FORM 10-QSB--QUARTERLY OR TRANSITIONAL REPORT UNDER SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Quarterly or Transitional Report
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-QSB
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 2001
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from _________to _________
Commission file number 0-13408
CENTURY PROPERTIES FUND XX
(Exact name of small business issuer as specified in its charter)
California 94-2930770
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
55 Beattie Place, PO Box 1089
Greenville, South Carolina 29602
(Address of principal executive offices)
(864) 239-1000
(Issuer's telephone number)
Check whether the issuer (1) filed all reports required to be filed by Section
13 or 15(d) of the Exchange Act during the past 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days.
Yes X No___
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
a)
CENTURY PROPERTIES FUND XX
STATEMENT OF NET LIABILITIES IN LIQUIDATION
(unaudited)
(in thousands)
September 30, 2001
Assets
Cash and cash equivalents $ 456
Receivables and deposits, net of allowance for
uncollectible accounts of $54 278
Debt trustee escrow 1,986
Investment property 5,376
8,096
Liabilities
Tenant security deposit liabilities 33
Accrued property taxes 68
Other liabilities 106
Non-recourse promissory notes (Note A) 8,423
Estimated costs during the period of liquidation 113
8,743
Net liabilities in liquidation $ (647)
See Accompanying Notes to Financial Statements
b)
CENTURY PROPERTIES FUND XX
STATEMENT OF CHANGES IN NET LIABILITIES IN LIQUIDATION
(Unaudited)
(in thousands)
Nine Months Ended September 30, 2001
Net liabilities in liquidation at beginning of period $(1,154)
Changes in net liabilities in liquidation attributed to:
Decrease in cash and cash equivalents (780)
Increase in receivables and deposits 197
Increase in debt trustee escrow 859
Increase in investment properties 566
Decrease in accounts payable 50
Increase in tenant security deposit payable (2)
Decrease in accrued property taxes 21
Increase in Non-Recourse Promissory Notes and interest (291)
Increase in estimated costs during the period of liquidation (113)
Net liabilities in liquidation at end of period $ (647)
See Accompanying Notes to Financial Statements
c)
CENTURY PROPERTIES FUND XX
NOTES TO FINANCIAL STATEMENTS
(Unaudited)
Note A - Basis of Presentation
As of December 31, 1999, Century Properties Fund XX (the "Partnership" or
"Registrant") adopted the liquidation basis of accounting due to the imminent
loss of its remaining investment properties.
Pursuant to the terms of the Nonrecourse Promissory Notes (the "Notes"), the
Partnership was required to pay interest at a rate of 4% per annum on the Notes,
and accrue the additional 4% per annum due on the Notes. The Notes are secured
by all of the Partnership's properties. The Notes, which had a balance of
principal and accrued interest of approximately $8,423,000 at September 30,
2001, matured on November 30, 1998. Due to nonpayment of the outstanding balance
at maturity, the Partnership is in default. Fox Capital Management Corporation
("FCMC" or the "Managing General Partner"), the general partner of the
Partnership's general partner, previously contacted the indenture trustee for
the Notes and certain holders of the Notes regarding this default. On October
28, 1999 the Partnership entered into a forbearance agreement with the indenture
trustee for a period of 390 days. In turn, the Partnership agreed to (a) deliver
to the indenture trustee for the benefit of the note holders all of the
accumulated cash of the Partnership, less certain reserves and anticipated
operating expenses, (b) market all of its properties for sale, (c) deliver all
cash proceeds from any sales to the indenture trustee until the notes are fully
satisfied and (d) comply with the reporting requirements under the indenture. At
the expiration of the forbearance period, the Partnership had not sold all of
its properties or satisfied the Notes. With the consent of the indenture
trustee, the forbearance period was extended to December 15, 2001. Highland Park
Commerce Center sold subsequent to September 30, 2001 and the net sales proceeds
were paid to the indenture trustee to be applied to the amounts due the
noteholders. Based on the sale price, the sale of the Partnership's remaining
asset did not generate sufficient proceeds to pay off the Notes in full. Upon
the sale of the last property, the Partnership is expected to terminate. The
Managing General Partner is an affiliate of Apartment Investment and Management
Company ("AIMCO"), a publicly traded real estate investment trust.
As a result of the decision to liquidate the Partnership, the Partnership
changed its basis of accounting for its financial statements at December 31,
1999, to the liquidation basis of accounting. Consequently, assets have been
valued at estimated net realizable value and liabilities are presented at their
estimated settlement amounts. The valuation of assets and liabilities
necessarily requires many estimates and assumptions and there are substantial
uncertainties in carrying out the liquidation. The actual realization of assets
and settlement of liabilities could be higher or lower than amounts indicated
and is based upon the Managing General Partner's estimates as of the date of the
financial statements.
Included in liabilities in the statement of net liabilities in liquidation as of
September 30, 2001 is approximately $113,000 of costs, net of income, that the
Managing General Partner estimates will be incurred during the period of
liquidation based on the assumption that the liquidation process will be
completed by December 31, 2001. Because the success in realization of assets and
the settlement of liabilities is based on the Managing General Partner's best
estimates, the liquidation period may be shorter than projected or it may be
extended beyond the projected period.
Note B - Transactions with Affiliated Parties
The Partnership has no employees and is dependent on the Managing General
Partner and its affiliates for the management and administration of all
partnership activities. The Partnership Agreement provides for certain payments
to affiliates for services and as reimbursement of certain expenses incurred by
affiliates on behalf of the Partnership.
The following transactions with affiliates of the Managing General Partner were
incurred during the nine month periods ended September 30, 2001 and 2000:
2001 2000
(in thousands)
Property management fees $ -- $ 74
Reimbursement for services of affiliates 65 51
During the nine months ended September 30, 2000, affiliates of the Managing
General Partner were entitled to receive 5% of gross receipts from the
Partnership's residential properties as compensation for providing property
management services. The Partnership paid to such affiliates approximately
$74,000 for the nine months ended September 30, 2000. The Partnership had no
residential properties in 2001. For the Partnership's commercial properties,
these services were provided by an unrelated party for the nine month periods
ended September 30, 2001 and 2000.
Affiliates of the Managing General Partner received reimbursement of accountable
administrative expenses amounting to approximately $65,000 and $51,000 for the
nine months ended September 30, 2001 and 2000, respectively.
In addition to its indirect ownership of the general partner interest in the
Partnership, AIMCO and its affiliates owned 3,870 limited partnership units in
the Partnership representing 6.26% of the outstanding units at September 30,
2001. AIMCO and its affiliates also own 8,837 Notes representing 8.95% of the
outstanding notes at September 30, 2001.
Note C - Segment Reporting
Statement of Financial Accounting Standards ("SFAS") No. 131, "Disclosure about
Segments of an Enterprise and Related Information" established standards for the
way that public business enterprises report information about operating segments
in annual financial statements and requires that those enterprises report
selected information about operating segments in interim financial reports. It
also established standards for related disclosures about products and services,
geographic areas, and major customers. As defined in SFAS No. 131, the
Partnership has only one reportable segment. The Managing General Partner
believes that segment-based disclosures will not result in a more meaningful
presentation than the financial statements as currently presented.
Note D - Subsequent Event
On October 23, 2001, the Partnership sold Highland Park Commerce Center to an
unaffiliated third party for net sales proceeds of approximately $5,376,000
after payment of closing costs of approximately $177,000. The Partnership's net
sales proceeds were paid to the indenture trustee to be applied to the amounts
due the noteholders.
Note E - Legal Proceedings
In March 1998, several putative unit holders of limited partnership units of the
Partnership commenced an action entitled Rosalie Nuanes, et al. v. Insignia
Financial Group, Inc., et al. (the "Nuanes action") in the Superior Court of the
State of California for the County of San Mateo. The plaintiffs named as
defendants, among others, the Partnership, its Managing General Partner and
several of their affiliated partnerships and corporate entities. The action
purports to assert claims on behalf of a class of limited partners and
derivatively on behalf of a number of limited partnerships (including the
Partnership) which are named as nominal defendants, challenging, among other
things, the acquisition of interests in certain general partner entities by
Insignia Financial Group, Inc. ("Insignia") and entities which were, at one
time, affiliates of Insignia; past tender offers by the Insignia affiliates to
acquire limited partnership units; management of the partnerships by the
Insignia affiliates; and the series of transactions which closed on October 1,
1998 and February 26, 1999 whereby Insignia and Insignia Properties Trust,
respectively, were merged into AIMCO. The plaintiffs seek monetary damages and
equitable relief, including judicial dissolution of the Partnership. On June 25,
1998, the Managing General Partner filed a motion seeking dismissal of the
action. In lieu of responding to the motion, the plaintiffs filed an amended
complaint. The Managing General Partner filed demurrers to the amended complaint
which were heard February 1999.
Pending the ruling on such demurrers, settlement negotiations commenced. On
November 2, 1999, the parties executed and filed a Stipulation of Settlement,
settling claims, subject to court approval, on behalf of the Partnership and all
limited partners who owned units as of November 3, 1999. Preliminary approval of
the settlement was obtained on November 3, 1999 from the Court, at which time
the Court set a final approval hearing for December 10, 1999. Prior to the
December 10, 1999 hearing, the Court received various objections to the
settlement, including a challenge to the Court's preliminary approval based upon
the alleged lack of authority of prior lead counsel to enter the settlement. On
December 14, 1999, the Managing General Partner and its affiliates terminated
the proposed settlement. In February 2000, counsel for some of the named
plaintiffs filed a motion to disqualify plaintiff's lead and liaison counsel who
negotiated the settlement. On June 27, 2000, the Court entered an order
disqualifying them from the case and an appeal was taken from the order on
October 5, 2000. On December 4, 2000, the Court appointed the law firm of Lieff
Cabraser Heimann & Bernstein LLP as new lead counsel for plaintiffs and the
putative class. Plaintiffs filed a third amended complaint on January 19, 2001.
On March 2, 2001, the Managing General Partner and its affiliates filed a
demurrer to the third amended complaint. On May 14, 2001, the Court heard the
demurrer to the third amended complaint. On July 10, 2001, the Court issued an
order sustaining defendants' demurrer on certain grounds. On July 20, 2001,
plaintiffs filed a motion for reconsideration of the Court's July 10, 2001 order
granting in part and denying in part defendants' demurrer. On September 7, 2001,
plaintiffs filed a fourth amended class and derivative action complaint. On
September 12, 2001, the Court denied plaintiffs' motion for reconsideration. On
October 5, 2001, the Managing General Partner and affiliated defendants filed a
demurrer to the fourth amended complaint, which, together with a demurrer filed
by other defendants, is currently scheduled to be heard on November 15, 2001.
The Court has set the matter for trial in January 2003.
During the third quarter of 2001, a complaint (the "Heller action") was filed
against the same defendants that are named in the Nuanes action, captioned
Heller v. Insignia Financial Group. On or about August 6, 2001, plaintiffs filed
a first amended complaint. The first amended complaint in the Heller action is
brought as a purported derivative action, and asserts claims for among other
things breach of fiduciary duty; unfair competition; conversion, unjust
enrichment; and judicial dissolution. Plaintiffs in the Nuanes action filed a
motion to consolidate the Heller action with the Nuanes action and stated that
the Heller action was filed in order to preserve the derivative claims that were
dismissed without leave to amend in the Nuanes action by the Court order dated
July 10, 2001. On October 5, 2001, the Managing General Partner and affiliated
defendants moved to strike the first amended complaint in its entirety for
violating the Court's July 10, 2001 order granting in part and denying in part
defendants' demurrer in the Nuanes action, or alternatively, to strike certain
portions of the complaint based on the statute of limitations. Other defendants
in the action demurred to the fourth amended complaint, and, alternatively,
moved to strike the complaint. The matters are currently scheduled to be heard
on November 15, 2001.
The Managing General Partner does not anticipate that any costs, whether legal
or settlement costs, associated with these cases will be material to the
Partnership's overall operations.
The Partnership is unaware of any other pending or outstanding litigation that
is not of a routine nature arising in the ordinary course of business.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATIONS
The matters discussed in this Form 10-QSB contain certain forward-looking
statements and involve risks and uncertainties (including changing market
conditions, competitive and regulatory matters, etc.) detailed in the
disclosures contained in this Form 10-QSB and the other filings with the
Securities and Exchange Commission made by the Partnership from time to time.
The discussion of the Partnership's business and results of operations,
including forward-looking statements pertaining to such matters, does not take
into account the effects of any changes to the Registrant's business and results
of operations. Accordingly, actual results could differ materially from those
projected in the forward-looking statements as a result of a number of factors,
including those identified herein.
The Partnership's remaining investment property was a business park. The
following table sets forth the average occupancy of the property for the nine
months ended September 30, 2001 and 2000:
Average Occupancy
Property 2001 2000
Highland Park Commerce Center 81% 86%
Charlotte, North Carolina
On October 23, 2001 the Partnership sold Highland Park Commerce Center to an
unrelated third party for net sales proceeds of approximately $5,376,000 after
payment of closing costs. The Partnership's net sales proceeds were paid to the
indenture trustee to be applied to the amounts due the noteholders.
As of December 31, 1999, Century Properties Fund XX (the "Partnership" or
"Registrant") adopted the liquidation basis of accounting due to the imminent
loss of its remaining investment properties. Pursuant to the terms of the Notes,
the Partnership was required to pay interest at a rate of 4% per annum on the
Notes, and accrue the additional 4% per annum due on the Notes. The Notes are
secured by all of the Partnership's properties. The Notes, which had a balance
of principal and accrued interest of approximately $8,423,000 at September 30,
2001, matured on November 30, 1998. Due to nonpayment of the outstanding balance
at maturity, the Partnership is in default. The Managing General Partner had
previously contacted the indenture trustee and entered a forbearance agreement
on October 28, 1999. In turn, the Partnership agreed to (a) deliver to the
indenture trustee for the benefit of the note holders all of the accumulated
cash of the Partnership, less certain reserves and anticipated operating
expenses, (b) market all of its properties for sale, (c) deliver all cash
proceeds from any sales to the indenture trustee until the notes are fully
satisfied and (d) comply with the reporting requirements under the indenture. At
the expiration of the forbearance period, the Partnership had not sold all of
its properties or satisfied the Notes. With the consent of the indenture
trustee, the forbearance period was extended to December 15, 2001. Highland Park
Commerce Center sold subsequent to September 30, 2001, as discussed above. Based
on the sale price, the sale of the Partnership's remaining asset did not
generate sufficient proceeds to pay off the Notes in full. Upon the sale of the
last property, the Partnership is expected to terminate.
As a result of the decision to liquidate the Partnership, the Partnership
changed its basis of accounting for its financial statements at December 31,
1999 to the liquidation basis of accounting. Consequently, assets have been
valued at estimated net realizable value and liabilities are presented at their
estimated settlement amounts. The valuation of assets and liabilities
necessarily requires many estimates and assumptions and there are substantial
uncertainties in carrying out the liquidation. The actual realization of assets
and settlement of liabilities could be higher or lower than amounts indicated
and is based upon the Managing General Partner's estimates as of the date of the
financial statements.
Included in liabilities in the statement of net liabilities in liquidation as of
September 30, 2001 is approximately $113,000 of costs, net of income, that the
Managing General Partner estimates will be incurred during the period of
liquidation based on the assumption that the liquidation process will be
completed by December 31, 2001. Because the success in realization of assets and
the settlement of liabilities is based on the Managing General Partner's best
estimates, the liquidation period may be shorter than projected or it may be
extended beyond the projected period.
In light of the maturity of the Notes, no distributions were made to the limited
partners for the nine months ended September 30, 2001 and 2000.
The following is a general description of the tax consequences that may result
to a limited partner upon the sale of the Partnership's remaining property. Each
limited partner should consult with his or her own tax advisor to determine his
or her particular tax consequences. The taxable gain and income resulting from
the sale of the Partnership's property will pass through to the limited
partners, and will likely result in income tax liability to the limited partners
without any distribution of cash from the Partnership.
Capital improvements planned for the Partnership's property is detailed below.
Highland Park Commerce Center
During the nine months ended September 30, 2001, the Partnership completed
approximately $31,000 in capital improvements at Highland Park Commerce Center
consisting of tenant improvements. These improvements were funded from operating
cash flow. Highland Park Commerce Center was sold on October 23, 2001 to an
unrelated third party.
In addition to its indirect ownership of the general partner interest in the
Partnership, AIMCO and its affiliates owned 3,870 limited partnership units in
the Partnership representing 6.26% of the outstanding units at September 30,
2001. AIMCO and its affiliates also own 8,837 Notes representing 8.95% of the
outstanding notes at September 30, 2001.
