulated in sufficient quantities within a building, may present health risks
to persons who are exposed to it over time. Levels of radon that exceed federal
and state guidelines have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained from your county
public health unit.
16.21.2 Energy Efficiency. The prospective buyer of real property with a
building for occupancy located thereon may have the building's energy efficiency
rating determined. Seller has, concurrently herewith delivered to Purchaser a
copy of the Florida Building Energy Efficiency Rating System pamphlet prepared
by the State of Florida Department of Community Affairs.
16.21.3 Pre-1978 Housing Lead-Based Paint Warning Statement. Florida law
requires that every seller of any interest in residential real property provide
to the buyer thereof the following Lead Warning Statement:
"EVERY PURCHASER OF ANY INTEREST IN RESIDENTIAL REAL PROPERTY ON WHICH A
RESIDENTIAL DWELLING WAS BUILT PRIOR TO 1978 IS NOTIFIED THAT SUCH
PROPERTY MAY PRESENT EXPOSURE TO LEAD FROM LEAD-BASED PAINT THAT MAY PLACE
YOUNG CHILDREN AT RISK OF DEVELOPING LEARNING DISABILITIES, REDUCED
INTELLIGENCE QUOTIENT, BEHAVIORAL PROBLEMS AND IMPAIRED MEMORY. LEAD
POISONING ALSO POSES A PARTICULAR RISK TO PREGNANT WOMEN. THE SELLER OF
ANY INTEREST IN RESIDENTIAL REAL PROPERTY IS REQUIRED TO PROVIDE THE BUYER
WITH ANY INFORMATION ON LEAD-BASED PAINT HAZARDS FROM RISK ASSESSMENTS OR
INSPECTIONS IN THE SELLER'S POSSESSION AND NOTIFY THE BUYER OF ANY KNOWN
LEAD-BASED PAINT HAZARDS. A RISK ASSESSMENT OR INSPECTION FOR POSSIBLE
LEAD-BASED PAINT HAZARDS IS RECOMMENDED PRIOR TO PURCHASE."
Purchaser may, on or before the tenth (10th) day after the Effective Date,
conduct a risk assessment or inspection for the presence of lead-based paint on
the Property. If the results are unsatisfactory to Purchaser, Purchaser may
cancel this Purchase Contract by delivering written notice to Seller and Escrow
Agent on or before the fifth (5th) day after the expiration of said 10-day
period. Seller knows of the presence of the following lead-based paint or
lead-based paint hazards on the Property: None . Seller has provided Purchaser
with any lead hazard evaluation report concerning the Property in Seller's
possession. Purchaser has read the above Lead Warning Statement and acknowledges
receiving an Environmental Protection Agency lead hazard information pamphlet
entitled "Protect Your Family From Lead in Your Home" prior to executing this
Agreement.
<PAGE>
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 limited partnership
By: Fox Partners III,
a California general partnership,
Its general partner
By: Fox Capital Management Corporation,
a California corporation,
Its general partner
By:
Name:
Title:
Purchaser:
HOUSING SYSTEMS, INC.,
a Georgia corporation
By:
Name:
Title:
By:
Name:
Title:
<PAGE>
FLORIDA ACKNOWLEDGMENT
STATE OF ____________________ )
COUNTY OF __________________ )
I hereby certify on this day, before me, an officer duly authorized to
administer oaths and take acknowledgments, personally appeared
_________________________ and _________________________, known to me to the be
the President and Secretary, respectively of HOUSING SYSTEMS, INC., the
corporation in whose name the foregoing instrument was executed, and that
_______________ and ______________ severally acknowledged executing the same for
such corporation, freely and voluntarily, under authority duly vested in them by
said corporation, and that the seal affixed thereto is the true corporate seal
of said corporation. (Check one) |_| Said person(s) (is) (are) personally known
to me. |_| Said person(s) provided the following type of identification:
