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) September 1, 1998
CENTURY PENSION INCOME FUND XXIV
(Exact name of registrant as specified in its charter)
California 0-15710 94-2984976
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification
Number)
One Insignia Financial Plaza
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.
The Registrant sold the Butler Square, Kenilworth Commons and Plantation Pointe
properties on September 1, 1998. These properties were sold to E & A Northeast
Limited Partnership, an unrelated party, for $17,547,200.
The Managing General Partner plans to distribute $15,000,000 of the net proceeds
to its partners in September or October 1998.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(b) Pro forma financial information.
The required pro forma financial information will be provided in the
Registrant's quarterly report on Form 10-Q for the quarter ended September 30,
1998.
(c) Exhibits
10.1 Contract of Sale between Registrant and E & A Northeast Limited
Partnership dated August, 1998.
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 XXIV
By: Fox Partners VI
Its General Partner
By: FOX CAPITAL MANAGEMENT CORPORATION
Its Managing General Partner
By: /s/ William H. Jarrard, Jr.
President and Director
Date: September 23, 1998
EXHIBIT 10.1
CONTRACT OF SALE
THIS CONTRACT OF SALE is made and entered into as of the ____ day of August,
1998, by and between CENTURY PENSION INCOME FUND XXIV, a California limited
partnership ("Seller") and E&A NORTHEAST LIMITED PARTNERSHIP, a Delaware limited
partnership ("Purchaser").
ARTICLE I
PURCHASE AND SALE
1.01. DEFINITIONS. As used herein the following terms shall have the
following meanings:
(a) Butler Square Property - The land and improvements located in
Mauldin, SC, and being more particularly described on the attached EXHIBIT "A",
together with all leases, fixtures, chattels, and articles of personal property,
if any, placed upon or attached to or used in connection with the operation of
the shopping center and owned by Seller.
(b) Kenilworth Commons Property - The land and improvements located
in Charlotte, NC, and being more particularly described on the attached EXHIBIT
"B", together with all leases, fixtures, chattels, and articles of personal
property, if any, placed upon or attached to or used in connection with the
operation of the shopping center and owned by Seller.
(c) Plantation Pointe Property - The land and improvements located in
Smyrna, GA, and being more particularly described on the attached EXHIBIT "C",
together with all leases, fixtures, chattels, and articles of personal property,
if any, placed upon or attached to or used in connection with the operation of
the shopping center and owned by Seller.
(d) Property - Collectively the Butler Square Property, the
Kenilworth Commons Property, and the Plantation Pointe Property.
(e) Purchase Price - Seventeen Million Five Hundred Forty-Seven
Thousand Two Hundred Dollars ($17,547,200.00).
(f) Earnest Money - Fifty Thousand Dollars ($50,000.00) together with
any interest earned thereon.
(g) Escrow Agent - Commonwealth Land Title Insurance Company.
(h) Inspection Period - The period ending on August 30, 1998.
(h) Closing Date - August 31, 1998.
ARTICLE II
PURCHASE AND SALE
2.01. Seller agrees to sell and Purchaser agrees to buy the Property
for the Purchase Price subject to the terms and conditions hereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.01. Seller hereby represents and warrants to Purchaser except as set
forth to the contrary herein or on any exhibit hereto, which representations and
warranties shall be deemed made by Seller to Purchaser also as of the Closing
Date as follows:
(a) At the Closing, Seller will have and will convey to Purchaser
good, indefeasible and marketable fee simple title to the Property, free and
clear of all mortgages, liens, encumbrances, restrictions, rights-of-way,
easements, judgments and other matters affecting title, except the following
matters (hereafter called the "Permitted Exceptions"): (i) zoning ordinances
affecting Property; (ii) general utility easements of record; (iii) subdivision
restrictions of record; (iv) current city, state and county ad valorem property
and sanitary taxes not yet due and payable; and (v) leases, other easements,
restrictions and encumbrances specified in this Contract which Purchaser shall
either approve during the Inspection Period as Permitted Title Exceptions or in
the event disapproved exercise the rights provided under Section 7.01 and
terminate the Contract. Seller shall not take any action which will adversely
affect title to the Property.
(b) EXHIBIT "D" (the "Lease Exhibit") attached hereto is a complete
and correct rent roll which lists of all leases, tenancies, and other rights of
occupancy or use for any portion of the Property in effect on the date of this
Contract (herein collectively referred to as the "Tenant Leases"). There are no
other leases, tenancies, or other rights of occupancy affecting the Property as
of the date of this Contract. To Seller's knowledge, the rentals and other
charges therein set forth in the Lease Exhibit are the actual rentals and other
charges presently being collected by Seller or its agents, and none of the rents
or other amounts payable hereunder have been or shall be assigned, pledged or
encumbered other than to the holder of the mortgages as collateral security
therefor, and no rents have been prepaid for more than one month in advance.
(Notwithstanding anything herein to the contrary, Seller's representations
regarding rental, charge and security deposit information set forth in the Lease
Exhibit shall be deemed to be replaced and superseded by the information
contained in any estoppel letter delivered by a tenant pursuant to this Contract
provided that Purchaser shall not be obligated to close if the Estoppel Letter
varies in any material respect from the Lease Exhibit). Except as set forth in
the Lease Exhibit to Seller's knowledge, all Tenant Leases are in full force and
effect, and there are no declared defaults under any Tenant Lease and Seller
agrees to notify Purchaser of any defaults declared under any Tenant Leases
after the date hereof. Except as set forth in the Lease Exhibit, no brokerage
commission is due and unpaid in connection with any Tenant Lease or renewal
thereof and all such commissions and fees, including those shown on the Lease
Exhibit, shall be paid, cashed out and discharged in full by Seller at or prior
to Closing. Except as set forth in the applicable Tenant Lease, no tenant has
been granted any rent-free occupancy or is entitled to any future rental
concessions, credits or reimbursements. All decorating, installation,
alteration or repair work which Seller may be obligated to perform for any
tenant under its Tenant Lease has been performed or will be performed prior to
the Closing Date at the expense of Seller. Seller has paid or will pay prior to
the Closing Date the cost and expense of all tenant improvements and allowances
required by the Tenant Leases.
No new leases shall be entered into between now and the Closing
without Purchaser's prior consent, which shall not be unreasonably withheld or
delayed.
(c) There are no maintenance, management or other contracts or
agreements affecting the Property except those which may be terminated on thirty
(30) days' notice or less, and Seller shall disclose and provide copies of all
contracts or agreements affecting the Property to Purchaser during the
Inspection Period. Between the date hereof and Closing, Seller shall not enter
into any maintenance, management or other contracts which are not terminable on
thirty (30) days' notice, and Seller shall disclose any such contract(s) to
Purchaser.