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
In March 1998, several putative unit holders of limited partnership units of the
Partnership commenced an action entitled Rosalie Nuanes, et al. v. Insignia
Financial Group, Inc., et al. (the "Nuanes action") in the Superior Court of the
State of California for the County of San Mateo. The plaintiffs named as
defendants, among others, the Partnership, its Managing General Partner and
several of their affiliated partnerships and corporate entities. The action
purports to assert claims on behalf of a class of limited partners and
derivatively on behalf of a number of limited partnerships (including the
Partnership) which are named as nominal defendants, challenging, among other
things, the acquisition of interests in certain general partner entities by
Insignia Financial Group, Inc. ("Insignia") and entities which were, at one
time, affiliates of Insignia; past tender offers by the Insignia affiliates to
acquire limited partnership units; management of the partnerships by the
Insignia affiliates; and the series of transactions which closed on October 1,
1998 and February 26, 1999 whereby Insignia and Insignia Properties Trust,
respectively, were merged into AIMCO. The plaintiffs seek monetary damages and
equitable relief, including judicial dissolution of the Partnership. On June 25,
1998, the Managing General Partner filed a motion seeking dismissal of the
action. In lieu of responding to the motion, the plaintiffs filed an amended
complaint. The Managing General Partner filed demurrers to the amended complaint
which were heard February 1999.
Pending the ruling on such demurrers, settlement negotiations commenced. On
November 2, 1999, the parties executed and filed a Stipulation of Settlement,
settling claims, subject to court approval, on behalf of the Partnership and all
limited partners who owned units as of November 3, 1999. Preliminary approval of
the settlement was obtained on November 3, 1999 from the Court, at which time
the Court set a final approval hearing for December 10, 1999. Prior to the
December 10, 1999 hearing, the Court received various objections to the
settlement, including a challenge to the Court's preliminary approval based upon
the alleged lack of authority of prior lead counsel to enter the settlement. On
December 14, 1999, the Managing General Partner and its affiliates terminated
the proposed settlement. In February 2000, counsel for some of the named
plaintiffs filed a motion to disqualify plaintiff's lead and liaison counsel who
negotiated the settlement. On June 27, 2000, the Court entered an order
disqualifying them from the case and an appeal was taken from the order on
October 5, 2000. On December 4, 2000, the Court appointed the law firm of Lieff
Cabraser Heimann & Bernstein LLP as new lead counsel for plaintiffs and the
putative class. Plaintiffs filed a third amended complaint on January 19, 2001.
On March 2, 2001, the Managing General Partner and its affiliates filed a
demurrer to the third amended complaint. On May 14, 2001, the Court heard the
demurrer to the third amended complaint. On July 10, 2001, the Court issued an
order sustaining defendants' demurrer on certain grounds. On July 20, 2001,
plaintiffs filed a motion for reconsideration of the Court's July 10, 2001 order
granting in part and denying in part defendants' demurrer. On September 7, 2001,
plaintiffs filed a fourth amended class and derivative action complaint. On
September 12, 2001, the Court denied plaintiffs' motion for reconsideration. On
October 5, 2001, the Managing General Partner and affiliated defendants filed a
demurrer to the fourth amended complaint, which, together with a demurrer filed
by other defendants, is currently scheduled to be heard on November 15, 2001.
The Court has set the matter for trial in January 2003.
During the third quarter of 2001, a complaint (the "Heller action") was filed
against the same defendants that are named in the Nuanes action, captioned
Heller v. Insignia Financial Group. On or about August 6, 2001, plaintiffs filed
a first amended complaint. The first amended complaint in the Heller action is
brought as a purported derivative action, and asserts claims for among other
things breach of fiduciary duty; unfair competition; conversion, unjust
enrichment; and judicial dissolution. Plaintiffs in the Nuanes action filed a
motion to consolidate the Heller action with the Nuanes action and stated that
the Heller action was filed in order to preserve the derivative claims that were
dismissed without leave to amend in the Nuanes action by the Court order dated
July 10, 2001. On October 5, 2001, the Managing General Partner and affiliated
defendants moved to strike the first amended complaint in its entirety for
violating the Court's July 10, 2001 order granting in part and denying in part
defendants' demurrer in the Nuanes action, or alternatively, to strike certain
portions of the complaint based on the statute of limitations. Other defendants
in the action demurred to the fourth amended complaint, and, alternatively,
moved to strike the complaint. The matters are currently scheduled to be heard
on November 15, 2001.
The Managing General Partner does not anticipate that any costs, whether legal
or settlement costs, associated with these cases will be material to the
Partnership's overall operations.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
a) Exhibits:
Exhibit 10.18, Purchase and Sale Contract dated April 26, 2001
between, Century Properties Fund XX, a California limited
partnership and Century Pension Income Fund XXIII, a
California limited partnership, as sellers, and High
Investors, Ltd., as purchaser.
Exhibit 10.19, Amendment to Purchase and Sale Contract dated
September 24, 2001 between, Century Properties Fund XX, a
California limited partnership and Century Pension Income Fund
XXIII, a California limited partnership, as sellers, and High
Investors, Ltd., as purchaser.
b) Reports on Form 8-K:
None filed during the quarter ended September 30, 2001.
SIGNATURES
In accordance with the requirements of the Exchange Act, the Registrant caused
this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
CENTURY PROPERTIES FUND XX
By: FOX PARTNERS III
Its General Partner
By: FOX CAPITAL MANAGEMENT CORPORATION
Its Managing General Partner
By: /s/Patrick J. Foye
Patrick J. Foye
Executive Vice President
By: /s/Martha L. Long
Martha L. Long
Senior Vice President
and Controller
Date:
PURCHASE AND SALE CONTRACT
BETWEEN
CENTURY PROPERTIES FUND XX,
a California limited partnership
AND
CENTURY PENSION INCOME FUND XXIII,
a California limited partnership
Collectively, AS SELLER
AND
HIGH INVESTORS, LTD.,
a Pennsylvania corporation
AS PURCHASER
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT ("Purchase Contract") is entered into as
of the twenty-sixth day of April, 2001 (the "Effective Date") by and between
CENTURY PROPERTIES FUND XX, a California limited partnership ("Century XX"), and
CENTURY PENSION INCOME FUND XXIII, a California limited partnership ("Century
XXIII"), having a principal address at Tower Two, 2000 South Colorado Boulevard,
Suite 2-1000, Denver, Colorado 80222 (collectively, the "Seller") and HIGH
INVESTORS, LTD., a Pennsylvania corporation, having a principal address at 1853
William Penn Way, Lancaster, Pennsylvania 17605-0008 (the "Purchaser").
NOW, THEREFORE WITNESSETH: That for and in consideration of mutual
covenants and agreements hereinafter set forth, Seller and Purchaser hereby
agree as follows:
RECITALS
R-1. CENTURY XX holds legal title to the real estate located in
Mecklenburg County, North Carolina, as more particularly described in Exhibit
A-1 attached hereto and made a part hereof ("Highland I & II"). CENTURY XXIII
holds legal title to the real estate located in Mecklenburg County, North
Carolina, as more particularly described in Exhibit A-2 attached hereto and made
a part hereof ("Highland III"). Improvements have been constructed on the
parcels 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 to Purchaser.
R-3. Purchaser has agreed to pay to Seller the Purchase Price for the
Property, and Seller has agreed to sell the Property to Purchaser, on the
terms and conditions set forth below.
R-4. Purchaser intends to make investigations regarding the Property,
and Purchaser's intended uses of each of the Property as Purchaser deems
necessary and desirable.
ARTICLE 1
DEFINED TERMS
1.1 Unless otherwise defined herein, terms with initial capital letters in this
Purchase Contract shall have the meanings set forth in this Article 1 below.
1.1.1 "Business Day" means any day other than a Saturday or Sunday or Federal
holiday or legal holiday in the State of North Carolina.
1.1.2 "Closing" means the consummation of the purchase and sale and related
transactions contemplated by this Purchase Contract in accordance with the terms
and conditions of this Purchase Contract.
1.1.3 "Closing Date" means the date on which date the Closing of the conveyance
of the Property is required to be held under the terms and conditions of this
Purchase Contract and on which date full payment of the Purchase Price for the
Property shall have been paid to and received by Seller in immediately available
U.S. funds.
1.1.4 "Commercial Lease(s)" means the interest of Seller in and to all leases,
subleases and other occupancy agreements, whether or not of record, which
provide for the use or occupancy of space or facilities on or relating to the
Property and which are in force as of the Effective Date for the applicable
Property.
1.1.5 "Excluded Permits" means those Permits which, under applicable law, are
nontransferable and such other Permits as may be designated as Excluded Permits
on Exhibit 1.1.5, if any, attached hereto.
1.1.6 Intentionally Omitted.
1.1.7 "Fixtures and Tangible Personal Property" means all fixtures, furniture,
furnishings, fittings, equipment, machinery, apparatus, appliances and other
articles of tangible personal property now located on the Land or in the
Improvements as of the date of this Purchase Contract and used or usable in
connection with any present or future occupation or operation of all or any part
of the Property. The term "Fixtures and Tangible Personal Property" does not
include (i) equipment leased by Seller and the interest of Seller in any
equipment provided to the Property for use, but not owned or leased, by Seller,
or (ii) property owned or leased by Tenants and guests, employees or other
persons furnishing goods or services to the Property, or (iii) property and
equipment owned by Seller, which in the ordinary course of business of the
Property is not used exclusively for the business, operation or management of
the Property or (iv) the property and equipment, if any, expressly identified in
Exhibit 1.1.7.
1.1.8 "Improvements" means all buildings and improvements, located on the Land
taken "as is".
1.1.9 "Land" means all of those certain tracts of land located in the State of
North Carolina described on Exhibits A-1 and A-2 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 (other than rent receivables, which
are subject to proration), (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. The term "Miscellaneous Property Assets" shall also include Seller's
rights, if any, in and to the name "HIGHLAND PARK COMMERCE CENTER."
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 (a) the Land, (b) the Improvements, (c) 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; (d) all Fixtures, (e) the Tangible Personal
Property, (f) the right, if any and only to the extent transferable, of Seller
in and to Property Contracts, (g) the Commercial Leases, (h) Permits other than
Excluded Permits, and (i) 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 6.11.
1.1.18 "Tenant" means any person or entity entitled to occupy any portion of the
Property under a Commercial Lease.
1.1.19 "Title Commitment" or "Title Commitments" shall have the meaning ascribed
thereto in Section 6.1.
1.1.20 "Title Insurer" shall have the meaning set forth in Section 6.1.
ARTICLE 2
PURCHASE AND SALE OF PROPERTY
2.1 Seller agrees to sell and convey the Property to Purchaser and Purchaser
agrees to purchase the Property from Seller, in accordance with the terms and
conditions set forth in this Purchase Contract.
ARTICLE 3
PURCHASE PRICE & DEPOSIT
3.1 The total purchase price ("Purchase Price") for the Property shall be Nine
Million Four Hundred Fifty Thousand and no/100 Dollars ($9,450,000.00) (which
consists of $5,831,000.00 for Highland I and II and $3,619,000.00 for Highland
III), which shall be paid by Purchaser, as follows:
3.1.1 On the date hereof,
Purchaser shall deliver to First American Title Insurance Company ("Escrow
Agent" or the "Title Insurer") a deposit in the sum of One Hundred Fifty
Thousand and No/100 Dollars ($150,000.00), 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 If Purchaser exercises Purchaser's Closing Extension Option (as
hereinafter defined) to extend the Closing, Purchaser shall deliver to Escrow
Agent the additional sum of One Hundred Fifty Thousand and No/100 Dollars
($150,000.00), in cash (such additional sum being hereinafter referred to and
held as the "Closing Extension Option Deposit.")
3.1.3 The Escrow Agent shall
hold the Deposit and the Closing Extension Option Deposit (to the extent then
paid) and make delivery of the Deposit and the Closing Extension Option Deposit
to the party entitled thereto under the terms hereof. Escrow Agent shall invest
the Deposit in such short-term, FDIC-insured, interest-bearing bank accounts, or
bank certificates of deposit as Escrow Agent, in its discretion, deems suitable,
(provided that Escrow Agent shall invest the Deposit and the Closing Extension
Option Deposit as jointly directed by Seller and Purchaser should Seller and
Purchaser each in their respective sole discretion determine to issue such joint
investment instructions to the Escrow Agent) and all interest and income thereon
shall become part of the Deposit and the Closing Extension Option Deposit and
shall be remitted to the party entitled to the Deposit and the Closing Extension
Option Deposit, as set forth below.
3.1.4 If the sale of the Property is closed
by the date fixed therefor (or any extension date provided for by the mutual
written consent of the parties hereto, given or withheld in their respective
sole discretion), monies held as the Deposit and the Closing Extension Option
Deposit (to the extent paid) shall be applied to the Purchase Price on the
Closing Date. If the sale of the Property is not closed by the date fixed
therefor (or any such extension date) owing to failure of satisfaction of a
condition precedent to Purchaser's obligations, or Purchaser's termination of
this Purchaser Contract pursuant to Section 5.2, the Deposit and the Closing
Extension Option Deposit shall be returned and refunded to Purchaser, and
neither party shall have any further liability hereunder, subject to and except
for Purchaser's liability under Section 5.3.
3.1.5 If the sale of the Property
is not closed by the date fixed therefor (or any such extension date) owing to
failure of performance by Seller, Purchaser shall be entitled to the remedies
set forth in ARTICLE 12 hereof. If the sale of the Property is not closed by the
date fixed therefor (or any such extension date) owing to failure of performance
by Purchaser, the Deposit 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, and except for recovery under Section 5.3 hereunder, shall be
Seller's sole remedy (whether in law or in equity) on account of Purchaser's
termination of this Purchase Contract or default hereunder on or prior to the
Closing Date.
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 five (35) calendar
days following the Effective Date (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, title review, the Survey (as hereinafter defined), engineering and
feasibility studies, evaluation of drainage and flood plain, soil tests for
bearing capacity and percolation and surveys, including topographical surveys).
5.1.2 To confirm any and all matters which Purchaser may reasonably desire to
confirm with respect to the Property.
5.1.3 To ascertain and confirm the
suitability of the property for Purchaser's intended use of the Property.
5.1.4 To review all Materials (as hereinafter defined) other than Seller's
proprietary information.
5.2 Should the results of any of the matters referred
to in sub-paragraphs 5.1.1, 5.1.2, 5.1.3 and 5.1.4 above appear unsatisfactory
to Purchaser for any reason, then Purchaser shall have the right to terminate
this Purchase Contract by giving written Notice to that effect to Seller and
Escrow Agent on or before 5:00 p.m. EST on the date of expiration of the
Feasibility Period. If Purchaser exercises such right to terminate, this
Purchase Contract shall terminate and be of no further force and effect, subject
to and except for Purchaser's liability under Section 5.3, and Escrow Agent
shall forthwith deliver the Quitclaim Deed of all of Purchaser's right and
interest in the Property to Seller, and then promptly return the Deposit to
Purchaser. If Purchaser fails to provide Seller with written Notice of
cancellation prior to the end of the Feasibility Period in strict accordance
with the Notice provisions of this Purchase Contract, the forgoing right of
termination shall be deemed waived and 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. Notwithstanding
anything in this Purchase Contract to the contrary, Purchaser shall be entitled
to terminate this Purchase Contract prior to the expiration of the Feasibility
Period for any reason whatsoever, with or without cause, as determined by
Purchaser in its sole and absolute discretion.
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 are reflected on the
certificate of insurance heretofore provided by Purchaser to 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 five (5) calendar days from the
Effective Date copies of all leases, contracts, engineering studies, surveys,
environmental studies, reports and test results, if any, the most recent title
policies (including copies of exception documents) and other materials (the
"Materials") to the extent in Seller's possession or control relating to the
Property (other than proprietary information of Seller). If the sale of the
Property is not closed by the date fixed therefor, Purchaser shall, within five
(5) calendar days, return all such Materials to Seller.
ARTICLE 6
TITLE
6.1 Purchaser shall promptly secure a commitment for title insurance for the
Property in an amount equal to the Purchase Price ("Title Commitment") issued by
First American Title Insurance Company, 801 East Morehead Street, Suite 301,
Charlotte, North Carolina, 28202, Facsimile (704) 334-0768, Attention Will Webb
("Title Insurer") for an owner's title insurance policy on the most recent
standard American Land Title Association ("ALTA") Policy form, together with
legible copies of all instruments identified as exceptions therein and shall
cause a copy thereof to be delivered to Seller during the Feasibility Period.