Witness my hand and official seal in the County and State last aforesaid
this
_____ day of ________________________, A.D. 2000.
Notary Rubber Stamp Seal ____________________________________
Notary Signature
------------------------------------
Printed Notary Signature
<PAGE>
FLORIDA ACKNOWLEDGEMENT
STATE OF ____________________ )
COUNTY OF __________________ )
I hereby certify on this day, before me, an officer duly authorized to
administer oaths and take acknowledgments, personally appeared
__________________, and __________________, known to me to the be the President
and Secretary, respectively of Fox Capital Management Corporation, the
corporation in whose name the foregoing instrument was executed as 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 ___________ and ___________ severally acknowledged executing the same
for such corporation, freely and voluntarily, under authority duly vested in
them by said corporation, and that the seal affixed thereto is the true
corporate seal of said corporation. (Check one) |_| Said person(s) (is) (are)
personally known to me. |_| Said person(s) provided the following type of
identification: ______________________
Witness my hand and official seal in the County and State last aforesaid
this
_____ day of ________________________, A.D. 2000.
Notary Rubber Stamp Seal Notary Signature
------------------------------------
Printed Notary Signature
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION FOR HARBOR CLUB
All that tract or parcel of land lying and being in the southwest quarter,
the northwest quarter and the southeast quarter of Section 11, Township 28
South, Range 15 East, Pinellas County, Florida, and all or part of Farms 1 - 11,
Grand Bay Subdivision, according to Plat Book 4, Page 13, Public Records,
Pinellas County, Florida, and being more particularly described as follows:
BEGINNING at the northeast corner of the southwest quarter of said Section
11, run south 00(degree)12'10" west 59.97 feet to a point; thence south
89(degree)23'11" east 111.18 feet to the northwesterly right of way line of the
new alignment of U.S. Alternate 19 (State Route No. 595); thence along said
right of way as follows: south 24(degree)17'26" west 740.01 feet to a point;
thence north 65(degree)37'33" west 29.96 feet to a point; thence south
24(degree)14'25" west 91.71 feet to a point, thence leaving said right of way,
run north 89(degree)48'22" west 1008.08 feet to a concrete monument on the east
right of way line of the Seaboard Coast Line Railroad; thence northwardly along
said right of way line and along the arc of a 3,446.32 foot radius curve to the
right 812.02 feet to a point (chord bears north 03(degree)11'48" west 810.14
feet); thence leaving said right of way, run south 88(degree)58'49" east 190.61
feet to a point; thence north 00(degree)39'28" east 250.44 feet to a point on
the south line of Florida Avenue (a forty foot right of way); thence south
89(degree)15'09" east 448.40 feet to a point; thence south 00(degree)02'50" west
125.46 feet to a point; thence south 89(degree)28'47" east 670.37 feet to the
east line of the northwest quarter of Section 11; thence south 00(degree)12'10"
west 115.01 feet to the POINT OF BEGINNING.
<PAGE>
EXHIBIT 1.1.5
LIST OF EXCLUDED PERMITS
To Be Inserted, If Any
<PAGE>
EXHIBIT 1.1.7
LIST OF EXCLUDED PERSONAL PROPERTY OR EQUIPMENT
To Be Inserted, If Any
<PAGE>
EXHIBIT 3.1.1
FORM OF QUITCLAIM DEED
THIS INSTRUMENT PREPARED BY: |
|
|
Address: Loeb & Loeb LLP |
1000 Wilshire Blvd., #1800 |
Los Angeles, CA 90017 |
Attn: Karen N. Higgins, Esq. |
|
Property Appraisers Parcel Identification (Folio) Number(s): |
|
Grantee(s) S.S. #(s) |
|
THIS QUITCLAIM DEED executed the _____ day of _______________, A.D., 2000,
by HOUSING SYSTEMS, INC., a corporation existing under the laws of Georgia, and
having its principal place of business at 5505 Interstate N. Parkway, N.W.,
Atlanta, Georgia 30328-3074, first party, to CENTURY PROPERTIES FUND XX, a
California limited partnership, whose address is 2000 South Colorado Boulevard,
Tower Two, Suite 2-1000, Denver, Colorado 80222, second party (wherever used
herein the terms "first party" and "second party" shall include, singular and
plural, all the parties to this instrument, the heirs, legal representatives,
and assigns of individuals, and the successors and assigns of corporations,
wherever the context so admits or requires).
WITNESSETH, that the said first party, for and in consideration of the sum
of Ten Dollars ($10.00) and other good and valuable consideration in hand paid
by the said second party, the receipt whereof is hereby acknowledged, does
hereby remise, release and quitclaim unto the said second party forever, all the
right, title, interest, claim and demand which the said first party has in and
to the following described lot, piece or parcel of land, situate, lying and
being in the County of Pinellas, State of Florida, to wit:
See Exhibit "A" attached hereto and made a part hereof.