(d) The improvements on the Property are to be conveyed in an "As
Is" condition without warranty by Seller as to their condition.
(e) No tenant or other occupant under any of the Tenant Leases and no
other person, firm, corporation or other entity has any right or option to
acquire the Property or any portion thereof or to require expansion of any of
the leased premises except as set forth in the applicable Tenant Lease.
(f) Seller has received no written notice that any zoning, building,
environmental or other law, ordinance, code, order or regulation is or will be
violated by the continued maintenance, operation or use as a shopping center of
any buildings, improvements or structures presently erected on the Property or
by the continued maintenance, operation or use of parking areas.
(g) Subject to Article VI, Seller shall deliver the Property at
Closing in substantially the same condition or better than existed at the end of
the Inspection Period, normal wear and tear excepted.
(h) Seller is not now a party to any litigation affecting Seller's
right to sell the Property and, to Seller's best knowledge, no such litigation
has been threatened. There is no litigation or proceeding pending, nor to the
best of Seller's knowledge threatened, which could affect the Property or the
use thereof or Purchaser upon or after the Closing.
(i) Prior to the Closing, Seller (i) will give to Purchaser, its
attorneys, accountants, engineers and other representatives, upon prior notice
during normal business hours and as often as may be reasonably requested, full
access to any and all parts of the Property and to all books, records, tenant
leases and files in Seller's possession relating to the Property, and (ii) will
furnish to Purchaser all information in Seller's possession concerning the
Property which Purchaser, its attorneys, accountants, engineers or other
representatives shall reasonably request.
(j) To the best knowledge and belief of Seller, there is no pending
or threatened condemnation or similar proceeding or assessment affecting the
Property, or any part thereof nor is any such proceeding or assessment
contemplated or threatened by any governmental authority except for the proposed
road project affecting the Plantation Pointe Property as described in EXHIBIT
"E".
(k) The various items of Personal Property included with this sale,
if any, are (or at Closing will be) owned by Seller free and clear of all liens.
(l) Seller has received no written notice of any default or breach
under any of the covenants, conditions, restrictions, rights-of-way or easements
affecting the Property or any portion thereof which are to be performed or
complied with by the owner of the Property and which are material to the
Contract.
(m) To the best of Seller's knowledge, no portion of the Property is
affected by any special assessments, whether or not a lien thereon, and no such
assessment has been proposed to Seller's knowledge. There is no proceeding
pending for the reduction of the assessed valuation of any portion of the
Property, and no such proceeding will be instituted by Seller prior to the
Closing without the prior written consent of Purchaser.
(n) There is no agreement requiring Seller to make any contribution,
in the form of dues or otherwise, to a merchants' or tenants' association or
similar organization, or to any tenant, licensee or other occupancy of any
portion of the Property for advertising or promotion of the Property.
(o) Seller has received no written notice from any governmental
agency having jurisdiction and, to the best of Seller's knowledge, the Property
is free from the presence and/or harmful effects of any asbestos, toxic, or
hazardous substances as defined by applicable federal, state, or local laws.
(p) As used in this agreement, the words "to Seller's knowledge" or
words of similar import shall be deemed to mean, and shall be limited to, the
actual (as distinguished from implied, imputed or constructive) knowledge of the
employees and officers of the general partner of Seller who are directly
responsible for the ownership, operation and sale of the Property without such
persons having any obligation to make any independent inquiry or investigation
whatsoever. Nothing in this agreement shall be deemed to create or impose any
personal liability of any kind whatsoever on any of the shareholders, directors,
officers, employees, or agents of the general partner of Seller.
The representations and warranties of Seller contained in this
agreement will survive the Closing for a period of one (1) year after the
Closing Date; and any claim based upon any alleged breach thereof must be
alleged (in writing) within such one (1) year period. Failure to give notice on
any alleged breach within the time period specified herein shall constitute a
waiver of any such claim. In addition, and notwithstanding any other provision
of this agreement, if Purchaser has actual knowledge of any misrepresentation or
breach of Seller on or prior to the Closing Date and nevertheless proceeds to
close on the Closing Date, then Purchaser shall be deemed to waive, and hereby
waives, any such misrepresentation or breach.
(q) Purchaser represents and warrants and agrees that (i) except as,
and solely to the extent, specifically set forth in this agreement, neither
Seller nor any of the employees, agents, or attorneys of Seller make any verbal
or written representations, warranties, promises, or guaranties whatsoever to
Purchaser, whether express or implied, of any sort or nature relating to the
condition (physical, financial, or otherwise) or operation of the Property, the
access, fitness for any specific use, merchantability, habitability, or the lie
and topography, of all or any portion of the Property, the existence, location,
or availability of utility lines for water, sewer, drainage, electricity, or any
other utility, the income-producing potential of the Property, the competition
or market of the Property or the actual or projected revenue and expenses of the
Property, the laws, regulations and rules applicable to the Property or the
compliance (or non-compliance) of the Property therewith, any environmental
laws, regulations and rules (or other laws relative to hazardous materials)
applicable to the Property or the compliance (or non-compliance) of the Property
therewith, the quantity, quality or condition of the articles of personal
property included in the transactions contemplated hereby, the use or occupancy
of the Property or any part thereof or any other use or occupancy of the
Property or any part thereof or any other matter or thing affecting or relating
to the Property or the transactions contemplated hereby, and Purchaser has not
relied upon any such representations, warranties, promises, or guarantees or
upon any statements made in any informational brochure with respect to the
Property, and (ii) upon the expiration of the Inspection Period and provided
Purchaser does not elect to terminate this agreement as provided for herein,
Purchaser will have examined the Property, and based upon such examination, will
be familiar with the physical condition thereof, and will have conducted such
investigations of the financial affairs and management of the Property as
Purchaser considered appropriate, and elected to proceed with the transaction
having made and relied solely on Purchaser's own independent investigation,
inspection, analysis, appraisal, examination, and evaluation of the facts and
circumstances except as, and solely to the extent, specifically set forth in
this agreement.
Except as specifically provided for in this agreement, Purchaser
agrees to accept the Property "as is" in its present condition, subject to
reasonable use, wear, tear, and natural deterioration of the Property between
the date of this agreement and the Closing Date.