Purchaser agrees that it shall be solely responsible for payment of all costs
relating to procurement of the Title Commitment and any Owner title policy.
Purchaser hereby agrees to pay at Closing to Fidelity National Title Insurance
Company the cancellation fees of Fidelity National Title Insurance Company in
the amount of $500.00, for title work on the Property previously ordered by
Seller, which fee shall be reflected on the final transaction settlement
statement as a debit against Purchaser. Purchaser shall have until the
expiration of the Feasibility Period in which to examine title to the Property
to review the Title Commitment and the Survey (as hereinafter defined). Prior to
the expiration of the expiration of the Feasibility Period, Purchaser shall
notify Seller in writing of any liens, encumbrances or adverse condition to
title, or matters of survey, which are unacceptable to Purchaser (collectively,
the "Title Objections"). Unless Purchaser notifies Seller in writing prior to
the expiration of the Feasibility Period of any Title Objections, Purchaser
shall be deemed to be satisfied as of the conclusion of the Feasibility Period
with the condition of title to the Property and the Survey. In the event
Purchaser notifies Seller of any Title Objections, Seller shall have the option,
but not the obligation, to cure or otherwise satisfy the Title Objections in a
manner acceptable to Purchaser and in accordance with Sections 6.7 and 6.8
hereof, at Seller's sole cost and expense. If Seller does not elect to cure any
Title Objections, the provisions of Section 6.8 hereof shall apply. In addition,
during the Feasibility Period, Purchaser shall be entitled to identify as Title
Objections such affirmative title insurance coverages or special endorsements as
determined necessary by Purchaser, or Purchaser's designee, for which Seller
shall use its best efforts to cause Title Insurer to provide, provided any
premium charge for such affirmative title insurance coverages or special
endorsements as determined necessary by Purchaser, or Purchaser's designee,
shall be at Purchaser's sole cost and expense, and provided further that such
affirmative title insurance coverages or special endorsements shall not require
any undertakings or indemnities from Seller.
6.2 Purchaser agrees to accept title to the Land and Improvements, so long as
the same is insurable at ordinary rates and any conveyance by special warranty
deed pursuant to this Purchase Contract shall be subject to the following, all
of which shall be deemed "Permitted Exceptions," but only to the extent the same
are approved by Purchaser in accordance with Section 6.1 above, and Purchaser
agrees to accept the deed and title subject thereto:
6.2.1 All exceptions shown in the Title Commitment and approved by Purchaser
(other than mechanics' liens and taxes due and payable in respect of the period
preceding Closing); and
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, lease, tenancy and similar
agreement, if any, entered into in the ordinary course of business and reflected
on the rent roll delivered by Seller at Closing; and
6.2.4 All Property Contracts and any other existing contracts created in the
ordinary course of business by Seller and disclosed to Purchaser prior to the
end of the Feasibility Period, which are not identified for termination by
Purchaser during the Feasibility Period; and
6.2.5 Real estate and property taxes for the calendar year in which closing
occurs to the extent not due and payable; and
6.2.6 All matters of public record which are shown in the Title Commitment (to
the extent approved by Purchaser).
6.3 The existence of other mortgages, liens, or encumbrances shall not be
objections to title, provided that properly executed instruments in recordable
form necessary to satisfy and remove the same of record are delivered to the
Purchaser at Closing or, in the alternative, with respect to any mortgage or
deed of trust liens, that payoff letters from the holder of the mortgage or deed
of trust liens shall have been delivered to and accepted by the Title Insurer
(sufficient to remove the same from the policy issued at Closing), together in
either case, with recording and/or filing fees. Seller shall take all reasonable
actions required to cause the foregoing to be delivered in a timely manner.
6.4 Unpaid liens for taxes, charges, and assessments shall not be objections to
title, so long as 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, and the same are paid off at Closing and the
exceptions therefor are removed from the Title Commitment at Closing, subject to
the provisions for apportionment of taxes and charges contained in ARTICLE 7
herein.
6.5 Unpaid franchise or business corporation taxes of any corporations in the
chain of title shall not be an objection to title, provided that the Title
Insurer agrees to insure against collection out of the property or otherwise
against Purchaser or its affiliates, and provided further that the Title Insurer
agrees to omit such taxes as exceptions to coverage with respect to any lender's
mortgagee insurance policy.
6.6 If on the Closing Date there shall be conditional bills of sale or Uniform
Commercial Code financing statements that were filed on a day more than five (5)
years prior to such Closing, and such financing statements have not been
extended by the filing of UCC-3 continuation statements within the past five (5)
years prior to such Closing, such financing statements shall not be deemed an
objection to title.
6.7 If on the Closing Date, the state of title is other than in accordance with
the requirements set forth in this Purchase Contract or if any condition to be
fulfilled by Seller under this ARTICLE 6 shall not be satisfied, and provided
Purchaser has actual knowledge thereof, Purchaser shall provide Seller with
written Notice thereof at such time, or such title objection or unfulfilled
title condition shall (of which Purchaser has actual knowledge) be deemed waived
by Purchaser in which case Purchaser and Seller shall proceed to consummate the
Closing on the Closing Date. If Purchaser timely gives Seller such Notice,
Seller at its sole option and upon Notice to Purchaser within seven (7) calendar
days following receipt of such Notice may elect to cure such objection or
unfulfilled condition for up to ninety (90) calendar days. Should Seller be able
to cure such title objection by the Closing Date or any postponed Closing Date,
or should Purchaser waive such objection or condition within such period for
cure, then the Closing shall take place on or before thirty (30) calendar days
after Notice of such cure or waiver.
6.8 If Seller does not elect to cure such objection or unfulfilled condition or
during the period of cure Seller is unable or unwilling, in its sole discretion
or opinion, to eliminate such title objection or 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 and
Closing Extension Option Deposit (if then paid) shall be immediately returned to
Purchaser.
6.9 Seller covenants that it will not voluntarily create or cause any lien or
encumbrance to attach to the Property between the date of this Purchase Contract
and the Closing Date (other than Commercial Leases and Property Contracts in the
ordinary course of business); any such monetary lien or encumbrance so attaching
by voluntary act of Seller shall be discharged by the Seller at or prior to
Closing on the Closing Date or any postponed Closing Date. Except as expressly
provided above, Seller shall not be required to undertake efforts to remove any
other lien, encumbrance, security interest, exception, objection or other
matter, to make any expenditure of money or institute litigation or any other
judicial or administrative proceeding and Seller may elect not to discharge the
same.
6.10 Anything to the contrary notwithstanding, Purchaser shall not have
any right to terminate this Purchase Contract or object to any lien,
encumbrance, exception or other matter that is a Permitted Exception, that has
been waived or deemed to have been waived by Purchaser.
6.11 Seller shall deliver to Purchaser a copy of the existing survey of the
Property prepared by R.B. Pharr & Associates, P.A. Surveying & Mapping, dated
March 22, 2001, file no. W-2660, Job No. 53109 ("Survey"). Purchaser shall
reimburse Seller at Closing for any costs and expenses incurred to secure such
Survey. Seller shall pay for the costs to update such Survey; provided, however,
that (a) Seller shall not be responsible for payment of subsequent Survey
updates in excess of $3,000.00, and (b) Purchaser agrees that Purchaser shall be
responsible for payment of any survey updates in excess of $3,000.00.
Notwithstanding the foregoing, Purchaser shall not be responsible for
reimbursing Seller for Seller's costs and expenses to secure such Survey in the
event this Purchase Contract is terminated hereunder. 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; (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 Survey Costs to obtain
and/or update the Survey required by this Purchase Contract (to the extent set
forth in Subsection 6.11 above) on or before Closing or termination of this
Purchase Contract.
ARTICLE 7
CLOSING
7.1 Dates, Places Of Closing, Prorations, Delinquent Rent and Closing Costs.
7.1.1 The Closing shall occur no later than thirty (30) calendar days after the
expiration of the Feasibility Period, through an escrow with the Title Insurer,
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. Additionally, the original Closing
Date may be extended at the option of Purchaser (the "Extension Option") to a
date not later than thirty (30) calendar days following the original Closing
Date specified above upon the satisfaction of, and subject to, the following
conditions: (i) concurrently with the delivery of the Extension Notice (defined
below), Purchaser shall deliver to Escrow Agent the Closing Extension Option
Deposit; (ii) Purchaser shall not have breached any of its obligations
hereunder; and (iii) all of Purchaser's representations and warranties contained
in Section 8.2 hereof shall be true and correct as of the date on which
Purchaser notifies Seller and Escrow Agent of Purchaser's exercise of its
Extension Option. Purchaser's Extension Option shall be exercised, if at all, by
prior written notice to Seller and Escrow Agent (the "Extension Notice"),
received no later than five (5) Business Days prior to the expiration of the
original scheduled Closing Date.
7.1.3 The Closing Extension Option Deposit
shall be credited toward the Purchase Price at the Closing, and shall be
non-refundable when paid, except in the event the sale of the Property is not
consummated due to a default by Seller.
7.1.4 All normal and customarily proratable items, including, without
limitation, Rents (as defined below), operating expenses, personal property
taxes, other operating expenses and fees, shall be prorated as of the Closing
Date, Seller being charged or credited, as appropriate, for all of same
attributable to the period up to the Closing Date (and credited for any amounts
paid by Seller attributable to the period on or after the Closing Date, if
assumed by Purchaser) and Purchaser being responsible for, and credited or
charged, as the case may be, for all of same attributable to the period on and
after the Closing Date. All unapplied deposits under Tenant leases, if any,
shall be transferred by Seller to Purchaser at the Closing. Purchaser shall
assume at Closing the obligation to pay any accrued but unpaid tenant
improvement allowances and leasing commissions under commercial leases executed
after the Effective Date in accordance with Section 9.1.5, together with any
payments due parties to other agreements affecting the Property which survive
Closing or under the Property Contracts assumed by Purchaser, provided that any
payments under the Property Contracts have been prorated, unless Purchaser
notifies Seller in writing on or before the expiration of the Feasibility Period
describing (a) the Property Contracts which Purchaser requests that Seller
terminate on or before the expiration of the Closing Date, to the extent
terminable without penalty and (b) the Property Contracts which Purchaser
intends to assume at Closing. Any real estate ad valorem or similar taxes for
the Property, or any installment of assessments payable in installments which
installment is payable in the calendar year of Closing, shall be prorated to the
date of Closing, based upon actual days involved. The proration of real property
taxes or installments of assessments shall be based upon the assessed valuation
and tax rate figures for the year in which the Closing occurs to the extent the
same are available; provided, that in the event that actual figures (whether for
the assessed value of the Property or for the tax rate) for the year of Closing
are not available at the Closing Date, the proration shall be made using figures
from the preceding year. The proration shall be final and unadjustable except as
provided in the following paragraph. For purposes of this Section 7.1.3 and
Sections 7.1.5 and 7.1.6, 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).
7.1.5 If any of the items subject to
proration hereunder cannot be prorated at the Closing because the information
necessary to compute such proration is unavailable, or if any errors or
omissions in computing prorations at the Closing are discovered subsequent to
the Closing, then such item shall be reapportioned and such errors and omissions
corrected as soon as practicable after the Closing Date and the proper party
reimbursed, which obligation shall survive the Closing for a period (the
"Proration Period") from the Closing Date until one (1) year after the Closing
Date. Neither party hereto shall have the right to require a recomputation of a
Closing proration or a correction of an error or omission in a Closing proration
unless within the Proration Period one of the parties hereto (i) has obtained
the previously unavailable information or has discovered the error or omission,
and (ii) has given Notice thereof to the other party together with a copy of its
good faith recomputation of the proration and copies of all substantiating
information used in such recomputation. The failure of a party to obtain any
previously unavailable information or discover an error or omission with respect
to an item subject to proration hereunder and to give Notice thereof as provided
above within the Proration Period shall be deemed a waiver of its right to cause
a recomputation or a correction of an error or omission with respect to such
item after the Closing Date. Any Rents that have accrued, but have not yet been
paid shall be prorated in accordance with estimates based upon the prior years'
information (or reasonable estimates of Seller if no such prior years'
information is available), and shall be subsequently readjusted and
reapportioned upon receipt. Purchaser shall pay Seller for Rents that have
accrued, but are not yet due and payable, at Closing.
7.1.6 If on the Closing
Date any Tenant is in arrears in any Rent payment under any Tenant lease (the
"Delinquent Rent"), any Delinquent Rent received by Purchaser and Seller from
such Tenant after the Closing shall be applied to amounts due and payable by
such Tenant during the following periods in the following order of priority: (i)
first, to the period of time before the Closing Date, and (ii) second, to the
period of time after the Closing Date. If Delinquent Rent or any portion thereof
received by Seller or Purchaser after the Closing are due and payable to the
other party by reason of this allocation, the appropriate sum, less a
proportionate share of any reasonable attorneys' fees and costs and expenses
expended in connection with the collection thereof, shall be promptly paid to
the other party. Any monies received by Seller after closing shall be forwarded
to Purchaser for disbursement in accordance with the order of payment provided
herein above. After the Closing, Seller shall continue to have the right, but
not the obligation, in its own name, to demand payment of and to collect
Delinquent Rent owed to Seller by any Tenant, which right shall include, without
limitation, the right to continue or commence legal actions or proceedings
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 General 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 7.1.6 shall apply during the
Proration Period.
7.1.7 Upon Closing, Seller shall pay the cost of all transfer
taxes (e.g., excise stamp taxes) and recording costs with respect to the release
of any of Seller's mortgages, mechanics' liens, or deed of trust liens, and
Purchaser shall pay the costs associated with the recordation of the Special
Warranty Deed (as hereinafter defined) and any required documents to be recorded
in connection with Purchaser's financing of the Property (pursuant to the terms
of Section 4.1 herein). Seller and Purchaser shall share equally in the costs of
the Escrow Agent for escrow fees. Purchaser shall pay the cost of the Title
Commitment and any title policies.
7.2 Items To Be Delivered Prior To Or At Closing.
7.2.1 Seller. At Closing, Seller shall deliver to Escrow Agent, each of the
following items:
7.2.1.1 Special Warranty Deed in the form attached as Exhibit
7.2.1.1 to Purchaser. The acceptance of such deed at Closing, shall be deemed to
be full performance of, and discharge of, every agreement and obligation on
Seller's part to be performed under this Purchase Contract, except for those
that this Purchase Contract specifically provides shall survive Closing.
7.2.1.2 A Bill of Sale 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 A General Assignment (to the extent assignable and in force
and effect) in the form attached as Exhibit 7.2.1.3 of all of Seller's right,
title and interest in and to the Miscellaneous Property Assets, subject to any
required consents. Purchaser shall countersign the same so as to effect an
assumption by Purchaser, including, without limitation, of Seller's obligations
thereunder.
7.2.1.4 A closing statement executed by Seller.
7.2.1.5 A vendor's affidavit or at Seller's option an indemnity, as applicable,
in the customary form reasonably acceptable to Seller to enable Title Insurer to
delete the standard exceptions to the title insurance policy set forth in this
Purchase Contract (other than matters constituting any Permitted Exceptions and
matters which are to be completed or performed post-Closing) to be issued
pursuant to the Title Commitment; provided that such affidavit does not subject
Seller to any greater liability, or impose any additional obligations, other
than as set forth in this Purchase Contract; and
7.2.1.6 A certification of Seller's non-foreign status pursuant to Section 1445
of the Internal Revenue Code of 1986, as amended.
7.2.1.7 Estoppel certificates (the "Tenant Estoppels") in the form attached
hereto as Exhibit 9.1.4, or in the form described or contemplated in the
respective Tenant leases in accordance with the requirements set forth in
Section 9.1.4 of this Purchase Contract.
7.2.1.8 A rent roll of the Tenant leases certified to the best of Seller's
knowledge, to be true and correct as of the Closing Date.
7.2.1.9 An original resolution of Seller, in the form provided by Seller and
satisfactory to Title Insurer, authorizing the execution of this Purchase
Contract, the conveyance documents and all other documents to be executed by
Seller and the performance by Seller hereunder and thereunder together with a
good standing certificate of Seller.
7.2.1.10 Evidence of the termination of any management agreement with
any property manager of the Property.
7.2.1.11 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.
7.2.1.12 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 General 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, good and marketable, fee simple
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;
8.1.1.8 To Seller's knowledge, all documents relating to the
Property that were delivered by Seller to Purchaser in connection with this
Purchase Contract, are true and accurate.