TO HAVE AND TO HOLD, the same together with all and singular the
appurtenances thereunto belonging or in anywise appertaining, and all the
estate, right, title, interest, lien, equity and claim whatsoever of said first
party, either in law or in equity, to the only proper use, benefit and behalf of
the said second party forever.
<PAGE>
(Corporate Seal) IN WITNESS WHEREOF, the said corporation has caused
these presents to be executed in its name, and its corporate
seal to be hereunto affixed, by its proper officers thereunto
duly authorized, this _____ day of _______________, A.D. 2000.
ATTEST:_____________________________ HOUSING SYSTEMS, INC.,
Secretary a Georgia corporation
Signed, sealed and delivered in the presence of:
By:_________________________________
President (signature)
------------------------------------
Printed Name
-------------------------------------
Witness Signature
-------------------------------------
Printed Name
-------------------------------------
Witness Signature
-------------------------------------
Printed Name
<PAGE>
EXHIBIT "A" TO QUITCLAIM DEED
LEGAL DESCRIPTION
All that tract or parcel of land lying and being in the southwest quarter,
the northwest quarter and the southeast quarter of Section 11, Township 28
South, Range 15 East, Pinellas County, Florida, and all or part of Farms 1 - 11,
Grand Bay Subdivision, according to Plat Book 4, Page 13, Public Records,
Pinellas County, Florida, and being more particularly described as follows:
BEGINNING at the northeast corner of the southwest quarter of said Section
11, run south 00(degree)12'10" west 59.97 feet to a point; thence south
89(degree)23'11" east 111.18 feet to the northwesterly right of way line of the
new alignment of U.S. Alternate 19 (State Route No. 595); thence along said
right of way as follows: south 24(degree)17'26" west 740.01 feet to a point;
thence north 65(degree)37'33" west 29.96 feet to a point; thence south
24(degree)14'25" west 91.71 feet to a point, thence leaving said right of way,
run north 89(degree)48'22" west 1008.08 feet to a concrete monument on the east
right of way line of the Seaboard Coast Line Railroad; thence northwardly along
said right of way line and along the arc of a 3,446.32 foot radius curve to the
right 812.02 feet to a point (chord bears north 03(degree)11'48" west 810.14
feet); thence leaving said right of way, run south 88(degree)58'49" east 190.61
feet to a point; thence north 00(degree)39'28" east 250.44 feet to a point on
the south line of Florida Avenue (a forty foot right of way); thence south
89(degree)15'09" east 448.40 feet to a point; thence south 00(degree)02'50" west
125.46 feet to a point; thence south 89(degree)28'47" east 670.37 feet to the
east line of the northwest quarter of Section 11; thence south 00(degree)12'10"
west 115.01 feet to the POINT OF BEGINNING.
<PAGE>
STATE OF ____________________ )
COUNTY OF __________________ )
I hereby certify on this day, before me, an officer duly authorized to
administer oaths and take acknowledgments, personally appeared
_________________________ and _________________________, known to me to the be
the President and Secretary, respectively of HOUSING SYSTEMS, INC., the
corporation in whose name the foregoing instrument was executed, and that
_______________ and ______________ severally acknowledged executing the same for
such corporation, freely and voluntarily, under authority duly vested in them by
said corporation, and that the seal affixed thereto is the true corporate seal
of said corporation. (Check one) |_| Said person(s) (is) (are) personally known
to me. |_| Said person(s) provided the following type of identification:
Witness my hand and official seal in the County and State last aforesaid
this
_____ day of ________________________, A.D. 2000.
Notary Rubber Stamp Seal ____________________________________
Notary Signature
------------------------------------
Printed Notary Signature
<PAGE>
EXHIBIT 6.2.1
ADDITIONAL TITLE EXCEPTIONS
[To Be Attached]
<PAGE>
EXHIBIT 7.2.1.1
FORM OF LIMITED WARRANTY DEED
THIS INSTRUMENT PREPARED BY: |
|
|
Address: |
|
|
|
Property Appraisers Parcel Identification (Folio) Number(s): |
|
Grantee(s) S.S. #(s) |
|
THIS LIMITED WARRANTY DEED made and executed as of the _____ day of
____________, A.D., 2000, by CENTURY PROPERTIES FUND XX, a California limited
partnership, and having its principal place of business at 2000 South Colorado
Boulevard, Tower Two, Suite 2-1000, Denver, Colorado 80222, hereinafter called
the grantor, to HOUSING SYSTEMS, INC., a Georgia corporation, whose address is
5505 Interstate N. Parkway, N.W., Atlanta, Georgia 30328-3704, hereinafter
called the grantee (wherever used herein the terms "grantor" and "grantee" shall
include singular and plural, heirs, legal representatives, and assigns of
individuals, and the successors and assigns of corporations, wherever the
context so admits or requires).