ARTICLE IV
CONDITIONS TO PURCHASER'S OBLIGATIONS
4.01. The obligation of Purchaser hereunder to purchase the Property
from Seller is subject to the satisfaction, as of the Closing, of each of the
following conditions (any of which may be waived in whole or in part by
Purchaser at or prior to the Closing):
(a) Seller, at Seller's sole cost and expense, shall cause
Commonwealth Land Title Insurance Company to issue and deliver to Purchaser a
preliminary title report and commitment for an extended-coverage owner's policy
in the amount of the Purchase Price (the "Title Report") accompanied by copies
of all recorded documents relating to liens, easements, rights-of-way, etc.,
affecting the Property. Purchaser shall give Seller written notice on or before
the expiration of the Inspection Period of any objections to Seller's title as
disclosed therein, provided Seller shall satisfy any liens securing monetary
obligations by parties claiming by, through, or under Seller whether or not
Purchaser gives notice of objection thereto. If there are liens or encumbrances
which Purchaser identified to Seller in a written notice delivered on or before
the expiration of the Inspection Period (other than the Permitted Exceptions)
and which have not been satisfied or removed at or prior to Closing, Purchaser
shall have the option of terminating this Contract, in which event it shall
thereupon become null and void for all purposes, and the Earnest Money shall be
forthwith returned by Escrow Agent to Purchaser; otherwise, said condition
shall be deemed to be acceptable, and any objection thereto shall be deemed to
have been waived for all purposes. Seller shall not enter into any easements or
other agreement after the end of the Inspection Period that constitute an
encumbrance on the title to the Property without the consent of the Purchaser,
which consent shall not be unreasonably conditioned, withheld or delayed, and
Seller agrees to give Purchaser notice of any easements or other agreements
entered into between the date hereof and the end of the Inspection Period.
(b) Seller, at Purchaser's sole cost and expense, shall provide a
current as-built survey of the Property, prepared by a land surveyor licensed in
the state in which the Property is located. The survey shall be staked on the
ground, and the plat shall show the location of all improvements, highways,
streets, roads, railroads, rivers, creeks or other water courses, fences,
easements and rights-of-way on or adjacent to the Property, if any, and shall
contain the surveyor's certification that there are no encroachments on the
Property or onto adjacent lands from the Property and shall set forth the number
of acres comprising the Property, and the number of parking spaces. The various
parcels or tracts comprising the Property shall be contiguous. The plat shall
contain a certificate of the surveyor that the Property is not in a flood hazard
area, a flood zone, flood plain or a floodway, or shall locate same thereon.
All easements shall be located on the plat and referenced by recording data.
The form of surveyor's certificate to be set forth on the survey is attached
hereto as EXHIBIT "F".
Purchaser will have until the expiration of the Inspection Period to
review and approve same. If the survey discloses (i) any encroachments, (ii)
any problems with access, ingress or egress, (iii) any variations in boundary
lines, (iv) the non-contiguity of any parcels of land comprising the Property or
(v) any easements, rights-of-way or other interests in the Property, which are
other than the Permitted Exceptions and which adversely affects the Property,
then Purchaser shall give Seller written notice of such fact no later than the
expiration of the Inspection Period. Seller may, if it so chooses, promptly
undertake to eliminate or modify all such unacceptable portions to the
reasonable satisfaction of Purchaser. If Seller chooses not or is unable to do
so within ten (10) days after receipt of written notice, Purchaser may terminate
this Contract, and the Contract shall thereupon be null and void for all
purposes, and the Earnest Money shall be forthwith returned by the Escrow Agent
to Purchaser. Purchaser's failure to give Seller such written notice shall be
deemed to be Purchaser's acceptance of the survey.
(c) Seller shall use its reasonable efforts to deliver to Purchaser
(and Purchaser's lender, if any) at least five (5) business days prior to
Closing an estoppel letter ("Estoppel Letter") from (i) Bi-Lo, CVS, Movie
Gallery, Ladies Workout Express (Butler Square Property); Harris-Teeter
(Kenilworth Commons Property); Winn Dixie, Blockbuster (Plantation Pointe
Property) (the "Major Tenants"), all in form reasonably satisfactory to
Purchaser or in the form contemplated by or attached to the Tenant Leases for
the Major Tenants or the form used by such Major Tenants; and (ii) all of the
other Tenants (the "Other Tenants") substantially in the form set forth on the
attached EXHIBIT "G" confirming the status of the applicable Lease and any
amendments, the amount of rent at the last payment made, the amount of any
security deposit, that there have been no prepayments of rent, that the Landlord
is not in default under the Lease and the Tenant has no rights to set off, and
such other matters as Purchaser may reasonably request. If Seller, through no
fault of its own, is unable, after reasonable effort, to obtain the Estoppel
Letters, Seller shall not be deemed to have breached this Contract, but
Purchaser shall have the option of terminating this Contract and obtaining a
refund of all Earnest Money as its sole remedy. Notwithstanding anything herein
to the contrary, this condition shall be deemed satisfied if the Estoppel
Letters are timely signed and delivered by (i) eighty percent (80%) of all
Tenants other than Major Tenants (based on square footage ratios, excluding
space occupied by the Major Tenants) and (ii) all Major Tenants and if Seller
certifies and warrants the correctness of the Estoppel Letters of the Other
Tenants who failed to sign Estoppel Letters.
(d) Seller shall have performed, observed and complied with all of
the covenants, agreements and conditions required by this Contract to be
performed, observed and complied with by it prior to or as of the Closing in all
material respects.
(e) All of the representations and warranties of Seller set forth in
this Contract shall be true at and as of the Closing in all material respects as
though such representations and warranties and the statements contained in this
Contract were made at and as of the Closing.
(f) Seller shall not have made an assignment for the benefit of
creditors or admitted in writing its inability to pay its debts as they mature
or been adjudicated as bankrupt or filed a petition in voluntary bankruptcy or a
petition or answer seeking reorganization or an arrangement with creditors under
the federal bankruptcy law or any other similar law or statute of the United
States or any state, and no such petition shall have been filed against it.
(g) All instruments and documents required on Seller's part to
effectuate this Contract and the transactions contemplated herein shall have
been delivered by Seller in accordance with the terms hereof.
ARTICLE V
CLOSING
5.01. The consummation of the sale and purchase of the Property
pursuant to this Contract (the "Closing") shall occur on (or, at Purchaser's
option on reasonable notice to Seller, before) the Closing Date. If the Closing
Date falls on a Saturday, Sunday, or legal holiday it shall be extended to the
next following business day. The Closing shall take place at the offices of
Purchaser or through escrow. At the Closing, Seller shall deliver to Purchaser
the following:
(a) A duly executed limited warranty deed, in recordable form,
conveying good and marketable title in fee simple to the Property, free and
clear of any and all liens, encumbrances, conditions, easements, assessments and
restrictions except the Permitted Exceptions, any other exceptions accepted by
Purchaser, and subject to the rights of tenants in possession as Tenants only
under the leases.
