UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Under Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) March 31, 2003
CENTURY PENSION INCOME FUND XXIII
(Exact name of registrant as specified in its charter)
California 0-14528 94-2963120
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification Number)
55 Beattie Place
Post Office Box 1089
Greenville, South Carolina 29602
(Address of principal executive offices)
(864) 239-1000
(Registrant's telephone number)
Item 2. Acquisition or Disposition of Assets.
On March 31, 2003, the Registrant sold its remaining investment property,
Commerce Plaza, located in Tampa, Florida. The Registrant sold Commerce Plaza to
Cadle's Commerce Plaza, LLC, an unrelated party, for $1,400,000. The sale price
was determined based on the fair market value of the investment property. The
Registrant has no remaining investment properties.
In 1999, the Registrant's Nonrecourse Promissory Notes (the "Notes") matured.
The Registrant was unable to satisfy the Notes at maturity and as a result the
Registrant was in default. As a result of the default, the Registrant entered
into a forbearance agreement with the indenture trustee. Pursuant to the
agreement, the Registrant agreed to (a) deliver to the indenture trustee for the
benefit of the note holders all of the accumulated cash of the Registrant, 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 were fully satisfied and (d) comply with the
reporting requirements under the indenture.
In accordance with the forbearance agreement, the net sales proceeds were
deposited with the indenture trustee. The Managing General Partner does not
anticipate any proceeds being available for distribution to the Registrant's
partners.
Item 7. Financial Statements and Exhibits
(b) Pro forma financial information.
With the sale of the last investment property, the Registrant is expected to
liquidate the partnership. As a result, the Registrant is not filing pro forma
financial information with the Form 8-K.
(c) Exhibits.
The following exhibits are filed with this report (1):
10.22 Purchase and Sale Contract between Registrant and The Cadle
Company, dated March 6, 2002.
10.23 Assignment of Purchase Agreement between The Cadle Company, Inc.
and Cadle's Commerce Plaza, LLC, dated March 31, 2003.
(1) Schedules and supplemental materials to the exhibits have been omitted but
will be provided to the Securities and Exchange Commission upon request.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CENTURY PENSION INCOME FUND XXIII
By: Fox Partners V
Its General Partner
By: Fox Capital Management Corporation
Its Managing General Partner
By: /s/Patrick J. Foye
Patrick J. Foye
Executive Vice President
Date: April 10, 2003
Exhibit 10.22
PURCHASE AND SALE CONTRACT
BETWEEN
CENTURY PENSION INCOME FUND XXIII,
a California limited partnership
AS SELLER
AND
THE CADLE COMPANY,
an Ohio corporation
AS PURCHASER
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT ("Purchase Contract") is entered into as
of the 6th day of March, 2003 (the "Effective Date") by and between CENTURY
PENSION INCOME FUND XXIII, a California limited partnership, having a principal
address at 2000 South Colorado Boulevard, Tower Two, Suite 2-1000, Denver,
Colorado 80222 ("Seller") and THE CADLE COMPANY, an Ohio corporation, having a
principal address at 100 North Center Street, Newton Falls, Ohio 44444
("Purchaser").
NOW, THEREFORE WITNESSETH: That for and in consideration of mutual
covenants and agreements hereinafter set forth, Seller and Purchaser hereby
agree as follows:
RECITALS
R-1. Seller holds legal title to the real estate located in Hillsborough County,
Florida, as more particularly described in Exhibit A attached hereto and made a
part hereof. Improvements have been constructed on the property described in
this Recital.
R-2. Purchaser desires to purchase and Seller has agreed to sell such land,
improvements and certain associated property, defined below as the "Property" on
the terms and conditions set forth below, (which terms and conditions shall
control in the event of any conflict with these Recitals), such that on the
Closing Date (as hereinafter defined) the Property will be conveyed by 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 Florida. 1.1.2 "Closing" means the
consummation of the purchase and sale and related transactions contemplated by
this Purchase Contract in accordance with the terms and conditions of this
Purchase Contract.
1.1.3 "Closing Date" means the date on which date the Closing of the conveyance
of the Property is required to be held under the terms and conditions of this
Purchase Contract and on which date full payment of the Purchase Price for the
Property shall have been paid to and received by Seller in immediately available
U.S. funds.
1.1.4 "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 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 Florida described on Exhibit "A" attached hereto, and all rights,
privileges and appurtenances pertaining thereto.
1.1.10 "Miscellaneous Property Assets" means all contract rights, development
rights, if any, leases, concessions, warranties, plans, drawings and other items
of intangible personal property relating to the ownership or operation of the
Property and owned by Seller, including operating and maintenance files, tenant
files and other books and records used in connection with the ownership and
operation of the Property (other than Seller's proprietary information), and
general intangibles relating to the Property, excluding, however, (i)
receivables, (ii) Property Contracts, (iii) Commercial Leases, (iv) Permits, (v)
cash or other funds, whether in petty cash or house "banks," or on deposit in
bank accounts or in transit for deposit, (vi) refunds, rebates or other claims,
or any interest thereon, for periods or events occurring prior to the Closing
Date, (vii) utility and similar deposits, or (viii) insurance or other prepaid
items or (ix) Seller's proprietary books and records, except to the extent that
Seller receives a credit on the closing statement for any such item. The term
"Miscellaneous Property Assets" shall also include the following, but only to
the extent owned by Seller and in Seller's possession or in the possession of
Seller's Designated Representative (as defined in Section 8.1.4): environmental
reports, property condition reports, and similar reports pertaining to the
physical condition of the Property, plans and specifications and other plans or
studies of any kind, if any. The term "Miscellaneous Property Assets" shall also
include all of Seller's rights, if any, in and to the name "COMMERCE PLAZA
OFFICE PARK." 1.1.11 "Permits" means all licenses and permits granted by
governmental authorities having jurisdiction over the Property in respect of the
matter to which the applicable license or permit applies and owned by Seller and
used in or relating to the ownership, occupancy or operation of the Property or
any part thereof not subject to a Commercial Lease. 1.1.12 "Permitted
Exceptions" means those exceptions or conditions permitted to encumber the title
to the Property in accordance with the provisions of Section 6.2. 1.1.13
"Property" means the Land and Improvements and all rights of Seller relating to
the Land and the Improvements, including without limitation, any rights, title
and interest of Seller, if any, in and to (i) any strips and gores adjacent to
the Land and any land lying in the bed of any street, road, or avenue opened or
proposed, in front of or adjoining the Land, to the center line thereof; (ii)
any unpaid award for any taking by condemnation or any damage to the Property by
reason of a change of grade of any street or highway; (iii) all of the
easements, rights, privileges, and appurtenances belonging or in any way
appertaining to the Property; together with all Fixtures and Tangible Personal
Property, the right, if any and only to the extent transferable, of Seller in
and to Property Contracts and Commercial Leases, Permits other than Excluded
Permits and the Miscellaneous Property Assets owned by Seller which are located
on the Property and used in its operation. 1.1.14 "Property Contracts" means all
purchase orders, maintenance, service, or utility contracts and similar
contracts, which relate to the ownership, maintenance, construction or repair
and/or operation of the Property and which are not cancelable on 21 days' or
shorter Notice, except Commercial Leases. 1.1.15 "Purchase Contract" means this
Purchase and Sale Contract by and between Seller and Purchaser. 1.1.16 "Purchase
Price" means the total consideration to be paid by Purchaser to Seller for the
purchase of the Property. 1.1.17 "Survey" shall have the meaning ascribed
thereto in Section 6.12. 1.1.18 "Tenant" means any person or entity entitled to
occupy any portion of the Property under a Commercial Lease. 1.1.19 "Title
Commitment" or "Title Commitments" shall have the meaning ascribed thereto in
Section 6.1. 1.1.20 "Title Insurer" shall have the meaning set forth in Section
6.1. ARTICLE 2
PURCHASE AND SALE OF PROPERTY
2.1 Seller agrees to sell and convey the Property to Purchaser and Purchaser
agrees to purchase the Property from Seller, in accordance with the terms and
conditions set forth in this Purchase Contract.
ARTICLE 3
PURCHASE PRICE & DEPOSIT
3.1 The total purchase price ("Purchase Price") for the Property shall be One
Million Four Hundred Thousand and no/100 Dollars ($1,400,000.00), which shall be
paid by Purchaser, as follows:
3.1.1 On the date hereof, Purchaser shall deliver to Fidelity National Title
Company ("Escrow Agent" or the "Title Insurer") a deposit in the sum of One
Hundred Thousand and no/100 Dollars ($100,000.00), in cash, (such sum being
hereinafter referred to and held as the "Deposit"). Purchaser and Seller each
approve the form of Escrow Agreement attached as Exhibit B. 3.1.2 Intentionally
Omitted.
3.1.3 The Escrow Agent shall hold the Deposit and make delivery of the Deposit
to the party entitled thereto under the terms hereof. Escrow Agent shall invest
the Deposit in such short-term, high-grade securities, interest-bearing bank
accounts, money market funds or accounts, bank certificates of deposit or bank
repurchase agreements as Escrow Agent, in its discretion, deems suitable,
(provided that Escrow Agent shall invest the Deposit as jointly directed by
Seller and Purchaser should Seller and Purchaser each in their respective sole
discretion determine to issue such joint investment instructions to the Escrow
Agent) and all interest and income thereon shall become part of the Deposit and
shall be remitted to the party entitled to the Deposit, as set forth below.
3.1.4 If the sale of the Property is closed by the date fixed therefor (or any
extension date provided for herein, monies held as the Deposit shall be applied
to the Purchase Price on the Closing Date. If the sale of the Property is not
closed by the date fixed therefor (or any such extension date) owing to failure
of satisfaction of a condition precedent to Purchaser's obligations, the Deposit
shall be returned and refunded to Purchaser, and neither party shall have any
further liability hereunder, subject to and except for Purchaser's liability
under Section 5.3. 3.1.5 If the sale of the Property is not closed by the date
fixed therefor (or any such extension date provided for herein) owing to failure
of performance by Seller, Purchaser shall be entitled to the remedies set forth
in ARTICLE 12 hereof. If the sale of the Property is not closed by the date
fixed therefor (or any such extension date) owing to failure of performance by
Purchaser, the Deposit shall be forfeited by Purchaser and the sum thereof shall
go to Seller forthwith as liquidated damages for the lost opportunity costs and
transaction expenses incurred by Seller, as more fully set forth in ARTICLE 12
below.
ARTICLE 4
FINANCING
4.1 Purchaser assumes full responsibility to expeditiously and diligently
initiate and pursue all steps necessary to obtain the funds required for
settlement, and Purchaser's acquisition of such funds shall not be a contingency
to the Closing.
ARTICLE 5
FEASIBILITY
5.1 Purchaser acknowledges that Purchaser and its agents, contractors,
engineers, surveyors, attorneys, and employees ("Consultants") have had the
opportunity to enter onto the Property:
5.1.1 To conduct and make any and all customary studies, tests, examinations and
inspections, or investigations of or concerning the Property (including without
limitation, engineering and feasibility studies, evaluation of drainage and
flood plain, soil tests for bearing capacity and percolation and surveys,
including topographical surveys).
5.1.2 To confirm any and all matters which Purchaser may reasonably desire to
confirm with respect to the Property. 5.1.3 To ascertain and confirm the
suitability of the property for Purchaser's intended use of the Property.