WITNESSETH, that the grantor, for and in consideration of the sum of
$6,200,000.00, and other valuable considerations, receipt whereof is hereby
acknowledged, by these presents does grant, bargain, sell, alien, remise,
release, convey and confirm unto the grantee, all that certain land situate in
Pinellas County, State of Florida, viz.:
Exhibit "A" attached hereto and made a part hereof.
Together, with all the tenements, hereditaments and appurtenances thereto
belonging or in anywise appertaining.
TO HAVE AND TO HOLD, the same in fee simple forever.
AND the grantor hereby covenants with said grantee that the grantor is
lawfully seized of said land in fee simple; that it has good, right and lawful
authority to sell and convey said land; that it hereby fully warrants the title
to said land and will defend the same against the lawful claims of all persons
claiming by, through or under grantor; and that said land is free of all
encumbrances.
<PAGE>
(Corporate Seal) IN WITNESS WHEREOF, the said limited partnership has
caused these presents to be executed in its name, and the
corporate seal of Fox Capital Management Corporation, as
general partner of Fox Partners III, a California general
partnership, which is the general partner of grantor, has been
affixed hereto, by its proper officers thereunto duly
authorized, the day and year first above written.
Signed, sealed and delivered in the CENTURY PROPERTIES FUND XX, a California
presence of: limited partnership
___________________________________ By: Fox Partners III,
Witness Name: ______________________ a California general partnership,
Its general partner
-----------------------------------
Witness Name: ______________________ By: Fox Capital Management
Corporation, Its general partner
By:
ATTEST: __________________________ Its:
Secretary
<PAGE>
EXHIBIT "A"
LEGAL DESCRIPTION
All that tract or parcel of land lying and being in the southwest quarter,
the northwest quarter and the southeast quarter of Section 11, Township 28
South, Range 15 East, Pinellas County, Florida, and all or part of Farms 1 - 11,
Grand Bay Subdivision, according to Plat Book 4, Page 13, Public Records,
Pinellas County, Florida, and being more particularly described as follows:
BEGINNING at the northeast corner of the southwest quarter of said Section
11, run south 00(degree)12'10" west 59.97 feet to a point; thence south
89(degree)23'11" east 111.18 feet to the northwesterly right of way line of the
new alignment of U.S. Alternate 19 (State Route No. 595); thence along said
right of way as follows: south 24(degree)17'26" west 740.01 feet to a point;
thence north 65(degree)37'33" west 29.96 feet to a point; thence south
24(degree)14'25" west 91.71 feet to a point, thence leaving said right of way,
run north 89(degree)48'22" west 1008.08 feet to a concrete monument on the east
right of way line of the Seaboard Coast Line Railroad; thence northwardly along
said right of way line and along the arc of a 3,446.32 foot radius curve to the
right 812.02 feet to a point (chord bears north 03(degree)11'48" west 810.14
feet); thence leaving said right of way, run south 88(degree)58'49" east 190.61
feet to a point; thence north 00(degree)39'28" east 250.44 feet to a point on
the south line of Florida Avenue (a forty foot right of way); thence south
89(degree)15'09" east 448.40 feet to a point; thence south 00(degree)02'50" west
125.46 feet to a point; thence south 89(degree)28'47" east 670.37 feet to the
east line of the northwest quarter of Section 11; thence south 00(degree)12'10"
west 115.01 feet to the POINT OF BEGINNING.
<PAGE>
FLORIDA ACKNOWLEDGEMENT
STATE OF ____________________ )
COUNTY OF __________________ )
I hereby certify on this day, before me, an officer duly authorized to
administer oaths and take acknowledgments, personally appeared
__________________, and __________________, known to me to the be the President
and Secretary, respectively of Fox Capital Management Corporation, the
corporation in whose name the foregoing instrument was executed as 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 ___________ and ___________ severally acknowledged executing the same
for such corporation, freely and voluntarily, under authority duly vested in
them by said corporation, and that the seal affixed thereto is the true
corporate seal of said corporation. (Check one) |_| Said person(s) (is) (are)
personally known to me. |_| Said person(s) provided the following type of
identification: ______________________
Witness my hand and official seal in the County and State last aforesaid
this
_____ day of ________________________, A.D. 2000.
Notary Rubber Stamp Seal Notary Signature
------------------------------------
Printed Notary Signature
<PAGE>
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 HOUSING SYSTEMS,
INC., a Georgia corporation ("Purchaser").