8.1.1.9 To Seller's knowledge, the information set forth on the rent roll
attached hereto as Exhibit 8.1.1.9 (the "Rent Roll") is complete and accurate as
of the date hereof.
8.1.2 Except for the representations and warranties expressly set forth above in
Subsection 8.1.1 and in the special warranty deed, 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 (a) Purchaser
shall have the benefit of the representations and warranties set forth in this
Agreement or in the special warranty deed, and (b) is not relying upon any other
information provided by Seller or Seller's Broker or other statements,
representations or warranties, express or implied, made by or enforceable
directly against Seller or Seller's Broker, including, without limitation, any
relating to the value of the Property, the physical or environmental condition
of the Property, any state, federal, county or local law, ordinance, order or
permit; or the suitability, compliance or lack of compliance of the Property
with any regulation, or any other attribute or matter of or relating to the
Property (other than any covenants of title contained in the deeds conveying the
Property and the representations set forth above). Purchaser represents and
warrants that as of the date hereof and as of the Closing Date, it has and shall
have reviewed and conducted such independent analyses, studies, reports,
investigations and inspections as it deems appropriate in connection with the
Property. If Seller provides or has provided any documents, summaries, opinions
or work product of consultants, surveyors, architects, engineers, title
companies, governmental authorities or any other person or entity with respect
to the Property, including, without limitation, the offering prepared by
Seller's Broker, Purchaser and Seller agree that Seller has done so or shall do
so only for the convenience of both parties, Purchaser shall not rely thereon
and the reliance by Purchaser upon any such documents, summaries, opinions or
work product shall not create or give rise to any liability of or against
Seller, Seller's partners or affiliates or any of their respective partners,
officers, directors, participants, employees, contractors, attorneys,
consultants, representatives, agents, successors, assigns or
predecessors-in-interest. 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 and
warranties contained in Section 8.1 shall survive Closing for a period of one
(1) year (that is, any proceeding based on the breach of a representation
contained in Section 8.1 that survives Closing must be commenced within one (1)
year subsequent to the date of such representation). In the event that Seller
breaches any representation contained in Section 8.1 and Purchaser had actual
knowledge of such breach, Purchaser shall be deemed to have waived any right of
recovery and Seller shall not have any liability in connection therewith.
8.1.4 Representations and warranties above made to the knowledge of Seller shall
not be deemed to imply any duty of inquiry. For purposes of this Purchase
Contract, the term Seller's "knowledge" shall mean and refer to only actual
knowledge of the Designated Representative (as hereinafter defined) of the
Seller and shall not be construed to refer to the knowledge of any other
partner, officer, director, agent, employee or representative of the Seller, or
any affiliate of the Seller, or to impose upon such Designated Representative
any duty to investigate the matter to which such actual knowledge or the absence
thereof pertains, or to impose upon such Designated Representative any
individual personal liability. As used herein, the term Designated
Representative shall refer to to Ms. Vicki Webster, Metric Property Management,
(770) 988-9510, extension 18.
8.1.5 Notwithstanding any terms herein to the contrary, in no
event shall the terms of this Purchase Contract limit, modify or effect the
warranties expressly set forth (or implied by law) in the special warranty deed.
8.2 Representations And Warranties Of Purchaser
8.2.1 For the purpose of
inducing Seller to enter into this Purchase Contract and to consummate the sale
and purchase of the Property in accordance herewith, Purchaser represents and
warrants to Seller the following as of the Effective Date and as of the Closing
Date:
8.2.2 With respect to Purchaser and its business, Purchaser represents and
warrants, in particular, that:
8.2.2.1 Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of Pennsylvania.
8.2.2.2 Purchaser, acting through any of its or their duly empowered and
authorized partners, 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 partners, 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 partners, 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 partnership agreements, 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 otherwise noted in Section 10.1 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.
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 Within five (5) days prior to the end of the Feasibility Period, Seller
shall use its best efforts to deliver to Purchaser Tenant Estoppels in the form
attached hereto as Exhibit 9.1.4, or in the form described or contemplated in
the Lease, from at least seventy percent (70%) of the tenants.
9.1.5 Notwithstanding anything to the contrary, there are no other conditions on
Purchaser's obligation to Close except as expressly set forth above.
9.2 Without limiting any of the rights of Seller elsewhere provided for in this
Purchase Contract, Seller's obligation to close with respect to conveyance of a
particular Property under this Purchase Contract shall be subject to and
conditioned upon the fulfillment of each and all of the following conditions
precedent:
9.2.1 Purchaser's representations and warranties set forth in this
Purchase Contract shall have been true and correct in all material respects when
made, and shall be true and correct in all material respects on the Closing Date
and as of the Effective Date as though such representations and warranties were
made at and as of such date and time.
9.2.2 Purchaser shall have fully performed
and complied with all covenants, conditions, and other obligations in this
Purchase Contract to be performed or complied with by it at or prior to Closing
including, without limitation, payment in full of the Purchase Price.
9.2.3 There shall not be pending or, to the knowledge of either Purchaser or
Seller, any litigation or threatened litigation which, if determined adversely,
would restrain the consummation of any of the transactions contemplated by this
Purchase Contract or declare illegal, invalid or nonbinding any of the covenants
or obligations of the Purchaser.
9.2.4 If applicable, Purchaser shall have
produced evidence reasonably satisfactory to Seller of Purchaser's compliance
with Hart-Scott-Rodino Act requirements or of the non-applicability thereof to
the transactions contemplated by this Purchase Contract.
ARTICLE 10
BROKERAGE
10.1 Seller represents and warrants to Purchaser that it has dealt only with
Pinnacle Realty Management Company, 7316 Wisconsin Avenue, Suite 300, Bethesda,
Maryland 20814-2925 ("Seller's Broker"). Purchaser represents and warrants to
Seller that it has dealt only with Commercial Carolina in connection with this
Purchase Contract ("Purchaser's Broker"). Seller and Purchaser each represents
and warrants to the other that other than Seller's Broker and Purchaser's
Broker, it has not dealt with or utilized the services of any other real estate
broker, sales person or finder in connection with this Purchase Contract, and
each party agrees to indemnify the other party from and against all claims for
brokerage commissions and finder's fees arising from or attributable to the acts
or omissions of the indemnifying party.
10.2 Seller agrees to pay Seller's
Broker a commission according to the terms of a separate agreement. Purchaser
agrees to pay Purchaser's Broker a commission according to the terms of a
separate agreement. Neither Seller's Broker nor Purchaser's Broker shall be
deemed a party or third party beneficiary of this Purchase Contract.
10.3 Neither Seller's Broker nor Purchaser's Broker 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 and the Closing Extension Option Deposit (if then paid). 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 default by Purchaser hereunder, this Purchase Contract shall be
terminated, and neither party shall have any further rights or obligations
hereunder, each to the other, except for the Purchaser's obligations to Seller
under Section 5.3 above, and the right of Seller to collect such liquidated
damages to the extent not theretofore paid by Purchaser.
12.2 Provided that Purchaser has not terminated this Purchase Contract and is
not otherwise in default hereunder, if the Closing does not occur as a result of
Seller's default hereunder, Purchaser's sole remedy shall be to (a) elect to
terminate this Purchase Contract and receive reimbursement of the Deposit and
Closing Extension Option Deposit (or so much thereof as has been received by
Escrow Agent), or (b) to seek specific performance of this Purchase Contract. If
Purchaser elects to terminate this Purchase Contract, Purchaser shall return to
Seller within five (5) days of its election to terminate the Purchase Contract
all Materials provided to Purchaser by Seller; Purchaser shall deliver to Seller
without charge therefor, copies of any and all inspections, studies, tests,
surveys, or other reports made on behalf of Purchaser with respect to the
Property; Seller shall reimburse Purchaser for its reasonable out-of-pocket
expenses incurred in connection with the negotiation of this Purchase Contract
and Purchaser's due diligence efforts during the Feasibility Period (provided
that the amount of such reimbursement shall not exceed $20,000.000.
ARTICLE 13
RISK OF LOSS OR CASUALTY
13.1 The risk of loss or damage to the Property by fire or other
casualty until the deed of conveyance is recorded is assumed by the Seller,
provided that the Seller's responsibility shall be only to the extent of any
recovery from insurance now carried on the Property. If prior to the Closing,
the Property or any "material" portion thereof is damaged or destroyed by fire
or casualty, then Purchaser shall have the option, exercisable by written notice
given to Seller at or prior to the Closing, either to (a) terminate this
Purchase Contract, whereupon all obligations of all parties hereto shall cease,
the Deposit and Closing Extension Option Deposit (or so much thereof as has been
received by Escrow Agent) shall be returned to Purchaser and this Purchase
Contract shall be void and without recourse to the parties hereto except for
provisions which are expressly stated to survive such termination; or (b)
proceed with the purchase of the Property, and in such case, unless Seller shall
have previously restored the Property to its condition prior to the occurrence
of any such damage or destruction, Seller shall pay over or assign to Purchaser,
without recourse, all amounts received or due (plus an amount equal to the sum
of any deductible under any insurance policy covering the Property) from, and
all claims against, any insurance company as a result of such destruction.
Within thirty (30) days after receipt of written notice of such casualty,
Purchaser will advise Seller in writing whether Purchaser desires to proceed
with this transaction in light of such casualty or condemnation. The term
"material" as used in this Section shall mean damage or destruction in an amount
equal to or greater than $300,000.00. Notwithstanding any of the foregoing,
Seller shall not, in any event, be obligated to effect any repair, replacement,
and/or restoration, but may do so at its option in which case Seller may apply
the insurance proceeds to the costs of restoration.
13.2 In the event that the Property is damaged or destroyed by fire or other
casualty prior to the Closing, and the cost of repair is less than $300,000.00,
this transaction shall be closed in accordance with the terms of this Purchase
Contract, notwithstanding the damage or destruction; provided, however, Seller
shall make such repairs if they can be reasonably effected before the Closing.
If Seller is unable to effect such repairs, then Purchaser shall receive all
insurance proceeds pertaining thereto (plus a credit against the Purchase Price
in the amount of any deductible payable by Seller in connection therewith) at
Closing.
ARTICLE 14
RATIFICATION
14.1 This Purchase Contract shall be null and void unless fully ratified by
Purchaser and Seller on or before April 27, 2001.
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 Notice of the occurrence of
such event and recover the Deposit and Closing Extension Option Deposit (if
paid) hereunder, or to settle in accordance with the terms of this Purchase
Contract for the full Purchase Price and receive the full benefit or any
condemnation award. It is expressly agreed between the parties hereto that this
paragraph shall in no way apply to customary dedications for public purposes
which may be necessary for the development of the Property.
ARTICLE 16
MISCELLANEOUS
16.1 Exhibits And Schedules
All Exhibits and Schedules annexed hereto are a part of this Purchase
Contract for all purposes.
16.2 Assignability
Subject to Section 16.18, this Purchase Contract is not assignable
without first obtaining the prior written approval of the non-assigning party,
except that Purchaser may assign all or an undivided interest in this Purchase
Contract to one or more entities so long as (i) Purchaser or its affiliate
remains a part of the purchasing entity(ies), (ii) Purchaser is not released
from its liability hereunder, and (iii) Seller consents thereto (which consent
shall not be unreasonably withheld or delayed). Notwithstanding the foregoing,
Purchaser may assign all of its interest in this Purchase Contract to an entity
that Purchaser has designated with a management, advisory or brokerage position
with regard to the Property and Seller agrees to complete Closing with
purchaser's nominee, assignee or designee provided that (a) such nominee,
assignee or designee of Purchaser assumes Purchaser's obligations under this
Purchase Contract, (b) Purchaser is not released from its liability hereunder,
and (c) Closing is consummated hereunder.
16.3 Binding Effect
This Purchase Contract shall be binding upon and inure to the benefit of
Seller and Purchaser, and their respective successors, heirs and permitted
assigns.
16.4 Captions
The captions, headings, and arrangements used in this Purchase Contract
are for convenience only and do not in any way affect, limit, amplify, or modify
the terms and provisions hereof.
16.5 Number And Gender Of Words
Whenever herein the singular number is used, the same shall include the
plural where appropriate, and words of any gender shall include each other
gender where appropriate.
16.6 Notices
All Notices, demands, requests and other communications required
pursuant to the provisions of this Purchase Contract ("Notice") shall be in
writing and shall be deemed to have been properly given or served for all
purposes (i) if sent by Federal Express or a nationally recognized overnight
carrier for next business day delivery, on the first business day following
deposit of such Notice with such carrier, or (ii) if personally delivered, on
the actual date of delivery or (iii) if sent by certified mail, return receipt
requested postage prepaid, on the Fifth (5th) business day following the date of
mailing, or (iv) if sent by telecopier, then on the actual date of delivery (as
evidenced by a telecopier confirmation) provided that a copy of the telecopy and
confirmation is also sent by U.S. mail, addressed as follows:
If to Seller: If to Purchaser:
CENTURY PROPERTIES FUND XX HIGH INVESTORS, LTD.
Tower Two, 2000 South Colorado 1853 William Penn Way
Boulevard, Suite 2-1000 Lancaster, Pennsylvania
Denver, Colorado 80222 17605-0008
Attn: Mr. Harry Alcock Attn: Mr. Bruce Tahsler,
Facsimile No. (303) 692-0786 Senior Vice President
Facsimile No. (717) 293-4555
And
CENTURY PENSION INCOME FUND XXIII
Tower Two, 2000 South Colorado
Boulevard, Suite 2-1000
Denver, Colorado 80222
Attn: Mr. Harry Alcock
Facsimile No. (303) 692-0786
And With a copy to
ARGENT REAL ESTATE STEVENS & LEE
1401 Brickell Avenue, Suite 520 One Penn Square
Miami, Florida 33131 Lancaster, Pennsylvania 17602
Attn: Mr. David Marquette Attn: Scott H. Spencer, Esq.
Facsimile No. (305) 371-6898 Facsimile No. (717) 394-7726
With a copy to
LOEB & LOEB, LLP
1000 Wilshire Boulevard, Suite
1800
Los Angeles, California 90017
Attn: Andrew S. Clare, Esq.
Karen N. Higgins, Esq.
Facsimile No. (213) 688-3460
Any of the parties may designate a change of address by Notice in
writing to the other parties. Whenever in this Purchase Contract the giving
of Notice by mail or otherwise is required, the giving of such Notice may be
waived in writing by the person or persons entitled to receive such Notice.
16.7 Governing Law And Venue
The laws of the State of North Carolina shall govern the validity,
construction, enforcement, and interpretation of this Purchase Contract, unless
otherwise specified herein except for the conflict of laws provisions thereof.
All claims, disputes and other matters in question arising out of or relating to
this Purchase Contract, or the breach thereof, shall be decided by proceedings
instituted and litigated in the United States District Court for the district in
which the Property is situated, and the parties hereto expressly consent to the
venue and jurisdiction of such court.
16.8 Entirety And Amendments
This Purchase Contract embodies the entire Purchase Contract between the
parties and supersedes all prior Purchase Contracts and understandings, if any,
relating to the Property, and may be amended or supplemented only by an
instrument in writing executed by the party against whom enforcement is sought.
16.9 Severability
If any provision of this Purchase Contract is held to be illegal, invalid,
or unenforceable under present or future laws, such provision shall be fully
severable. The Purchase Contract shall be construed and enforced as if such
illegal, invalid, or unenforceable provision had never comprised a part of this
Purchase Contract; and the remaining provisions of this Purchase Contract shall
remain in full force and effect and shall not be affected by the illegal,
invalid, or unenforceable provision or by its severance from this Purchase
Contract. In lieu of such illegal, invalid, or unenforceable provision, there
shall be added automatically as a part of this Purchase Contract a provision as
similar in terms to such illegal, invalid, or unenforceable provision as may be
possible to make such provision legal, valid, and enforceable.
16.10 Multiple Counterparts
This Purchase Contract may be executed in a number of identical
counterparts. If so executed, each of such counterparts is to be deemed an
original for all purposes and all such counterparts shall, collectively,
constitute one Purchase Contract. In making proof of this Purchase Contract, it
shall not be necessary to produce or account for more than one such
counterparts.
16.11 Further Acts
In addition to the acts and deeds recited herein and contemplated and
performed, executed and/or delivered by Seller and Purchaser, Seller and
Purchaser agree to perform, execute and/or deliver or cause to be performed,
executed and/or delivered any and all such further acts, deeds, and assurances
as may be necessary to consummate the transactions contemplated hereby.