5.1.4 To review all Materials (as hereinafter defined) other than Seller's
proprietary information. 5.2 Purchaser hereby acknowledges that (1) Purchaser
has completed its review of all matters set forth in Section 5.1, (2) Purchaser
approves all matters reviewed, and (3) Purchaser agrees that Purchaser's
obligation to purchase the Property shall be non-contingent and unconditional
except only for satisfaction of the conditions expressly stated in Section 6.8,
and in ARTICLE 9. Notwithstanding the foregoing, during the term of this
Purchase Contract, Purchaser shall be permitted access to review the Property's
financing and leasing information upon reasonable notice to Seller. 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; provided, however, such indemnity
shall not cover claims, damages, costs and liability which arise due to Seller's
gross negligence or willful misconduct or from any preexisting condition on the
Property. 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 having a A.M. Best's Key
Rating Guide Rating of "A-" and a financial category of VII or better and naming
Seller and its affiliates as loss payees or additional insureds (at the option
of Seller), with endorsements acceptable to Seller, including a waiver of
defenses of the insurer based on the actions or inaction of Purchaser (which
insurance must be reasonably approved by Seller). Such liability insurance shall
provide coverages of not less than $1,000,000.00 for injury or death to any one
person and $3,000,000.00 for injury or death to more than one person and
$500,000.00 with respect to property damage, by water or otherwise). The
provisions of this Section shall survive the Closing or termination of this
Purchase Contract.
5.4 Purchaser shall not permit any mechanic's or construction 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 If the sale of the Property is not closed by the date fixed therefor,
Purchaser shall, within five (5) calendar days, return all leases, contracts,
studies, surveys and other materials relating to the Property (the "Materials")
to Seller.
ARTICLE 6
TITLE
6.1 Purchaser shall promptly secure a commitment for title insurance for the
Property in an amount equal to the Purchase Price ("Title Commitment") issued by
Fidelity National Title Insurance Company ("Title Insurer") for an owner's title
insurance policy on the most recent standard American Land Title Association
("ALTA") (10/17/92) (with standard Florida Modifications) Policy form, together
with legible copies of all instruments identified as exceptions therein and
shall cause a copy thereof to be delivered immediately to Seller. Purchaser and
Seller agree that the payment of the cost relating to procurement of the Title
Commitment and any Owner title policy shall be paid for by Purchaser. Purchaser
shall have five (5) Business Days after the Effective Date (the "Title Review
Period") in which to examine title to the Property and review the Title
Commitment and the Survey (as hereinafter defined). Prior to the expiration of
the Title Review Period, Purchaser shall notify Seller in writing of any liens,
encumbrances or adverse conditions to title, or matters of Survey, which are
unacceptable to Purchaser (collectively, the "Title Objections") which would
render title to the Property unmarketable. Unless Purchaser notifies Seller in
writing prior to the expiration of the Title Review Period of any Title
Objections, Purchaser shall be deemed to be satisfied as of the conclusion of
the Title Review 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; provided,
however, that Seller shall not be required to expend more than $30,000 in the
aggregate in connection with such cure or satisfaction. If the amount required
to cure or satisfy all such Title Objections exceeds $30,000, Purchaser shall
have the option of either (a) paying the excess amount over $30,000 required to
cure or satisfy such Title Objections, and proceeding to the Closing, or (b)
terminating this Purchase Contract, in which case, the Deposit shall be returned
and refunded to Purchaser and neither party shall have any further liability
hereunder, subject to and except for Purchaser's liability under Section 5.3 of
this Purchase Contract. Seller shall have no option to terminate this Purchase
Contract if Purchaser has elected to pay the amount in excess of $30,000 to cure
or satisfy such Title Objections. If Seller does not elect to cure any Title
Objections, the provisions of Section 6.8 hereof shall apply. In addition,
during the Title Review 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 marketable and 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 construction liens and taxes due and payable in respect of the
period preceding Closing) and the standard Permitted Exceptions contained in the
ALTA Title Commitment as described above.
6.2.2 All Commercial Leases and any other occupancy, residency, lease, tenancy
and similar agreements entered into in the ordinary course of business; 6.2.3
All Property Contracts and any other existing contracts created in the ordinary
course of business by Seller, which are not identified for termination by
Purchaser during the Title Review Period; 6.2.4 Real estate and property taxes
for the calendar year in which closing occurs to the extent not due and payable;
6.2.5 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 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 Title Insurer (sufficient to remove the same from the policy issued
at Closing), together in either case, with recording and/or filing fees. 6.4
Unpaid liens for taxes, charges, and assessments shall not be objections to
title, but the amount thereof plus interest and penalties thereon shall be
deducted from the Purchase Price to be paid for the applicable Property
hereunder and allowed to Purchaser, subject to the provisions for apportionment
of taxes and charges contained in ARTICLE 7 herein. 6.5 Unpaid franchise or
business corporation taxes of any corporations in the chain of title shall not
be an objection to title, provided that 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 the Closing Date, 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 or before the Closing Date, the state of title is
other than in accordance with the requirements set forth in this Purchase
Contract or if any condition to be fulfilled by Seller shall not be satisfied,
Purchaser shall provide Seller with written Notice thereof at such time, or such
title objection or unfulfilled condition shall be deemed waived by Purchaser in
which case Purchaser and Seller shall proceed to consummate the Closing on the
Closing Date. If Purchaser timely gives Seller such Notice, or if Purchaser has
given Seller written notice of any Title Objections in accordance with Section
6.1 above, 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. Notwithstanding the foregoing, Seller shall
use commercially reasonable efforts to cure title objections raised by Purchaser
which render title to the Property unmarketable or uninsurable, including the
bringing of any necessary quiet title suits, provided, however, that Seller
shall not be required to spend more than $30,000 in the aggregate on such
attempt to cure. If Seller makes such election, then Purchaser and Seller shall
delay the Closing for a reasonable period of time for Seller to cure any such
objection or condition, such period not to exceed thirty (30) calendar days.
Should Seller be able to cure such Title Objection or condition, or should
Seller be able to cause title insurance over the same by the Closing Date or any
postponed Closing Date, or should Purchaser waive such objection or condition
within such period for cure, then the Closing shall take place on or before
thirty (30) calendar days after Notice of such cure or waiver. 6.8 If Seller
does not elect to cure such objection or unfulfilled condition or during the
period of cure Seller is unable or unwilling, in its sole discretion or opinion,
to eliminate such Title Objection or cause Title Insurer to insure over such
matter or satisfy such unfulfilled condition, Seller shall give Purchaser
written Notice thereof, and if Purchaser does not waive such objection by
written Notice delivered to Seller and the title company issuing the Title
Commitment on or before seven (7) calendar days following the date Seller gives
such Notice, then this Purchase Contract shall automatically terminate, and the
parties hereto shall have no further obligations to each other, except for
Purchaser's obligations pursuant to Section 5.3 above, and the Deposit shall be
immediately returned to Purchaser. 6.9 Seller covenants that it will not
voluntarily create or cause any lien or encumbrance (including, without
limitation, mortgage liens which currently do not encumber the Property) 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, and except as expressly provided in Section 6.7, 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 Notwithstanding
anything to the contrary contained herein, Purchaser shall not have any right to
terminate this Purchase Contract or object to any lien, encumbrance, exception
or other matter that is a Permitted Exception, that has been waived or deemed to
have been waived by Purchaser. 6.11 Intentionally deleted. 6.12 Purchaser at
Purchaser's sole cost and expense, may cause to be prepared a survey for the
Property ("Survey") to be delivered to Purchaser and Seller within the Title
Review Period. The Survey (i) shall be prepared in accordance with and shall
comply with the minimum requirements of the ALTA; (ii) shall be in a form, and
shall be certified as of a date satisfactory to Title Insurer to enable Title
Insurer to delete standard survey exceptions from the title insurance policy to
be issued pursuant to the Title Commitment, 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; (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 description shall be used in a quitclaim deed to the Property which
also shall be delivered to Purchaser at Closing. Purchaser, at Purchaser's sole
cost and expense, may also cause to be prepared an environmental report for the
Property ("Environmental Report"). 6.12.1 Should such Survey disclose conditions
that give rise to a title exception other than a Permitted Exception, Purchaser
shall have the right to object thereto within the Title Review Period in
accordance with the procedures set forth in Section 6.1 above. 6.12.2 Purchaser
agrees to make payment in full of all costs of obtaining Surveys required by
this Purchase Contract on or before Closing or termination of this Purchase
Contract.
ARTICLE 7
CLOSING
7.1 Dates, Places Of Closing, Prorations, Delinquent Rent and Closing Costs.
7.1.1 The Closing shall occur no later than twenty-one (21) calendar days after
the Effective Date, through an escrow with Escrow Agent, whereby the Seller,
Purchaser and their attorneys need not be physically present at the Closing and
may deliver documents by overnight air courier or other means. 7.1.2 The Closing
Date may be extended without penalty at the option of Seller to a date not later
than ninety (90) days following the Closing Date specified above to satisfy a
condition to be satisfied by Seller, or such later date as is mutually
acceptable to Seller and Purchaser. 7.1.3 All normal and customarily proratable
items, including, without limitation, Rents (as defined below), operating
expenses, personal property taxes, other operating expenses and fees, shall be
prorated as of the Closing Date, Seller being charged or credited, as
appropriate, for all of same attributable to the period up to the Closing Date
(and credited for any amounts paid by Seller attributable to the period on or
after the Closing Date, if assumed by Purchaser) and Purchaser being responsible
for, and credited or charged, as the case may be, for all of same attributable
to the period on and after the Closing Date. All unapplied refundable deposits
under Tenant leases, if any, shall be transferred by Seller to Purchaser at the
Closing and any non-refundable deposits shall be retained by Seller without
credit to Purchaser. Seller shall pay at Closing any accrued but unpaid tenant
improvement allowances and leasing commissions under Commercial Leases executed
prior to the Effective Date. Notwithstanding anything to the contrary contained
in the terms of any separate leasing or management agreement, modification or
extension thereto, Purchaser shall assume or pay at Closing any tenant
improvement allowances and leasing commissions under Commercial Leases
(including modifications and extensions thereto) approved in writing by
Purchaser and executed after the Effective Date, together with any payments due
parties to other agreements affecting the Property which survive Closing or
under the Property Contracts assumed by Purchaser and approved in writing by
Purchaser, provided that any payments under the Property Contracts have been
prorated. Any real estate ad valorem or similar taxes for the Property, or any
installment of assessments payable in installments which installment is payable
in the calendar year of Closing, shall be prorated to the date of Closing, based
upon actual days involved. The proration of real property taxes or installments
of assessments shall be based upon the assessed valuation and tax rate figures
for the year in which the Closing occurs to the extent the same are available;
provided, that in the event that actual figures (whether for the assessed value
of the Property or for the tax rate) for the year of Closing are not available
at the Closing Date, the proration shall be made using figures from the
preceding year. The proration shall be final and unadjustable except as provided
in the following paragraph. For purposes of this Section 7.1.3 and Sections
7.1.4 and 7.1.5, the terms "Rent" and "Rents" shall include, without limitation,
base rents, additional rents, percentage rents and common area maintenance
charges. The provisions of this Section 7.1.3 shall apply during the Proration
Period (as defined below).
7.1.4 If any of the items subject to proration hereunder cannot be prorated at
the Closing because the information necessary to compute such proration is
unavailable, or if any errors or omissions in computing prorations at the
Closing are discovered subsequent to the Closing, then such item shall be
reapportioned and such errors and omissions corrected as soon as practicable
after the Closing Date and the proper party reimbursed, which obligation shall
survive the Closing for a period (the "Proration Period") from the Closing Date
until one (1) year after the Closing Date. Neither party hereto shall have the
right to require a recomputation of a Closing proration or a correction of an
error or omission in a Closing proration unless within the Proration Period one
of the parties hereto (i) has obtained the previously unavailable information or
has discovered the error or omission, and (ii) has given Notice thereof to the
other party together with a copy of its good faith recomputation of the
proration and copies of all substantiating information used in such
recomputation. The failure of a party to obtain any previously unavailable
information or discover an error or omission with respect to an item subject to
proration hereunder and to give Notice thereof as provided above within the
Proration Period shall be deemed a waiver of its right to cause a recomputation
or a correction of an error or omission with respect to such item after the
Closing Date. Any Rents that have accrued, but have not yet been paid shall be
prorated in accordance with estimates based upon the prior years' information
(or reasonable estimates of Seller if no such prior years' information is
available), and shall be subsequently readjusted and reapportioned upon receipt.
Purchaser shall pay Seller for Rents that have accrued, but are not yet due and
payable, at Closing. 7.1.5 If on the Closing Date any Tenant is in arrears in
any Rent payment under any Tenant lease (the "Delinquent Rent"), any Delinquent
Rent received by Purchaser and Seller from such Tenant after the Closing shall
be applied to amounts due and payable by such Tenant during the following
periods in the following order of priority: (i) first, to the payment of current
tenant receivables due and payable for the month in which the Closing occurs,
which shall be prorated between Purchaser and Seller, as and when collected,
(ii) second, to payment of tenant receivables first coming due in the month
after Closing and each month thereafter and applicable to the time after
Closing, which shall be retained by Purchaser, and (iii) third to any delinquent
rent which Seller failed to collect prior to Closing, which is collected by
either Seller or Purchaser, which shall be remitted to Seller. If Delinquent
Rent or any portion thereof received by Seller or Purchaser after the Closing
are due and payable to the other party by reason of this allocation, the
appropriate sum, less a proportionate share of any reasonable attorneys' fees
and costs and expenses expended in connection with the collection thereof, shall
be promptly paid to the other party. Any monies received by Seller after Closing
shall be forwarded to Purchaser for disbursement in accordance with the order of
payment provided herein above. After the Closing, Seller shall continue to have
the right, but not the obligation, in its own name, to demand payment of and to
collect Delinquent Rent owed to Seller by any Tenant, which right shall include,
without limitation, the right to continue or commence legal actions or
proceedings against any Tenant (provided, that Seller shall not commence any
legal actions or proceedings against any Tenant which continues as a Tenant at
the Property after Closing without the prior consent of Purchaser, which will
not be unreasonably withheld or delayed), and the delivery of the Assignment as
defined in Section 7.2.1.3 shall not constitute a waiver by Seller of such
right. Purchaser agrees to cooperate with Seller at no cost or liability to
Purchaser in connection with all efforts by Seller to collect such Delinquent
Rent and to take all steps, whether before or after the Closing Date, as may be
necessary to carry out the intention of the foregoing, including, without
limitation, the delivery to Seller, within seven (7) days after a written
request, of any relevant books and records (including, without limitation, rent
statements, receipted bills and copies of tenant checks used in payment of such
rent), the execution of any and all consents or other documents, and the
undertaking of any act reasonably necessary for the collection of such
Delinquent Rent by Seller; provided, however, that Purchaser's obligation to
cooperate with Seller pursuant to this sentence shall not obligate Purchaser to
terminate any Tenant lease with an existing Tenant or evict any existing Tenant
from the Property. The provisions of this Section 7.1.5 shall apply during the
Proration Period.
7.1.6 Seller shall pay the cost of all transfer taxes (excise taxes) and
recording costs with respect to the Closing. Seller and Purchaser shall share
equally in the costs of the Escrow Agent for escrow fees. 7.2 Items To Be
Delivered Prior To Or At Closing.
7.2.1 Seller. At Closing, Seller shall deliver to the Escrow Agent, each of the
following items, as applicable: 7.2.1.1 Special Warranty Deed in the form
attached as Exhibit 7.2.1.1 to Purchaser. The acceptance of such deed at
Closing, shall be deemed to be full performance of, and discharge of, every
agreement and obligation on Seller's part to be performed under this Purchase
Contract, except for those that this Purchase Contract specifically provides
shall survive Closing. 7.2.1.2 A Bill of Sale without recourse or warranty in
the form attached as Exhibit 7.2.1.2 covering all Property Contracts, Commercial
Leases, Permits (other than Excluded Permits) and Fixtures and Tangible Personal
Property required to be transferred to Purchaser with respect to such Property.
Purchaser shall countersign the same so as to effect an assumption by Purchaser
of, among other things, Seller's obligations thereunder. 7.2.1.3 An Assignment
(to the extent assignable and in force and effect) without recourse or warranty
in the form attached as Exhibit 7.2.1.3 of all of Seller's right, title and
interest in and to the Miscellaneous Property Assets, subject to any required
consents. Purchaser shall countersign the same so as to effect an assumption by
Purchaser, including, without limitation, of 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 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. 7.2.1.8 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. 7.2.2
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. The existence of any such liens or
encumbrances shall not be deemed objections to title if Seller shall comply with
the foregoing requirements.
7.2.2.2 A closing statement executed by Purchaser.
7.2.2.3 A countersigned counterpart of the Bill of Sale in the form
attached as Exhibit 7.2.1.2.
7.2.2.4 A countersigned counterpart of the Assignment in the form
attached as Exhibit 7.2.1.3.
7.2.2.5 Such other instruments, documents or certificates as are required to be
delivered by Purchaser to Seller in accordance with any of the other provisions
of this Purchase Contract.
ARTICLE 8
REPRESENTATIONS AND WARRANTIES
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 marketable
and insurable, fee title to the Property, including all real property contained
therein required to be sold to Purchaser, subject only to the Permitted
Exceptions (provided, however, that if this representation is or becomes untrue,
Purchaser's remedies shall be limited to the remedies set forth in Section 6.7
hereof and Seller shall have no other liability as a result thereof, either
before or after Closing); 8.1.1.3 There are no adverse or other parties in
possession of the Property, except for occupants, guests and tenants under the
Commercial Leases (provided, however, that if this representation is or becomes
untrue, Purchaser's remedies shall be limited to the remedies set forth in
Section 6.7 hereof).
8.1.1.4 The joinder of no person or entity other than Seller is necessary to
convey the Property, fully and completely, to Purchaser at Closing, or to
fulfill Seller's obligations and Seller has all necessary right and authority to
convey and assign to Purchaser all contract rights and warranties required to be
conveyed and assigned to Purchaser hereunder; 8.1.1.5 Purchaser has no duty to
collect withholding taxes for Seller pursuant to the Foreign Investors Real
Property Tax Act of 1980, as amended; 8.1.1.6 To Seller's knowledge, there are
no actions, proceedings, litigation or governmental investigations or
condemnation actions either pending or threatened against the Property, as
applicable; 8.1.1.7 Seller has no knowledge of any claims for labor performed,
materials furnished or services rendered in connection with constructing,
improving or repairing any of the Property, as applicable, caused by Seller and
which remain unpaid beyond the date for which payment was due and in respect of
which liens may or could be filed against any of the Property, as applicable;
8.1.1.8 To the best of Seller's knowledge, all commissions due on Commercial
Leases or renewals of Commercial Leases have been paid in full as of the
Effective Date and all tenant improvements and other obligations due tenants
under the Commercial Leases have been paid in full or otherwise satisfied as of
the Effective Date; 8.1.2 Except for the representations and warranties
expressly set forth above in Subsection 8.1.1, the Property is expressly
purchased and sold "AS IS," "WHERE IS," and "WITH ALL FAULTS." The Purchase
Price and the terms and conditions set forth herein are the result of
arm's-length bargaining between entities familiar with transactions of this
kind, and said price, terms and conditions reflect the fact that Purchaser shall
have the benefit of, and is not relying upon any information provided by Seller
or Broker or statements, representations or warranties, express or implied, made
by or enforceable directly against Seller or Broker, including, without
limitation, any relating to the value of the Property, the physical or
environmental condition of the Property, any state, federal, county or local
law, ordinance, order or permit; or the suitability, compliance or lack of
compliance of the Property with any regulation, or any other attribute or matter
of or relating to the Property (other than any covenants of title contained in
the deeds conveying the Property and the representations set forth above).
Purchaser represents and warrants that as of the date hereof and as of the
Closing Date, it has and shall have reviewed and conducted such independent
analyses, studies, reports, investigations and inspections as it deems
appropriate in connection with the Property. If Seller provides or has provided
any documents, summaries, opinions or work product of consultants, surveyors,
architects, engineers, title companies, governmental authorities or any other
person or entity with respect to the Property, including, without limitation,
the offering prepared by Broker, Purchaser and Seller agree that Seller has done
so or shall do so only for the convenience of both parties, Purchaser shall not
rely thereon and the reliance by Purchaser upon any such documents, summaries,
opinions or work product shall not create or give rise to any liability of or
against Seller, Seller's partners or affiliates or any of their respective
partners, officers, directors, participants, employees, contractors, attorneys,
consultants, representatives, agents, successors, assigns or
predecessors-in-interest. Purchaser shall rely only upon any title insurance
obtained by Purchaser with respect to title to the Property. Purchaser
acknowledges and agrees that no representation has been made and no
responsibility is assumed by Seller with respect to current and future
applicable zoning or building code requirements or the compliance of the
Property with any other laws, rules, ordinances or regulations, the financial
earning capacity or expense history of the Property, the continuation of
contracts, continued occupancy levels of the Property, or any part thereof, or
the continued occupancy by tenants of any Commercial Leases or, without limiting
any of the foregoing, occupancy at Closing. Prior to Closing, Seller shall have
the right, but not the obligation, to enforce its rights against any and all
Property occupants, guests or tenants. Except as otherwise set forth herein,
Purchaser agrees that the departure or removal, prior to Closing, of any of such
guests, occupants or tenants shall not be the basis for, nor shall it give rise
to, any claim on the part of Purchaser, nor shall it affect the obligations of
Purchaser under this Purchase Contract in any manner whatsoever; and Purchaser
shall close title and accept delivery of the deed with or without such tenants
in possession and without any allowance or reduction in the Purchase Price under
this Purchase Contract. Purchaser hereby releases Seller from any and all claims
and liabilities relating to the foregoing matters, except as provided in Section
8.1.3 below. 8.1.3 Seller and Purchaser agree that those representations
contained in Section 8.1 shall survive Closing for a period of one (1) year
(that is, any proceeding based on the breach of a representation contained in
Section 8.1 that survives Closing must be commenced within one (1) year
subsequent to the date of such representation), and Seller's liability with
respect thereto shall be limited to the actual losses of Purchaser, but in no
event greater than $50,000.00 in the aggregate. In the event that Seller
breaches any representation contained in Section 8.1 and Purchaser had knowledge
of such breach, Purchaser shall be deemed to have waived any right of recovery
and Seller shall not have any liability in connection therewith. 8.1.4
Representations and warranties above made to the knowledge of Seller shall not
be deemed to imply any duty of inquiry. For purposes of this Purchase Contract,
the term Seller's "knowledge" shall mean and refer to only actual knowledge of
the Designated Representative (as hereinafter defined) of the Seller and shall
not be construed to refer to the knowledge of any other partner, officer,
director, agent, employee or representative of the Seller, or any affiliate of
the Seller, or to impose upon such Designated Representative any duty to
investigate the matter to which such actual knowledge or the absence thereof
pertains, or to impose upon such Designated Representative any individual
personal liability. As used herein, the term Designated Representative shall
refer to Vicki Webster, Regional Property Manager, SSR/Metric Property
Management. 8.2 Representations And Warranties Of Purchaser 8.2.1 For the
purpose of inducing Seller to enter into this Purchase Contract and to
consummate the sale and purchase of the Property in accordance herewith,
Purchaser represents and warrants to Seller the following as of the Effective
Date and as of the Closing Date: 8.2.2 With respect to Purchaser and its
business, Purchaser represents and warrants, in particular, that: 8.2.2.1
Purchaser is corporation duly organized, validly existing and in good standing
under the laws of Ohio. 8.2.2.2 Purchaser, acting through any of its or their
duly empowered and authorized officers or members, has all necessary power and
authority to own and use its properties and to transact the business in which it
is engaged, and has full power and authority to enter into this Purchase
Contract, to execute and deliver the documents and instruments required of
Purchaser herein, and to perform its obligations hereunder; and no consent of
any of Purchaser's officers or members are required to so empower or authorize
Purchaser. 8.2.2.3 No pending or, to the knowledge of Purchaser, threatened
litigation exists which if determined adversely would restrain the consummation
of the transactions contemplated by this Purchase Contract or would declare
illegal, invalid or non-binding any of Purchaser's obligations or covenants to
Seller. 8.2.2.4 Purchaser is duly authorized to execute and deliver, acting
through its duly empowered and authorized officers and members, respectively,
and perform this Purchase Contract and all documents and instruments and
transactions contemplated hereby or incidental hereto, and such execution,
delivery and performance by Purchaser does not (i) violate any of the provisions
of their respective certificates of incorporation or bylaws, (ii) violate any
provision of any law, governmental rule or regulation currently in effect, (iii)
violate any judgment, decree, writ, injunction, award, determination or order
currently in effect that names or is specifically directed at Purchaser or its
property, and (iv) require the consent, approval, order or authorization of, or
any filing with or notice to, any court or other governmental authority. 8.2.2.5
The joinder of no person or entity other than Purchaser is necessary to
consummate the transactions to be performed by Purchaser and Purchaser has all
necessary right and authority to perform such acts as are required and
contemplated by this Purchase Contract. 8.2.3 Except as provided in Section 10.1
below, Purchaser has not dealt with any broker, finder or any other person, in
connection with the purchase of or the negotiation of the purchase of the
Property that might give rise to any claim for commission against Seller or lien
or claim against the Property. 8.2.4 Intentionally Omitted.
ARTICLE 9
CONDITIONS PRECEDENT TO CLOSING
9.1 Purchaser's obligation to close under this Purchase Contract, shall be
subject to and conditioned upon the fulfillment of each and all of the following
conditions precedent:
9.1.1 All of the documents required to be delivered by Seller to Purchaser at
the Closing pursuant to the terms and conditions hereof shall have been
delivered and shall be in form and substance reasonably satisfactory to
Purchaser; 9.1.2 Each of the representations and warranties of Seller contained
herein shall be true in all material respects as of the Closing Date; 9.1.3
Seller shall have complied with, fulfilled and performed in all material
respects each of the covenants, terms and conditions to be complied with,
fulfilled or performed by Seller hereunder; 9.1.4 Notwithstanding anything to
the contrary, there are no other conditions on Purchaser's obligation to Close
except as expressly set forth above. 9.1.5 Seller shall use reasonable good
faith efforts to obtain estoppel certificates from all Tenants on the Property
in the form attached hereto as Exhibit 9.1.5. Seller's failure to deliver such
estoppel certificates shall not constitute a default or breach of this Purchase
Contract by Seller provided Seller has used reasonable good faith efforts to
obtain the estoppel certificates. 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
Aztec Group ("Broker") in connection with this Purchase Contract. Seller and
Purchaser each represent and warrant to the other that other than Seller'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. Seller's
Broker shall not be deemed a party or third party beneficiary of this Purchase
Contract.
10.3 Seller's Broker does not 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
Title Review Period for any reason other than Seller's inability to convey title
as required by this Purchase Contract, or defaults hereunder on or prior to the
Closing Date and consummation of the Closing does not occur by reason of such
termination or default by Purchaser, Seller and Purchaser agree that it would be
impractical and extremely difficult to estimate the damages which Seller may
suffer. Therefore, Seller and Purchaser hereby agree that, except for the
Purchaser's obligations to Seller under Section 5.3, the reasonable estimate of
the total net detriment that Seller would suffer in the event that Purchaser
terminates this Purchase Contract or defaults hereunder on or prior to the
Closing Date is and shall be, as Seller's sole remedy (whether at law or in
equity), the right to receive from the Escrow Agent and retain the full amount
of the Deposit. The payment and performance of the above as liquidated damages
is not intended as a forfeiture or penalty within the meaning of applicable law
and is intended to settle all issues and questions about the amount of damages
suffered by Seller in the applicable event, except only for damages under
Section 5.3 above, irrespective of the time when the inquiry about such damages
may take place. Upon any such failure by Purchaser hereunder, this Purchase
Contract shall be terminated, and neither party shall have any further rights or
obligations hereunder, each to the other, except for the Purchaser's obligations
to Seller under Section 5.3 above, and the right of Seller to collect such
liquidated damages to the extent not theretofore paid by Purchaser.
12.2 Provided that Purchaser has not terminated this Purchase Contract and is
not otherwise in default hereunder, if the Closing does not occur as a result of
Seller's default hereunder, Purchaser's sole remedy shall be to elect to
terminate this Purchase Contract and receive reimbursement of the Deposit (or so
much thereof as has been received by Escrow Agent) or to seek specific
performance of this Purchase Contract.
ARTICLE 13
RISK OF LOSS OR CASUALTY
13.1 The risk of loss or damage to the Property by fire or other casualty until
the deed of conveyance is recorded is assumed by the Seller, provided that the
Seller's responsibility shall be only to the extent of any recovery from
insurance now carried on the Property. Upon assignment to Purchaser of any
insurance proceeds in respect of fire or other casualty occurring between the
date of ratification of this Purchase Contract and the time of settlement,
Purchaser shall have no right to terminate this Purchase Contract on account
thereof, but Seller shall assign to Purchaser its interest in and to any
insurance policies and proceeds thereof payable as a result of such damage or
destruction. Seller shall not, in any event, be obligated to effect any repair,
replacement, and/or restoration, but may do so at its option in which case
Seller may apply the insurance proceeds to the costs of restoration.
ARTICLE 14
RATIFICATION
14.1 This Purchase Contract shall be null and void unless fully ratified by
Purchaser and Seller on or before March 10, 2003.
ARTICLE 15
EMINENT DOMAIN
15.1 In the event that at the time of Closing all or a substantial part of the
Property is (or has previously been) acquired, or is about to be acquired, by
authority of any governmental agency in purchase in lieu thereof (or in the
event that at such time there is any notice of any such acquisition or intent to
acquire by any such governmental agency), Purchaser shall have the right, at
Purchaser's option, to terminate this Purchase Contract by giving written Notice
within Fifteen (15) days of Purchaser's receipt from Seller of the occurrence of
such event, or to settle in accordance with the terms of this Purchase Contract
for the full Purchase Price and receive the full benefit or any condemnation
award. It is expressly agreed between the parties hereto that this paragraph
shall in no way apply to customary dedications for public purposes which may be
necessary for the development of the Property.
ARTICLE 16
MISCELLANEOUS
16.1 Exhibits And Schedules
All Exhibits and Schedules annexed hereto are a part of this Purchase
Contract for all purposes.
16.2 Assignability
Subject to Section 16.18, this Purchase Contract is not assignable without
first obtaining the prior written approval of the non-assigning party, except
that Purchaser may assign all or an undivided interest in this Purchaser
Contract to one or more entities so long as (i) Purchaser or its affiliate
remains a part of the purchasing entity(ies), (ii) Purchaser is not released
from its liability hereunder, and (iii) Seller consents thereto (which consent
shall not be unreasonably withheld or delayed). 16.3 Binding Effect
This Purchase Contract shall be binding upon and inure to the benefit of
Seller and Purchaser, and their respective successors, heirs and permitted
assigns.
16.4 Captions
The captions, headings, and arrangements used in this Purchase Contract
are for convenience only and do not in any way affect, limit, amplify, or modify
the terms and provisions hereof.
16.5 Number And Gender Of Words
Whenever herein the singular number is used, the same shall include the
plural where appropriate, and words of any gender shall include each other
gender where appropriate.
16.6 Notices
All Notices, demands, requests and other communications required pursuant
to the provisions of this Purchase Contract ("Notice") shall be in writing and
shall be deemed to have been properly given or served for all purposes (i) if
sent by Federal Express or a nationally recognized overnight carrier for next
business day delivery, on the first business day following deposit of such
Notice with such carrier, or (ii) if personally delivered, on the actual date of
delivery or (iii) if sent by certified mail, return receipt requested postage
prepaid, on the Fifth (5th) business day following the date of mailing, 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 Pension Income Fund The Cadle Company
XXIII 100 North Center Street
Mr. Patrick Slavin Newton Falls, Ohio 44444
2000 South Colorado Blvd. Attn: Daniel C. Cadle,
Tower Two, Suite 2-1000 President
Denver, Colorado 80222 Facsimile No. (330) 872-5367
Attn: Mr. Patrick Slavin
Facsimile No. (303) 692-0786
And With a copy to
Argent Real Estate The Cadle Company
1401 Brickell Avenue, Suite 520 9638 Maury Road
Miami, Florida 33131 Fairfax, Virginia 22032
Attn: Mr. David Marquette Attn: Mr. Rick Persinger
Facsimile No. (305) 371-6898 Facsimile No. (703) 426-8223
With a copy to:
Chad Asarch, Esq.
Vice President and Assistant
General Counsel
AIMCO
2000 S. Colorado Blvd
Tower Two, Suite 2-1000
Denver, Colorado 80222
Facsimile No. (303) 300-3297
And 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 Florida shall govern the validity, construction,
enforcement, and interpretation of this Purchase Contract, unless otherwise
specified herein except for the conflict of laws provisions thereof. All claims,
disputes and other matters in question arising out of or relating to this
Purchase Contract, or the breach thereof, shall be decided by proceedings
instituted and litigated in the Circuit Court in and for Hillsborough County,
Florida, and the parties hereto expressly consent to the venue and jurisdiction
of such court.
16.8 Entirety And Amendments
This Purchase Contract embodies the entire Purchase Contract between the
parties and supersedes all prior Purchase Contracts and understandings, if any,
relating to the Property, and may be amended or supplemented only by an
instrument in writing executed by the party against whom enforcement is sought.
16.9 Severability
If any provision of this Purchase Contract is held to be illegal, invalid,
or unenforceable under present or future laws, such provision shall be fully
severable. The Purchase Contract shall be construed and enforced as if such
illegal, invalid, or unenforceable provision had never comprised a part of this
Purchase Contract; and the remaining provisions of this Purchase Contract shall
remain in full force and effect and shall not be affected by the illegal,
invalid, or unenforceable provision or by its severance from this Purchase
Contract. In lieu of such illegal, invalid, or unenforceable provision, there
shall be added automatically as a part of this Purchase Contract a provision as
similar in terms to such illegal, invalid, or unenforceable provision as may be
possible to make such provision legal, valid, and enforceable.
16.10 Multiple Counterparts
This Purchase Contract may be executed in a number of identical
counterparts. If so executed, each of such counterparts is to be deemed an
original for all purposes and all such counterparts shall, collectively,
constitute one Purchase Contract. In making proof of this Purchase Contract, it
shall not be necessary to produce or account for more than one such
counterparts.
16.11 Further Acts
In addition to the acts and deeds recited herein and contemplated and
performed, executed and/or delivered by Seller and Purchaser, Seller and
Purchaser agree to perform, execute and/or deliver or cause to be performed,
executed and/or delivered any and all such further acts, deeds, and assurances
as may be necessary to consummate the transactions contemplated hereby.
16.12 Construction
No provision of this Purchase Contract shall be construed in favor of, or
against, any particular party by reason of any presumption with respect to the
drafting of this Purchase Contract; both parties, being represented by counsel,
having fully participated in the negotiation of this instrument. 16.13
Confidentiality
Purchaser shall not disclose the terms and conditions contained in this
Purchase Contract, shall keep the same confidential, provided that Purchaser may
disclose the terms and conditions of this Purchase Contract (i) as required by
law, (ii) to consummate the terms of this Purchase Contract, or any financing
relating thereto, or (iii) to Purchaser's or Seller's lenders, attorneys and
accountants, Any information provided by Seller to Purchaser under the terms of
this Purchase Contract is for informational purposes only. In providing such
information to Purchaser, Seller makes no representation or warranty, express,
written, oral, statutory, or implied, and all such representations and
warranties are hereby expressly excluded. Purchaser shall not in any way be
entitled to rely upon the accuracy of such information. Such information is also
confidential and Purchaser shall be prohibited from making such information
public to any other person or entity other than its agents and legal
representatives, without Seller's prior written authorization, which may be
granted or denied in Seller's sole discretion.
16.14 Time Of The Essence
It is expressly agreed by the parties hereto that time is of the
essence with respect to this Purchase Contract.
16.15 Cumulative Remedies And Waiver
No remedy herein conferred or reserved is intended to be exclusive of any
other available remedy or remedies herein conferred or referred, but each and
every such remedy shall be cumulative and shall be in addition to every other
remedy given under this Purchase Contract. No delay or omission to exercise any
right or power accruing upon any default, omission, or failure of performance
hereunder shall impair any right or power or shall be construed to be a waiver
thereof, but any such right and power may be exercised from time to time and as
often as may be deemed expedient. No waiver, amendment, release, or modification
of this Purchase Contract shall be established by conduct, custom, or course of
dealing. 16.16 Litigation Expenses
In the event either party hereto commences litigation against the other to
enforce its rights hereunder, the prevailing party in such litigation shall be
entitled to recover from the other party its reasonable attorneys' fees and
expenses incidental to such litigation.
16.17 Time Periods
Should the last day of a time period fall on a weekend or legal holiday,
the next Business Day thereafter shall be considered the end of the time period.
16.18 Exchange
At Seller's sole cost and expense, Seller may structure the sale of the
Property to Purchaser as a Like Kind Exchange under Internal Revenue Code
Section 1031 whereby Seller will acquire certain property (the "Like Kind
Exchange Property") in conjunction with the sale of the Property (the "Like Kind
Exchange"). Purchaser shall cooperate fully and promptly with Seller's conduct
of the Like Kind Exchange, provided that all costs and expenses generated in
connection with the Like Kind Exchange shall be borne solely by Seller, and
Purchaser shall not be required to take title to or contract for the purchase of
any other property. If Seller uses a qualified intermediary to effectuate the
exchange, any assignment of the rights or obligations of Seller hereunder shall
not relieve, release or absolve Seller of its obligations to Purchaser. In no
event shall the Closing Date be delayed by the Like Kind Exchange. Seller shall
indemnify and hold harmless Purchaser from and against any and all liability
arising from and out of the Like Kind Exchange.
16.19 No Personal Liability of Officers, Trustees or directors of Seller's
Partners
Purchaser acknowledges that this Purchase Contract is entered into by
Seller which is a California limited partnership, and Purchaser agrees that no
individual officer, trustee, director or representative of the partners of
Seller shall have any personal liability under this Purchase Contract or any
document executed in connection with the transactions contemplated by this
Purchase Contract.
16.20 No Exclusive Negotiations
Seller shall have the right, at all times, to solicit backup offers and
enter into discussions, negotiations, or any other communications concerning or
related to the sale of the Property with any third-party; provided, however,
that such communications are subject to the terms of this Purchase Contract, and
that Seller shall not enter into any contract or binding agreement with a
third-party for the sale of the Property unless such agreement is contingent on
the termination of this Purchase Contract without the Property having been
conveyed to Purchaser.
16.21 Radon
Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient qualities, may present health risks to
persons who are exposed to it over time. Levels of radon that exceed federal and
state guidelines have been found in buildings in Florida. Additional information
regarding radon and radon testing may be obtained from your county public health
unit.
[REMAINING PAGE LEFT INTENTIONALLY BLANK]
NOW WHEREFORE, the parties hereto have executed this Purchase Contract
under seal as of the date first set forth above.
Signed, sealed and delivered Seller:
In the presence of:
CENTURY PENSION INCOME FUND XXIII,
________________________ a California limited partnership
Witness
By: Fox Partners V,
________________________ a California limited partnership,
Witness Its General Partner
By: Fox Capital Management
Corporation, a California
corporation,
Its General Partner
By: /s/Patrick F. Slavin
Name: Patrick F. Slavin
Title:Senior Vice President
Signed, sealed and delivered Purchaser:
in the presence of:
THE CADLE COMPANY
________________________ an Ohio corporation
Witness
________________________ By: /s/Daniel C. Cadle
Witness Name: Daniel C. Cadle
Title: President
By: /s/Victor O. Buente, Jr.
Name: Victor O. Buente, Jr.
Title: Vice President
SELLER'S ACKNOWLEDGEMENT
STATE OF COLORADO )
COUNTY OF DENVER )
I hereby certify on this day, before me, Patrick F. Slavin as Senior Vice
President of Fox Capital Management Corporation, the corporation in whose name
the foregoing instrument was executed as general partner of Fox Partners V, a
California general partnership, which is the general partner of Century Pension
Income Fund XXIII, a California general partnership, the general partner of
Grantor, the same for such corporation, freely and voluntarily, under authority
duly vested in him
Witness my hand and official seal in the County and State last aforesaid
this 14th day of February, 2003.
Notary Rubber Stamp Seal Notary Signature
/s/Marcey K. Anderson
Marcey K. Anderson
Printed Notary Signature
PURCHASER'S ACKNOWLEDGMENT
STATE OF OHIO)
COUNTY OF TRUMBULL)
I hereby certify on this day, before me, an officer duly authorized to
administer oaths and take acknowledgments, personally appeared Daniel C. Cadle
and Victor O. Buente, Jr., known to me to the be the President and Vice
President, respectively of THE CADLE COMPANY, the corporation in whose name the
foregoing instrument was executed, and that Daniel C. Cadle and Victor O.
Buente, Jr. severally acknowledged executing the same for such corporation,
freely and voluntarily, under authority duly vested in them by said corporation,
and that the seal affixed thereto is the true corporate seal of said
corporation. (Check one) X Said person(s) (is) (are) personally known to me. |_|
Said person(s) provided the following type of identification:
_____________________________________________________________________________.
Witness my hand and official seal in the County and State last
aforesaid this 31st day of January, A.D. 2003.
Notary Rubber Stamp Seal Notary Signature
/s/Dawn M. Senvisky
Dawn M. Senvisky
Printed Notary Signature
EXHIBIT A
LEGAL DESCRIPTION FOR COMMERCE PLAZA
For a point of reference, commence at the northeast corner of Block "B",
AIRPORT SERVICE CENTER as recorded in Plat Book 50, Page 25 of the Public
Records of Hillsborough County, Florida; run thence South 01 degree 30
minutes 46 seconds East along the east line of said Block "B", 661.39 feet to
the Point of Beginning, said Point of Beginning being the southeast corner of
Lot 1 of AIRPORT SERVICE CENTER - REPLAT as recorded in Plat Book 50, Page 63
of the Public Records of Hillsborough County, Florida; continue thence South
01 degree 30 minutes 46 seconds East along said east line of Block "B",
576.77 feet; thence South 25 degrees 05 minutes 14 seconds West, 22.33 feet
to the south line of said Block "B"; run thence South 88 degrees 39 minutes
44 seconds West along said south line, 429.60 feet to the southwest corner of
said Block "B"; run thence North 01 degree 30 minutes 46 seconds West along
the west line of said Block "B", 596.29 feet to the southwest corner of Lot 1
of AIRPORT SERVICE CENTER - REPLAT; run thence North 88 degrees 35 minutes 55
seconds East along the south line of said Lot 1, 439.60 feet to the Point of
Beginning as shown on plat of Survey of Part of Block "B", Airport Service
Center and Part of Vacated R.O.W. of Hoover Boulevard for AFC Properties
Tampa-IV, prepared by W. R. Cover, Florida Registered Land Surveyor No. 1521,
Cover Engineering, Inc. dated April 14, 1981, revised June 30, 1981 and
re-certified March 21,1986.
ALSO:
A part of Hoover Boulevard right of way vacated by Hillsborough County
resolution recorded in Official Record Book 3593, Pages 1119 through 1123 being
described as follows: from the aforesaid Point of Beginning, run thence South 01
degree 30 minutes 46 seconds East along the east line of said Block "B", 361.42
feet; run thence North 09 degrees 47 minutes 50 seconds East, 101.98 feet to a
point located 20.00 feet east of said line; run thence North 01 degree 30
minutes 46 seconds West parallel with said east line, 261.39 feet; run thence
South 88 degrees 35 minutes 55 seconds West, 20.00 feet to the Point of
Beginning.
Less except that portion of land described in that certain Order of Taking, Case
No. 96-08253, in 8503/693.
EXHIBIT 1.1.5
LIST OF EXCLUDED PERMITS
To Be Inserted, If Any
EXHIBIT 1.1.7
LIST OF EXCLUDED PERSONAL PROPERTY OR EQUIPMENT
To Be Inserted, If Any
EXHIBIT 7.2.1.1
FORM OF SPECIAL WARRANTY DEED
THIS INSTRUMENT PREPARED BY: |
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Address: |
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Property Appraisers Parcel Identification (Folio) Number(s): |
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Grantee(s) S.S. #(s) | |
THIS SPECIAL WARRANTY DEED made and executed as of the _____ day of
____________, A.D., 2003, by CENTURY PENSION INCOME FUND XXIII, a California
limited partnership, and having its principal place of business at 2000 South
Colorado Boulevard, Tower Two, Suite 2-1000, Denver, Colorado 80222, hereinafter
called the grantor, in favor of THE CADLE COMPANY, an Ohio corporation, whose
address is 100 North Center Street, Newton Falls, Ohio 44444, hereinafter called
the grantee (wherever used herein the terms "grantor" and "grantee" shall
include singular and plural, heirs, legal representatives, and assigns of
individuals, and the successors and assigns of corporations, wherever the
context so admits or requires).
WITNESSETH, that the grantor, for and in consideration of the sum of
$1,400,000.00, and other valuable considerations, receipt whereof is hereby
acknowledged, by these presents does grant, bargain, sell, alien, remise,
release, convey and confirm unto the grantee, all that certain land situated in
Hillsborough County, State of Florida, the same being more particularly
described on Exhibit "A" attached hereto and by reference made a part hereof.
Together, with all the tenements, hereditaments and appurtenances thereto
belonging or in anywise appertaining.
TO HAVE AND TO HOLD, the same in fee simple forever.
AND the grantor hereby covenants with said grantee that the grantor is
lawfully seized of said land in fee simple; that it has good, right and lawful
authority to sell and convey said land; that it hereby fully warrants the title
to said land and will defend the same against the lawful claims of all persons
claiming by, through or under grantor; and that said land is free of all
encumbrances.
(Corporate Seal) IN WITNESS WHEREOF, the said general partnership has
caused these presents to be executed in its name, and the
corporate seal of Fox Capital Management Corporation, as
general partner of Fox Partners V, a California general
partnership ("Fox V"), which is the general partner of Century
Pension Income Fund XXIII, the general partner of grantor, has
been affixed hereto, by its proper officers thereunto duly
authorized, the day and year first above written.
Signed, sealed and delivered in the CENTURY PENSION INCOME FUND XXIII, a
presence of: California limited partnership,
___________________________________ By: Fox Partners V, a California general
Witness Name: ______________________ partnership, general partner
___________________________________ By: Fox Capital Management
Witness Name: ______________________ Corporation, Its General Partner
By: /s/Patrick F. Slavin
Name: Patrick F. Slavin
ATTEST: __________________________ Its: Senior Vice President
Secretary
STATE OF COLORADO )
COUNTY OF DENVER )
I hereby certify on this day, before me, Patrick F. Slavin as Senior Vice
President of Fox Capital Management Corporation, the corporation in whose name
the foregoing instrument was executed as general partner of Fox Partners V, a
California general partnership, which is the general partner of Century Pension
Income Fund XXIII, a California general partnership, the general partner of
Grantor, the same for such corporation, freely and voluntarily, under authority
duly vested in him
Witness my hand and official seal in the County and State last aforesaid
this 14th day of February, 2003.
Notary Rubber Stamp Seal Notary Signature
/s/Marcey K. Anderson
Marcey K. Anderson
Printed Notary Signature
EXHIBIT A
LEGAL DESCRIPTION FOR COMMERCE PLAZA
For a point of reference, commence at the northeast corner of Block "B",
AIRPORT SERVICE CENTER as recorded in Plat Book 50, Page 25 of the Public
Records of Hillsborough County, Florida; run thence South 01 degree 30
minutes 46 seconds East along the east line of said Block "B", 661.39 feet to
the Point of Beginning, said Point of Beginning being the southeast corner of
Lot 1 of AIRPORT SERVICE CENTER - REPLAT as recorded in Plat Book 50, Page 63
of the Public Records of Hillsborough County, Florida; continue thence South
01 degree 30 minutes 46 seconds East along said east line of Block "B",
576.77 feet; thence South 25 degrees 05 minutes 14 seconds West, 22.33 feet
to the south line of said Block "B"; run thence South 88 degrees 39 minutes
44 seconds West along said south line, 429.60 feet to the southwest corner of
said Block "B"; run thence North 01 degree 30 minutes 46 seconds West along
the west line of said Block "B", 596.29 feet to the southwest corner of Lot 1
of AIRPORT SERVICE CENTER - REPLAT; run thence North 88 degrees 35 minutes 55
seconds East along the south line of said Lot 1, 439.60 feet to the Point of
Beginning as shown on plat of Survey of Part of Block "B", Airport Service
Center and Part of Vacated R.O.W. of Hoover Boulevard for AFC Properties
Tampa-IV, prepared by W. R. Cover, Florida Registered Land Surveyor No. 1521,
Cover Engineering, Inc. dated April 14, 1981, revised June 30, 1981 and
re-certified March 21,1986.
ALSO:
A part of Hoover Boulevard right of way vacated by Hillsborough County
resolution recorded in Official Record Book 3593, Pages 1119 through 1123 being
described as follows: from the aforesaid Point of Beginning, run thence South 01
degree 30 minutes 46 seconds East along the east line of said Block "B", 361.42
feet; run thence North 09 degrees 47 minutes 50 seconds East, 101.98 feet to a
point located 20.00 feet east of said line; run thence North 01 degree 30
minutes 46 seconds West parallel with said east line, 261.39 feet; run thence
South 88 degrees 35 minutes 55 seconds West, 20.00 feet to the Point of
Beginning.
Less except that portion of land described in that certain Order of Taking, Case
No. 96-08253, in 8503/693.
EXHIBIT 7.2.1.2
FORM OF BILL OF SALE
This Bill of Sale ("Assignment") is executed by CENTURY PENSION INCOME
FUND XXIII, a California limited partnership ("Seller"), in favor of THE CADLE
COMPANY, an Ohio corporation ("Purchaser").
Seller and Purchaser, have entered into that certain Purchase and Sale
Contract and dated as of March 6, 2003 ("Purchase Contract"), in which Seller
has agreed to sell and Purchaser has agreed to purchase the real property
described in Exhibit "A" attached thereto and the improvements located thereon
(collectively, the "Project").
Pursuant to the Purchase Contract, Seller has agreed to assign, without
recourse or warranty, to Purchaser all of Seller's right, title and interest, if
any, in and to the Property (as hereinafter defined).
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
1. As used herein, the term "Property" shall mean the following property to the
extent said property is owned by Seller and used in, held for use in connection
with, or necessary for the operation of the Project: a. Property Contracts. All
of Seller's rights and interests in and to
purchase orders, maintenance, service or utility contracts or
similar contracts which relate to the ownership, maintenance,
construction or repair or operation of the Project.
b. Leases. All of Seller's rights and interests in and to leases,
subleases, and other occupancy agreements, whether or not of
record, which provide for use or occupancy of space or
facilities on or relating to the Project.
c. Licenses and Permits. All of Seller's rights and interests in
and to all licenses or permits granted by governmental
authorities having jurisdiction over the Project and utilized
with respect to the Project.
d. Fixtures and Tangible Personal Property. All of Sellers rights
and interests in and to all fixtures, furniture, furnishings,
fittings, equipment, machinery, apparatus, appliances and
other articles of tangible personal property now located on
the Project or in the improvements thereon and used in
connection with any present or future occupation or operation
of all or any part of the Project.
The term "Property" shall not include any of the foregoing: (i) to
the extent the same are excluded or reserved to Seller pursuant to the Purchase
Contract to which Seller and Purchaser are parties; and (ii) to the extent that
the sale or transfer thereof requires consent or approval of any third party,
which consent or approval is not obtained by Seller. Nothing herein shall create
a transfer or assignment of intellectual property or similar assets of Seller.
2. Assignment. Seller hereby assigns, sells and transfers, without recourse or
warranty, to Purchaser all of Seller's right, title and interest, if any, in and
to the Property, subject to any rights of consent as provided therein.
3. Assumption. Purchaser expressly agrees to assume and hereby assumes all
liabilities and obligations of the Seller in connection with the Property and
agrees to perform all of the covenants and obligations of Seller thereunder.
Purchaser further agrees to indemnify, defend and hold Seller harmless from and
against any and all cost, loss, harm or damage which may arise in connection
with the Property.
4. Counterparts. This Assignment may be executed in counterparts, each of which
shall be deemed an original, and both of which together shall constitute one and
the same instrument.
5. Attorneys' Fees. If any action or proceeding is commenced by either party to
enforce its rights under this Assignment, the prevailing party in such action or
proceeding shall be entitled to recover all reasonable costs and expenses
incurred in such action or proceeding, including reasonable attorneys' fees and
costs, in addition to any other relief awarded by the court.
6. Applicable Law. This Assignment shall be governed by and interpreted in
accordance with the laws of the State of Florida. 7. Titles and Section
Headings. Titles of sections and subsections contained in this Assignment are
inserted for convenience of reference only, and neither form a part of this
Assignment or are to be used in its construction or interpretation.
8. Binding Effect. This Assignment shall be binding upon and inure to the
benefit of the parties hereto and their respective transferees, successors, and
assigns.
9. Entire Agreement; Modification. This Assignment supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may not be altered or modified without the written consent of
all parties.
WITH RESPECT TO ALL MATTERS TRANSFERRED, WHETHER TANGIBLE OR INTANGIBLE,
PERSONAL OR REAL, SELLER EXPRESSLY DISCLAIMS A WARRANTY OF MERCHANTABILITY AND
WARRANTY FOR FITNESS FOR A PARTICULAR USE OR ANY OTHER WARRANTY EXPRESSED OR
IMPLIED THAT MAY ARISE BY OPERATION OF LAW OR UNDER THE UNIFORM COMMERCIAL CODE
FOR THE STATE IN WHICH THE PROPERTY IS LOCATED.
WITNESS the signatures of the undersigned.
Dated: , 2003
Seller:
CENTURY PENSION INCOME FUND XXIII
a California limited partnership
By: Fox Partners V,
a California general partnership,
Its General Partner
By: Fox Capital Management
Corporation,
a California corporation,
Its General Partner
By: /s/Patrick F. Slavin
Name: Patrick F. Slavin
Title: Senior Vice President
Purchaser:
THE CADLE COMPANY,
an Ohio corporation
By: /s/Daniel C. Cadle
Name: Daniel C. Cadle
Title: President
Exhibit 7.2.1.3
GENERAL ASSIGNMENT
This General Assignment ("Assignment") is executed by CENTURY PENSION
INCOME FUND XXIII, a California limited partnership ("Seller"), in favor of THE
CADLE COMPANY, an Ohio corporation ("Purchaser").
Seller and Purchaser, have entered into that certain Purchase and Sale
Contract and dated as of March 6, 2003 ("Purchase Contract"), in which Seller
has agreed to sell and Purchaser has agreed to purchase the real property
described in Exhibit "A" attached thereto and the improvements located thereon
collectively, the "Project").
Pursuant to the Purchase Contract, Seller has agreed to assign, without
recourse or warranty, to Purchaser all of Seller's right, title and interest, if
any, in and to the Miscellaneous Property Assets (as hereinafter defined).
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
1. As used herein, the term "Miscellaneous Property Assets" shall mean all
contract rights, development rights, if any, 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 including operating and
maintenance files, tenant files and other books and records used in connection
with the ownership and operation of the Property (other than Seller's
proprietary information), and general intangibles relating to the Property.
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 the following, but only to the extent owned by Seller and in
Seller's possession or in the possession of Seller's Designated Representative
(as defined in Section 8.1.4 of the Purchase Contract); environmental reports,
property condition reports, and similar reports pertaining to the physical
condition of the Property, plans and specifications and other plans or studies
of any kind, if any. The term "Miscellaneous Property Assets" shall also include
all of Seller's rights, if any, in and to the name "COMMERCE PLAZA OFFICE PARK."
2. Assignment. Seller hereby assigns, sells and transfers, without
recourse or warranty, to Purchaser all of Seller's right, title and interest, if
any, in and to the Miscellaneous Property Assets, subject to any rights of
consent as provided therein.
3. Assumption. Purchaser expressly agrees to assume and hereby assumes all
liabilities and obligations of the Seller in connection with the Miscellaneous
Property Assets and agrees to perform all of the covenants and obligations of
Seller thereunder. Purchaser further agrees to indemnify, defend and hold Seller
harmless from and against any and all cost, loss, harm or damage which may arise
in connection with the Miscellaneous Property Assets, pertaining to acts arising
on and after the date hereof. Seller further agrees to indemnify, defend and
hold Purchaser harmless from and against any and all cost, loss, harm or damage
which may arise in connection with the Miscellaneous Property Assets.
4. Counterparts. This Assignment may be executed in counterparts, each of
which shall be deemed an original, and both of which together shall constitute
one and the same instrument.
5. Attorneys' Fees. If any action or proceeding is commenced by either
party to enforce its rights under this Assignment, the prevailing party in such
action or proceeding shall be entitled to recover all reasonable costs and
expenses incurred in such action or proceeding, including reasonable attorneys'
fees and costs, in addition to any other relief awarded by the court.
6. Applicable Law. This Assignment shall be governed by and interpreted in
accordance with the laws of the State of Florida.
7. Titles and Section Headings. Titles of sections and subsections
contained in this Assignment are inserted for convenience of reference only, and
neither form a part of this Assignment or are to be used in its construction or
interpretation.
8. Binding Effect. This Assignment shall be binding upon and inure to the
benefit of the parties hereto and their respective transferees, successors, and
assigns.
9. Entire Agreement; Modification. This Assignment supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may not be altered or modified without the written consent of
all parties.
WITH RESPECT TO ALL MATTERS TRANSFERRED, WHETHER TANGIBLE OR INTANGIBLE,
PERSONAL OR REAL, SELLER EXPRESSLY DISCLAIMS A WARRANTY OF MERCHANTABILITY AND
WARRANTY FOR FITNESS FOR A PARTICULAR USE OR ANY OTHER WARRANTY EXPRESSED OR
IMPLIED THAT MAY ARISE BY OPERATION OF LAW OR UNDER THE UNIFORM COMMERCIAL CODE
FOR THE STATE IN WHICH THE PROPERTY IS LOCATED.
[Remainder of Page Intentionally Left Blank]
WITNESS the signatures of the undersigned.
Seller:
CENTURY PENSION INCOME FUND XXIII
a California limited partnership
By: Fox Partners V,
a California general partnership,
Its General Partner
By: Fox Capital Management
Corporation,
a California corporation,
Its General Partner
By: /s/Patrick F. Slavin
Name: Patrick F. Slavin
Title: Senior Vice President
Purchaser:
THE CADLE COMPANY,
an Ohio corporation
By: /s/Daniel C. Cadle
Name: Daniel C. Calde
Title: President
Exhibit B
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Escrow Agreement") made this 6th day of March,
2003 by and among CENTURY PENSION INCOME FUND XXIII, a California limited
partnership ("Seller"), and THE CADLE COMPANY, an Ohio corporation
("Purchaser"); and FIDELITY NATIONAL TITLE INSURANCE COMPANY ("Escrow Agent");
WITNESSETH:
Whereas Purchaser and Seller are parties to a certain Purchase and Sale
Contract (the "Purchase Contract") made and dated as of the 6th day of March,
2003; and
Whereas, the Purchase Contract requires that Purchaser provide a deposit
in the amount of One Hundred Thousand and no/100 Dollars ($100,000.00) in cash
(the "Deposit"), to be held pursuant to an escrow agreement approved by
Purchaser and Seller; and
Now, therefore, the parties agree to the following:
1. Establishment of Escrow. Escrow Agent hereby acknowledges receipt of One
Hundred Thousand and no/100 Dollars ($100,000.00) 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.
2. Investment of Escrow Fund. All funds received by Escrow Agent, including the
Deposit (collectively, the "Escrow Fund"), shall be held in insured accounts and
invested in such short-term, high-grade securities, money market funds or
accounts, interest-bearing bank accounts, bank certificates of deposit or bank
repurchase agreements as Escrow Agent, in its discretion, deems suitable
(provided that Escrow Agent shall invest the Escrow Fund as jointly directed by
Seller and Purchaser should Seller and Purchaser each in their respective sole
discretion determine to issue such joint investment instructions to the Escrow
Agent) and all interest and income thereon shall become part of the Escrow Fund
and shall be remitted to the party entitled to the Escrow Fund, as set forth
below.
3. Application of Escrow Fund. Escrow Agent shall hold the Escrow Fund as
provided above and (a) if the sale of the Property is closed by the date fixed
therefor (or any extension date provided for by mutual written consent of the
parties hereto, given or withheld in their respective sole discretion), Escrow
Agent shall deliver the Escrow Fund to Seller in immediately available funds by
wire transfer in accordance with the instructions of Seller on the Closing Date
as set forth in the Purchase Contract, (b) if the sale of the Property is not
closed by the date fixed therefor (or any such extension date) owing to failure
of satisfaction of a condition precedent to Purchaser's obligations, the Escrow
Agent shall return and refund the Escrow Fund to Purchaser, (c) if the sale of
the Property is not closed by the date fixed therefor (or any such extension
date) owing to failure of performance by Seller, Purchaser shall give Notice to
the Escrow Agent and Seller and in such Notice shall state whether it elects as
its remedy return of the Escrow Fund or specific performance of the Purchase
Contract; if Purchaser elects return of the Escrow Fund, Escrow Agent shall
return and refund the Escrow Fund to Purchaser, (d) if the sale of the Property
is not closed by the date fixed therefor (or any such extension date) owing to
failure of performance by Purchaser, Escrow Agent shall forthwith deliver to
Seller the Escrow Fund in immediately available funds by wire transfer in
accordance with the instructions of Seller, and (e) if Purchaser shall have
canceled the Purchase Contract on or before the expiration of the Title Review
Period (as defined in the Purchase Contract), the Escrow Agent shall return and
refund the Escrow Fund to Purchaser.
If on or prior to the termination of the Escrow Agreement, a party claims
to be entitled to payment of the Escrow Fund under the provisions referred to,
such party shall give Notice to the Escrow Agent and the other party of the
claim in writing, describing in such Notice the nature of the claim, and the
provisions of the Purchase Contract on which the claim is based. Unless the
other party sends the Escrow Agent a written objection to the claim, with a copy
concurrently to the claiming party, within ten (10) days after delivery of the
Notice of claim, the claim shall be conclusively presumed to have been approved.
In such case, or in the event of mutual written consent of the parties hereto,
given or withheld in their respective sole discretion, Escrow Agent shall,
within two (2) business days thereafter, pay the claim as demanded.
Notwithstanding the foregoing, Escrow Agent shall deliver the Escrow Fund to
Seller forthwith upon Closing in accordance with the terms of subpart (a) of the
immediately preceding paragraph.
When all monies held by Escrow Agent have been finally distributed in
accordance herewith, this Escrow Agreement shall terminate.
4. Liability. Escrow Agent will be obligated to perform only the duties that are
expressly set forth herein. In case of conflicting demands upon Escrow Agent, it
may (i) refuse to comply therewith as long as such disagreement continues and
make no delivery or other disposition of any funds or property then held (and
Escrow Agent shall not be or become liable in any way for such failure or
refusal to comply with such conflicting or adverse claims or demands, except for
its failure to exercise due care, willful breach and willful misconduct); and
(ii) continue to so refrain and so refuse to act until all differences have been
adjusted by agreement and, Escrow Agent has been notified thereof in writing
signed jointly by Seller and Purchaser or (iii) to interplead the portion of
Escrow Fund in dispute.
5. No Obligation to Take Legal Action. Escrow Agent shall not be under any
obligation to take any legal action in connection with this Escrow Agreement or
for its enforcement, or to appear in, prosecute, or defend any action or legal
proceeding which, in its opinion, would or might involve it in any costs,
expense, loss, or liability, unless and as often as required by it, it is
furnished with satisfactory security and indemnity against all such costs,
expenses, losses, or liabilities.
6. Status of Escrow Agent. Escrow Agent is to be considered and regarded as a
depository only, and shall not be responsible or liable (except for its failure
to exercise due care, willful breach or willful misconduct) for the sufficiency
or correctness as to form, manner of execution, or validity of any instrument
deposited pursuant to this Escrow Agreement, nor as to the identity, authority,
or rights of any person executing the same. Escrow Agent's duties hereunder
shall be limited to the safekeeping and investment of money, instruments, and
securities received by it as Escrow Agent and for their disbursement in
accordance with the written escrow instructions given it in accordance with this
Escrow Agreement.
7. Written Instructions of Parties. Notwithstanding any contrary provision
contained herein, Escrow Agent shall, at all times, have full right and
authority and the duty and obligation to pay over and disburse the principal and
interest of the Escrow Fund in accordance with the joint written instructions
signed by Seller and Purchaser.
8. Notices. Any required or permitted Notice or other communication under this
Escrow Agreement ("Notice") shall be given as follows. All Notices, requests,
demands and other communications hereunder shall be deemed to have been duly
given if the same shall be in writing and shall be delivered personally or sent
by federal express or other recognized national overnight courier service
maintaining records of delivery, or sent by registered or certified mail,
postage pre-paid, or if sent by telecopier, then on the actual date of delivery
(as evidenced by a telecopier confirmation) provided that a copy of the telecopy
and conformation is also sent by U.S. mail, and addressed as set forth below:
If to Seller: If to Purchaser:
Century Pension Income Fund The Cadle Company
XXIII 100 North Center Street
Mr. Patrick Slavin Newton Falls, Ohio 44444
2000 South Colorado Boulevard Attn: Daniel C. Cadle,
Tower Two, Suite 2-1000 President
Denver, Colorado 80222 Facsimile No. (330) 872-5367
Attn: Mr. Patrick Slavin
Facsimile No. (303) 692-0786
And With a copy to
Argent Real Estate The CadleCompany
1401 Brickell Avenue, Suite 520 9638 Maury Road
Miami, Florida 33131 Fairfax, Virginia 22032
Attn: Mr. David Marquette Attn: Mr. Rick Persinger
Facsimile No. (305) 371-6898 Facsimile No. (703) 426-8223
With a copy to: If to Escrow Agent:
Chad Asarch, Esq. Fidelity National Title
Vice President and Assistant Insurance Company
General Counsel 700 Louisiana Street, Suite 2400
AIMCO Houston, Texas 77002
2000 S. Colorado Blvd Attn: Ms. Lolly Avant
Tower Two, Suite 2-1000 Facsimile No. (713) 228-9180
Denver, Colorado 80222
Facsimile No. (303) 300-3297
And 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 party may change the address to which Notices are to be addressed by
giving the other parties Notice in the manner herein set forth. All such
Notices, requests, demands and other communications shall be deemed to have been
delivered (i) as of the day of receipt, in the case of personal delivery, or
(ii) as of the day of receipt or attempted delivery date in the case of delivery
by air courier, or (iii) as of the date of receipt or first attempted delivery,
as evidenced by the return receipt card, in the case of mailing by certified or
registered United States mail.
9. Fee. Escrow Agent shall receive a fee of $300.00 for its services hereunder,
and be paid or reimbursed for all expenses, disbursements and advances,
including reasonable attorney's fees, incurred or paid in connection with
carrying out its duties hereunder, the payment of all amounts to be shared
equally by Purchaser and Seller equally, and not out of the Escrow Fund.
Non-payment of such fee by Purchaser shall not entitle Escrow Agent to refuse or
fail to act as required by this Escrow Agreement.
10. Titles and Section Headings. Titles of sections and subsections contained in
this Escrow Agreement are inserted for convenience of reference only, and
neither form a part of this Escrow Agreement or are to be used in its
construction or interpretation.
11. Counterparts. This Escrow Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
12. Non-Waiver. No waiver by either party of any breach of any term or condition
of this Escrow Agreement shall operate as a waiver of any other breach of such
term or condition or of any other term or condition. No failure to enforce such
provision shall operate as a waiver of such provision or of any other provision
hereof, or constitute or be deemed a waiver or release of any other party for
anything arising out of, connected with, or based upon this Escrow Agreement.
13. Binding Effect. This Escrow Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective transferees, successors, and
assigns. The parties recognize and acknowledge that the powers and authority
granted Escrow Agent herein are each irrevocable and coupled with an interest.
Escrow Agent shall have no liability to Seller or Purchaser for any mistakes in
judgment in the performance of any function hereunder, except for failure to
exercise due care, willful breach and willful misconduct.
14. Nonlimitation of Liability. Nothing contained herein shall in any way limit
the liabilities, obligations and remedies of Seller and Purchaser as set forth
in the Purchase Contract.
15. Governing Law. This Escrow Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
16. Time of Essence. Time is of the essence of this Escrow Agreement.
17. Entire Agreement; Modification. This Escrow Agreement supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may not be altered or modified without the written consent of
all parties.
In witness whereof each of the parties hereto has caused this Escrow
Agreement to be executed on its behalf by duly authorized persons, all as of the
day and year first above written.
Seller:
CENTURY PENSION INCOME FUND XXIII
a California limited partnership
By: Fox Partners V,
a California general partnership,
Its General Partner
By: Fox Capital Management
Corporation,
a California corporation,
Its General Partner
By: /s/Patrick F. Slavin
Name: Patrick F. Slavin
Title: Senior Vice President
Purchaser:
THE CADLE COMPANY,
an Ohio corporation
By: /s/Daniel C. Cadle
Name: Daniel C. Cadle
Title: President
Escrow Agent:
FIDELITY NATIONAL TITLE INSURANCE COMPANY
By: /s/Laura Hule
Title: Escrow Officer
EXHIBIT 9.1.5
FORM OF TENANT ESTOPPEL CERTIFICATE
The undersigned, by execution of this Tenant Estoppel Certificate (this
"Certificate"), hereby certifies to __________________ the following as true and
correct as of the ____ day of _____________, 2003.
1. The undersigned has entered into a fully executed lease (the
"Lease") dated the ____ day of ___________, ____ consisting of
___ pages, _________ Exhibits, by and between Century Pension
Income Fund XXIII, a California limited partnership, as
Landlord and the undersigned
_____________________________________________________________,
a ______________ as tenant ("Tenant") occupying the premises
known as __________________
___________________________________the "Premises") at 5400
Hoover Boulevard, Tampa, Florida 33634, and commonly known as
Commerce Plaza Office Park (the "Building").
2. The Lease is presently in full force and effect and unmodified
and except as indicated at the end of this Certificate. The
Lease, together with the below listed modifications,
represents the full agreement between Landlord and Tenant.
3. The undersigned has accepted possession of the Premises on
___________, ____; any improvements required by the terms of
the Lease to be made by Landlord have been completed; any rent
abatements or build-out allowances required to be granted by
Landlord to Tenant pursuant to the lease have been granted.
Landlord is not in default under any of the terms or
provisions of the Lease.
4. The Lease Term has commenced and full rental is now accruing
thereunder. Tenant is paying all rent and other charges due in
accordance with the provisions of the Lease and is not in
default in making any such payment. All rent and other charges
due under the Lease have been paid through the period ending
______________, 2003. No rent under the Lease has been paid
more than thirty (30) days in advance of its due date. 5. The
undersigned, and any person or firm acting by, through, under,
or in concert with the undersigned, as of this date has no
charge, claim of default, lien or claim of offset, defense or
counterclaim under the Lease or otherwise against rents or
other charges due or to become due thereunder, except as to
the security deposits, if any, listed below. 6. The
undersigned has not been granted any options, concessions or
free rent except as set forth in the Lease.
7. Tenant agrees that the information furnished herein may be
supplied to others who may rely upon the truth and accuracy of
all statements herein contained.
8. The following recitals are true and correct and except for
those modifications listed below there are no other agreements
between Landlord and Tenant:
a. Tenant's Legal Name:
b. Leased Premises Address:
c. Square Feet of the Premises:
d. Lease Expiration Date (unless sooner terminated or extended):
e. Tenant's Security Deposit:
f. Tenant's Address for Notices:
g. Current Monthly charges due on the _____ day of each month, in
advance, are as follows:
Charge Amount Tax Amount Total
Base Rent _________ _________ _________
Percentage Rent _________ __________ _________
(if any)
CAM __________ __________ __________
Other __________ __________ __________
Witnesses: Tenant: Individual
________________________________ ________________________________
________________________________ ________________________________
Individually
Tenant: Corporate
_________________________________
a _______________ corporation
_________________________________ By:______________________________
__________________________________ Its:______________________________
TABLE OF CONTENTS
Page(s)
TABLE OF CONTENTS
Page
LA192007.1
66666666666
05/12/2000 pjb xxii
ARTICLE 1 DEFINED TERMS.....................................................2
ARTICLE 2 PURCHASE AND SALE OF PROPERTY.....................................5
ARTICLE 3 PURCHASE PRICE & DEPOSIT..........................................5
ARTICLE 4 FINANCING.........................................................6
ARTICLE 5 FEASIBILITY PERIOD................................................6
ARTICLE 6 TITLE.............................................................7
ARTICLE 7 CLOSING..........................................................11
ARTICLE 8 REPRESENTATIONS, WARRANTIES AND COVENANTS
OF SELLER AND PURCHASER........................................15
ARTICLE 9 CONDITIONS PRECEDENT TO CLOSING..................................18
ARTICLE 10 BROKERAGE.......................................................19
ARTICLE 11 POSSESSION......................................................20
ARTICLE 12 DEFAULTS AND REMEDIES...........................................20
ARTICLE 13 RISK OF LOSS OR CASUALTY........................................20
ARTICLE 14 RATIFICATION....................................................21
ARTICLE 15 EMINENT DOMAIN..................................................21
ARTICLE 16 MISCELLANEOUS...................................................21
Page(s)
TABLE OF CONTENTS
ARTICLE 1 DEFINED TERMS...................................................2
ARTICLE 2 PURCHASE AND SALE OF PROPERTY...................................5
ARTICLE 3 PURCHASE PRICE & DEPOSIT........................................5
ARTICLE 4 FINANCING.......................................................6
ARTICLE 5 FEASIBILITY PERIOD..............................................6
ARTICLE 6 TITLE...........................................................7
ARTICLE 7 CLOSING........................................................11
ARTICLE 8 REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND
PURCHASER......................................................15
ARTICLE 9 CONDITIONS PRECEDENT TO CLOSING................................18
ARTICLE 10 BROKERAGE......................................................19
ARTICLE 11 POSSESSION.....................................................20
ARTICLE 12 DEFAULTS AND REMEDIES..........................................20
ARTICLE 13 RISK OF LOSS OR CASUALTY.......................................20
ARTICLE 14 RATIFICATION...................................................21
ARTICLE 15 EMINENT DOMAIN.................................................21
ARTICLE 16 MISCELLANEOUS..................................................21
Exhibit 10.23
ASSIGNMENT AND ASSUMPTION OF AGREEMENT
This Assignment and Assumption of Agreement (the "Assignment") is made as
of March 31, 2003 by and among Century Pension Income Fund XXIII, a California
limited partnership ("Seller"), The Cadle Company, an Ohio corporation
("Assignor") and Cadle's Commerce Plaza, L.L.C., a Florida limited liability
company ("Assignee") with reference to the following facts:
A. Seller and Assignor entered into that certain Purchase and Sale Contract
dated as of March 6, 2003 (the "Agreement"). Pursuant to the terms and
conditions of the Agreement, Seller agrees to sell its interest in certain land,
improvements and certain associated property, as defined in the Agreement (the
"Property"). B. Assignor now seeks to assign its rights and obligations under
the Agreement to Assignee, and Assignee has agreed to assume all of Assignor's
rights and obligations under the Agreement, subject to the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the foregoing facts: 1. Assignor
hereby assigns, transfers and conveys to Assignee all of Assignor's right, title
and interest in and to the Agreement. Notwithstanding the foregoing, this
Assignment shall not release or discharge Assignor from any liability, whether
past, present or future under the Agreement.
2. Assignee hereby agrees to and accepts such rights under the Agreement and
expressly assumes and agrees to keep, perform and fulfill all of the terms,
covenants, obligations and conditions required to be kept, performed and
fulfilled by Assignor under or with respect to the Agreement. Assignee also
acknowledges and agrees that it has read the Agreement and that it has had an
adequate opportunity to consult with counsel with respect thereto. Seller agrees
that, from and after the date of this Assignment, Assignee shall be entitled to
enforce the rights of Assignor under the Agreement. 3. Subject to the express
terms and conditions set forth herein, Seller consents to the assignment of the
Agreement as set forth herein, pursuant to Section 16.2 of the Agreement.
4. Assignor and Assignee respectively acknowledge, agree and understand that the
Property is being sold with no representations or warranties, express or
implied, except as expressly set forth in the Agreement. 5. BY THE UNDERSIGNED
SEPARATELY EXECUTING THIS SECTION 5 BELOW, ASSIGNEE ACKNOWLEDGES THAT ASSIGNEE
HAS READ AND UNDERSTOOD THE PROVISIONS COVERING LIQUIDATED DAMAGES SET FORTH IN
THE AGREEMENT, THE AS IS NATURE OF THE AGREEMENT AND THE WAIVER OF CERTAIN
DAMAGES, AND THAT ASSIGNEE WAS REPRESENTED BY COUNSEL WHO EXPLAINED THE
CONSEQUENCES OF THESE PROVISIONS AT THE TIME THIS ASSIGNMENT WAS EXECUTED.
Cadle's Commerce Plaza, L.L.C.
By: /s/Danielle C. Cadle
Daniel C. Cadle, Manager
6. To the extent permitted by law, Assignor and Assignee jointly and severally
agree to protect, indemnify, defend and hold harmless Seller from and against
any and all liability, loss, costs, damage and expense (including reasonable
attorneys' fees and costs) directly or indirectly arising out of or related to
the assignment of the Agreement by Assignor to Assignee. 7. By execution of this
Assignment, (i) Assignee, shall be deemed to have made to Seller all of the
representations and warranties made by Assignor pursuant to the Agreement, and
(ii) Seller acknowledges that it shall be deemed to have made to Assignee all of
the representations and warranties made by Seller pursuant to the Agreement.
8. This Assignment shall not be modified or amended except by a writing signed
by all parties. Except as modified by this Assignment, the Agreement shall be
and remain in full force and effect. All capitalized words not expressly defined
in this Assignment shall have the definitions set forth in the Agreement. This
Assignment may be executed simultaneously or in any number of counterparts, each
of which shall be deemed an original as to the party whose signature is bears,
but all of which together shall constitute one and the same agreement. The
provisions of this Assignment shall survive the Closing. In order to expedite
the transaction contemplated herein, telecopied signatures may be used in place
of original signatures on this Assignment.
Seller, Assignor and Assignee intend to be bound by the signatures on the
telecopied document, are aware that the other party will rely on the telecopied
signatures, and hereby waive any defenses to the enforcement of the terms of
this Assignment based on the form of signature.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment as of
the date first set forth above.
SELLER:
CENTURY PENSION INCOME FUND XXIII,
a California limited partnership
By: Fox Partners V,
a California limited partnership
Its General Partner
By: Fox Capital Management Corporation,
a California corporation
Its General Partner
By: /s/Patrick F. Slavin
Name: Patrick F. Slavin
Title: Senior Vice President
ASSIGNOR:
THE CADLE COMPANY,
an Ohio Corporation
By: /s/Daniel C. Cadle
Name: Daniel C. Cadle
Title: President
ASSIGNEE:
CADLE'S COMMERCE PLAZA, L.L.C.,
a Florida limited liability company
By: /s/Victor O. Buente, Jr.
Name: Victor O. Buente, Jr.
Title: Vice President