Seller and Purchaser, have entered into that certain Purchase and Sale
Contract and dated as of March 15, 2000 ("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. Seller agrees to indemnify, defend and hold Purchaser
harmless from and against any and all cost, loss, harm or damage in connection
with the Property which arises out of any act or omission which could not have
reasonably been discovered by Purchaser during the Feasibility Period (as
defined in the Purchase Contract), and which arises out of the acts of Seller or
its agents prior to the date hereof.
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 Florida.
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: ___________, 2000
Seller:
CENTURY PROPERTIES FUND XX,
a California limited partnership
By: Fox Partners III,
a California general partnership,
Its general partner
By: Fox Capital Management Corporation,
a California corporation,
Its general partner
By:
Name:
Title:
Purchaser:
HOUSING SYSTEMS, INC.,
a Georgia corporation
By:
Name:
Title:
By:
Name:
Title:
<PAGE>
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 HOUSING
SYSTEMS, INC., a Georgia corporation ("Purchaser").
Seller and Purchaser, have entered into that certain Purchase and Sale
Contract and dated as of March 15, 2000 ("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, trade names
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 (other than Seller's proprietary information),
including all rights of Seller, if any, in and to the name "Harbor Club Downs
Apartments".
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 before the
date hereof.
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 Florida.
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.
[Remainder of Page Intentionally Left Blank]
<PAGE>
WITNESS the signatures and seals of the undersigned.
Dated: ___________, 2000
Seller:
CENTURY PROPERTIES FUND XX,
a California limited partnership
By: Fox Partners III,
a California general partnership,
Its general partner
By: Fox Capital Management Corporation,
a California corporation,
Its general partner
By:
Name:
Title:
Purchaser:
HOUSING SYSTEMS, INC.,
a Georgia corporation
By:
Name:
Title:
By:
Name:
Title:
<PAGE>
Exhibit B
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Escrow Agreement") is made this 15th day of March,
2000, by and among CENTURY PROPERTIES FUND XX, a California limited partnership
("Seller"), HOUSING SYSTEMS, INC., a Georgia corporation ("Purchaser"), and
FIDELITY NATIONAL 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 15th day of March,
2000; 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, on or before 5:00 p.m.
Eastern time on the date of expiration of the Feasibility Period (as defined in
the Purchase Contract), Purchaser shall provide an additional deposit in the sum
of One Hundred Thousand and no/100 Dollars ($100,000.00) 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. Escrow Agent also hereby
acknowledges receipt of a quitclaim deed executed by Purchaser a copy of which
is attached (the "Quitclaim Deed") and agrees to hold and release the Quitclaim
Deed in accordance with the terms of this Escrow Agreement.
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 return the Quitclaim Deed to Purchaser and deliver the Escrow Fund
to Seller 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 and shall forthwith deliver the
Quitclaim Deed to Seller, (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 and shall forthwith deliver the Quitclaim Deed to Seller, (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 Quitclaim Deed and 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
and shall forthwith deliver the Quitclaim Deed 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:
If to Seller: If to Purchaser:
Century Properties Fund XX Housing Systems, Inc.
2000 South Colorado Boulevard, 5505 Interstate N. Parkway, N.W.
Tower Two, Suite 2-1000, Atlanta, Georgia 30328-3074
Denver, Colorado 80222 Attn: Mr. Russell Greer
Attn: Mr. Harry Alcock
And With a copy to
Argent Real Estate Schreeder, Wheeler & Flint, LLP
1401 Brickell Avenue, Suite 520 127 Peachtree Street, N.E.
Miami, Florida 33131 1600 Candler Building
Attn: Mr. David Marquette Atlanta, Georgia 30303-1845
Attn: Clifford A. Barshay, Esq.
With a copy to If to Escrow Agent:
Loeb & Loeb, LLP First American Title Insurance
1000 Wilshire Boulevard, Suite Company
1800 ________________________
Los Angeles, California 90017 ________________________
Attn: Andrew S. Clare, Esq. Attn: ____________________
Karen N. Higgins, Esq.