16.12 Construction
No provision of this Purchase Contract shall be construed in favor of, or
against, any particular party by reason of any presumption with respect to the
drafting of this Purchase Contract; both parties, being represented by counsel,
having fully participated in the negotiation of this instrument.
16.13 Confidentiality
Purchaser shall not disclose the terms and conditions contained in this
Purchase Contract, shall keep the same confidential, provided that Purchaser may
disclose the terms and conditions of this Purchase Contract (i) as required by
law, (ii) to consummate the terms of this Purchase Contract, or any financing
relating thereto, or (iii) to Purchaser's or Seller's lenders, attorneys and
accountants. Any information provided by Seller to Purchaser under the terms of
this Purchase Contract is for informational purposes only. In providing such
information to Purchaser, Seller makes no representation or warranty, express,
written, oral, statutory, or implied, and all such representations and
warranties are hereby expressly excluded. Purchaser shall not in any way be
entitled to rely upon the accuracy of such information. Such information is also
confidential and Purchaser shall be prohibited from making such information
public to any other person or entity other than its agents and legal
representatives, without Seller's prior written authorization, which may be
granted or denied in Seller's sole discretion.
16.14 Time Of The Essence
It is expressly agreed by the parties hereto that time is of the
essence with respect to this Purchase Contract.
16.15 Cumulative Remedies And Waiver
No remedy herein conferred or reserved is intended to be exclusive of any
other available remedy or remedies herein conferred or referred, but each and
every such remedy shall be cumulative and shall be in addition to every other
remedy given under this Purchase Contract. No delay or omission to exercise any
right or power accruing upon any default, omission, or failure of performance
hereunder shall impair any right or power or shall be construed to be a waiver
thereof, but any such right and power may be exercised from time to time and as
often as may be deemed expedient. No waiver, amendment, release, or modification
of this Purchase Contract shall be established by conduct, custom, or course of
dealing.
16.16 Litigation Expenses
In the event either party hereto commences litigation against the other to
enforce its rights hereunder, the prevailing party in such litigation shall be
entitled to recover from the other party its reasonable attorneys' fees and
expenses incidental to such litigation.
16.17 Time Periods
Should the last day of a time period fall on a weekend or legal holiday,
the next Business Day thereafter shall be considered the end of the time period.
16.18 Exchange
At Seller's sole cost and expense, Seller may structure the sale of the
Property to Purchaser as a Like Kind Exchange under Internal Revenue Code
Section 1031 whereby Seller will acquire certain property (the "Like Kind
Exchange Property") in conjunction with the sale of the Property (the "Like Kind
Exchange"). Purchaser shall cooperate fully and promptly with Seller's conduct
of the Like Kind Exchange, provided that all costs and expenses generated in
connection with the Like Kind Exchange shall be borne solely by Seller, and
Purchaser shall not be required to take title to or contract for the purchase of
any other property. If Seller uses a qualified intermediary to effectuate the
exchange, any assignment of the rights or obligations of Seller hereunder shall
not relieve, release or absolve Seller of its obligations to Purchaser. In no
event shall the Closing Date be delayed by the Like Kind Exchange. Seller shall
indemnify and hold harmless Purchaser from and against any and all liability
arising from and out of the Like Kind Exchange.
At Purchaser's sole cost and expense, Purchaser may structure the
purchase of this Property from Seller as a Like Kind Exchange under Internal
Revenue Code Section 1031. Seller shall cooperate fully and promptly with
Purchaser's conduct of the Like Kind Exchange, provided that all costs and
expenses generated by or on behalf of Purchaser in connection with the Like Kind
Exchange shall be borne solely by Purchaser, and Seller shall not be required to
take title to or contract for the purchase of any other property. If Purchaser
uses a qualified intermediary to effectuate the exchange, any assignment of the
rights or obligations of Purchaser hereunder shall not relieve, release or
absolve Purchaser of its obligations to Seller. In no event shall the Closing
Date be delayed by the Like Kind Exchange. Purchaser shall indemnify and hold
harmless Seller from and against any and all liability arising from and out of
the Like Kind Exchange.
16.19 No Personal Liability of Officers, Trustees or Directors of Seller's
Partners
Purchaser acknowledges that this 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 PROPERTIES FUND XX,
a California limited partnership
[Corporate Seal] By: Fox Partners III,
a California general partnership,
Its General Partner
By: Fox Capital Management Corporation,
a California corporation,
Its General Partner
By: [SEAL]
-----------------
Its:
-----------------------
[Signatures Continue on Following Page]
CENTURY PENSION INCOME FUND XXIII,
a California limited partnership
[Corporate Seal] By: Fox Partners V,
a California general partnership,
Its General Partner
By: Fox Capital Management Corporation,
a California corporation,
Its General Partner
By: [SEAL]
-----------------
Its:
-----------------------
Purchaser:
HIGH INVESTORS, LTD., a Pennsylvania
corporation
[Corporate Seal] By:
------------------------------
,[SEAL]
Name: ,
-------------------------------
Title:
--------------------------------
ACKNOWLEDGEMENTS
STATE OF ________________
COUNTY OF ______________
I, _____________________________________, a Notary Public of the County
and State aforesaid, certify that ____________________________ personally came
before me this day and acknowledged that ____he is the Secretary of Fox Capital
Management Corporation, a California corporation which is general partner of Fox
Partners III, a California general partnership, which is the general partner of
Century Properties Fund XX, a California limited partnership, and that, by
authority duly given and as the act of the corporation in its capacity as
general partner of Fox Partners, and as the act of Century Properties Fund XX,
the foregoing agreement was signed in its name by its __________________
President, sealed with its corporate seal, and attested by _____self as its
______________________Secretary.
WITNESS my hand and notarial seal, this _____ day of ___________________,
2001.
---------------------------------------
Notary Public
My commission expires:
- --------------------
[NOTARY SEAL]
STATE OF ________________
COUNTY OF ______________
I, _____________________________________, a Notary Public of the County
and State aforesaid, certify that ____________________________ personally came
before me this day and acknowledged that ____he is _____________________
Secretary of Fox Capital Management Corporation, a California corporation, which
is a general partner of Fox Partners V, a California general partnership, which
is the general partner of Century Pension Income Fund XXIII, a California
limited partnership, and that, by authority duly given and as the act of the
corporation in its capacity as general partner of Fox Partners V, and as the act
of Century Pension Income Fund XXIII, the foregoing agreement was signed in its
name by its __________________ President, sealed with its corporate seal, and
attested by _____self as its ______________________Secretary.
WITNESS my hand and notarial seal, this _____ day of ___________________,
2001.
---------------------------------------
Notary Public
My commission expires:
- --------------------
[NOTARY SEAL]
PURCHASER'S ACKNOWLEDGEMENT
STATE OF
---------------------
COUNTY OF
--------------------
I, a Notary Public of the County and State aforesaid, certify that
personally appeared before me this day and acknowledged that he/she is
, of , a corporation, and that he/she, as
, being duly authorized to do so, executed the foregoing on behalf of the
corporation.
Witness my hand and notarial stamp or seal, this day of , 2001.
Notary Public
My Commission Expires:
--------------
EXHIBIT A-1
LEGAL DESCRIPTION FOR HIGHLAND I & II
That certain tract or parcel of land situated, lying and being in the City of
Charlotte, Mecklenburg County, North Carolina and being more particularly
described as follows:
Parcel 1
BEGINNING at an existing iron rod at the southeast corner of Carolina Country
Barbecue, Inc. as described in Deed Book 5118, Page 637 of the Mecklenburg
County Public Registry, said iron being on line of Southern Railway Company as
described in Deed Book 1775, Page 31 of said registry, and runs thence with the
westerly line of Southern Railway Company the following three (3) courses and
distances: (1) South 25-10-40 East 838.95 feet to a new iron rod, (2) South
25-18-16 East 88.56 feet to an existing iron rod, (3) South 24-44-48 East 295.92
feet to an existing iron rod, said iron being the northeast corner of The
Speizman LLC property as described in Deed Book 9324, Page 177 of said registry,
thence with the line of The Speizman LLC North 76-07-49 West 309.79 feet to an
existing iron rod, said iron being a southeast corner of Century Pension Income
Fund XXIII as described in Deed Book 5321, Page 452 of said registry, thence
with the line of Century Pension Income Fund XXIII the following four (4)
courses and distances: (1) North 13-49-44 East 230.36 feet to an existing iron
rod; (2) North 76-31-10 West 215.33 feet to a new nail; (3) North 25-13-46 West
505.74 feet to an existing nail, (4) South 64-51-02 West 264.38 feet to an
existing iron rod said iron being a southeast corner of Arcade Square, Limited
Partnership as described in Deed Book 8788, Page 486 of said registry, thence
with the line of Arcade Square, Limited Partnership and continuing with the line
of MAADJ Co., Inc. as described in Deed Book 7845, Page 781 the following three
(3) courses and distances: (1) North 25-06-24 West 266.74 feet to an existing
iron rod; (2) North 74-57-37 East 225.93 feet to a new iron rod; (3) North
77-02-45 East 86.09 feet to an existing iron rod on line of Carolina Country
Barbecue, Inc. as described in Deed Book 5118, Page 637 of said registry, thence
with the line of Carolina Country Barbecue, Inc. North 64-47-24 East 223.75 feet
to the point and place of BEGINNING; containing 333,080 square feet or 7.6464
acres of land as shown on a survey prepared by R. B. Pharr & Associates, P.A.
dated April 20, 1999 and last revised on April 26, 1999, and bearing file No.
W-817B.
Parcel 2
That certain tract or parcel of land situated, lying and being in the City of
Charlotte, Mecklenburg County, North Carolina and being more particularly
described as follows:
BEGINNING at new nail in the southerly margin of Tyvola Road (100' right-of-way)
said iron being the northwest corner of MAADJ Co., Inc. property as described in
Deed Book 7845, Page 781 of the Mecklenburg County Public Registry, and runs
thence with the line of MAADJ Co., Inc. property South 24-43-31 East 152.47 feet
to existing nail, said nail being a northeast corner of Arcade Square, Limited
Partnership as described in Deed Book 8788, Page 486 of said registry, thence
with the line of Arcade Square Limited Partnership South 64-30-11 West 170.53
feet to existing nail, thence North 25-05-17 West 153.78 feet to an existing
iron rod, said iron being on the southerly margin of Tyvola Road (100'
right-of-way) and being the northeast corner of Wachovia Bank & Trust Co. as
described in Deed Book 4485, Page 936 of said registry, thence with the
southerly margin of Tyvola Road North 64-56-44 East 171.49 feet to the point and
place of BEGINNING; containing 26186 square feet or 0.6012 acre of land as shown
on a survey prepared by R. B. Pharr & Associates, P.A. dated April 20, 1999 and
last revised on April 26, 1999, and bearing file No. W-817B.
Parcel 3
Reciprocal Easement and Covenant Agreement for ingress, egress and regress,
filed February 13, 1986, between HPCC Joint Venture and Century Properties Fund
XX, recorded in Book 5174, Page 55; First Amendment to Reciprocal Easement and
Covenant Agreement dated September 23, 1986, recorded in Book 5323, Page 0336,
said Registry, as to Parcel 2.
Reciprocal Easement and Covenant Agreement for ingress, egress and regress,
filed February 13, 1986, between HPCC Joint Venture and Century Properties Fund
XX, recorded in Book 5174, Page 64; First Amendment to Reciprocal Easement and
Covenant Agreement dated September 23, 1986, recorded in Book 5323, Page 0332,
said Registry, as to 1.1563 acres of Parcel 1.
Non-exclusive easements as set forth in North Carolina General Warranty Deed
dated August 30, 1985, filed August 30, 1985, executed by HPCC Joint Venture to
Carolina Country Barbeque, Inc., recorded in Book 5078, Page 656; North Carolina
Non-Warranty Deed dated November 4, 1985, filed November 5, 1985, executed by
HPCC Joint Venture to Carolina Country Barbeque, Inc., recorded in Book 5118,
Page 637, said Registry and as set forth in General Warranty Deed dated November
5, 1985, filed November 6, 1985, executed by HPCC Joint Venture to Century
Properties Fund XX, recorded in Book 5120, Page 509, said Registry, as to 6.497
acres of Parcel 1.
Non-exclusive easements as set forth in Reciprocal Easement and Covenant
Agreement for ingress, egress and regress, filed November 6, 1985, between HPCC
Joint Venture, Highland Joint Venture and Century Properties Fund XX, recorded
in Book 5121, Page 0134; First Amendment to Reciprocal Easement and Covenant
Agreement dated September 23, 1986, recorded in Book 5323, Page 0325, said
Registry, as to 6.497 acres of Parcel 1.
EXHIBIT A-2
LEGAL DESCRIPTION FOR HIGHLAND III
TRACT I:
ALL THAT TRACT of land in Mecklenburg County, North Carolina. described as
follows:
BEGINNING at an iron pin on the northerly line of J. B. Ivey & Co. property
as described in Deed Book 2711, page 60 of the Mecklenburg County Registry,
said point being located South 70 degrees 40 minutes 00 seconds East 171.21
feet from the northernmost corner of the J. B. Ivey property; thence with
seven new lines as follows: (1) North 19 degrees 20 minutes 00 seconds East
71.99 feet to an iron pin; (2) North 64 degrees 50 minutes 22 seconds East
67.97 feet to an iron pin; (3) North 24 degrees 58 minutes 40 seconds West
259.74 feet to an iron pin; (4) North 64 degrees 5l Minutes 05 seconds East
286.72 feet to a nail; (5) South 25 degrees 09 minutes 38 seconds East 532.26
feet to an iron pin; (6) South 16 degrees 27 minutes 20 seconds West 126.87
feet to an iron pin; and (7) North 70 degrees 40 minutes 00 seconds West
18.00 feet to an iron pin, said point being a corner of the J. D. Ivey
property; thence with said property line North 70 degrees 40 minutes 00
seconds West 433.0 feet to the POINT AND PLACE OF BEGINNING, containing
167.602.39 square feet or 3.8476 acres, as shown on plat of Survey for
Century Pension Income Fund XXIII, a California Limited Partnership prepared
by R. B. Pharr, North Carolina Registered Land Surveyor No. 1749, R. B. Pharr
& Associates, P.A., Surveying & Mapping, dated September 19, 1986.
TRACT II:
All that tract of land in Mecklenburg County, North Carolina described as
follows:
TO FIND THE TRUE POINT OF BEGINNING begin at an iron pin on the westerly line of
the Southern Railway Company property, said point being the northeasterly corner
of the J. B. Ivey and Company property as described in Deed Book 2711, page 60,
Meckleburg County Registry; thence with the J. B. Ivey line North 76 degrees 00
minutes 11 seconds West 320.29 feet to an iron pin and the TRUE POINT OF
BEGINNING; thence from the TRUE POINT OF BEGINNING run North 76 degrees 00
minutes 11 seconds West 233.50 feet to an iron pin; thence North 22 degrees 08
minutes 00 seconds East 83.37 feet to an iron pin; thence South 70 degrees 40
minutes 00 seconds East 18.00 feet to a point; thence North 16 degrees 27
minutes 20 seconds East 126.87 feet to a point: thence North 25 degrees 09
minutes 38 seconds West 27.08 feet to an iron pin; thence South 76 degrees 25
minutes 58 seconds East 215.34 feet to an iron pin; thence South 13 degrees 58
minutes 20 seconds West 230.22 feet to the POINT AND PLACE OF BEGINNING.
Containing 48,418.80 square feet or 1.1115 acres as shown on plat of survey for
Century Pension Income Fund XXIII, a California Limited Partnership prepared by
R. B. Pharr and Associates, P.A., North Carolina Registered Land Surveyor No.
1749, R. B. Pharr and Associates, P.A. Surveying & Mapping dated September 19,
1986.
TRACT III:
Non-exclusive easements as set forth in Reciprocal Easement and Covenant
Agreement for ingress, egress and regress, filed February 13, 1986, between HPCC
Joint Venture and Century Properties Fund XX, recorded in Book 5174, Page 64;
First Amendment to Reciprocal Easement and Covenant Agreement dated September
23, 1986, recorded in Book 5323, Page 0332, said Registry.
Non-exclusive easements as set forth in North Carolina General Warranty Deed
dated August 30, 1985, filed August 30, 1985, executed by HPCC Joint Venture to
Carolina Country Barbeque, Inc., recorded in Book 5078, Page 656; North Carolina
Non-Warranty Deed dated November 4, 1985, filed November 5, 1985, executed by
HPCC Joint Venture to Carolina Country Barbeque, Inc., recorded in Book 5118,
Page 637, said Registry (correcting the aforesaid Book 5078, Page 656 by adding
Exhibit B) and as set forth in General Warranty Deed dated November 5, 1985,
filed November 6, 1985, executed by HPCC Joint Venture to Century Properties
Fund XX, recorded in Book 5120, Page 509, said Registry.
Non-exclusive easements as set forth in Reciprocal Easement and Covenant
Agreement for ingress, egress and regress, filed November 6, 1985, between HPCC
Joint Venture, Highland Joint Venture and Century Properties Fund XX, recorded
in Book 5121, Page 0134; First Amendment to Reciprocal Easement and Covenant
Agreement dated September 23, 1986, recorded in Book 5323, Page 0325.
TOGETHER WITH a non-exclusive perpetual easement for access, ingress, regress
and egress, as set forth in General Warranty Deed recorded in Deed Book 5321,
Page 0452 for all forms of pedestrian and vehicular traffic over, across and
through the following described real property located in Mecklenburg County,
North Carolina:
BEGINNING at a point on the southerly right-of-way line of Tyvola Road, said
point being located in a westerly direction from the southwest intersection of
the Southern Railway Company property on Tyvola Road with the arc of a circular
curve having a radius of 1859.86 feet, a distance of 334.34 feet; thence with
the southerly right-of-way line of Tyvola Road with a variable curve to the left
having a chord bearing South 66 degrees 32 minutes 09 seconds West 6.53 feet to
the POINT AND PLACE OF BEGINNING; running thence with the center line of a drive
as follows: (1) South 31 degrees 50 minutes East 43.37 feet to a point; (2)
South 55 degrees 40 minutes East 122 feet to a point; and (3) South 32 degrees
31 minutes 23 seconds East 66.77 feet to a nail; thence the following courses
and distances: South 77 degrees 13 minutes 04 seconds West 20.00 feet to a
point; thence with the arc of a circular curve to the left having a radius of
242.35 feet, a distance of 112.10 feet to a point; thence North 58 degrees 50
minutes West 31.93 feet to a point; thence with the are of a circular curve to
the right having a radius of 183.27 feet, a distance of 86.37 feet to a point on
the southerly right-of-way line of Tyvola Road; thence with said southerly
right-of-way line of Tyvola Road with a variable curve to the right having a
chord bearing of North 66 degrees 32 minutes 09 seconds East 30.00 feet to the
POINT AND PLACE OF BEGINNING, as shown on plat of Survey for Century Properties
Fund XX prepared by R. B. Pharr, North Carolina Registered Land Surveyor No.
1749, R. B. Pharr & Associates, P.A., Surveying & Mapping, dated February 5,
1985, revised June 17, 1985 and updated October 25, 1985.
EXHIBIT 1.1.5
LIST OF EXCLUDED PERMITS
To Be Inserted, If Any
EXHIBIT 1.1.7
LIST OF EXCLUDED PERSONAL PROPERTY OR EQUIPMENT
1. Any Buyer's Access Computer Hardware and Software.
2. AIMCO Benchmark Series Books.
3. Connect: Remote Horizon Software.
EXHIBIT 3.1.1
FORM OF QUITCLAIM DEEDS
[SEE ATTACHED]
[FORM OF HIGHLAND I & II QUITCLAIM DEED]
Drawn by and
Return after recording to: Loeb & Loeb, LLP
1000 Wilshire Boulevard, Suite 1800
Los Angeles, California 90017
Attn: Karen N. Higgins, Esq.
===============================================================================
NON-WARRANTY DEED
THIS DEED made this _____ day of _________________, 2001, by and between
High Investors, LTD., a Pennsylvania corporation, having an address of 1853
William Penn Way, Lancaster, PA 17605-0008 ("GRANTOR") and CENTURY PROPERTIES
FUND XX, a California limited partnership having an address of Tower Two, 2000
South Colorado Boulevard, Suite 2-1000, Denver, Colorado 80222 ("GRANTEE") (the
designation Grantor and Grantee as used herein shall include said parties, their
heirs, successors and assigns, and shall include singular, plural, masculine,
feminine or neuter as required by context);
WITNESSETH:
That Grantor, for a valuable consideration paid by the Grantee, the
receipt of which is hereby acknowledged, has granted and sold and by these
presents does grant, bargain, sell and convey unto the Grantee in fee simple
Grantor's right, title and interest in and to those certain lots or parcels of
land situated in Mecklenburg County, North Carolina, which are more particularly
described as follows:
See Exhibit A attached hereto.
TO HAVE AND TO HOLD the aforesaid lots or parcels of land and all
privileges and appurtenances thereto belonging to the Grantee in fee simple.
The Grantor makes no warranty, express or implied, as to title to the
property hereinabove described.
IN WITNESS WHEREOF, the authorized officers of Grantor have executed this
instrument under seal for and on behalf of Grantor and as the act of Grantor,
the day and year first above written.
Grantor: HIGH INVESTORS, LTD., a Pennsylvania
corporation
ATTEST:
_____________________________ By: [SEAL]
-----------------------------
_____________________________ Name:
------------------------------------
Its:
-----------------------------------
[Corporate Seal]
FORM OF NOTARIAL ACKNOWLEDGEMENT
STATE OF
---------------------
COUNTY OF
--------------------
I, a Notary Public of the County and State aforesaid, certify that
personally appeared before me this day and acknowledged that he/she is
, of , a corporation, and that he/she, as
, being duly authorized to do so, executed the foregoing on behalf of the
corporation.
Witness my hand and notarial stamp or seal, this day of , 2001.
Notary Public
My Commission Expires:
--------------
EXHIBIT "A"
LEGAL DESCRIPTION
That certain tract or parcel of land situated, lying and being in the City of
Charlotte, Mecklenburg County, North Carolina and being more particularly
described as follows:
Parcel 1
BEGINNING at an existing iron rod at the southeast corner of Carolina Country
Barbecue, Inc. as described in Deed Book 5118, Page 637 of the Mecklenburg
County Public Registry, said iron being on line of Southern Railway Company as
described in Deed Book 1775, Page 31 of said registry, and runs thence with the
westerly line of Southern Railway Company the following three (3) courses and
distances: (1) South 25-10-40 East 838.95 feet to a new iron rod, (2) South
25-18-16 East 88.56 feet to an existing iron rod, (3) South 24-44-48 East 295.92
feet to an existing iron rod, said iron being the northeast corner of The
Speizman LLC property as described in Deed Book 9324, Page 177 of said registry,
thence with the line of The Speizman LLC North 76-07-49 West 309.79 feet to an
existing iron rod, said iron being a southeast corner of Century Pension Income
Fund XXIII as described in Deed Book 5321, Page 452 of said registry, thence
with the line of Century Pension Income Fund XXIII the following four (4)
courses and distances: (1) North 13-49-44 East 230.36 feet to an existing iron
rod; (2) North 76-31-10 West 215.33 feet to a new nail; (3) North 25-13-46 West
505.74 feet to an existing nail, (4) South 64-51-02 West 264.38 feet to an
existing iron rod said iron being a southeast corner of Arcade Square, Limited
Partnership as described in Deed Book 8788, Page 486 of said registry, thence
with the line of Arcade Square, Limited Partnership and continuing with the line
of MAADJ Co., Inc. as described in Deed Book 7845, Page 781 the following three
(3) courses and distances: (1) North 25-06-24 West 266.74 feet to an existing
iron rod; (2) North 74-57-37 East 225.93 feet to a new iron rod; (3) North
77-02-45 East 86.09 feet to an existing iron rod on line of Carolina Country
Barbecue, Inc. as described in Deed Book 5118, Page 637 of said registry, thence
with the line of Carolina Country Barbecue, Inc. North 64-47-24 East 223.75 feet
to the point and place of BEGINNING; containing 333,080 square feet or 7.6464
acres of land as shown on a survey prepared by R. B. Pharr & Associates, P.A.
dated April 20, 1999 and last revised on April 26, 1999, and bearing file No.
W-817B.
Parcel 2
That certain tract or parcel of land situated, lying and being in the City of
Charlotte, Mecklenburg County, North Carolina and being more particularly
described as follows:
BEGINNING at new nail in the southerly margin of Tyvola Road (100' right-of-way)
said iron being the northwest corner of MAADJ Co., Inc. property as described in
Deed Book 7845, Page 781 of the Mecklenburg County Public Registry, and runs
thence with the line of MAADJ Co., Inc. property South 24-43-31 East 152.47 feet
to existing nail, said nail being a northeast corner of Arcade Square, Limited
Partnership as described in Deed Book 8788, Page 486 of said registry, thence
with the line of Arcade Square Limited Partnership South 64-30-11 West 170.53
feet to existing nail, thence North 25-05-17 West 153.78 feet to an existing
iron rod, said iron being on the southerly margin of Tyvola Road (100'
right-of-way) and being the northeast corner of Wachovia Bank & Trust Co. as
described in Deed Book 4485, Page 936 of said registry, thence with the
southerly margin of Tyvola Road North 64-56-44 East 171.49 feet to the point and
place of BEGINNING; containing 26186 square feet or 0.6012 acre of land as shown
on a survey prepared by R. B. Pharr & Associates, P.A. dated April 20, 1999 and
last revised on April 26, 1999, and bearing file No. W-817B.
Parcel 3
Reciprocal Easement and Covenant Agreement for ingress, egress and regress,
filed February 13, 1986, between HPCC Joint Venture and Century Properties Fund
XX, recorded in Book 5174, Page 55; First Amendment to Reciprocal Easement and
Covenant Agreement dated September 23, 1986, recorded in Book 5323, Page 0336,
said Registry, as to Parcel 2.
Reciprocal Easement and Covenant Agreement for ingress, egress and regress,
filed February 13, 1986, between HPCC Joint Venture and Century Properties Fund
XX, recorded in Book 5174, Page 64; First Amendment to Reciprocal Easement and
Covenant Agreement dated September 23, 1986, recorded in Book 5323, Page 0332,
said Registry, as to 1.1563 acres of Parcel 1.
Non-exclusive easements as set forth in North Carolina General Warranty Deed
dated August 30, 1985, filed August 30, 1985, executed by HPCC Joint Venture to
Carolina Country Barbeque, Inc., recorded in Book 5078, Page 656; North Carolina
Non-Warranty Deed dated November 4, 1985, filed November 5, 1985, executed by
HPCC Joint Venture to Carolina Country Barbeque, Inc., recorded in Book 5118,
Page 637, said Registry and as set forth in General Warranty Deed dated November
5, 1985, filed November 6, 1985, executed by HPCC Joint Venture to Century
Properties Fund XX, recorded in Book 5120, Page 509, said Registry, as to 6.497
acres of Parcel 1.
Non-exclusive easements as set forth in Reciprocal Easement and Covenant
Agreement for ingress, egress and regress, filed November 6, 1985, between HPCC
Joint Venture, Highland Joint Venture and Century Properties Fund XX, recorded
in Book 5121, Page 0134; First Amendment to Reciprocal Easement and Covenant
Agreement dated September 23, 1986, recorded in Book 5323, Page 0325, said
Registry, as to 6.497 acres of Parcel 1.
[FORM OF HIGHLAND III QUITCLAIM DEED]
Drawn by and
Return after recording to: Loeb & Loeb, LLP
1000 Wilshire Boulevard, Suite 1800
Los Angeles, California 90017
Attn: Karen N. Higgins, Esq.
===============================================================================
NON-WARRANTY DEED
THIS DEED made this _____ day of _________________, 2001, by and between
High Investors, LTD., a Pennsylvania corporation, having an address of 1853
William Penn Way, Lancaster, PA 17605-0008 ("GRANTOR") and CENTURY PENSION
INCOME FUND XXIII, a California limited partnership having an address of Tower
Two, 2000 South Colorado Boulevard, Suite 2-1000, Denver, Colorado 80222
("GRANTEE") (the designation Grantor and Grantee as used herein shall include
said parties, their heirs, successors and assigns, and shall include singular,
plural, masculine, feminine or neuter as required by context);
WITNESSETH:
That Grantor, for a valuable consideration paid by the Grantee, the
receipt of which is hereby acknowledged, has granted and sold and by these
presents does grant, bargain, sell and convey unto the Grantee in fee simple
Grantor's right, title and interest in and to those certain lots or parcels of
land situated in Mecklenburg County, North Carolina, which are more particularly
described as follows:
See Exhibit A attached hereto.
TO HAVE AND TO HOLD the aforesaid lots or parcels of land and all
privileges and appurtenances thereto belonging to the Grantee in fee simple.
The Grantor makes no warranty, express or implied, as to title to the
property hereinabove described.
IN WITNESS WHEREOF, the authorized officers of Grantor, have executed this
instrument under seal for and on behalf of Grantor and as the act of Grantor,
the day and year first above written.
Grantor: HIGH INVESTORS, LTD., a Pennsylvania
corporation
ATTEST:
______________________________ By: [SEAL]
-----------------------------
______________________________ Name:
------------------------------------
Its:
-------------------------------------
[Corporate Seal]
FORM OF NOTARIAL ACKNOWLEDGEMENT
STATE OF
---------------------
COUNTY OF
--------------------
I, a Notary Public of the County and State aforesaid, certify that
personally appeared before me this day and acknowledged that he/she is
, of , a corporation, and that he/she, as
, being duly authorized to do so, executed the foregoing on behalf of the
corporation.
Witness my hand and notarial stamp or seal, this day of , 2001.
Notary Public
My Commission Expires:
--------------
EXHIBIT "A"
LEGAL DESCRIPTION
TRACT I:
ALL THAT TRACT of land in Mecklenburg County, North Carolina. described as
follows:
BEGINNING at an iron pin on the northerly line of J. B. Ivey & Co. property
as described in Deed Book 2711, page 60 of the Mecklenburg County Registry,
said point being located South 70 degrees 40 minutes 00 seconds East 171.21
feet from the northernmost corner of the J. B. Ivey property; thence with
seven new lines as follows: (1) North 19 degrees 20 minutes 00 seconds East
71.99 feet to an iron pin; (2) North 64 degrees 50 minutes 22 seconds East
67.97 feet to an iron pin; (3) North 24 degrees 58 minutes 40 seconds West
259.74 feet to an iron pin; (4) North 64 degrees 5l Minutes 05 seconds East
286.72 feet to a nail; (5) South 25 degrees 09 minutes 38 seconds East 532.26
feet to an iron pin; (6) South 16 degrees 27 minutes 20 seconds West 126.87
feet to an iron pin; and (7) North 70 degrees 40 minutes 00 seconds West
18.00 feet to an iron pin, said point being a corner of the J. D. Ivey
property; thence with said property line North 70 degrees 40 minutes 00
seconds West 433.0 feet to the POINT AND PLACE OF BEGINNING, containing
167.602.39 square feet or 3.8476 acres, as shown on plat of Survey for
Century Pension Income Fund XXIII, a California Limited Partnership prepared
by R. B. Pharr, North Carolina Registered Land Surveyor No. 1749, R. B. Pharr
& Associates, P.A., Surveying & Mapping, dated September 19, 1986.
TRACT II:
All that tract of land in Mecklenburg County, North Carolina described as
follows:
TO FIND THE TRUE POINT OF BEGINNING begin at an iron pin on the westerly line of
the Southern Railway Company property, said point being the northeasterly corner
of the J. B. Ivey and Company property as described in Deed Book 2711, page 60,
Meckleburg County Registry; thence with the J. B. Ivey line North 76 degrees 00
minutes 11 seconds West 320.29 feet to an iron pin and the TRUE POINT OF
BEGINNING; thence from the TRUE POINT OF BEGINNING run North 76 degrees 00
minutes 11 seconds West 233.50 feet to an iron pin; thence North 22 degrees 08
minutes 00 seconds East 83.37 feet to an iron pin; thence South 70 degrees 40
minutes 00 seconds East 18.00 feet to a point; thence North 16 degrees 27
minutes 20 seconds East 126.87 feet to a point: thence North 25 degrees 09
minutes 38 seconds West 27.08 feet to an iron pin; thence South 76 degrees 25
minutes 58 seconds East 215.34 feet to an iron pin; thence South 13 degrees 58
minutes 20 seconds West 230.22 feet to the POINT AND PLACE OF BEGINNING.
Containing 48,418.80 square feet or 1.1115 acres as shown on plat of survey for
Century Pension Income Fund XXIII, a California Limited Partnership prepared by
R. B. Pharr and Associates, P.A., North Carolina Registered Land Surveyor No.
1749, R. B. Pharr and Associates, P.A. Surveying & Mapping dated September 19,
1986.