(b) An assignment and assumption agreement, duly executed and
acknowledged by Seller and Purchaser, in recordable form, assigning to Purchaser
all of Seller's right, title and interest in all Tenant Leases and the full
amount of any security deposits as of the Closing Date;
(c) To the extent such exists in Seller's possession, any
architectural drawings and renderings, building plans and specifications, and
any and all municipal, county, state or local permits or licenses held by Seller
in connection with the Property;
(d) The tenant Estoppel Letters (to be delivered five (5) business
days prior to Closing);
(e) An executed counterpart of each of the Tenant Leases (including
all amendments thereto and modifications thereof);
(f) An assignment or assignments without warranty, duly executed and
acknowledged by Seller, assigning to Purchaser any subsisting assignable
guaranties and warranties issued in connection with the construction,
improvement, alterations and repair of the Property, together with the original
of each such guaranty and warranty;
(g) To the extent such exists in Seller's possession, copies of all
pertinent records and files relating to the operation and maintenance of the
Property;
(h) Such affidavits or letters of indemnity as the title insurance
company which is to insure the title to the Property shall reasonably require in
order to issue, without extra charge, policies of title insurance free of any
exceptions for unfiled mechanics', materialmen's or similar liens;
(i) A certificate of Seller, dated the Closing Date, certifying, as
of the Closing Date, the aggregate rents then payable under all of the Tenant
Leases then in full force and effect and stating in detail the respects, if any,
in which the information set forth in Lease Exhibit has changed or is incorrect
as of the Closing Date;
(j) Notices to tenants, in the form approved by Purchaser, duly
executed by Seller and the managing agent of the Property, advising the tenants
of the sale to Purchaser and any changes in management;
(k) An assignment (and assumption) of service contracts without
warranty which Purchaser has agreed to accept, permits, licenses, and
intangibles including, without limitation, Seller's right and interest in the
name of the subject Shopping Center;
(l) An instrument assigning to Purchaser all rights to funds, if any,
then on deposit with any utility company or the holder of the mortgage with a
corresponding credit to Seller for the amounts thereof;
(m) A quitclaim bill of sale transferring all personal property;
(n) A FIRPTA affidavit in a form reasonably satisfactory to
Purchaser;
(o) Appropriate resolutions and other evidence reasonably required by
Purchaser and the title company to evidence Seller's authority to execute and
deliver the deed and other documents contemplated hereby;
(p) A certification by Seller that all representations and warranties
made by Seller in Article III of this Contract are true and correct in all
material respects on the Closing Date, which representations and warranties will
survive the Closing for a period of twelve (12) months; and
(q) All other documents reasonably necessary to effectuate the
transaction.
Upon compliance with the above, Purchaser shall pay the Purchase Price
by wire transfer via the Federal Reserve System (plus or minus the net
adjustments computed hereunder), payable to the order of Seller and/or such
other order as Seller shall have directed by written notice to Purchaser. In
addition, Purchaser shall execute and deliver counterparts of the instruments
contemplated by paragraphs 5.01(b) and (k).
5.02. The following shall be adjusted between Seller and Purchaser and
shall be prorated on a per diem basis as of midnight of the day preceding the
Closing Date:
(a) Real estate and personal property taxes shall be adjusted between
Seller and Purchaser on the basis of the fiscal year to which they are
applicable. Tax reimbursements from Tenants shall, within ten (10) days after
receipt, be reimbursed to Seller for the period prior to Closing. Purchaser
shall make reasonable efforts to promptly collect tax reimbursements from the
Tenants. In the event any Tenant fails to pay its share of Real Estate Taxes
that, if paid, would result in a reimbursement to Seller, Seller shall have the
right to file suit against such Tenants for the amount due to Seller for the
period prior to Closing.
(b) Water rates and sewer charges or rentals (if not metered).
(c) Utility charges (including, but not limited to, water rates and
sewer charges or rentals if metered) shall not be apportioned, but Seller shall
cause all utility meters to be read not more than two (2) days before Closing
Date, and Seller agrees to pay promptly after receipt all utility bills and
charges accruing up to and including the day preceding the Closing Date. If
utility deposits are assigned to Purchaser, Seller shall receive a credit
therefor.
(d) Rents and other fixed charges, including CAM charges, payable
under the Tenant Leases for the month of Closing. At the Closing, Seller shall
furnish to Purchaser a complete and correct schedule of all rents and other
fixed charges which are then due and payable but which have not been paid. All
such unpaid rents and other charges for the calendar month in which the Closing
occurs and for the calendar month prior to the calendar month in which the
Closing occurs shall be, if collected, received by Purchaser as trustee for
Seller and shall be remitted by Purchaser to Seller. Purchaser, however, shall
have no obligation to Seller to collect any such unpaid rents or other charges,
and all rents and other charges collected shall be first applied to current
rents and charges due. Percentage rents, if any, shall be equitably prorated
upon receipt based upon the number of days during the applicable lease year
which Seller owned the Property and the number of days which Purchaser owned the
Property. Purchaser shall reasonably cooperate with Seller in its efforts,
including litigation, to collect past-due rents and charges for periods prior to
Closing, provided that, in Purchaser's reasonable discretion such cooperation
shall not jeopardize Purchaser's relationship with tenant(s) and further
provided that Purchaser shall not be obligated to incur any third party expenses
in connection herewith.
(e) Seller and Purchaser agree to reprorate the items described in
(a) through (d) above within sixty (60) days of the end of the calendar year in
which the Closing occurs if Seller and Purchaser determine that the proration
made at Closing was inaccurate.
5.03. Seller shall give Purchaser a credit for the aggregate amount of
tenant security deposits paid by Tenants under the Tenant Leases and any
outstanding free rent concessions.
5.04. Seller shall pay for its own attorneys' fees, title examination,
title insurance premiums, and deed stamps, transfer or other similar taxes or
fees for recording based in whole or in part upon the consideration for or value
of the Property, and one-half of any escrow fees. Purchaser shall pay for the
recording of the deed, survey costs, its own attorneys' fees, and one-half of
any escrow fees.
5.05. If the Seller is a "Foreign Person" (as defined in Section 1445
of the Internal Revenue Code, as amended, and the regulations promulgated
thereunder), or if Seller fails to deliver the FIRPTA affidavit hereinbefore
mentioned, or if Purchaser has actual knowledge that such affidavit is false,
Purchaser shall deduct and withhold from the Purchase Price an amount equal to
ten percent (10%) of the Purchase Price as required by the Internal Revenue
Code. Purchaser shall remit such amount to the Internal Revenue Service.
5.06. If applicable state law requires that any of Seller's proceeds be
withheld, then same shall be withheld according to law.
ARTICLE VI
DESTRUCTION OR DAMAGE PRIOR TO THE CLOSING DATE
6.01. Seller shall bear the risk of all loss, destruction or damage to
the Property or any portion thereof from any and all causes whatsoever to and
including the Closing Date.