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 a fee of $300.00 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 fee 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 Florida.
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 limited partnership
By: Fox Partners III,
a California general partnership,
Its general partner
By: Fox Capital Management Corporation,
a California corporation,
Its general partner
By:
Name:
Title:
Purchaser:
HOUSING SYSTEMS, INC.,
a Georgia corporation
By:
Name:
Title:
By:
Name:
Title:
FIRST AMERICAN TITLE INSURANCE COMPANY
By:
Title:
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINED TERMS...................................................2
ARTICLE 2 PURCHASE AND SALE OF PROPERTY...................................4
ARTICLE 3 PURCHASE PRICE & DEPOSIT........................................4
ARTICLE 4 FINANCING.......................................................6
ARTICLE 5 FEASIBILITY PERIOD..............................................6
ARTICLE 6 TITLE...........................................................8
ARTICLE 7 CLOSING........................................................11
ARTICLE 8 REPRESENTATIONS, WARRANTIES AND COVENANTS
OF SELLER AND PURCHASER........................................14
ARTICLE 9 CONDITIONS PRECEDENT TO CLOSING................................18
ARTICLE 10 BROKERAGE......................................................19
ARTICLE 11 POSSESSION.....................................................19
ARTICLE 12 DEFAULTS AND REMEDIES..........................................19
ARTICLE 13 RISK OF LOSS OR CASUALTY.......................................20
ARTICLE 14 RATIFICATION...................................................21
ARTICLE 15 EMINENT DOMAIN.................................................21
ARTICLE 16 MISCELLANEOUS..................................................21
<PAGE>
Exhibit 10.17
REINSTATMENT AND FIRST AMENDMENT TO
PURCHASE AND SALE CONTRACT
(Harbor Club)
This Reinstatement and First Amendment To Purchase and Sale Contract (this
"Agreement") is entered into as of the 3rd day of May, 2000, by and between
HOUSING SYSTEMS, INC., a Georgia corporation ("Purchaser"), and CENTURY
PROPERTIES FUND XX, a California limited partnership ("Seller"), with respect to
an escrow established with Fidelity National Title Insurance Company ("Escrow
Agent").
RECITALS
A. Purchaser and Seller executed that certain Purchase and Sale Contract dated
as of March 15, 2000 (the "Contract"), pursuant to which Seller agreed to sell
and Purchaser agreed to purchase, certain real property located in Pinellas
County, Florida.
B. Pursuant to the Contract, Purchaser placed an earnest money deposit of
$50,000 (the "Deposit") into an escrow established with Escrow Agent.
C. The Contract was terminated by Purchaser at the end of the Feasibility
Period.
D. Purchaser and Seller desire to enter into this Agreement for the purpose of
(i) reinstating the Contract, as if such Contract had never been terminated; and
(ii) amending the Contract as more fully described below.
E. Capitalized terms not otherwise defined herein shall have the meanings
ascribed to them in the Contract.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Seller and Purchaser agree as follows:
1. Reinstatement. The Contract is hereby reinstated as if such Contract had
never been terminated and shall remain in full force and effect and binding on
the parties hereto, subject to the terms and conditions thereof and hereof.
2. Feasibility Period. Purchaser hereby agrees and acknowledges that the
Feasibility Period has expired and that, except for the closing conditions set
forth in Section 9.1 of the Contract, all of the contingencies to Purchaser's
closing on its purchase of the Property pursuant to the Contract (including,
without limitation, those relating to Purchaser's review of title documents)
have been satisfied or waived.
3. Additional Deposit. At or before 5:00 p.m. Eastern time on May 5, 2000,
Purchaser shall deliver to Escrow Agent the Additional Deposit in the sum of One
Hundred Thousand and No/100 Dollars ($100,000.00).
4. Purchase Price. Section 3.1 of the Contract is hereby amended such that the
Purchase Price shall be Eleven Million and No/100 Dollars ($11,000,000.00).
5. Closing Date. Section 7.1.1 of the Contract is hereby amended to provide that
the Closing shall take place on or before June 5, 2000 (the "Scheduled Closing
Date"), subject to the extension rights provided in Section 7.1.2.
6. Purchaser's Extension Option. Purchaser shall have the option (the "Closing
Extension Option") to extend the Closing an additional fifteen (15) calendar
days beyond the Scheduled Closing Date upon the occurrence of, and subject to,
the following conditions: (i) concurrently with the delivery of the Extension
Notice (defined below), Purchaser shall deliver to Escrow Agent an additional
sum in the amount of One Hundred Thousand and No/100 Dollars ($100,000.00), in
cash (the "Closing Extension Option Deposit"); (ii) Purchaser shall not have
breached any of its obligations under the Contract, as hereby amended; and (iii)
all of Purchaser's representations and warranties contained in Section 8.2 of
the Contract shall be true and correct as of the date on which Purchaser
notifies Seller and Escrow Agent of Purchaser's exercise of the Closing
Extension Option. Purchaser's Closing Extension Option shall be exercised, if at
all, by prior written notice to Seller and Escrow Agent (the "Extension
Notice"), received no later than five (5) Business Days prior to the expiration
of the Scheduled Closing Date.
Purchaser hereby agrees that the Closing Extension Option Deposit, which
shall be credited toward the Purchase Price at the Closing, shall be
non-refundable when paid, except in the event the sale of the Property is not
consummated due to a default by Seller. Purchaser further agrees that, upon
delivery of the Closing Extension Option Deposit to Escrow Agent, Escrow Agent
shall be authorized by Purchaser to disburse the Deposit, the Additional Deposit
and the Closing Extension Option Deposit to Seller. Such authorization shall be
effective upon the delivery to Escrow Agent of a copy of this Agreement and
shall be irrevocable.
7. Assumption of Existing Mortgage. Purchaser may contact Seller's lender which
holds the existing mortgage on the Property (the "Lender") to attempt to
purchase the Property subject to such mortgage; provided, however, that
Purchaser's purchase of the Property shall not be subject to Purchaser's
assumption of Seller's loan (the "Existing Loan"). If Purchaser is successful in
obtaining the Lender's consent to Purchaser's assumption of the Existing Loan,
Seller agrees to execute any documents necessary to effectuate such assumption,
provided that such documents shall be reasonably acceptable to Seller, Purchaser
shall pay all of Seller's costs in connection therewith, and Seller shall be
released from any and all liability under the Existing Loan.
8. Lead Based Paint Warning Statement. EVERY PURCHASER OF ANY INTEREST IN
RESIDENTIAL REAL PROPERTY ON WHICH A RESIDENTIAL DWELLING WAS BUILT PRIOR TO
1978 IS NOTIFIED THAT SUCH PROPERTY MAY PRESENT EXPOSURE TO LEAD FROM LEAD-BASED
PAINT THAT MAY PLACE YOUNG CHILDREN AT RISK OF DEVELOPING LEAD POISONING. LEAD
POISONING IN YOUNG CHILDREN MAY PRODUCE PERMANENT NEUROLOGICAL DAMAGE, INCLUDING
LEARNING DISABILITIES, REDUCED INTELLIGENCE QUOTIENT, BEHAVIORAL PROBLEMS, AND
IMPAIRED MEMORY. LEAD POISONING ALSO POSES A PARTICULAR RISK TO PREGNANT WOMEN.
THE SELLER OF ANY INTEREST IN RESIDENTIAL REAL PROPERTY IS REQUIRED TO PROVIDE
THE BUYER WITH ANY INFORMATION ON LEAD-BASED PAINT HAZARDS FROM RISK ASSESSMENTS
OR INSPECTIONS IN THE SELLER'S POSSESSION AND NOTIFY THE BUYER OF ANY KNOWN
LEAD-BASED PAINT HAZARDS. A RISK ASSESSMENT OR INSPECTION FOR POSSIBLE
LEAD-BASED PAINT HAZARDS IS RECOMMENDED PRIOR TO PURCHASE.
9. Counterparts. This Agreement may be executed in counterparts, each of which
when compiled together shall constitute one and the same original.
10. No Further Modifications. All other terms and conditions of the Contract
remain in full force and effect.
<PAGE>
IN WITNESS WHEREOF, Seller and Purchaser have entered into this Agreement
as of the date written above.
SELLER:
CENTURY PROPERTIES FUND XX,
a California limited partnership
By: Fox Partners III,
a California general partnership,
Its general partner
By: Fox Capital Management Corporation,
a California corporation,
Its general partner
By:
Name:
Title:
PURCHASER:
HOUSING SYSTEMS, INC.,
a Georgia corporation
By:
Name:
Title:
