FORM 8-K - CURRENT REPORT
(As last amended in Rel. No. 34-36968, eff. August 13, 1992.)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) December 7, 1999
CENTURY PENSION INCOME FUND XXIII
(Exact name of registrant as specified in its charter)
California 0-14528 94-2963120
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification
Number)
55 Beattie Place
Post Office Box 1089
Greenville, South Carolina 29602
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (864) 239-1000
N/A
(Former name or former address, if changed since last report)
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
Medtronics was sold by Century Pension Income Fund XXIII (the "Registrant") on
December 7, 1999. The property was sold to 18011 Mitchell South, LLC, a
California Limited Liability Company, an unrelated party, for $2,850,000.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(b) Pro Forma Financial Information
The required pro forma information will be provided in the Registrant's annual
report on Form 10-K for the year ended December 31, 1999.
(c) Exhibits
10.3 Purchase and Sale Contract between Registrant and 18011 Mitchell,
LLC, a California Limited Liability Company, dated September 23, 1999.
10.4 First Amendment to Purchase and Sale Contract between Registrant
and 18011 Mitchell, LLC, a California Limited Liability Company, dated
November 10, 1999.
10.5 Second Amendment to Purchase and Sale Contract between Registrant
and 18011 Mitchell, LLC, a California Limited Liability Company, dated
November 23, 1999.
10.6 Third Amendment to Purchase and Sale Contract between Registrant
and 18011 Mitchell, LLC, a California Limited Liability Company, dated
November 30, 1999.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CENTURY PENSION INCOME FUND XXIII
By: FOX PARTNERS V
Its General Partner
By: FOX CAPTIAL MANAGEMENT CORPORATION
Its Managing General Partner
By: /s/ Patrick J. Foye
Executive Vice President
Date: December 21, 1999
EXHIBIT 10.3
PURCHASE AND SALE CONTRACT
BETWEEN
CENTURY PENSION INCOME FUND XXIII,
A CALIFORNIA LIMITED PARTNERSHIP
AS SELLER
AND
PACIFICA ENTERPRISES L.A., LLC,
A CALIFORNIA LIMITED LIABILITY COMPANY
AS PURCHASER
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT ("Purchase Contract") is entered into as of
the 23rd day of September, 1999 (the "Effective Date") by and between CENTURY
PENSION INCOME FUND XXIII, a California limited partnership, having a principal
address at 1873 South Bellaire Street, 17th Floor, Denver, Colorado 80222
("Seller") and PACIFICA ENTERPRISES L.A., LLC, a California limited liability
company, having a principal address at 12780 High Bluff Drive, Suite 160, San
Diego, California 92130 ("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 Orange County,
California, as more particularly described in Exhibit A attached hereto and made
a part hereof. Improvements have been constructed on the property described in
this Recital.
R-2. Purchaser desires to purchase and Seller has agreed to sell such land,
improvements and certain associated property, defined below as the "Property" on
the terms and conditions set forth below, (which terms and conditions shall
control in the event of any conflict with these Recitals), such that on the
Closing Date (as hereinafter defined) the Property will be conveyed by special
warranty deed or equivalent deed to Purchaser.
R-3. Purchaser has agreed to pay to Seller the Purchase Price for the Property,
and Seller has agreed to sell the Property to Purchaser on the terms and
conditions set forth below.
R-4. Purchaser intends to make investigations regarding the Property, and
Purchaser's intended uses of each of the Property as Purchaser deems necessary
and desirable.
ARTICLE 1
DEFINED TERMS
1.1 Unless otherwise defined herein, terms with initial capital letters in
this Purchase Contract shall have the meanings set forth in this Article 1
below.
1.1.1 "BUSINESS DAY" means any day other than a Saturday or Sunday
or Federal holiday or legal holiday in the State of California.
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
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 California described on Exhibit "A" attached hereto, and all
rights, privileges and appurtenances pertaining thereto.
1.1.10 "MISCELLANEOUS PROPERTY ASSETS" means all contract rights,
leases, concessions, warranties, plans, drawings and other items of intangible
personal property relating to the ownership or operation of the Property and
owned by Seller, excluding, however, (i) receivables, (ii) Property Contracts,
(iii) Commercial Leases, (iv) Permits, (v) cash or other funds, whether in petty
cash or house "banks," or on deposit in bank accounts or in transit for deposit,
(vi) refunds, rebates or other claims, or any interest thereon, for periods or
events occurring prior to the Closing Date, (vii) utility and similar deposits,
or (viii) insurance or other prepaid items or (ix) Seller's proprietary books
and records, except to the extent that Seller receives a credit on the closing
statement for any such item.
1.1.11 "PERMITS" means all licenses and permits granted by
governmental authorities having jurisdiction over the Property in respect of the
matter to which the applicable license or permit applies and owned by Seller and
used in or relating to the ownership, occupancy or operation of the Property or
any part thereof not subject to a Commercial Lease.
1.1.12 "PERMITTED EXCEPTIONS" means those exceptions or conditions
permitted to encumber the title to the Property in accordance with the
provisions of Section 6.2.
1.1.13 "PROPERTY" means the Land and Improvements and all rights of
Seller relating to the Land and the Improvements, including without limitation,
any rights, title and interest of Seller, if any, in and to (i) any strips and
gores adjacent to the Land and any land lying in the bed of any street, road, or
avenue opened or proposed, in front of or adjoining the Land, to the center line
thereof; (ii) any unpaid award for any taking by condemnation or any damage to
the Property by reason of a change of grade of any street or highway; (iii) all
of the easements, rights, privileges, and appurtenances belonging or in any way
appertaining to the Property; together with all Fixtures and Tangible Personal
Property, the right, if any and only to the extent transferable, of Seller in
and to Property Contracts and Commercial Leases, Permits other than Excluded
Permits and the Miscellaneous Property Assets owned by Seller which are located
on the Property and used in its operation.
1.1.14 "PROPERTY CONTRACTS" means all purchase orders, maintenance,
service, or utility contracts and similar contracts, which relate to the
ownership, maintenance, construction or repair and/or operation of the Property
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
Three Million Dollars ($3,000,000.00), which shall be paid by Purchaser, as
follows:
3.1.1 On the date hereof, Purchaser shall deliver to Chicago 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 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 directed by Purchaser until expiration of the Feasibility Period (as
hereinafter defined), and thereafter 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.
3.1.3 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 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 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.
3.1.4 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 thirty (30) calendar
days following the Effective Date (i.e., through October 1, 1999 if the
Effective Date is September 1, 1999), but in no event later than October 23,
1999 (the "Feasibility Period"), Purchaser, and its agents, contractors,
engineers, surveyors, attorneys, and employees ("Consultants") shall have the
right from time to time to enter onto the Property:
5.1.1 To conduct and make any and all customary studies, tests,
examinations and inspections, or investigations of or concerning the Property
(including without limitation, engineering and feasibility studies, evaluation
of drainage and flood plain, soil tests for bearing capacity and percolation and
surveys, including topographical surveys).
5.1.2 To confirm any and all matters which Purchaser may reasonably
desire to confirm with respect to the Property.
5.1.3 To ascertain and confirm the suitability of the property for
Purchaser's intended use of the Property.
5.1.4 To review all Materials (as hereinafter defined) other than
Seller's proprietary information, and to review the condition of the title to
the Property.
5.2 Purchaser shall have the right to either approve of the Property
pursuant to any of the matters referred to in subparagraphs 5.1.1, 5.1.2, 5.1.3
and 5.1.4 ("Approval"), or 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 fails to deliver
written Notice of Approval or 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 provides Seller with written Notice of such Approval 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 fix 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 Chicago Title 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. Seller agrees that it shall be solely
responsible for payment of all costs relating to procurement of a CLTA Owner's
Policy of Title Insurance and Purchaser shall be responsible for payment of all
other title costs (including endorsements, ALTA coverage and any Lender's
policy).
6.2 Subject to the contingencies set forth in this Agreement, Purchaser
agrees to accept title to the Land and Improvements, so long as the same is
insurable at ordinary rates and the conveyance is by grant deed. Transfer of
title shall be subject to the following exceptions (collectively, the "Permitted
Exceptions"), to the extent approved by Purchaser:
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 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
Real estate and property taxes for the calendar year in which closing
occurs to the extent not due and payable;
6.3 The existence of other mortgages, liens, or encumbrances shall not be
objections to title, but Seller shall, subject to the provisions of Sections 6.6
and 6.7, remove such items prior to the Closing.
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, 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 such 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 ninety (90) calendar days. Should Seller
be able to cure such title objection or condition, or should Seller be able to
cause title insurance over the same by the Closing Date or any postponed Closing
Date, or should Purchaser waive such objection or condition within such period
for cure, then the Closing shall take place on or before thirty (30) calendar
days after Notice of such cure or waiver.
6.7 If 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 Purchaser shall release and quitclaim all of
Purchaser's right and interest in such Property to Seller, 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 shall be immediately
returned to Purchaser.
6.8 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.
6.9 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 approved
in writing by Purchaser within seven (7) days of Seller's' cure of same.
6.10 Intentionally deleted.
6.11 Purchaser at Purchaser's sole cost and expense, may cause to be
prepared a survey for the Property ("Survey") to be delivered to Purchaser and
Seller within the Feasibility Period. The Survey (i) shall be prepared in
accordance with and shall comply with the minimum requirements of the ALTA;
(ii) shall be in a form, and shall be certified as of a date satisfactory to
Title Insurer to enable Title Insurer to delete standard survey exceptions from
the title insurance policy to be issued pursuant to the Title Commitments,
except for any Permitted Exceptions; (iii) shall specifically show all
improvements, recorded easements to the extent locatable, set back lines, and
such other matters shown as exceptions by the Title Commitments; (iv) shall
specifically show the right of way for all adjacent public streets; (v) shall
specifically disclose whether (and, if so, what part of) any of the Property is
in an area designated as requiring flood insurance under applicable federal laws
regulating lenders; (vi) shall contain a perimeter legal description of the
Property which may be used in the special warranty deed or equivalent deed;
(vii) shall be certified to Purchaser, Purchaser's lender, Seller and Title
Insurer as being true and correct; and (viii) shall certify that the legal
description set forth therein describes the same, and comprises all of, the real
estate comprising the Property to be purchased by Purchaser pursuant to the
terms of this Purchase Contract. In the event the perimeter legal description
of the Property contained in the Survey differs from that contained in the deed
or deeds by which Seller took title to the Property, the latter description
shall be used in the special warranty deed delivered to Purchaser at Closing,
and the Survey legal shall be used in a quitclaim deed to the Property which
also shall be delivered to Purchaser at Closing. Purchaser, at Purchaser's sole
cost and expense, may also cause to be prepared an environmental report for the
Property ("Environmental Report").
6.11.1 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.
6.11.2 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 fifteen (15) 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 ninety (90) 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 approved
in writing by Purchaser and executed after the Effective Date, together with any
payments due parties to other agreements affecting the Property which survive
Closing or 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 and shall be subject to adjustment upon receipt of the actual
figures. 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 correct 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 actually been received shall be
prorated.
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 Seller
or Purchaser after the Closing are due and payable to the other party by reason
of this allocation, the appropriate sum, less a proportionate share of any
reasonable attorneys' fees and costs and expenses expended in connection with
the collection thereof, shall be promptly paid to the other party. Any monies
received by Seller after closing shall be forwarded to Purchaser for
disbursement in accordance with the order of payment provided herein above.
After the Closing, Seller shall continue to have the right, but not the
obligation, in its own name, to demand payment of and to collect Delinquent Rent
owed to Seller by any Tenant, which right shall include, without limitation, the
right to continue or commence legal actions or proceedings against any Tenant
(provided, that Seller shall not commence any legal actions or proceedings
against any Tenant which continues as a Tenant at the Property after Closing
without the prior consent of Purchaser, which will not be unreasonably withheld
or delayed), and the delivery of the Assignment as defined in Section 7.2.1.3
shall not constitute a waiver by Seller of such right. Purchaser agrees to
cooperate with Seller at no cost or liability to Purchaser in connection with
all efforts by Seller to collect such Delinquent Rent and to take all steps,
whether before or after the Closing Date, as may be necessary to carry out the
intention of the foregoing, including, without limitation, the delivery to
Seller, within seven (7) days after a written request, of any relevant books and
records (including, without limitation, rent statements, receipted bills and
copies of tenant checks used in payment of such rent), the execution of any and
all consents or other documents, and the undertaking of any act reasonably
necessary for the collection of such Delinquent Rent by Seller; provided,
however, that Purchaser's obligation to cooperate with Seller pursuant to this
sentence shall not obligate Purchaser to terminate any Tenant lease with an
existing Tenant or evict any existing Tenant from the Property. The provisions
of this Section 7.1.5 shall apply during the Proration Period.
7.1.6 Seller shall pay the cost of all transfer taxes (e.g., excise
stamp taxes) and recording costs with respect to the Closing. Seller and
Purchaser shall share equally in the costs of the Escrow Agent for escrow fees;
provided, however, that Seller's portion of the escrow fees shall not exceed
$150.00.
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 Grant 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
Seller's obligations thereunder.
7.2.1.4 A closing statement executed by Seller.
7.2.1.5 A vendor's affidavit or at Seller's option an indemnity,
as applicable, in the customary form reasonably acceptable to Seller to enable
Title Insurer to delete the standard exceptions to the title insurance policy
set forth in this Purchase Contract (other than matters constituting any
Permitted Exceptions and matters which are to be completed or performed post-
Closing) to be issued pursuant to the Title Commitments; provided that such
affidavit does not subject Seller to any greater liability, or impose any
additional obligations, other than as set forth in this Purchase Contract; and
7.2.1.6 A certification of Seller's non-foreign status pursuant
to Section 1445 of the Internal Revenue Code of 1986, as amended.
7.2.1.7 Except for the items expressly listed above to be
delivered at Closing, delivery of any other required items shall be deemed made
by Seller to Purchaser, if Seller leaves such documents at the Property in their
customary place of storage or in the custody of Purchaser's representatives.