6.02. If at any time prior to the Closing Date any portion of the
Property is destroyed or damaged as a result of fire or any other cause
whatsoever, Seller shall promptly give notice thereof to Purchaser. The rights
and obligations of the parties by reason of such destruction or damage shall be
as follows:
(a) If the "cost of repair and restoration" (which term is
hereinafter defined) necessitated by such destruction or damage shall be Fifty
Thousand Dollars ($50,000.00) or less, the obligations hereunder of the parties
shall not be affected by such destruction or damage, and Purchaser shall accept
title to the Property in its destroyed or damaged condition provided that at the
Closing, Seller shall assign to Purchaser all of Seller's right, title and
interest in and to the proceeds of any insurance carried by Seller and payable
with respect to such destruction or damage and shall pay to Purchaser the amount
of the "deductible" under the policy.
In the event that the cost of repair and restoration exceeds the
amount of such proceeds to be made available for repair or restoration,
Purchaser shall have the option, upon five (5) days written notice to Seller, to
terminate this Contract and receive a full refund of the Earnest Money.
Notwithstanding the foregoing, Seller shall have the option, within three (3)
days of receiving such termination notice from Purchaser, to agree to pay (or
give Purchaser a credit against the Purchase Price for) the amount by which the
cost of repair and restoration exceeds the amount of such proceeds to be made
available for repair or restoration, and in which event Purchaser's termination
notice shall be deemed withdrawn and this Contract shall continue in full force
and effect.
(b) If the cost of repair and restoration necessitated by such
destruction or damage shall exceed Fifty Thousand Dollars ($50,000.00) or if
such destruction or damage, even if less than Fifty Thousand Dollars
($50,000.00), results in the termination of a Major Tenant lease, Purchaser
shall have the option either (i) to accept title to the Property in its
destroyed or damaged condition in accordance with and subject to the provisions
of Section 6.02(a)(i) above, or (ii) to cancel this Contract by giving notice to
that effect to Seller and to the title company not later than ten (10) days
after the cost of repair and restoration is determined (as provided in Section
6.03) or the Closing Date, and upon the giving of such notice by Purchaser, this
Contract shall be null and void and the parties shall have no further obligation
or liability hereunder except that the Earnest Money shall be returned to
Purchaser.
6.03. As used in Section 6.02, the term "cost of repair and
restoration" shall mean that amount which is the average of (a) a bona fide
estimate of the actual cost of repair and restoration obtained by Seller within
ten (10) days after such destruction or damage from a reputable contractor
regularly doing business in or near the area in which the Property is located;
and (b) a bona fide estimate of the actual cost of repair and restoration
obtained by Purchaser within ten (10) days after such destruction or damage from
a reputable contractor regularly doing business in or near the area in which the
Property is located.
ARTICLE VII
INSPECTION PERIOD
7.01. During the Inspection Period Purchaser shall be permitted to
enter the Property and to inspect and evaluate the Property, to conduct studies
thereon, and to interview Tenants. Purchaser shall not conduct any intrusive or
overly invasive testing (e.g., Phase II environmental tests) without the prior
written consent of Seller. If Purchaser determines for any reason that the
Property is not suitable for Purchaser's purposes Purchaser may allow this
Contract to terminate. If Purchaser desires to continue this Contract beyond
the Inspection Period it shall give written notice of same to Seller by the end
of the Inspection Period. During the Inspection Period Seller shall promptly
provide Purchaser with information and documentation (to the extent same is
reasonably available) requested by Purchaser to facilitate its evaluation of the
Property.
Seller shall in no way be liable or responsible for any activities of
Purchaser upon the Property. Should anyone attempt to file a lien against the
Property by reason of Purchaser's activities, Purchaser shall have the same
canceled and discharged of record within ten (10) days after actual notice
thereof. Purchaser hereby indemnifies and agrees to hold Seller harmless from
and against any and all liens which may arise as result of Purchaser's
activities on the Property and against any and all claims for death or injury to
persons or damage to Property arising out of or as a result of Purchaser's going
upon the Property pursuant to the provisions of this Section 7.01 or otherwise.
This indemnity shall survive the termination of this agreement. Purchaser shall
promptly restore the Property to its condition on the date hereof to the extent
practicable after all such tests or surveys.
ARTICLE VIII
ESCROW DEPOSIT
8.01. Upon the execution hereof Purchaser shall deposit the Earnest
Money with Escrow Agent. The Earnest Money shall be deposited into an FDIC
insured interest bearing account, which interest shall accrue for the benefit of
Purchaser (but shall be paid to Seller if Purchaser defaults). In the event
Purchaser has the right to and elects to terminate this Contract or allows same
to terminate as provided herein, Escrow Agent shall refund the Earnest Money
upon receipt of notice of such termination. The Escrow Agent shall hold the
Earnest Money subject to the conditions set forth on the attached EXHIBIT "H".
At closing Escrow Agent shall pay the Earnest Money to Seller to be credited
against the Purchase Price. Notwithstanding anything in this Contract to the
contrary, if Escrow Agent receives notice of termination from Purchaser, or
Purchaser's attorneys, Gottlieb & Smith, P.A., prior to the end of the
Inspection Period, Escrow Agent shall be and is hereby directed by Seller to
refund the Earnest Money to Purchaser.
ARTICLE IX
BREACH BY SELLER
9.01. In the event Seller shall fail to consummate the sale of the
Property for any reason, except Purchaser's default, Purchaser, at its option,
may elect either (a) to terminate this agreement whereupon Escrow Agent shall
return the Earnest Money to Purchaser and Seller shall pay Purchaser Thirty
Thousand Dollars ($30,000.00) under this agreement as agreed-upon liquidated
damages and not as a penalty, it being otherwise difficult or impossible to
estimate Purchaser's actual damages, and which liquidated damages shall be in
lieu of any other damages or the right to specific performance; or (b) be
entitled to sue Seller for specific performance of this agreement provided,
however, Seller shall not be required to expend in excess of Thirty Thousand
Dollars ($30,000.00) under this agreement to correct any matter Seller did not
deliberately cause; or (c) only if Purchaser shall not be entitled to specific
performance by reason of Seller's conveying or encumbering all or any part of
the Property subsequent to the date of this agreement, terminate this agreement
by giving written notice of termination to Seller, receive a full and immediate
refund of the Earnest Money and all interest earned thereon, and seek damages
for breach of this agreement by Seller.
ARTICLE X
BREACH BY PURCHASER
10.01. In the event Purchaser shall fail to consummate the purchase of
the Property, the conditions to Purchaser's obligations set forth in Article IV
having been satisfied and Purchaser being in default and Seller being ready,
willing and able to close and consummated the transactions contemplated hereby
in accordance herewith, Seller shall have the right to receive the Earnest Money
and accrued interest from Escrow Agent, such sum being agreed upon as liquidated
damages for the failure of Purchaser to perform the duties, liabilities and
obligations imposed upon it by the terms and provisions of this Contract, and
Seller agrees to accept and take said cash payment as total damages and as
Seller's sole remedy in such event except for any remedy of Seller pursuant to
the indemnities set forth in Sections 7.01 and 11.01. It is agreed that
Seller's damage would be difficult to ascertain and the Earnest Money then on
deposit with Escrow Agent constitutes a reasonable forecast thereof and is
intended not as a penalty but as full liquidated damages.
ARTICLE XI
REAL ESTATE COMMISSIONS
11.01. Seller shall pay a real estate commission to Berkeley Capital
Advisors ("Broker") pursuant to separate agreement, which commission shall be
due and payable at Closing. Each party represents and warrants to the other
that it has not dealt with any other real estate brokers who may claim a fee or
commission in connection with the transactions contemplated hereby as a result
of such party's acts, and shall indemnify and hold the other harmless against
any such claim made by any other broker claiming by, through or under such
party. This provision shall survive the Closing.
ARTICLE XII
MISCELLANEOUS
12.01. This Contract may be assigned by Purchaser to an entity in which
Purchaser has a controlling interest as a principal, shareholder, officer,
partner, or member, provided that Purchaser's assignee shall assume all
Purchaser's liabilities, obligations and duties hereunder.
12.02. Any notices, requests, or other communications required or
permitted to be given hereunder shall be in writing and shall be either (i)
delivered by hand, (ii) mailed by United States registered mail, return receipt
requested, postage prepaid, (iii) sent by a reputable, national overnight
delivery service (e.g., Federal Express, Airborne, etc.), or (iv) sent by
facsimile (with the original being sent by one of the other permitted means or
by regular United States mail) and addressed to each party at the applicable
address set forth herein. Any such notice, request, or other communication
shall be considered given or delivered, as the case may be, on the date of hand
delivery (if delivered by hand), on the third (3rd) day following deposit in the
United States mail (if sent by United States registered mail), on the next
business day following deposit with an overnight delivery service with
instructions to deliver on the next day or on the next business day (if sent by
overnight delivery service), or on the day sent by facsimile (if sent by
facsimile, provided the original is sent by one of the other permitted means as
provided in this paragraph or by regular United States mail). However, the time
period within which a response to any notice or request must be given, if any,
shall commence to run from the date of actual receipt of such notice, request,
or other communication by the addressee thereof. Rejection or other refusal to
accept or inability to deliver because of a changed address of which no notice
was given shall be deemed to be receipt of the notice, request, or other
communication. By giving a least five (5) days prior written notice thereof,
any party hereto may, from time to time and at any time, change its mailing
address hereunder.
Seller: Century Pension Income Fund XXIV
c/o Insignia Financial Group
One Insignia Financial Plaza
Greenville, SC 29601
Attn: Ken Cobler
Telephone: (864) 239-1000
Telecopy: (864) 239-2722
with copy to: Post & Heymann, LLP
100 Jericho Quadrangle, Suite 214
Jericho, NY 11753
Attn: William Post, Esquire
Telephone: (516) 681-3636
Telecopy: (516) 433-2777
Purchaser: 1901 Main Street, Suite 900
Columbia, SC 29201
Attn: Jodie W. McLean
Telephone: (803) 779-4420
Telecopy: (803) 254-4983
with copy to: Gottlieb & Smith, P.A.
1901 Main Street, Suite 600
Columbia, SC 29201
Attn: Joel E. Gottlieb, Esquire
Telephone: (803) 765-9291
Telecopy: (803) 254-2682
Escrow Agent: Commonwealth Land Title Insurance Company
525 Market Street, Suite 1560
San Francisco, CA 94105
Attn: Linda Rae Paul
Telephone: (415) 247-2481
Telecopy: (415) 512-0146
12.03. This Contract shall be construed under and in accordance with the
laws of the state in which the Property is located. Time is of the essence with
respect to performance of all obligations under this Agreement.
12.04. This Contract shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, legal representatives, successors and assigns.
12.05. This Contract constitutes the sole and only agreement of the
parties hereto and supersedes any prior understanding or written or oral
agreements between the parties respecting the within subject matter.
SIGNED, SEALED AND DELIVERED as of the date first above set forth.
E&A NORTHEAST LIMITED PARTNERSHIP, a
Delaware limited partnership
By: E&A Northeast, Inc., general partner
By: /s/Jodie W. McLean (SEAL)
Print Name: Jodie W. McLean
Title: Chief Investment Officer
CENTURY PENSION INCOME FUND XXIV, a
California limited partnership
By: Fox Partners VI, a California general
partnership, general partner
By: Fox Capital Management Corporation, a
California corporation, general partner
(SEAL)
By: /s/ Robert D. Long, Jr.
Print Name: Robert D. Long, Jr.
Title: Vice President
EXHIBIT "A"
Butler Square Property Description
EXHIBIT "B"
Kenilworth Commons Property Description
EXHIBIT "C"
Plantation Pointe Property Description
EXHIBIT "D"
Lease Exhibit
EXHIBIT "E"
Description of Proposed Road Project
Plantation Pointe Property
EXHIBIT "F"
FORM OF SURVEYOR'S CERTIFICATE
SURVEYOR'S CERTIFICATE
[NAME] , a registered land surveyor,
License No. [NUMBER] , in and for the State of [STATE] and legally
doing business in [COUNTY] County, does hereby certify to E&A Northeast
Limited Partnership, Morgan Stanley Mortgage Capital, Inc., First American Title
Insurance Company, and their respective successors and assigns:
(1) the accompanying survey ("Survey") represents a true and correct survey
made by me on [DATE] , 1998, of the land therein
particularly described;
(2) the Survey and the information, courses and distances shown thereon are
correct;
(3) the title lines and lines of actual possession are the same;
(4) the land described in the Survey is the same as described in the title
insurance commitment described below;
(5) the area of the subject property and the size, location and type of
buildings and improvements and any other matters situated on the subject
property are as shown and all buildings and improvements are within the
boundary lines and applicable set-back lines of the property;
(6) there are no violations of zoning ordinances, restrictions or other rules
and regulations with reference to the location of said buildings and
improvements;
(7) there are no easements or uses affecting this property appearing from a
careful physical inspection of same, other than those shown and depicted on
the Survey;
(8) there are no encroachments on the adjoining properties, streets, or alleys
by any of said buildings, structures and improvements, other than as shown
on the Survey;
(9) there are no party walls or visible encroachments on said described
property by streets, alleys or buildings, structures or other improvements
situated on the adjoining property, except as shown on the Survey;
(10) all utility services required for the operation of the premises either
enter the premises through adjoining public streets, or the Survey shows
the point of entry and location of any utilities that pass through or are
located on adjoining land;
(11) the Survey shows the location and direction of all visible storm drainage
systems for the collection and disposal of all roof and surface drainage;
(12) any discharge into streams, rivers or other conveyance system is shown on
the Survey;
(13) the subject property [DOES OR DOES NOT] lie within a Special Flood
Hazard Area ("SFHA") as defined by the Federal Emergency Management
Agency; the property lies within Zone(s) [ONLY ZONES WITH PREFIXES
OF "A" OR "V" ARE IN SFHAS] of the Flood Insurance Rate Map identified
as Community Panel No. [NUMBER] , bearing an effective date of
[DATE] ;
(14) the subject property has access to and from a duly dedicated and accepted
public street or highway [IF NOT, SO STATE];
(15) [EXCEPT AS SHOWN ON THE SURVEY,] the subject property does not serve any
adjoining property for drainage, utilities, or ingress or egress; and
(16) the record description of the subject property forms a mathematically
closed figure. [IF NOT, SO STATE.]
The undersigned has received and examined a copy of First American Title
Insurance Company's Commitment No. [NUMBER] ; and the location of any
matter shown thereon, to the extent it can be located, has been shown on this
Survey with the appropriate recording reference.
[IF THE CERTIFICATE IS ATTACHED TO RATHER THAN TYPED OR OTHERWISE REPRODUCED ON
THE FACE OF THE SURVEY, ADD A PARAGRAPH SPECIFICALLY IDENTIFYING THE SURVEY
(SUCH AS BY DATE, PROPERTY DESCRIPTION, AND SURVEY NUMBER) TO WHICH THE
CERTIFICATE RELATES.]
The parties listed above are entitled to rely on the Survey and this certificate
as being true and correct.
This Survey is made in accordance with the 1997 "Minimum Standard Detail
Requirements for Land Title Surveys" jointly established and adopted by American
Land Title Association ("ALTA") and American Congress on Surveying and Mapping
("ACSM") and meets the requirements of an Urban Survey, as defined in the
current accuracy standards jointly adopted by ALTA and ACSM and includes items
1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 13, 14, and 15 of Table A thereof.
[SIGNATURE]
[NAME OF SURVEYOR]
Registration No. [NUMBER]
Date: [DATE] , 1998
[SEAL]
EXHIBIT "G"
ESTOPPEL CERTIFICATE AND AGREEMENT
BACKGROUND:
1. The tenant ("Tenant") identified on Exhibit A attached hereto and
by this reference made a part hereof, leases space (the "Premises") identified
on Exhibit A hereto, in the improved real property (the "Property") identified
on Exhibit A hereto, pursuant to a Lease identified on Exhibit A and by this
reference made a part hereof (the lease and any amendments, the "Lease") with
the existing landlord identified on Exhibit A (the "Existing Landlord").
2. Tenant has been advised that the Property, together with the
Lease, will be conveyed, either by operation of law through merger or transfer
or dissolution or exchange of partnership interests or by deed and assignment,
to an entity to be formed by certain beneficial owners of Edens & Avant
Properties Limited Partnership (the "Successor Landlord"). The conveyance of
the Property to the Successor Landlord and related activities are hereinafter
referred to as the "Transaction."
3. Tenant has been advised that Morgan Stanley Mortgage Capital,
Inc. or an affiliated entity ("Lender") proposes to make a loan (the "Loan") to
the Successor Landlord which will be secured by a mortgage on the Property.
CERTIFICATE:
Tenant certifies to and agrees with the Successor Landlord and Lender
as follows:
1. The Lease represents the entire agreement between the Existing
Landlord and Tenant and there are no supplements, amendments or modifications of
the Lease, except as specifically set forth on Exhibit A. The Lease is in full
force and effect, and all conditions to the effectiveness or continuing
effectiveness of the Lease have been satisfied. Tenant has unconditionally
accepted possession of the Premises pursuant to the Lease, and is presently in
occupancy at the Premises, paying rent on the Premises, and conducting its
business in the Premises.
2. The term of the Lease commenced on, and will expire on, the dates
set forth on Exhibit A hereto, subject to the extension and/or renewal options
(if any) set forth in the Lease.
3. The annual and monthly base rental currently in effect and
payable to Landlord under the Lease are stated on Exhibit A hereto. The last
payment of monthly rental was made on the date stipulated on Exhibit A, and any
security deposit paid by Tenant is shown on Exhibit A. There is no credit,
deduction, abatement, claim, offset or defense with respect to the Tenant's
obligation to pay rent or additional rent under the Lease, nor is Tenant
entitled to any concession, rebate, allowance or other consideration for work or
for free or reduced rent in the future, unless stipulated on Exhibit A.
4. Tenant has no unexercised right(s) with respect to the renewal,
extension or termination of the Lease or expansion of the Premises, except as
set forth in the Lease.
5. Tenant has not made any monthly installment of annual rent or
other payment of rental due under the Lease, for more than thirty (30) days in
advance of the date hereof.
6. Tenant represents that it is not in default under the Lease, nor
is there any event which has occurred which with the giving of notice or the
passage of time or both would constitute a default or result in an event of
default under the terms of the Lease nor does there exist any basis at this time
for early termination of the Lease by Tenant, unless specifically stated on
Exhibit A. Tenant is not engaged in any dispute or disagreement with Landlord.
7. Tenant has not assigned or sublet, pledged, hypothecated or
encumbered its interest in the Lease without the prior written consent of the
Existing Landlord, or if such consent has been given, the details of any such
assignment, subletting, pledge or hypothecation are described on Exhibit A.
8. All improvements, alterations, or additions to the Premises and
the Property (including without limitation parking areas, sidewalks, access ways
and landscaping) required to be made by the Existing Landlord have been
completed to the satisfaction of Tenant and in compliance with the Lease except
as set forth on Exhibit A. All contributions and allowances required to be made
by the Existing Landlord for improvements to the Premises, including any credits
or offsets against rent or other charges due under the Lease, have been paid in
full to Tenant, except as specified on Exhibit A.
9. There are no rental, lease or other similar commissions payable
by Tenant with respect to the Lease.
10. There are no actions, whether voluntary or otherwise, pending
against Tenant (or any guarantor of Tenant's obligations pursuant to the Lease)
under the bankruptcy or insolvency laws of the United States or any state
thereof, except as specified on Exhibit A.
11. To the best of its knowledge, Tenant has not used, stored,
released, disposed of or transported at, to or from the Premises any substance
classified as hazardous or toxic under applicable federal, state or local laws
or regulations except in compliance with such laws or regulations or as
specified on Exhibit A.
12. Tenant has no outstanding right, option or right of first refusal
to purchase the Premises or the Property or any part thereof.
13. From and after the closing of the Transaction, the Successor
Landlord shall succeed to the right, title and interest of the Existing Landlord
under the Lease and Tenant agrees to attorn to the Successor Landlord as the
"landlord" under the Lease.
14. If improvements or repairs have been made on the Premises by or
on behalf of Tenant during the one hundred twenty (120) days immediately
preceding this date, there are no outstanding unpaid bills or amounts owed for
labor or materials used in making improvements or repairs on said Premises, or
for services of architects, surveyors or engineers incurred in connection
therewith. Without limiting the foregoing, all costs associated with finishing
the space demised by the Lease have been paid in full.
15. Tenant acknowledges that this Certificate is being delivered to
Lender and the Successor Landlord in connection with the proposed consummation
of the Transaction and the Loan, and Tenant agrees that the Successor Landlord
and Lender, and any party who at any time may have an interest in the Lease or
the Loan, may rely upon the truth and accuracy of the representations,
statements and certifications and the agreements made in this Certificate.
16. If Tenant is a corporation, the undersigned is a duly appointed
officer of the corporation signing this Certificate and is the incumbent in the
office indicated under his/her name. If Tenant is a partnership, limited
liability company or other entity, the undersigned is a duly authorized
signatory of such entity.
IN WITNESS WHEREOF, Tenant has executed this Certificate as of the day
stated below.
By:
Name:
Title:
Date of Execution:
EXHIBIT "A"
TENANT:
PREMISES:
PROPERTY:
LEASE:
(list lease and all amendments, if any)
EXISTING
LANDLORD:
TERM
COMMENCEMENT:
TERM
EXPIRATION:
ANNUAL
BASE RENTAL:
MONTHLY
BASE RENTAL:
LAST MONTHLY
RENTAL PAYMENT
DATE:
SECURITY DEPOSIT:
OTHER DISCLOSURES TO
ESTOPPEL CERTIFICATE
AND AGREEMENT:
(please cross reference
paragraphs 3,4, 6, 7, 8, 10,
and 11)
EXHIBIT "H"
Escrow Conditions
1. In performing any of its duties hereunder, Escrow Agent shall not
incur any liability to anyone for any damages, losses, or expenses, including,
without limitation, (i) any action taken or omitted upon advice of its legal
counsel given with respect to any questions relating to the duties and
responsibilities of Escrow Agent under this agreement; or (ii) any action taken
or omitted in reliance upon any instrument, including any written notice or
instruction provided for in this agreement. Escrow Agent may rely upon any
instrument, pursuant to clause (ii) in the preceding sentence, as being duly
executed, valid, and effective, and as containing accurate information and
genuine signatures.
2. Notwithstanding anything in this agreement to the contrary, in the
event of a dispute between Seller and Purchaser arising prior to or at the time
of the delivery or other disposition of the Earnest Money (which term shall be
deemed to include any other escrow deposits or holdback payments entrusted to
Escrow Agent) by Escrow Agent pursuant hereto, which dispute shall be
sufficient, in the sole discretion of Escrow Agent, to justify its doing so,
Escrow Agent shall be entitled to tender the Earnest Money into the registry or
custody of any court of competent jurisdiction, together with such legal
pleadings as it may deem appropriate, and thereupon Escrow Agent shall be
discharged from all further duties and liabilities under this agreement. Any
such legal action may be brought in such court as Escrow Agent shall determine
to have jurisdiction thereof. Escrow Agent's determination of whether a dispute
exists between Seller and Purchaser shall be binding and conclusive upon all
parties hereto, notwithstanding any contention that no dispute exists. All
costs and expenses incurred by Escrow Agent in taking any action pursuant to
this paragraph shall be covered by and paid pursuant to the indemnification of
Escrow Agent contained in the following paragraph.
3. Purchaser and Seller shall, and do hereby, jointly and severally
indemnify, defend, and hold Escrow Agent harmless from, against, and in respect
of: (i ) any and all demands, judgments, expenses, costs, losses, injuries, or
claims of any kind whatsoever whether existing on the date hereof or hereafter
arising, incurred by Escrow Agent by reason of, from, or in connection with this
agreement or any action taken or not taken by Escrow Agent under or in
connection with this agreement; and (ii) any and all counsel fees, expenses,
disbursements of counsel, amounts of judgments, demands, assessments, costs,
fines, or penalties, and amounts paid in compromise or settlement, incurred or
sustained by Escrow Agent by reason of, in connection with, or as a result of
any claim, demand, action, suit, investigation, or proceeding (or any appeal
thereof or relating thereto or other review thereof) incident to the matters
covered by the immediately preceding clause (i).
4. If Escrow Agent shall notify Seller and Purchaser of its desire to be
relieved of any further duties and liabilities hereunder, then Escrow Agent
shall deliver the Earnest Money to a successor escrow agent designated by Seller
and Purchaser. If Seller and Purchaser shall fail to agree upon and designate a
successor escrow agent within ten (10) days after having been requested by
Escrow Agent to do so, then Escrow Agent shall in its discretion designate the
successor escrow agent. The successor escrow agent designated by Seller and
Purchaser or by Escrow Agent, as the case may be, shall be a bank or trust
company having trust powers in good standing and located in Columbia, South
Carolina, and shall agree to be bound by all the terms and conditions of this
agreement. Immediately upon agreement by the successor escrow agent to be bound
by all the terms and conditions of this agreement, the original Escrow Agent
shall be relieved of any and all duties and liabilities under or in connection
with this agreement; provided, however, that no successor escrow agent shall
assume any liability for the acts or omissions of its predecessor escrow
agent(s) hereunder.
5. The agency created in Escrow Agent hereby is coupled with an interest
of Seller and Purchaser and shall be binding upon and enforceable against the
respective heirs, successors, legal representatives and assigns of Seller and
Purchaser. This escrow shall not be revoked or terminated by reason of the
death, incompetency, dissolution, or liquidation of Seller or Purchaser, but
shall continue to be binding upon and enforceable against the respective heirs,
successors, legal representatives and assigns of Seller and Purchaser in the
manner provided herein. In the event of the death, incompetency, dissolution,
or liquidation of Seller or Purchaser, Escrow Agent may rely and act upon any
notices permitted or required to be given hereunder from any person, firm,
partnership, or corporation believed by Escrow Agent in good faith to be the
heir, successor, legal representative or assign of such dissolved or liquidated
party.
6. The address for the receipt of notices and other communications by
Escrow Agent hereunder is as follows:
Commonwealth Land Title Insurance Company
_____________________________
_____________________________
_____________________________
Telecopy:_____________________