TRACT III:
Non-exclusive easements as set forth in Reciprocal Easement and Covenant
Agreement for ingress, egress and regress, filed February 13, 1986, between HPCC
Joint Venture and Century Properties Fund XX, recorded in Book 5174, Page 64;
First Amendment to Reciprocal Easement and Covenant Agreement dated September
23, 1986, recorded in Book 5323, Page 0332, said Registry.
Non-exclusive easements as set forth in North Carolina General Warranty Deed
dated August 30, 1985, filed August 30, 1985, executed by HPCC Joint Venture to
Carolina Country Barbeque, Inc., recorded in Book 5078, Page 656; North Carolina
Non-Warranty Deed dated November 4, 1985, filed November 5, 1985, executed by
HPCC Joint Venture to Carolina Country Barbeque, Inc., recorded in Book 5118,
Page 637, said Registry (correcting the aforesaid Book 5078, Page 656 by adding
Exhibit B) and as set forth in General Warranty Deed dated November 5, 1985,
filed November 6, 1985, executed by HPCC Joint Venture to Century Properties
Fund XX, recorded in Book 5120, Page 509, said Registry.
Non-exclusive easements as set forth in Reciprocal Easement and Covenant
Agreement for ingress, egress and regress, filed November 6, 1985, between HPCC
Joint Venture, Highland Joint Venture and Century Properties Fund XX, recorded
in Book 5121, Page 0134; First Amendment to Reciprocal Easement and Covenant
Agreement dated September 23, 1986, recorded in Book 5323, Page 0325.
TOGETHER WITH a non-exclusive perpetual easement for access, ingress, regress
and egress, as set forth in General Warranty Deed recorded in Deed Book 5321,
Page 0452 for all forms of pedestrian and vehicular traffic over, across and
through the following described real property located in Mecklenburg County,
North Carolina:
BEGINNING at a point on the southerly right-of-way line of Tyvola Road, said
point being located in a westerly direction from the southwest intersection of
the Southern Railway Company property on Tyvola Road with the arc of a circular
curve having a radius of 1859.86 feet, a distance of 334.34 feet; thence with
the southerly right-of-way line of Tyvola Road with a variable curve to the left
having a chord bearing South 66 degrees 32 minutes 09 seconds West 6.53 feet to
the POINT AND PLACE OF BEGINNING; running thence with the center line of a drive
as follows: (1) South 31 degrees 50 minutes East 43.37 feet to a point; (2)
South 55 degrees 40 minutes East 122 feet to a point; and (3) South 32 degrees
31 minutes 23 seconds East 66.77 feet to a nail; thence the following courses
and distances: South 77 degrees 13 minutes 04 seconds West 20.00 feet to a
point; thence with the arc of a circular curve to the left having a radius of
242.35 feet, a distance of 112.10 feet to a point; thence North 58 degrees 50
minutes West 31.93 feet to a point; thence with the are of a circular curve to
the right having a radius of 183.27 feet, a distance of 86.37 feet to a point on
the southerly right-of-way line of Tyvola Road; thence with said southerly
right-of-way line of Tyvola Road with a variable curve to the right having a
chord bearing of North 66 degrees 32 minutes 09 seconds East 30.00 feet to the
POINT AND PLACE OF BEGINNING, as shown on plat of Survey for Century Properties
Fund XX prepared by R. B. Pharr, North Carolina Registered Land Surveyor No.
1749, R. B. Pharr & Associates, P.A., Surveying & Mapping, dated February 5,
1985, revised June 17, 1985 and updated October 25, 1985.
EXHIBIT 7.2.1.1
FORM OF SPECIAL WARRANTY DEED
Drawn by and
Return after recording to:
------------------
================================================================================
SPECIAL WARRANTY DEED
THIS DEED made this _____ day of _____________, 2001, by
___________________________, having a principal address at Tower Two, 2000 South
Colorado Boulevard, Suite 2-1000, Denver, Colorado 80222 ("GRANTOR") and
_______________________________________ having an address of 1853 William Penn
Way, Lancaster, PA 17605-0008 ("GRANTEE") (the designation Grantor and Grantee
as used herein shall include said parties, their heirs, successors and assigns,
and shall include singular, plural, masculine, feminine or neuter as required by
context);
WITNESSETH:
That Grantor, for a valuable consideration paid by the Grantee, the
receipt of which is hereby acknowledged, has granted and sold and by these
presents does grant, bargain, sell and convey unto the Grantee in fee simple
those certain lots or parcels of land situated in Mecklenburg County, North
Carolina, which are more particularly described as follows:
See Exhibit "A" attached hereto and incorporated herein.
TOGETHER with all and singular the hereditaments and appurtenances thereto
belonging, or in anywise appertaining, and the reversion and reversions,
remainder and remainders, rents, issues and profits thereof, and all the estate,
right, title interest, claim and demand whatsoever of Grantor, either in law or
equity, of, in and to the above bargained premises, with the hereditaments,
easements, rights of way and appurtenances, and with all of Grantor's interest,
if any, in and to any and all minerals, water, ditches, wells, reservoirs and
drains, and all water, ditch, well, reservoir and drainage rights which are
appurtenant to, located on, now or hereafter acquired under or above or used in
connection with the property.
The property hereinabove described was acquired by Grantor by instrument
recorded on _________, in Book _____, Page _____, Mecklenburg County, North
Carolina Public Registry (the "Registry").
TO HAVE AND TO HOLD the aforesaid lots or parcels of land and all
privileges and appurtenances thereto belonging to the Grantee in fee simple.
And the Grantor covenants with the Grantee, that Grantor has done nothing
to impair such title as Grantor received, and Grantor will warrant and defend
the title against the claims of all persons claiming by, under or through
Grantor, except for the exceptions hereinafter stated.
Title to the property hereinabove described is subject to the following
exceptions:
All easements, rights of way, conditions and restrictions set forth
on Exhibit "B" and valorem taxes for the year 2001.
IN WITNESS WHEREOF, the Grantors' general partner has caused this
instrument to be duly executed by its duly authorized officers and its seal to
be hereunto affixed for and on behalf of and under seal of Grantor, the day and
year first above written.
Grantor: [NAME OF GRANTOR]
[Corporate Seal]
ATTEST:
- -----------------------------
_____________________ Secretary
Notarial Acknowledgement
[TO BE ATTACHED]
EXHIBIT "A"
LEGAL DESCRIPTION
[TO BE ATTACHED]
EXHIBIT "B"
EXCEPTIONS TO TITLE
[TO BE INSERTED]
EXHIBIT 7.2.1.2
FORM OF BILL OF SALE
This Bill of Sale ("Assignment") is executed by CENTURY PROPERTIES FUND
XX, a California limited partnership ("Century XX"), and CENTURY PENSION INCOME
FUND XXIII, a California limited partnership ("Century XXIII") (collectively,
the "Seller") in favor of HIGH INVESTORS, LTD., a Pennsylvania corporation
("Purchaser").
Seller and Purchaser, have entered into that certain Purchase and Sale
Contract and dated as of April ____, 2001 ("Purchase Contract"), in which Seller
has agreed to sell and Purchaser has agreed to purchase the real property
described in Exhibits A-1 and A-2 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 from and after the date hereof. Seller agrees to indemnify,
defend and hold Purchaser harmless from and against any and all cost, loss, harm
or damage which arose prior to the date hereof in connection with the Property;
provided, however, Seller's indemnity shall only survive Closing for a period of
one (1) year (the "Survival Period") and Seller shall have no further liability
after the Survival Period with respect to any indemnification contained herein.
4. Counterparts. This Assignment may be executed in counterparts, each of
which shall be deemed an original, and both of which together shall
constitute one and the same instrument.
5. Attorneys' Fees. If any action or proceeding is commenced by either party to
enforce its rights under this Assignment, the prevailing party in such action or
proceeding shall be entitled to recover all reasonable costs and expenses
incurred in such action or proceeding, including reasonable attorneys' fees and
costs, in addition to any other relief awarded by the court.
6. Applicable Law. This Assignment shall be governed by and interpreted
in accordance with the laws of the State of North Carolina.
7. Titles and Section Headings. Titles of sections and subsections
contained in this Assignment are inserted for convenience of reference only,
and neither form a part of this Assignment or are to be used in its
construction or interpretation.
8. Binding Effect. This Assignment shall be binding upon and inure to the
benefit of the parties hereto and their respective transferees, successors,
and assigns.
9. Entire Agreement; Modification. This Assignment supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may not be altered or modified without the written consent
of all parties.
WITH RESPECT TO ALL MATTERS TRANSFERRED, WHETHER TANGIBLE OR INTANGIBLE,
PERSONAL OR REAL, SELLER EXPRESSLY DISCLAIMS A WARRANTY OF MERCHANTABILITY AND
WARRANTY FOR FITNESS FOR A PARTICULAR USE OR ANY OTHER WARRANTY EXPRESSED OR
IMPLIED THAT MAY ARISE BY OPERATION OF LAW OR UNDER THE UNIFORM COMMERCIAL CODE
FOR THE STATE IN WHICH THE PROPERTY IS LOCATED.
WITNESS the signatures and seals of the undersigned.
Dated: , 2001
------------------
Seller:
CENTURY PROPERTIES FUND XX, a California
limited partnership
[Corporate Seal] By: Fox Partners III, a California
general partnership, Its General
Partner
By: Fox Capital Management
Corporation, Its General
Partner
By: [SEAL]
-----------------
Its:
-----------------------
CENTURY PENSION INCOME FUND XXIII, a
California limited partnership
[Corporate Seal] By: Fox Partners V, a California
general partnership, Its General
Partner
By: Fox Capital Management
Corporation, a California
corporation, Its General
Partner
By: [SEAL]
-----------------
Its:
-----------------------
[Signatures Continued on Next Page]
Purchaser:
HIGH INVESTORS, LTD., a Pennsylvania
corporation
[Corporate Seal] By:
------------------------------
,[SEAL]
Name: ,
-------------------------------
Title:
--------------------------------
Exhibit 7.2.1.3
GENERAL ASSIGNMENT
This General Assignment ("Assignment") is executed by CENTURY PROPERTIES
FUND XX, a California limited partnership ("Century XX"), and CENTURY PENSION
INCOME FUND XXIII, a California limited partnership ("Century XXIII")
(collectively, the "Seller") in favor of HIGH INVESTORS, LTD., a Pennsylvania
corporation ("Purchaser").
Seller and Purchaser, have entered into that certain Purchase and Sale
Contract and dated as of April ____, 2001 ("Purchase Contract"), in which Seller
has agreed to sell and Purchaser has agreed to purchase the real property
described in Exhibits A-1 and A-2 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.
16.20.1 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. The term "Miscellaneous Property Assets"
shall also include Seller's rights, if any, in and to the name "HIGHLAND PARK
COMMERCE CENTER."
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 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, pertaining to
acts arising on or before the date hereof; provided, however, Seller's indemnity
shall only survive Closing for a period of one (1) year (the "Survival Period")
and Seller shall have no further liability after the Survival Period with
respect to any indemnification contained herein.
4. Counterparts. This Assignment may be executed in counterparts,
each of which shall be deemed an original, and both of which together shall
constitute one and the same instrument.
5. Attorneys' Fees. If any action or proceeding is commenced by either
party to enforce its rights under this Assignment, the prevailing party in such
action or proceeding shall be entitled to recover all reasonable costs and
expenses incurred in such action or proceeding, including reasonable attorneys'
fees and costs, in addition to any other relief awarded by the court.
6. Applicable Law. This Assignment shall be governed by and
interpreted in accordance with the laws of the State of North Carolina.
7. Titles and Section Headings. Titles of sections and subsections
contained in this Assignment are inserted for convenience of reference only,
and neither form a part of this Assignment or are to be used in its
construction or interpretation.
8. Binding Effect. This Assignment shall be binding upon and inure
to the benefit of the parties hereto and their respective transferees,
successors, and assigns.
9. Entire Agreement; Modification. This Assignment supersedes all
prior agreements and constitutes the entire agreement with respect to the
subject matter hereof. It may not be altered or modified without the written
consent of all parties.
WITH RESPECT TO ALL MATTERS TRANSFERRED, WHETHER TANGIBLE OR INTANGIBLE,
PERSONAL OR REAL, SELLER EXPRESSLY DISCLAIMS A WARRANTY OF MERCHANTABILITY AND
WARRANTY FOR FITNESS FOR A PARTICULAR USE OR ANY OTHER WARRANTY EXPRESSED OR
IMPLIED THAT MAY ARISE BY OPERATION OF LAW OR UNDER THE UNIFORM COMMERCIAL CODE
FOR THE STATE IN WHICH THE PROPERTY IS LOCATED.
[Remainder of Page Intentionally Left Blank]
WITNESS the signatures and seals of the undersigned.
Seller:
CENTURY PROPERTIES FUND XX, a California
limited partnership
[Corporate Seal] By: Fox Partners III, a California
general partnership, Its General
Partner
By: Fox Capital Management
Corporation, Its General
Partner
By: [SEAL]
-----------------
Its:
-----------------------
CENTURY PENSION INCOME FUND XXIII, a
California limited partnership
[Corporate Seal] By: Fox Partners V, a California
general partnership, Its General
Partner
By: Fox Capital Management
Corporation, a California
corporation, Its General
Partner
By: [SEAL]
-----------------
Its:
-----------------------
Purchaser:
HIGH INVESTORS, LTD., a Pennsylvania
corporation
[Corporate Seal] By:
---------------------------------------
[SEAL]
Name: ,
-------------------------------
Title:
--------------------------------
Exhibit B
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Escrow Agreement") made this _____ day of April,
2001 by and among CENTURY PROPERTIES FUND XX, a California limited partnership
("Century XX"), and CENTURY PENSION INCOME FUND XXIII, a California limited
partnership ("Century XXIII") (collectively, the "Seller") and HIGH INVESTORS,
LTD., a Pennsylvania corporation ("Purchaser") and FIRST AMERICAN TITLE
INSURANCE COMPANY ("Escrow Agent");
WITNESSETH:
Whereas Purchaser and Seller are parties to a certain Purchase and Sale
Contract (the "Purchase Contract") made and dated as of the ________ day of
April, 2001; and
Whereas, the Purchase Contract requires that Purchaser provide a deposit
in the amount of One Hundred Fifty Thousand and No/100 Dollars ($150,000.00) in
cash (the "Deposit"), to be held pursuant to an escrow agreement approved by
Purchaser and Seller; and
Whereas, the Purchase Contract provides that Purchaser may extend the
scheduled Closing Date for an additional thirty (30) days upon certain
conditions including payment of an additional deposit in the sum of One Hundred
Fifty Thousand and No/100 Dollars ($150,000.00) in cash (the "Closing Extension
Option Deposit").
Now, therefore, the parties agree to the following:
1. Establishment of Escrow. Escrow Agent hereby acknowledges receipt of One
Hundred Fifty Thousand and No/100 dollars ($150,000.00) 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 quitclaim deeds executed by Purchaser copies of which
are attached (collectively, the "Quitclaim Deed") and agrees to hold and release
the Quitclaim Deed in accordance with the terms of this Escrow Agreement.
2. Investment of Escrow Fund. All funds received by Escrow Agent, including the
Deposit and the Closing Extension Option Deposit (collectively, the "Escrow
Fund"), shall be held in FDIC-insured accounts and invested in such short-term,
interest-bearing bank accounts, or bank certificates of deposit 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, , or sent by facsimile transmission (with a copy of the
facsimile confirmation and the facsimile transmission also sent by U.S. Mail)
and addressed as set forth below:
If to Seller: If to Purchaser:
CENTURY PROPERTIES FUND XX HIGH INVESTORS, LTD.
Tower Two, 2000 South Colorado 1853 William Penn Way
Boulevard, Suite 2-1000 Lancaster, Pennsylvania
Denver, Colorado 80222 17605-0008
Attn: Mr. Harry Alcock Attn: Mr. Bruce Tahsler,
Facsimile No. (303) 692-0786 Senior Vice President
Facsimile No. (717) 293-4555
And
CENTURY PENSION INCOME FUND XXIII
Tower Two, 2000 South Colorado
Boulevard, Suite 2-1000
Denver, Colorado 80222
Attn: Mr. Harry Alcock
Facsimile No. (303) 692-0786
And With a copy to
ARGENT REAL ESTATE STEVENS & LEE
1401 Brickell Avenue, Suite 520 One Penn Square
Miami, Florida 33131 Lancaster, Pennsylvania 17602
Attn: Mr. David Marquette Attn: Scott H. Spencer, Esq.