7.2.1.8 To the extent in Seller's possession or control,
original copies of the Commercial Leases and Property Contracts, lease files,
keys to the property, Seller's books and records (other than proprietary
information) regarding the Property, and original copies of the tenant
estoppels.
7.2.2 PURCHASER. At Closing, Purchaser shall deliver to the Title
Company (for disbursement to Seller upon the Closing) the following items with
respect to the Property being conveyed at such Closing:
7.2.2.1 The full Purchase Price as required by ARTICLE 3 hereof
plus or minus the adjustments or prorations required by this Purchase Contract.
If at Closing there are any liens or encumbrances on the Property that Seller is
obligated or elects to pay and discharge, Seller may use any portion of the
Purchase Price for the Property(s) to satisfy the same, provided that Seller
shall have delivered to Title Company, on such Closing instruments in recordable
form sufficient to satisfy such liens and encumbrances of record (or, as to any
mortgages or deeds of trust, appropriate payoff letters, acceptable to the Title
Insurer), together with the cost of recording or filing such instruments.
Purchaser, if request is made within a reasonable time prior to Closing, agrees
to provide at Closing separate certified or cashier's checks as requested,
aggregating not more than the amount of the balance of the portion of Purchase
Price, to facilitate the satisfaction of any such liens or encumbrances. The
existence of any such liens or encumbrances shall not be deemed objections to
title if Seller shall comply with the foregoing requirements.
7.2.2.2 A closing statement executed by Purchaser.
7.2.2.3 A countersigned counterpart of the Bill of Sale in the
form attached as Exhibit 7.2.1.2.
7.2.2.4 A countersigned counterpart of the Assignment in the
form attached as Exhibit 7.2.1.3.
7.2.2.5 Such other instruments, documents or certificates as are
required to be delivered by Purchaser to Seller in accordance with any of the
other provisions of this Purchase Contract.
ARTICLE 8
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER
8.1 REPRESENTATIONS AND WARRANTIES OF SELLER.
8.1.1 For the purpose of inducing Purchaser to enter into this
Purchase Contract and to consummate the sale and purchase of the Property in
accordance herewith, Seller represents and warrants to Purchaser the following
as of the Effective Date and as of the Closing Date:
8.1.1.1 Seller is lawfully and duly organized, and in good
standing under the laws of the state of its formation set forth in the initial
paragraph of this Purchase Contract; and has or at the Closing shall have the
power and authority to sell and convey the Property and to execute the documents
to be executed by Seller and prior to the Closing will have taken as applicable,
all corporate, partnership, limited liability company or equivalent entity
actions required for the execution and delivery of this Purchase Contract, and
the consummation of the transactions contemplated by this Purchase Contract.
The compliance with or fulfillment of the terms and conditions hereof will not
conflict with, or result in a breach of, the terms, conditions or provisions of,
or constitute a default under, any Purchase Contract to which Seller is a party
or by which Seller is otherwise bound. Seller has not made any other Purchase
Contract for the sale of, or given any other person the right to purchase, all
or any part of any of the Property;
8.1.1.2 Seller owns insurable, fee title to the Property,
including all real property contained therein required to be sold to Purchaser,
subject only to the Permitted Exceptions (provided, however, that if this
representation is or becomes untrue, Purchaser's remedies shall be limited to
the remedies set forth in Section 6.7 hereof and Seller shall have no other
liability as a result thereof, either before or after Closing);
8.1.1.3 There are no adverse or other parties in possession of
the Property, except for occupants, guests and tenants under the Commercial
Leases (provided, however, that if this representation is or becomes untrue,
Purchaser's remedies shall be limited to the remedies set forth in Section 6.7
hereof).
8.1.1.4 The joinder of no person or entity other than Seller is
necessary to convey the Property, fully and completely, to Purchaser at Closing,
or to fulfill Seller's obligations and Seller has all necessary right and
authority to convey and assign to Purchaser all contract rights and warranties
required to be conveyed and assigned to Purchaser hereunder;
8.1.1.5 Purchaser has no duty to collect withholding taxes for
Seller pursuant to the Foreign Investors Real Property Tax Act of 1980, as
amended;
8.1.1.6 To Seller's knowledge, there are no actions,
proceedings, litigation or governmental investigations or condemnation actions
either pending or threatened against the Property, as applicable;
8.1.1.7 Seller has no knowledge of any claims for labor
performed, materials furnished or services rendered in connection with
constructing, improving or repairing any of the Property, as applicable, caused
by Seller and which remain unpaid beyond the date for which payment was due and
in respect of which liens may or could be filed against any of the Property, as
applicable;
8.1.2 Except for the representations and warranties expressly set
forth above in Subsection 8.1.1, the Property is expressly purchased and sold
"AS IS," "WHERE IS," and "WITH ALL FAULTS." The Purchase Price and the terms
and conditions set forth herein are the result of arm's-length bargaining
between entities familiar with transactions of this kind, and said price, terms
and conditions reflect the fact that Purchaser shall have the benefit of, and is
not relying upon any information provided by Seller 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 Kirk Barnett, Property Manager, SSR/Metric
Property Management.
8.2 REPRESENTATIONS AND WARRANTIES OF PURCHASER
8.2.1 For the purpose of inducing Seller to enter into this Purchase
Contract and to consummate the sale and purchase of the Property in accordance
herewith, Purchaser represents and warrants to Seller the following as of the
Effective Date and as of the Closing Date:
8.2.2 With respect to Purchaser and its business, Purchaser
represents and warrants, in particular, that:
8.2.2.1 Purchaser is corporation duly organized, validly
existing and in good standing under the laws of California.
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 Except as stated in Article 10 hereof, Purchaser has not dealt
with any broker, finder or any other person, in connection with the purchase of
or the negotiation of the purchase of the Property that might give rise to any
claim for commission against Seller or lien or claim against the Property.
8.2.4 Intentionally Omitted.
ARTICLE 9
CONDITIONS PRECEDENT TO CLOSING
9.1 Purchaser's obligation to close under this Purchase Contract, shall be
subject to and conditioned upon the fulfillment of each and all of the following
conditions precedent:
9.1.1 All of the documents required to be delivered by Seller to
Purchaser at the Closing pursuant to the terms and conditions hereof shall have
been delivered and shall be in form and substance reasonably satisfactory to
Purchaser;
9.1.2 Each of the representations and warranties of Seller contained
herein shall be true in all material respects as of the Closing Date;
9.1.3 Seller shall have complied with, fulfilled and performed in
all material respects each of the covenants, terms and conditions to be complied
with, fulfilled or performed by Seller hereunder;
9.1.4 Notwithstanding anything to the contrary, there are no other
conditions on Purchaser's obligation to Close except as expressly set forth
above.
9.2 Without limiting any of the rights of Seller elsewhere provided for in
this Purchase Contract, Seller's obligation to close with respect to conveyance
of a particular Property under this Purchase Contract shall be subject to and
conditioned upon the fulfillment of each and all of the following conditions
precedent:
9.2.1 Purchaser's representations and warranties set forth in this
Purchase Contract shall have been true and correct in all material respects when
made, and shall be true and correct in all material respects on the Closing Date
and as of the Effective Date as though such representations and warranties were
made at and as of such date and time.
9.2.2 Purchaser shall have fully performed and complied with all
covenants, conditions, and other obligations in this Purchase Contract to be
performed or complied with by it at or prior to Closing including, without
limitation, payment in full of the Purchase Price.
9.2.3 There shall not be pending or, to the knowledge of either
Purchaser or Seller, any litigation or threatened litigation which, if
determined adversely, would restrain the consummation of any of the transactions
contemplated by this Purchase Contract or declare illegal, invalid or nonbinding
any of the covenants or obligations of the Purchaser.
9.2.4 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
Seller represents and warrants to Purchaser that it has dealt only with Swartz
Commercial Real Estate, 15540-C Rockfield Boulevard, Suite 220, Irvine,
California 92618 ("Seller's Broker") in connection with this Purchase Contract.
Purchaser represents and warrants that it has dealt only with Lee and
Associates, 3991 MacArthur Boulevard, Suite 100, Newport Beach, California 92660
("Purchaser's Broker") in connection with this Purchase Contract. Seller and
Purchaser each represent and warrant 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.
10.1 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.
10.2 Neither Seller's Broker nor Purchaser's Broker assume 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. 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 or to
seek specific performance of this Purchase Contract.
ARTICLE13
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. Upon assignment to Purchaser of any
insurance proceeds in respect of fire or other casualty occurring between the
date of ratification of this contract and the time of settlement, Purchaser
shall have no right to terminate this Purchase Contract on account thereof, but
Seller shall assign to Purchaser its interest in and to any insurance policies
and proceeds thereof payable as a result of such damage or destruction. Seller
shall not, in any event, be obligated to effect any repair, replacement, and/or
restoration, but may do so at its option in which case Seller may apply the
insurance proceeds to the costs of restoration.
ARTICLE 14
RATIFICATION
14.1 This Purchase Contract shall be null and void unless fully ratified by
Purchaser and Seller on or before October 6, 1999.
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 hereunder, or to settle in accordance with
the terms of this Purchase Contract for the full Purchase Price and receive the
full benefit or any condemnation award. It is expressly agreed between the
parties hereto that this paragraph shall in no way apply to customary
dedications for public purposes which may be necessary for the development of
the Property.
ARTICLE 16
MISCELLANEOUS
16.1 EXHIBITS AND SCHEDULES
All Exhibits and Schedules annexed hereto are a part of this Purchase
Contract for all purposes.
16.2 ASSIGNABILITY
Subject to Section 16.18, this Purchase Contract is not assignable without
first obtaining the prior written approval of the non-assigning party, except
that Purchaser may assign all or an undivided interest in this Purchaser
Contract to one or more entities so long as (i) Purchaser or its affiliate
remains a part of the purchasing entity(ies), (ii) Purchaser is not released
from its liability hereunder, and (iii) 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 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 Pension Income Fund XXIII Pacifica Enterprises L.A., LLC
1873 South Bellaire Street, 17th 12780 High Bluff Drive
Floor Suite 160
Denver, Colorado 80222 San Diego, California 92130
Attn: Mr. Harry Alcock Attn: Damian McKinney
Facsimile No. (303) 692-0786 Facsimile No. (858) 755-1687
And With a copy to:
Pacifica Enterprises L.A., LLC
Argent Real Estate 12780 High Bluff Drive
1401 Brickell Avenue, Suite 520 Suite 160
Miami, Florida 33131 San Diego, California 92130
Attn: Mr. David Marquette Attn: Edward L. Bushor, Esq.,
General Counsel
Facsimile No. (858) 755-1587
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.
16.7 GOVERNING LAW AND VENUE
The laws of the State of California 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.
NOW WHEREFORE, the parties hereto have executed this Purchase Contract
under seal as of the date first set forth above.
SELLER:
CENTURY PENSION INCOME FUND XXIII,
a California limited partnership
By:Fox Partners V,
a California general partnership,
its general partner
By:Fox Capital Management Corporation,
a California corporation,
its general partner
By:
Name:
Its:
PURCHASER:
PACIFICA ENTERPRISES L.A., LLC,
a California limited liability company
By:
Its:
ACKNOWLEDGEMENTS
STATE OF CALIFORNIA )
)
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 CALIFORNIA )
)
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
EXHIBIT A
LEGAL DESCRIPTION FOR MEDTRONICS PROPERTY
Assessor's Parcel No. 427-251-01
PARCEL 1 IN THE CITY OF IRVINE, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN
ON A PRACEL MAP FILED IN BOOK 97, PAGES 1 TO 5 INCLUSIVE OF PARCEL MAPS, IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS, NATURAL GAS
RIGHTS, AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM AND
ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT MAY BE WITHIN OR UNDER THE
PARCEL OF LAND HEREINABOVE DESCRIBED, TOGETHER WITH THE PERPETUAL RIGHT OF
DRILLING, MINING, EXPLORING AND OPERATING THEREFOR AND STORING IN AND REMOVING
THE SAME FROM SAID LAND OR ANY OTHER LAND, INCLUDING THE RIGHT TO WHIPSTOCK OR
DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THOSE HEREINBOVE DESCRIBED,
OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS THE SURFACE OF THE
LAND HEREINABOVE DESCRIBED AND TO BOTTOM SUCH WHIPSTOCKED OR DIRECTIONALLY
DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR
LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN, AND
OPERATE ANY SUCH WELLS, OR MINES, WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE,
STORE, EXPLORE AND OPERATE THROUGH THE SURFACE OR THE UPPER FIVE HUNDRED (500)
FEET OF THE SUBSURFACE OF THE LAND HEREINABOVE DESCRIBED AS RESERVED IN THE DEED
FROM THE IRVINE COMPANY, A MICHIGAN CORPORATION, SUCCESSOR BY MERGER WITH IRVINE
INDUSTRIAL COMPLEX, A CORPORATION RECORDED MARCH 8, 1979 IN BOOK 13061, PAGE 74,
OFFICIAL RECORDS.
ALSO EXCEPT ANY AND ALL WATER RIGHTS OR INTERESTS IN WATER RIGHTS NO MATTER HOW
ACQUIRED, ANY AND ALL WATER RIGHTS OR INTERESTS IN WATER RIGHTS NO MATTER HOW
ACQUIRED IN CONNECTION WITH OR WITH RESPECT TO SAID LAND, WHETHER SUCH WATER
RIGHTS SHALL BE RIPARIAN, OVERLYING, APPROPRIATIVE, PERCOLATING, PRESCRIPTIVE OR
CONTRACTUAL, PROVIDED, HOWEVER, THAT THE EXCEPTION AND RESERVATION MADE HEREIN
SHALL NOT HAVE ANY RIGHT TO ENTER UPON THE SURFACE OF SAID LAND IN THE EXERCISE
OF SUCH RIGHTS, AS RESERVED IN THE DEED FROM THE IRVINE COMPANY, A MICHIGAN
CORPORATION, SUCCESSOR BY MERGER WITH IRVINE INDUSTRIAL COMPLEX, A CORPORATION,
RECORDED MARCH 8, 1979 IN BOOK 13061, PAGE 74, OFFICIAL RECORDS.
EXHIBIT 1.1.5
LIST OF EXCLUDED PERMITS
To Be Inserted, If Any
EXHIBIT 1.1.7
LIST OF EXCLUDED PERSONAL PROPERTY OR EQUIPMENT
To Be Inserted, If Any
EXHIBIT 3.1.1
FORM OF QUITCLAIM DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL THIS DEED
AND, UNLESS OTHERWISE SHOWN BELOW,
MAIL TAX STATEMENTS TO:
Name Century Pension Income Fund XXIII
Address c/o 1873 S. Bellaire Street
17th Floor
City & Denver, Colorado 80222
State Attn: Mr. Harry Alcock
SPACE ABOVE THIS LINE FOR RECORDER'S USE
QUITCLAIM DEED
APN No. 427-251-01 Title No. Escrow No.
THE UNDERSIGNED GRANTOR(s) DECLARE(s)
DOCUMENTARY TRANSFER TAX IS $ CITY TAX $
. computed on full value of property conveyed, or
. computed on full value less value of liens or encumbrances remaining at time
of sale,
. Unincorporated area: City of Irvine, and
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
PACIFICA ENTERPRISES L.A., LLC, a California limited liability company,
hereby remise, release and forever quitclaim to
CENTURY PENSION INCOME FUND XXIII, a California limited partnership,
the following described real property in the County of Orange, State of
California:
See Schedule A attached hereto and by reference made a part hereof.
Dated: , 1999
PACIFICA ENTERPRISES L.A., LLC,
a California limited liability company
By:
Name
Its
STATE OF )
) ss.
COUNTY OF )
On , before me, , a Notary
Public in and for said state, personally appeared
, personally known to me (or proved to me
on the basis of satisfactory evidence) to be the person whose name is subscribed
to the within instrument and acknowledged to me that he executed the same in his
authorized capacity, and that by his signature on the instrument, the person, or
the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
EXHIBIT "A"
LEGAL DESCRIPTION FOR MEDTRONICS PROPERTY
Assessor's Parcel No. 427-251-01
PARCEL 1 IN THE CITY OF IRVINE, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN
ON A PRACEL MAP FILED IN BOOK 97, PAGES 1 TO 5 INCLUSIVE OF PARCEL MAPS, IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS, NATURAL GAS
RIGHTS, AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM AND
ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT MAY BE WITHIN OR UNDER THE
PARCEL OF LAND HEREINABOVE DESCRIBED, TOGETHER WITH THE PERPETUAL RIGHT OF
DRILLING, MINING, EXPLORING AND OPERATING THEREFOR AND STORING IN AND REMOVING
THE SAME FROM SAID LAND OR ANY OTHER LAND, INCLUDING THE RIGHT TO WHIPSTOCK OR
DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THOSE HEREINBOVE DESCRIBED,
OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS THE SURFACE OF THE
LAND HEREINABOVE DESCRIBED AND TO BOTTOM SUCH WHIPSTOCKED OR DIRECTIONALLY
DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR
LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN, AND
OPERATE ANY SUCH WELLS, OR MINES, WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE,
STORE, EXPLORE AND OPERATE THROUGH THE SURFACE OR THE UPPER FIVE HUNDRED (500)
FEET OF THE SUBSURFACE OF THE LAND HEREINABOVE DESCRIBED AS RESERVED IN THE DEED
FROM THE IRVINE COMPANY, A MICHIGAN CORPORATION, SUCCESSOR BY MERGER WITH IRVINE
INDUSTRIAL COMPLEX, A CORPORATION RECORDED MARCH 8, 1979 IN BOOK 13061, PAGE 74,
OFFICIAL RECORDS.
ALSO EXCEPT ANY AND ALL WATER RIGHTS OR INTERESTS IN WATER RIGHTS NO MATTER HOW
ACQUIRED, ANY AND ALL WATER RIGHTS OR INTERESTS IN WATER RIGHTS NO MATTER HOW
ACQUIRED IN CONNECTION WITH OR WITH RESPECT TO SAID LAND, WHETHER SUCH WATER
RIGHTS SHALL BE RIPARIAN, OVERLYING, APPROPRIATIVE, PERCOLATING, PRESCRIPTIVE OR
CONTRACTUAL, PROVIDED, HOWEVER, THAT THE EXCEPTION AND RESERVATION MADE HEREIN
SHALL NOT HAVE ANY RIGHT TO ENTER UPON THE SURFACE OF SAID LAND IN THE EXERCISE
OF SUCH RIGHTS, AS RESERVED IN THE DEED FROM THE IRVINE COMPANY, A MICHIGAN
CORPORATION, SUCCESSOR BY MERGER WITH IRVINE INDUSTRIAL COMPLEX, A CORPORATION,
RECORDED MARCH 8, 1979 IN BOOK 13061, PAGE 74, OFFICIAL RECORDS.
EXHIBIT 6.2.1
ADDITIONAL TITLE EXCEPTIONS
[To Be Attached]
EXHIBIT 7.2.1.1
SELLER'S GRANT DEED
RECORDING REQUESTED BY AND WHEN
RECORDED MAIL THIS DEED AND,
UNLESS OTHERWISE SHOWN BELOW,
MAIL TAX STATEMENTS TO:
Pacifica Enterprises L.A., LLC
12780 High Bluff Drive, Suite 160
San Diego, California 92131
Attn: Damian McKinney
THIS SPACE ABOVE FOR RECORDER'S USE
GRANT DEED
State of California
County of Orange
Documentary Transfer Tax Shown
by Separate Affidavit Not of Record
THIS GRANT DEED is made this day of , 1999, by CENTURY PENSION
INCOME FUND XXIII, a California limited partnership ("Grantor"), to PACIFICA
ENTERPRISES L.A., LLC, a California limited liability company (the "Grantee").
WHEREAS, Grantor holds legal title to certain real property more
particularly described in Exhibit "A" attached hereto (the "Property"); and
WHEREAS, Grantor desires to convey to Grantee in fee simple all of its
right, title and interest in and to the Property.
NOW THEREFORE for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by Grantor, the Grantor does hereby
grant, bargain, sell and convey unto the Grantee in fee simple the Property.
TOGETHER WITH all and singular the ways, easements, rights, privileges and
appurtenances thereto or in any way appertaining, all improvements thereon and
all the estate, right, title, interest and claim, either at law or in equity, of
the Grantor in the said Property.
However, this conveyance is made subject to the liens securing payment of
ad valorem taxes for the current and all subsequent years, as well as to those
matters of record, or matters that could be disclosed by a visual inspection or
accurate survey of the Property, as of the date hereof.
IN WITNESS WHEREOF, Grantor has caused this Deed to be executed by its
representative thereunto duly authorized as of the day and year first above
written.
"Grantor":
CENTURY PENSION INCOME FUND XXIII,
a California limited partnership
By:Fox Partners V,
a California general partnership,
its general partner
By:Fox Capital Management Corporation,
a California corporation,
its general partner
By
Name
Its
STATE OF )
) ss.
COUNTY OF )
On , before me, , a Notary
Public in and for said state, personally appeared ,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument, the person, or the entity upon behalf
of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
EXHIBIT "A"
LEGAL DESCRIPTION FOR MEDTRONICS PROPERTY
Assessor's Parcel No. 427-251-01
PARCEL 1 IN THE CITY OF IRVINE, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN
ON A PRACEL MAP FILED IN BOOK 97, PAGES 1 TO 5 INCLUSIVE OF PARCEL MAPS, IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS, NATURAL GAS
RIGHTS, AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM AND
ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT MAY BE WITHIN OR UNDER THE
PARCEL OF LAND HEREINABOVE DESCRIBED, TOGETHER WITH THE PERPETUAL RIGHT OF
DRILLING, MINING, EXPLORING AND OPERATING THEREFOR AND STORING IN AND REMOVING
THE SAME FROM SAID LAND OR ANY OTHER LAND, INCLUDING THE RIGHT TO WHIPSTOCK OR
DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THOSE HEREINBOVE DESCRIBED,
OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS THE SURFACE OF THE
LAND HEREINABOVE DESCRIBED AND TO BOTTOM SUCH WHIPSTOCKED OR DIRECTIONALLY
DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR
LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN, AND
OPERATE ANY SUCH WELLS, OR MINES, WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE,
STORE, EXPLORE AND OPERATE THROUGH THE SURFACE OR THE UPPER FIVE HUNDRED (500)
FEET OF THE SUBSURFACE OF THE LAND HEREINABOVE DESCRIBED AS RESERVED IN THE DEED
FROM THE IRVINE COMPANY, A MICHIGAN CORPORATION, SUCCESSOR BY MERGER WITH IRVINE
INDUSTRIAL COMPLEX, A CORPORATION RECORDED MARCH 8, 1979 IN BOOK 13061, PAGE 74,
OFFICIAL RECORDS.
ALSO EXCEPT ANY AND ALL WATER RIGHTS OR INTERESTS IN WATER RIGHTS NO MATTER HOW
ACQUIRED, ANY AND ALL WATER RIGHTS OR INTERESTS IN WATER RIGHTS NO MATTER HOW
ACQUIRED IN CONNECTION WITH OR WITH RESPECT TO SAID LAND, WHETHER SUCH WATER
RIGHTS SHALL BE RIPARIAN, OVERLYING, APPROPRIATIVE, PERCOLATING, PRESCRIPTIVE OR
CONTRACTUAL, PROVIDED, HOWEVER, THAT THE EXCEPTION AND RESERVATION MADE HEREIN
SHALL NOT HAVE ANY RIGHT TO ENTER UPON THE SURFACE OF SAID LAND IN THE EXERCISE
OF SUCH RIGHTS, AS RESERVED IN THE DEED FROM THE IRVINE COMPANY, A MICHIGAN
CORPORATION, SUCCESSOR BY MERGER WITH IRVINE INDUSTRIAL COMPLEX, A CORPORATION,
RECORDED MARCH 8, 1979 IN BOOK 13061, PAGE 74, OFFICIAL RECORDS.
EXHIBIT 7.2.1.2
FORM OF BILL OF SALE
This Bill of Sale ("ASSIGNMENT") is executed by CENTURY PENSION INCOME FUND
XXIII, a California limited partnership ("SELLER"), in favor of PACIFICA
ENTERPRISES L.A., LLC, a California limited liability company ("PURCHASER").
Seller and Purchaser, have entered into that certain Purchase and Sale
Contract and dated as of September 23, 1999 ("PURCHASE CONTRACT"), in which
Seller has agreed to sell and Purchaser has agreed to purchase the real property
described in Exhibit "A" attached thereto and the improvements located thereon
(collectively, the "PROJECT").
Pursuant to the Purchase Contract, Seller has agreed to assign, without
recourse or warranty, to Purchaser all of Seller's right, title and interest, if
any, in and to the Property (as hereinafter defined).
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
1. As used herein, the term "PROPERTY" shall mean the following property
to the extent said property is owned by Seller and used in, held for use in
connection with, or necessary for the operation of the Project:
a. Property Contracts. All of Seller's rights and interests in
and to purchase orders, maintenance, service or utility contracts or similar
contracts which relate to the ownership, maintenance, construction or repair
or operation of the Project.
b. Leases. All of Seller's rights and interests in and to
leases, subleases, and other occupancy agreements, whether or not of record,
which provide for use or occupancy of space or facilities on or relating to
the Project.
c. Licenses and Permits. All of Seller's rights and interests in
and to all licenses or permits granted by governmental authorities having
jurisdiction over the Project and utilized with respect to the Project.
d. Fixtures and Tangible Personal Property. All of Sellers
rights and interests in and to all fixtures, furniture, furnishings,
fittings, equipment, machinery, apparatus, appliances and other articles of
tangible personal property now located on the Project or in the improvements
thereon and used in connection with any present or future occupation or
operation of all or any part of the Project.
The term "PROPERTY" shall not include any of the foregoing: (i) to the
extent the same are excluded or reserved to Seller pursuant to the Purchase
Contract to which Seller and Purchaser are parties; and (ii) to the extent that
the sale or transfer thereof requires consent or approval of any third party,
which consent or approval is not obtained by Seller. Nothing herein shall
create a transfer or assignment of intellectual property or similar assets of
Seller.
2. Assignment. Seller hereby assigns, sells and transfers, without
recourse or warranty, to Purchaser all of Seller's right, title and interest, if
any, in and to the Property, subject to any rights of consent as provided
therein.
3. Assumption. Purchaser expressly agrees to assume and hereby assumes
all liabilities and obligations of the Seller in connection with the Property
and agrees to perform all of the covenants and obligations of Seller thereunder.
Purchaser further agrees to indemnify, defend and hold Seller harmless from and
against any and all cost, loss, harm or damage which may arise in connection
with the Property.
4. Counterparts. This Assignment may be executed in counterparts, each
of which shall be deemed an original, and both of which together shall
constitute one and the same instrument.
5. Attorneys' Fees. If any action or proceeding is commenced by either
party to enforce its rights under this Assignment, the prevailing party in such
action or proceeding shall be entitled to recover all reasonable costs and
expenses incurred in such action or proceeding, including reasonable attorneys'
fees and costs, in addition to any other relief awarded by the court.
6. Applicable Law. This Assignment shall be governed by and interpreted
in accordance with the laws of the State of California.
7. Titles and Section Headings. Titles of sections and subsections
contained in this Assignment are inserted for convenience of reference only, and
neither form a part of this Assignment or are to be used in its construction or
interpretation.
8. Binding Effect. This Assignment shall be binding upon and inure to
the benefit of the parties hereto and their respective transferees, successors,
and assigns.
9. Entire Agreement; Modification. This Assignment supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may not be altered or modified without the written consent of
all parties.
WITH RESPECT TO ALL MATTERS TRANSFERRED, WHETHER TANGIBLE OR INTANGIBLE,
PERSONAL OR REAL, SELLER EXPRESSLY DISCLAIMS A WARRANTY OF MERCHANTABILITY AND
WARRANTY FOR FITNESS FOR A PARTICULAR USE OR ANY OTHER WARRANTY EXPRESSED OR
IMPLIED THAT MAY ARISE BY OPERATION OF LAW OR UNDER THE UNIFORM COMMERCIAL CODE
FOR THE STATE IN WHICH THE PROPERTY IS LOCATED.
WITNESS the signatures and seals of the undersigned.
Dated: , 1999
SELLER:
CENTURY PENSION INCOME FUND XXIII,
a California limited partnership
By:Fox Partners V,
a California general partnership,
its general partner
By:Fox Capital Management Corporation,
a California corporation,
its general partner
By:
Name:
Its:
PURCHASER:
PACIFICA ENTERPRISES L.A., LLC,
a California limited liability company
By:
Its:
EXHIBIT 7.2.1.3
GENERAL ASSIGNMENT
This General Assignment ("ASSIGNMENT") is executed by CENTURY PENSION
INCOME FUND XXIII, a California limited partnership ("SELLER"), in favor of
PACIFICA ENTERPRISES L.A., LLC, a California limited liability company
("PURCHASER").
Seller and Purchaser, have entered into that certain Purchase and Sale
Contract and dated as of September 23, 1999 ("PURCHASE CONTRACT"), in which
Seller has agreed to sell and Purchaser has agreed to purchase the real property
described in Exhibit "A" attached thereto and the improvements located thereon
collectively, the "PROJECT").
Pursuant to the Purchase Contract, Seller has agreed to assign, without
recourse or warranty, to Purchaser all of Seller's right, title and interest, if
any, in and to the Miscellaneous Property Assets (as hereinafter defined).
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
1. As used herein, the term "MISCELLANEOUS PROPERTY ASSETS" shall mean
all contract rights, leases, concessions, warranties, plans, drawings, and other
items of intangible personal property to the extent said property is owned by
Seller and used in, held for use in connection with, or necessary for the
operation of the Project.
The term "MISCELLANEOUS PROPERTY ASSETS" shall not include any of the
foregoing: (i) to the extent the same are excluded or reserved to Seller
pursuant to the Purchase Contract to which Seller and Purchaser are parties; and
(ii) to the extent that the sale or transfer thereof requires consent or
approval of any third party, which consent or approval is not obtained by
Seller. Nothing herein shall create a transfer or assignment of intellectual
property or similar assets of Seller.
2. Assignment. Seller hereby assigns, sells and transfers, without
recourse or warranty, to Purchaser all of Seller's right, title and interest, if
any, in and to the Miscellaneous Property Assets, subject to any rights of
consent as provided therein.
3. Assumption. Purchaser expressly agrees to assume and hereby assumes
all liabilities and obligations of the Seller in connection with the
Miscellaneous Property Assets and agrees to perform all of the covenants and
obligations of Seller thereunder. Purchaser further agrees to indemnify, defend
and hold Seller harmless from and against any and all cost, loss, harm or damage
which may arise in connection with the Miscellaneous Property Assets, pertaining
to acts arising on and after the date hereof. Seller further agrees to
indemnify, defend and hold Purchaser harmless from and against any and all cost,
loss, harm or damage which may arise in connection with the Miscellaneous
Property Assets.
4. Counterparts. This Assignment may be executed in counterparts, each
of which shall be deemed an original, and both of which together shall
constitute one and the same instrument.
5. Attorneys' Fees. If any action or proceeding is commenced by either
party to enforce its rights under this Assignment, the prevailing party in such
action or proceeding shall be entitled to recover all reasonable costs and
expenses incurred in such action or proceeding, including reasonable attorneys'
fees and costs, in addition to any other relief awarded by the court.
6. Applicable Law. This Assignment shall be governed by and interpreted
in accordance with the laws of the State of California.
7. Titles and Section Headings. Titles of sections and subsections
contained in this Assignment are inserted for convenience of reference only, and
neither form a part of this Assignment or are to be used in its construction or
interpretation.
8. Binding Effect. This Assignment shall be binding upon and inure to
the benefit of the parties hereto and their respective transferees, successors,
and assigns.
9. Entire Agreement; Modification. This Assignment supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may not be altered or modified without the written consent of
all parties.
WITH RESPECT TO ALL MATTERS TRANSFERRED, WHETHER TANGIBLE OR INTANGIBLE,
PERSONAL OR REAL, SELLER EXPRESSLY DISCLAIMS A WARRANTY OF MERCHANTABILITY AND
WARRANTY FOR FITNESS FOR A PARTICULAR USE OR ANY OTHER WARRANTY EXPRESSED OR
IMPLIED THAT MAY ARISE BY OPERATION OF LAW OR UNDER THE UNIFORM COMMERCIAL CODE
FOR THE STATE IN WHICH THE PROPERTY IS LOCATED.
WITNESS the signatures and seals of the undersigned.
Dated: , 1999
SELLER:
CENTURY PENSION INCOME FUND XXIII,
a California limited partnership
By:Fox Partners V,
a California general partnership,
its general partner
By:Fox Capital Management Corporation,
a California corporation,
its general partner
By:
Name:
Its:
PURCHASER:
PACIFICA ENTERPRISES L.A., LLC,
a California limited liability company
By:
Its:
EXHIBIT B
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Escrow Agreement") made this 23rd day of September,
1999 by and among CENTURY PENSION INCOME FUND XXIII, a California limited
partnership ("SELLER"), and PACIFICA ENTERPRISES L.A., LLC, a California limited
liability company ("PURCHASER"); and CHICAGO TITLE 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 23rd day of
September, 1999; and
Whereas, the Purchase Contract requires that Purchaser provide a deposit in
the amount of Fifty Thousand and No/100 Dollars ($50,000.00) in cash (the
"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 dollars ($50,000.00) in cash (constituting the 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
(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 Pension Income Fund XXIII PACIFICA ENTERPRISES L.A., LLC
1873 South Bellaire Street, 17th 12780 High Bluff Drive
Floor Suite 160
Denver, Colorado 80222 San Diego, California 92130
Attn: Mr. Harry Alcock Attn: Damian McKinney
Facsimile No. (303) 692-0786 Facsimile No. (858) 755-1687
And With a copy to:
PACIFICA ENTERPRISES L.A.,
Argent Real Estate LLC
1401 Brickell Avenue, Suite 520 12780 High Bluff Drive
Miami, Florida 33131 Suite 160
Attn: Mr. David Marquette San Diego, California 92130
Attn: Edward L. Bushor, Esq.,
General Counsel
Facsimile No. (858) 755-1687
With a copy to: If to Escrow Agent:
Loeb & Loeb Chicago Title Company
1000 Wilshire Boulevard, Suite 700 South Flower Street, 9th
1800 Floor
Los Angeles, California 90017 Los Angeles, CA 90017
Attn:Andrew S. Clare, Esq. Attn: Amy Hiraheta, Escrow
Karen N. Higgins, Esq. Officer
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 $1,500.00 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;
provided, however, Seller's portion of the escrow fee shall not exceed the sum
of $150.00. 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 California.
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 PENSION INCOME FUND XXIII,
a California limited partnership
By:Fox Partners V,
a California general partnership,
its general partner
By:Fox Capital Management Corporation,
a California corporation,
its general partner
By:
Name:
Its:
PURCHASER:
PACIFICA ENTERPRISES L.A., LLC,
a California limited liability company
By:
Its:
ESCROW AGENT:
CHICAGO TITLE COMPANY
By:
<PAGE>
Title:
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
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 20
ARTICLE 15 EMINENT DOMAIN 20
ARTICLE 16 MISCELLANEOUS 21
EXHIBIT 10.4
AMENDMENT TO PURCHASE AND SALE CONTRACT
(MEDTRONICS BUILDING)
This Amendment To Purchase and Sale Contract (this "Amendment") is entered
into as of the 10th day of November, 1999, by and between CENTURY PENSION INCOME
FUND XXIII, a California limited partnership ("Seller"), and PACIFICA
ENTERPRISES L.A., LLC, a California limited liability company ("Purchaser"),
with respect an escrow established with Chicago Title Company.
Reference is made to that certain Purchase and Sale Contract dated as of
September 23, 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. The Feasibility Period is hereby
extended from "no later than October 23, 1999" to "no later than November 17,
1999".
2. CLOSING DATE. The Closing Date shall occur on December 2, 1999
(subject to extension rights set forth in Section 7.1.2 of the Contract).
3. WAIVER OF CONTINGENCIES OTHER THAN ENVIRONMENTAL AND TENANT
IMPROVEMENTS DUE DILIGENCE. Purchaser hereby agrees and acknowledges that other
than completing the environmental review and an analysis of the existing tenant
improvements and exterior window and wall defects (collectively, the
"Environmental and Tenant Improvements 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 November 17, 1999 to satisfy its
due diligence relating to the Environmental and Tenant Improvements Due
Diligence.
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 PENSION INCOME FUND XXIII
a California limited partnership
By:Fox Partners V,
a California limited partnership,
its general partner
By:Fox Capital Management Corporation,
a California corporation,
its general partner
By:
Name:
Its:
"PURCHASER"
PACIFICA ENTERPRISES L.A., LLC,
a California limited liability company
By:
Name:
Its:
EXHIBIT 10.5
SECOND AMENDMENT TO PURCHASE AND SALE CONTRACT
(MEDTRONICS BUILDING)
This Second Amendment To Purchase and Sale Contract (this "Amendment") is
entered into as of the 23rd day of November, 1999, by and between CENTURY
PENSION INCOME FUND XXIII, a California limited partnership ("Seller"), and
PACIFICA ENTERPRISES L.A., LLC, a California limited liability company
("Purchaser"), with respect an escrow established with Chicago Title Company, as
Escrow No. 91005530-X70 (the "Escrow").
Reference is made to that certain Purchase and Sale Contract dated as of
September 23, 1999 between Purchaser and Seller, as amended by an Amendment
dated as of November 10, 1999 (collectively, the "Contract"). 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, the Purchaser and Seller desire to further amend
the Contract pursuant to the terms set forth below.
1. PURCHASE PRICE. For valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the Purchase Price is hereby
reduced by the sum of $150,000 from $3,000,000 to $2,850,000.
2. WAIVER OF CONTINGENCIES/RESCISSION OF NOTICE. Purchaser hereby
rescinds its notice of termination dated as of November 17, 1999 (the "Notice").
Purchaser hereby agrees and acknowledges that all of the contingencies relating
to the Feasibility Period have been satisfied or waived. Purchaser acknowledges
that at 5:00 p.m., Pacific Daylight Savings Time on November 22, 1999, the
Feasibility Period expired and Purchaser waived its right to terminate this
Contract after said date and time.
3. REOPEN ESCROW. Purchaser hereby agrees to reopen the Escrow with
Chicago Title Company (the "Escrow Holder"), redeposit the Deposit (of $50,000)
in immediately available funds, and provide written proof of Escrow Holder's
receipt of such Deposit to Seller within one (1) day after execution of this
Amendment. The Deposit is non-refundable to Purchaser (subject to Seller
performing under the terms of the Contract, and the other applicable express
provisions set forth in the Contract).
4. CLOSING DATE. This Amendment shall reaffirm that the Closing Date
shall occur on December 2, 1999 (subject to the extension rights of Seller set
forth in Section 7.1.2 of the Contract).
5. MEDTRONICS CLAIMS. Notwithstanding any other provisions contained in
the Contract, Purchaser agrees and acknowledges that upon the Closing Date
Purchaser will assume whatever rights, if any, Seller may have with respect to
that certain lease dated September 30, 1986, as amended (the "Lease") made
between Seller's predecessor-in-interest and Medtronics Blood Systems, Inc..
Purchaser hereby agrees to release Seller from any and all claims or liabilities
arising from Seller's enforcement of, or its failure to enforce, any of the
provisions of the Lease or Seller's rights thereunder.
6. 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 PENSION INCOME FUND XXIII
a California limited partnership
By:Fox Partners V,
a California limited partnership,
its general partner
By:Fox Capital Management Corporation,
a California corporation,
its general partner
By:
Name:
Its:
"PURCHASER"
PACIFICA ENTERPRISES L.A., LLC,
a California limited liability company
By:
Name:
Its:
EXHIBIT 10.6
THIRD AMENDMENT TO PURCHASE AND SALE CONTRACT
(MEDTRONICS BUILDING)
This Third Amendment To Purchase and Sale Contract (this "Amendment") is
entered into as of the 30th day of November, 1999, by and between CENTURY
PENSION INCOME FUND XXIII, a California limited partnership ("Seller"), and
PACIFICA ENTERPRISES L.A., LLC, a California limited liability company
("Purchaser"), and 18011 MITCHELL, LLC, a California limited liability company
("Assignee"), with respect an escrow established with Chicago Title Company, as
Escrow No. 91005530-X70 (the "Escrow").
Reference is made to that certain Purchase and Sale Contract dated as of
September 23, 1999 between Purchaser and Seller, as amended by Amendments dated
as of November 10, 1999 and November 23, 1999 (collectively, the "Contract").
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, the Purchaser and Seller desire to further amend
the Contract pursuant to the terms set forth below.
1. ASSIGNMENT BY PURCHASER. Purchaser hereby nominates Assignee, as
Purchaser under the Contract. Purchaser hereby assigns to Assignee Purchaser's
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 LEFT INTENTIONALLY BLANK ]
IN WITNESS WHEREOF, Seller and Purchaser have entered into this Amendment
as of the date written above.
"SELLER"
CENTURY PENSION INCOME FUND XXIII
a California limited partnership
By:Fox Partners V,
a California limited partnership,
its general partner
By:Fox Capital Management Corporation,
a California corporation,
its general partner
By:
Name:
Its:
"PURCHASER"
PACIFICA ENTERPRISES L.A., LLC,
a California limited liability company
By:
Name:
Its:
"ASSIGNEE"
18011 MITCHELL ROAD, LLC,
a California limited liability company
By:Realty Fund, LLC,
a California limited liability company,
its Manager
By:
Name:
Its: Manager