Facsimile No. (305) 371-6898 Facsimile No. (717) 394-7726
With a copy to If to Escrow Agent:
LOEB & LOEB, LLP FIRST AMERICAN TITLE INSURANCE
1000 Wilshire Boulevard, Suite COMPANY
1800 801 East Morehead Street, Suite
Los Angeles, California 90017 301
Attn: Andrew S. Clare, Esq. Charlotte, North Carolina 28202
Karen N. Higgins, Esq. Attn: Mr. Will Webb
Facsimile No. (213) 688-3460 Facsimile No. (704) 334-0768
Any party may change the address to which Notices are to be addressed by
giving the other parties Notice in the manner herein set forth. All such
Notices, requests, demands and other communications shall be deemed to have been
delivered (i) as of the day of receipt, in the case of personal delivery, or
(ii) as of the day of receipt or attempted delivery date in the case of delivery
by air courier, or (iii) as of the date of receipt or first attempted delivery,
as evidenced by the return receipt card, in the case of mailing by certified or
registered United States mail.
9. Fee. Escrow Agent shall receive a fee of $300.00 for its services hereunder,
and be paid or reimbursed for all expenses, disbursements and advances,
including reasonable attorney's fees, incurred or paid in connection with
carrying out its duties hereunder, the payment of all amounts to be shared
equally by Purchaser and Seller equally, and not out of the Escrow Fund.
Non-payment of such fee by Purchaser shall not entitle Escrow Agent to refuse or
fail to act as required by this Escrow Agreement.
10. Titles and Section Headings. Titles of sections and subsections
contained in this Escrow Agreement are inserted for convenience of reference
only, and neither form a part of this Escrow Agreement or are to be used in
its construction or interpretation.
11. Counterparts. This Escrow Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same instrument.
12. Non-Waiver. No waiver by either party of any breach of any term or condition
of this Escrow Agreement shall operate as a waiver of any other breach of such
term or condition or of any other term or condition. No failure to enforce such
provision shall operate as a waiver of such provision or of any other provision
hereof, or constitute or be deemed a waiver or release of any other party for
anything arising out of, connected with, or based upon this Escrow Agreement.
13. Binding Effect. This Escrow Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective transferees, successors, and
assigns. The parties recognize and acknowledge that the powers and authority
granted Escrow Agent herein are each irrevocable and coupled with an interest.
Escrow Agent shall have no liability to Seller or Purchaser for any mistakes in
judgment in the performance of any function hereunder, except for failure to
exercise due care, willful breach and willful misconduct.
14. Nonlimitation of Liability. Nothing contained herein shall in any way
limit the liabilities, obligations and remedies of Seller and Purchaser as
set forth in the Purchase Contract.
15. Governing Law. This Escrow Agreement shall be governed by and
construed in accordance with the laws of the State of North Carolina.
16. Time of Essence. Time is of the essence of this Escrow Agreement.
17. Entire Agreement; Modification. This Escrow Agreement supersedes all
prior agreements and constitutes the entire agreement with respect to the
subject matter hereof. It may not be altered or modified without the written
consent of all parties.
[Remainder of Page Intentionally Left Blank]
In witness whereof each of the parties hereto has caused this Escrow
Agreement to be executed under seal on its behalf by duly authorized persons,
all as of the day and year first above written.
Seller:
CENTURY PROPERTIES FUND XX, a California
limited partnership
[Corporate Seal] By: Fox Partners III, a California
general partnership, Its General
Partner
By: Fox Capital Management
Corporation, Its General
Partner
By: [SEAL]
-----------------
Its:
-----------------------
CENTURY PENSION INCOME FUND XXIII, a
California limited partnership
[Corporate Seal] By: Fox Partners V, a California
general partnership, Its General
Partner
By: Fox Capital Management
Corporation, a California
corporation, Its General
Partner
By: [SEAL]
-----------------
Its:
-----------------------
[Signatures Continued on Next Page]
Purchaser:
HIGH INVESTORS, LTD., a Pennsylvania
corporation
[Corporate Seal] By:
---------------------------------------
[SEAL]
Name: ,
-------------------------------
Title:
--------------------------------
Escrow Agent:
FIRST AMERICAN TITLE INSURANCE COMPANY
By: ,[SEAL]
-----------------------------
[Corporate Seal] Title:
-----------------------------------
EXHIBIT 8.1.1.9
RENT ROLL
[TO BE ATTACHED]
EXHIBIT 9.1.4
FORM OF TENANT ESTOPPEL
TENANT ESTOPPEL CERTIFICATE
To: HIGH INVESTORS, LTD., its successors, assigns and lender
Attention:
--------------
RE: Lease dated ____________, ____, between ,
-----------------------------
a , as "Landlord", and
---------------------
____________________________________, as "Tenant" (which together with
any modifications in Paragraph 5 are collectively referred to as the
"Lease"), demising premises located and addressed as:
____________________________________ (the "Leased Premises") being part
of the Highland Park Commerce Center, Mecklenburg County, North
Carolina (the "Property")
Gentlemen:
The undersigned Tenant, having the power and authority to do so, hereby
states, certifies and affirms to all to whom this Certificate may be presented
as follows:
1. Landlord has fully performed all obligations relating to construction
of the Leased Premises and leasehold improvements as described in the Lease, and
Tenant has unconditionally accepted the Leased Premises. No monies, including,
but not limited to any tenant allowances, are owed by Landlord to Tenant except
the following: __________________________________
for
--------------------------------------
.
[insert "None" if none]
2. Landlord has not breached or failed to comply with any term of the
Lease, and Landlord is not in default in the performance by Landlord of its
obligations under the Lease.
3. Tenant has not breached or failed to comply with any term of the Lease,
and Tenant is not in default of the Lease. Tenant has not transferred, assigned
or sublet, or agreed to transfer, assign, or sublet, its interest in the Lease
or any part thereof, except as follows: .
[insert "None" if none]
4. The Lease term commenced on ________________, and shall expire
(unless sooner terminated or extended as in the Lease provided) on
_______________; and the Lease contains the following renewal options:
.
[insert "None" if none].
5. The Lease has not been modified, altered or amended except as
follows:
- ------------------------------------------------------------------------
[list all
- ------------------------------------------------------------
amendments
and modifications or write "None" if none].
6. No free rent, reduced or deferred rental has been granted except
as set forth on the Lease or as follows:
[insert "None" if none].
7. The current minimum monthly rental is $___________. No rent under the
Lease has been paid more than thirty (30) days in advance of its due date.
Tenant acknowledges that all additional rent (charges for taxes, insurance,
percentage rent, if any, maintenance, common areas, etc.) are payable pursuant
to the terms of the Lease.
8. The amount of the security deposit [initially] deposited by Tenant
under the Lease is $_______ [and the amount of the security deposit which
continues to be held by Landlord under the Lease is now $_________]. [insert
"None" if none].
9. Tenant has been granted no option or other right to purchase the
Property or Leased Premises or any portion thereof.
10. There has not been filed by or against, nor, is there threatened
against or contemplated by Tenant, a petition in bankruptcy, voluntary or
otherwise, any assignment for the benefit of creditors, any petition seeking
reorganization or arrangement under the bankruptcy laws of the United States or
the debtor relief laws of any state, or any other action brought under such
bankruptcy or debtor relief laws.
11. Tenant acknowledges that Landlord is currently contemplating a sale
and/or refinancing of the Property and agrees that the information furnished
herein may be supplied to any or all of the proposed purchaser, purchaser or
lender and others of the Property (or any portion thereof) or any successor or
assign of any of the foregoing or others and that such proposed purchaser,
purchaser or lender and others and any successor or assign may rely upon this
Certificate and all of the statements herein contained as being true and
accurate.
IN WITNESS WHEREOF, the undersigned has caused this Certificate to be duly
executed, under seal, and delivered as of the day and year first above written.
TENANT:
By:________________________________
Name:_____________________________
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINED TERMS...................................................1
ARTICLE 2 PURCHASE AND SALE OF PROPERTY...................................3
ARTICLE 3 PURCHASE PRICE & DEPOSIT........................................4
ARTICLE 4 FINANCING.......................................................5
ARTICLE 5 FEASIBILITY PERIOD..............................................5
ARTICLE 6 TITLE...........................................................7
ARTICLE 7 CLOSING........................................................10
ARTICLE 8 REPRESENTATIONS, WARRANTIES AND COVENANTS
OF SELLER AND PURCHASER........................................15
ARTICLE 9 CONDITIONS PRECEDENT TO CLOSING................................18
ARTICLE 10 BROKERAGE......................................................19
ARTICLE 11 POSSESSION.....................................................20
ARTICLE 12 DEFAULTS AND REMEDIES..........................................20
ARTICLE 13 RISK OF LOSS OR CASUALTY.......................................21
ARTICLE 14 RATIFICATION...................................................22
ARTICLE 15 EMINENT DOMAIN.................................................22
ARTICLE 16 MISCELLANEOUS..................................................22
FIRST AMENDMENT AND REINSTATMENT
TO PURCHASE AND SALE AGREEMENT
(Highland Park I, II & III)
This Reinstatement and First Amendment To Purchase and Sale Agreement and
Joint Escrow Instructions (this "Agreement") is entered into as of the
twenty-fourth day of September, 2001, by and among HIGH INVESTORS, LTD., a
Pennsylvania corporation ("Buyer"), and CENTURY PROPERTIES FUND XX, a California
limited partnership ("Century XX") and CENTURY PENSION INCOME FUND XXIII, a
California limited partnership ("Century XXIII")(collectively, the "Seller"),
with respect to an escrow established with First American Title Insurance
Company ("Escrow Agent").
RECITALS
A. Buyer and Seller executed that certain Purchase and Sale Agreement and Joint
Escrow Instructions dated as of April 26, 2001 (the "Contract", pursuant to
which Seller agreed to sell and Buyer agreed to purchase, certain real property
located in the County of Mecklenburg, state of North Carolina and commonly known
as "Highland Park Commerce Center" (the "Property").
B. Pursuant to the Contract, Buyer placed an earnest money deposit of
$150,000.00 (the "Deposit"), which Deposit has properly been returned to
Buyer.
C. Pursuant to a letter dated as of May 31, 2001 from Bruce D. Tahsler,
Senior Vice President, High Investors, Ltd., to Seller, Buyer terminated the
Contract. Seller and Buyer desire to reinstate and modify the Contract
pursuant to the terms set forth below.
D. Capitalized terms not otherwise defined herein shall have the meanings
ascribed to them in the Contract.
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Buyer agree as
follows:
1. Reinstatement. The Contract is hereby reinstated as if such Contract
had never been terminated and shall remain in full force and effect and
binding on the parties hereto, subject to the terms and conditions thereof
and hereof.
2. Purchase Price. For valuable consideration the receipt and sufficiency of
which is hereby acknowledged, the Purchase Price is hereby reduced by the sum of
$450,000.00 from $9,450,000.00 to $9,000,000.00 (which consists of $5,553,000.00
for the portion of the Property known as Highland I and II and $3,447,000.00 for
the portion of the Property known as Highland III).
3. Extension of Feasibility Period. The Feasibility Period is hereby extended
only for Buyer's Phase II Assessment Work (as hereinafter defined) from May 31,
2001 to the date which is thirty (30) days after the date of this Reinstatement
(the "Extended Feasibility Date").
4. Waiver of Feasibility Period Contingencies. Notwithstanding that Seller has
agreed to extend the expiration of the Feasibility Period to August 10, 2001,
Buyer hereby agrees and acknowledges that except for Buyer's Phase II site
assessment and soil testing and other work described in Paragraph 16 (the "Phase
II Assessment Work") to be performed by LawGibb Group, ("LawGibb"), and other
contractors, all other contingencies in connection with Buyer's due diligence
during the Feasibility Period have been satisfied or waived by Purchaser as of
the date hereof.
5. Completion & Payment of Phase II Site Assessment Work. Buyer
hereby agrees to use diligent efforts to cause the Phase II Assessment Work to
be completed by the Extended Feasibility Date, and Buyer shall furnish to Seller
evidence that LawGibb has performed the Phase II Assessment Work. Additionally,
Buyer shall provide Seller with copies of the report issued by LawGibb in
connection with its Phase II Assessment Work within three (3) days after its
completion thereof. Buyer, at its sole cost and expense, shall be responsible
for payment of any studies and tests made in connection with LawGibb's Phase II
Assessment Work, which payment shall be made to LawGibb prior to Closing. Buyer
shall cause the contractor performing the Phase II Assessment Work on behalf of
LawGibb to execute and file a mechanics lien waiver prior to the commencement of
any such work in accordance with the provisions of Section 5.4 of the Contract.
In any event, the indemnification provisions of Section 5.3 of the Contract
shall remain in full force and effect in connection with all of Buyer's
Feasibility Period inspections, including the Phase II Assessment Work.
6. Extension of Closing Date. The Closing Date is hereby extended from
July 2, 2001 to the date which is ten (10) days after the Extended
Feasibility Date. Buyer hereby agrees and acknowledges that it has waived
its extension right as set forth in Section 7.1.2 of the Contract.
7. Satisfaction of Delivery of Minimum Tenant Estoppels Required. Buyer
hereby agrees and acknowledges that with regard to the delivery of tenant
estoppel certificates pursuant to the terms of Section 9.1.4 of the Contract,
Seller has delivered and satisfied the Minimum Tenant Estoppels Required.
8. Leasing. Buyer hereby agrees and acknowledges that it has approved the
lease renewal for Charlotte Data Entry, Inc., located at 810 Tyvola Road,
Suite 100, being a part of the Property also known as Highland Park III, and
agrees that it shall be liable for the payment of all tenant improvements and
leasing commissions in connection with this lease renewal.
9. Right of First Refusal. Buyer hereby agrees and acknowledges that its
purchase of the Property is subject to any interest The United Methodist
Publishing House, successor-in-interest to United Methodist Church, an
Illinois corporation, d/b/a Cokesbury Books, may have with respect to any
future offer Buyer receives that involves only the purchase of a portion of
the Property located at 726 Tyvola Road, Charlotte, North Carolina, totaling
approximately 7,000 square feet, located in a portion of the Property
commonly known as Highland Park Commerce Center, Phase III.
10. Deliveries to Seller. In the event the Contract is terminated by Buyer
prior to Closing in accordance with the terms of the Contract, Buyer shall
provide Seller with copies of any reports prepared and compiled by Buyer's
Consultants, in accordance with Section 12.2 of the Contract.
11. Effectiveness of Contract. Except as modified by this Agreement, all
the terms of the Contract shall remain unchanged and in full force and effect.
12. Counterparts. This Agreement may be executed in counterparts, each of
which when compiled together shall constitute one and the same original.
13. Telecopied Signatures. A counterpart of this Agreement signed by one
party to this Agreement and telecopied to the other party to this Agreement
or its counsel (i) shall have the same effect as an original signed
counterpart of this Agreement, and (ii) shall be conclusive proof, admissible
in judicial proceedings, of such party's execution of this Agreement.
14. No Further Modifications. All other terms and conditions of the
Contract remain in full force and effect.
15. Deposit. On the date of this Reinstatement, Buyer shall again deliver
the $150,000 Deposit to the Escrow Agent.
16. Nature of Work. It is understood and agreed that Buyer, at Buyer's
expense will conduct the Phase II Assessment Work in the space formerly
occupied by Goodyear in the building at 806 Tyvola Road, and that this work
will involve the removal of 4 single post and 4 double post rotary
underground lifts and associated equipment and underground lines, pumping out
all oil, sawing the concrete and paving back, removing all contaminated soil,
and properly disposing all contaminated soil, and additional soil testing.
IN WITNESS WHEREOF, Seller and Buyer have entered into this First
Amendment and Reinstatement to Purchase and Sale Agreement as of the date
written above.
Seller:
CENTURY PROPERTIES FUND XX,
a California limited partnership
[Corporate Seal] By: Fox Partners III,
a California general partnership,
Its General Partner
By: Fox Capital Management Corporation,
a California corporation,
Its General Partner
By: [SEAL]
Its:
CENTURY PENSION INCOME FUND XXIII,
a California limited partnership
[Corporate Seal] By: Fox Partners V,
a California general partnership,
Its General Partner
By: Fox Capital Management
Corporation,
a California corporation,
Its General Partner
By: [SEAL]
Its:
[Signatures Continued on Next Page]
Buyer:
HIGH INVESTORS, LTD., a Pennsylvania
corporation
[Corporate Seal] By:
,[SEAL]
Name: ,
Title: