SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
Current Report Pursuant
to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported) April 1, 1996
Century Properties Fund XII
(Exact Name of Registrant as Specified in Its Charter)
California
(State or Other Jurisdiction of Incorporation)
0-8658 94-2414893
(Commission File Number) (I.R.S. Employer Identification No.)
One Insignia Financial Plaza, Greenville, South Carolina 29602
(Address of Principal Executive Offices) (Zip Code)
(864) 239-1000
(Registrant's Telephone Number, Including Area Code)
N/A
(Former Name or Former Address, if Changed Since Last Report)
Item 2. Acquisition or Disposition of Assets
On April 1, 1996, the Registrant sold Indian River Shopping
Center located in Scottsdale, Arizona to an unaffiliated third
party. The purchase price for the property was $3,420,000. Net
proceeds to the Registrant after payment of closing costs and
existing debt were approximately $3,300,000.
The Registrant is currently evaluating its cash needs to
determine if any portion of these net proceeds can be distributed
to its partners in the near future.
Item 7. Financial Statements, Pro Forma Financial Information and
Exhibits
(b) Pro Forma Financial Information:
The required pro forma financial information will be provided
in the Registrant's Quarterly Report on Form 10-Q for the three
months ended March 31, 1996.
(c) Exhibits
10. Real Estate Contract, dated February 8, 1996, between
the Registrant and Maclay Properties Company, Inc.
SIGNATURES
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 PROPERTIES FUND XII
By: FOX CAPITAL MANAGEMENT
CORPORATION, its General
Partner
Date: April 11, 1996 By /s/ William H. Jarrard, Jr.
William H. Jarrard, Jr.
President
Exhibit Index
Exhibit Page
10. Real Estate Contract, dated February 8, 1996, 5
between Registrant and Maclay Properties
Company, Inc.
REAL ESTATE CONTRACT
THIS CONTRACT OF SALE (the "Contract") is made by and
between CENTURY PROPERTIES FUND XII (hereinafter referred to as
"Seller") and MACLAY PROPERTIES COMPANY, INC. (hereinafter and
collectively referred to as "Purchaser") upon the terms and
conditions set forth herein.
ARTICLE I
Seller hereby sells and agrees to convey and Purchaser
hereby purchases and agrees to pay for the tract of land and
improvements, known as Indian River Shopping Center in
Scottsdale, Arizona, further described on Exhibit "A", attached
hereto and incorporated herein for all purposes, together with
all and singular, the rights and appurtenances pertaining to the
property, any right, title and interest of Seller in and to
adjacent streets, alleys or rights-of-way (all of such real
property, rights and appurtenances being hereinafter referred to
as the "Property").
ARTICLE II
Purchase Price
The purchase price for the Property shall be Three Million
Four Hundred Twenty Thousand Dollars ($3.420.000.00) and shall be
payable as specified as Article VII at closing.
ARTICLE III
Survey
Seller, shall provide Purchaser with a current as-built
survey of the Property prepared by a duly licensed Arizona Land
Surveyor within ten (10) days following the Contract Date of this
Contract. The survey shall show the location of all improvements,
highways, streets, roads (proposed or otherwise), railroads,
easements, rights-of-way on or adjacent to the Property, shall
set forth the total acreage comprising the Property, shall
contain the surveyor's certification that there are no
encroachments or protrusions on the Property and the Property has
access to and from adjacent Public Roads, and shall be in
conformance with additional survey requirements as outlined in
Exhibit "B" attached hereto, provided, however, Purchaser shall
be responsible for the additional costs associated with the
requirements of Exhibit "B" estimated at this time to be
$1,850.00. In the event that the metes and bounds description of
the Property as reflected in said survey differs from the
description set out in Exhibit "A" attached hereto, the deed to
be delivered by Seller to Purchaser at the Closing shall follow
the metes and bounds description of the Property reflected in the
survey. Such survey shall also show the location and size of the
water, sanitary sewer and utility easements serving the Property.
ARTICLE IV
Good and Indefeasible Title
At the Closing, Seller shall convey to Purchaser by Special
Warranty Deed, good and indefeasible title in fee simple to all
of the Property, free and clear of any and all liens,
encumbrances, conditions, assessments, easements, restrictions
and rights of any parties in possession, except for the
following:
(a) General real estate taxes for the year of closing and
subsequent years not yet due and payable;
(b) Rights of parties in possession pursuant to the rent
roll attached as Exhibit "C"; and
(c) Such other liens, encumbrances, conditions,
assessments, easements, and restrictions, if any, as are approved
in writing by Purchaser as provided for in Article V below.
ARTICLE V
Title Commitment
Seller shall promptly order, and request to be furnished to
Purchaser within ten (10) days after the Contract Date, a current
title commitment for an Owner's Title Insurance Policy issued
through the Title Company, as defined below, setting forth the
state of title of the Property and all exceptions, including
easements, restrictions, rights-of-way, covenants, reservations
and other conditions, if any, affecting the Property which would
appear in the Owner's Title Policy, if issued, together with
true, correct and legible copies of all instruments listed as
exceptions therein. It is understood and agreed that the title
commitment to be furnished to Purchaser hereunder shall be
updated after the date the survey described in Article III hereof
is received by the Title Company and shall reflect, in addition
to those exceptions described above, any title condition which
may be shown by the Survey and which would appear as exceptions
in an Owner's Title Policy, if issued. In the event any
exceptions appear in such commitment, other than those listed in
Article IV hereof and other standard printed exceptions (which
shall be modified in the Owner's Title Policy as specified in
Article VI hereof), that are unacceptable to Purchaser, then
Purchaser shall, within ten (10) days after receipt of such
commitment, copies of such instruments and the Survey, notify
Seller in writing of such fact. Seller shall undertake to
eliminate or modify such unacceptable exceptions to the
satisfaction of Purchaser. In the event Seller is unable or
unwilling to eliminate or modify any such unacceptable exceptions
within ten (10) days after Seller receives Purchaser's written
notice of title objections and is unable to convey title to the
Property in accordance with Article IV above, Purchaser may
terminate this Contract by notice in writing to Seller within ten
(10) days after the expiration of Seller's ten (10) day cure
period, or may accept such title as Seller can deliver. The
failure of Purchaser to notify Seller prior to the expiration of
the time periods specified herein shall be deemed to the
Purchaser's acceptance of the state of title reflected in such
commitment. In the event Seller is unable to convey title to the
Property in accordance with Article IV above and Purchaser elects
to terminate this Contract, Purchaser shall be entitled to the
return of its Earnest Money Deposit as Purchaser's sole remedy
and Seller and Purchaser shall have no further obligations or
liabilities one to the other.
ARTICLE VI
Owner's Title Policy
At the Closing, Seller agrees to cause the Title Company to
furnish to Purchaser, at Seller's sole expense, the usual form of
ALTA Extended Coverage Owner's Title Policy issued by
Transamerica Title Insurance Company ("Title Company") whose
address is 4647 North 32nd Street, Suite 135, Phoenix, Arizona
85018 Attention: Pamela Hannappel, Escrow Officer (602) 956-5568,
in Purchaser's favor in the full amount of the Purchase Price
insuring Purchaser's indefeasible, fee simple title to the
Property, subject only to those title exceptions listed in
Article IV hereof such other exceptions contained in the usual
form of ALTA Extended Coverage Owner's Title Policy, and such
other exceptions as have been approved pursuant to Article IV and
V, provided, however:
(a) The boundary and survey exceptions shall be amended to
the extent permitted by applicable rules governing title policies
in the State of Arizona;
(b) The exception as to restrictive covenants shall be
endorsed "None of Record";
(c) The exception as to the lien for taxes shall be limited
to the year of closing; and
(d) Any exception as to rights of parties in possession
shall be modified to reflect those tenants in possession as set
forth in Exhibit "C".
ARTICLE VII
Closing
The Closing shall be held at the offices of the Title
Company or by escrow established with the Title Company on or
before the latter of twenty-one (21) days after the end of the
Property Examination Period or seven (7) days after receipt of a
closure letter from the Arizona Department of Environmental
Quality, pertaining to those matters set forth in the Four
Corners Environmental, Inc. report dated December 1995 (the
"Closure Letter") at 10:00 A.M., or at such other time, date, and
place as the parties may agree upon (which date is herein called
the "Closing Date" or the "Closing"). At the Closing:
(a) Seller shall:
(i) Deliver to Purchaser a duly executed and
acknowledged Special Warranty Deed, with the Closure Letter or
other related deed restriction document attached, conveying the
Property to Purchaser as provided in Article IV.
(ii) Cause the Title Company to deliver to Purchaser
the Owner's Title Policy required by Article VI hereof.
(iii) Deliver an updated Rent Roll containing, as of
the Closing Date, certified by Seller as true, complete, and
correct together with Seller's certification that all of the
Leases shown thereon are in full force and effect.
(iv) Deliver a Tenant Estoppel Certificate (herein so
called), dated no more than thirty (30) days prior to the Closing
Date, executed by each tenant of the Property stating that: a
true and correct copy of the lease of such tenant (together with
all amendments and modification thereto) is attached to the
Tenant Estoppel Certificate; the tenant has accepted and is
occupying the leased premises and is paying rent as set forth in
the lease; the lease has not been modified (or, if modified,
stating the nature of the modification) and there are no
agreements made with the landlord other than as reflected in the
lease; the tenant is not in default under the lease and, to the
best knowledge of tenant, the landlord is not in default
thereunder; the tenant has no claims, concessions, free rent,
bonuses or other agreements affecting the lease which are not
contained in the lease; the tenant has no option to purchase the
Property or any portion thereof; the tenant has no option to
lease additional space in the Improvements except as set forth in
the lease pursuant to which the tenant is occupying space in the
Improvements; the tenant has no right of first refusal to lease
any tenant space (other than that covered by the lease pursuant
to which the tenant is occupying space in the Improvements) upon
the expiration of one or more tenant leases covering other tenant
space in the Improvements or at any other time; the date to which
rent is paid or prepaid; and the amount of the tenant's security
deposit, if any. Notwithstanding the foregoing, if Seller is
unable to obtain a Tenant Estoppel Certificate from any tenant,
Purchaser, at Purchaser's sole option, may require in lieu
thereof, Seller's written warranty to Purchaser that Seller knows
of no landlord or tenant default thereunder except as noted in
the Rent Roll and Seller's agreement to defend and hold harmless
against any tenant claim that would have been disclosed and/or
estopped by the delivery of a Tenant Estoppel Certificate.
Seller's inability to deliver a Tenant Estoppel Certificate shall
not result in a default under this Contract by Seller, and
Purchaser's sole remedy under this Contract shall be to accept
Seller's Estoppel Certificate as referenced above, or terminate
this Contract, and be entitled to a return of the Earnest Money
Deposit.
(b) Purchaser shall:
(i) Pay to Seller the amount of $3.420 000.00 in cash.
(c) General real estate taxes for then current year
relating to the Property and collected rents, if any, shall be
prorated as of the Closing Date and shall be adjusted in cash to
Purchaser at the Closing. If the Closing shall occur before the
tax rate is fixed for the then current year, the apportionment of
taxes shall be upon the basis of the tax rate for the next
preceding year applied to the latest assessed valuation.
(d) All Closing costs, including without limitation,
recording and escrow fees, shall be assessed to the respective
parties as is customary in the purchase of real property in
Scottsdale, Arizona of the Closing Date.
ARTICLE VIII
Brokers
A commission will be paid by Purchaser to Marcus &
Millichamp of Phoenix, Arizona pursuant to a separate agreement.
Seller and Purchaser each represent and warrant to the
other that neither has employed, retained, or consulted any
broker, agent, or other finder other than as set forth above with
respect to the Property or in carrying on negotiations relative
to this Contract, and Seller and Purchaser shall indemnify and
hold the other harmless from and against any and all claims,
demand, causes of action, debts, liabilities, judgments and
damages (including costs and reasonable attorney's fees incurred
in connection with the enforcement of this indemnity, which may
be asserted or recovered against the other on account of any
brokerage fee, commission, or other compensation arising in
breach of this representation and warranty).
ARTICLE IX
Representations and Warranties
Seller represents and warrants the following as of the Contract
Date and Closing Date:
(a) Seller has no written notice of any pending or
threatened condemnation proceedings affecting the Property.
(b) Seller has not received any written notice of violation
of any governmental regulation pertaining to the Property.
(c) With the exception of the (i) Soil Sampling Activities
Report completed by Four Seasons Environmental, Inc., dated
December 1995, (ii) the Operations Audit Report prepared by
Growth Environmental Service, Inc. dated September 14, 1995, and
(iii) the Phase I and Phase II Environmental Assessment Reports
prepared by Building Analytics dated September 27, 1995 and
November 14, 1995, respectively, to the best of Seller's
knowledge, the Property is not comprised of any material which is
known to be an environmental hazard.
ARTICLE X
Earnest Money
Contemporaneously with the execution hereof, Purchaser shall
deliver to the Title Company a Cashier's Check, or other
immediately available funds, in the amount of Twenty Five
Thousand Dollars ($25,000.00) as an earnest money deposit
("Earnest Money Deposit"), which will be placed in an interest
bearing account with a reputable financial institution acceptable
to Seller and Purchaser in their reasonable discretion. At the
end of the Inspection Period, Purchaser shall deliver an
additional Twenty Five Thousand Dollar ($25,000.00) deposit to
the Title Company. Purchaser's taxpayer identification number is
75-2135022. Any and all interest which shall accrue on the
Earnest Money Deposit shall accrue for the benefit of the party
entitled to receive the Earnest Money Deposit pursuant to this
Contract. At Closing, the said Earnest Money Deposit shall be
applied to the cash payment required to be paid by Purchaser to
Seller. In the event Purchaser defaults and such default is not
cured after Seller's written notice to Purchaser hereunder and
Seller is not in default hereunder, the Earnest Money Deposit
shall become the property of Seller as liquidated damages for the
breach of this Contract, which shall be the Seller's sole remedy
hereunder and Seller shall not otherwise have the right to
specifically enforce the terms and provisions hereof.
ARTICLE XI
Contingencies
The obligations of the Purchaser to consummate the
transaction contemplated hereby are subject to the following
contingencies (any of which may be waived by Purchaser at or
prior to Closing).
(a) If the Seller is unable to obtain the Closure Letter
referred to in Article VII within one hundred twenty (120) days,
Purchaser may terminate this Contract and receive a refund of the
Earnest Money Deposit.
(b) This Contract is contingent upon Purchaser's Lender
inspecting the property within the Property Examination Period
referred to below. If said Lender is unable to conduct a site
inspection within the Property Examination Period, Seller shall
have the option to extend the time allowed for such inspection or
terminate the Contract, in its sole discretion.
(c) Purchaser shall have a period of twenty-one (21) days (the
"Property Examination Period") from the Contract Date to conduct
engineering and environmental studies, tenant interviews, and
lender site inspection. If, within the Property Examination
Period Purchaser determines, in its sole and unfettered judgment,
that the Property is not satisfactory to Purchaser or cannot be
used and financed in the manner of or for the purposes that
Purchaser intends, Seller and Purchaser shall, within five (5)
days, sign a release of the Contract entitling the Purchaser to a
return of any and all Earnest Money Deposits. If Purchaser elects
to move forward after the Property Examination Period, Purchaser
shall deliver before 5:00 p.m. on the twenty-first (21st) day
from the Contract Date, a letter indicating desire to move
forward. If no letter is received by Seller by this time, the
contract becomes null and void and all Earnest Money Deposits
shall be immediately returned to Purchaser. If Purchaser elects
to proceed, the Earnest Money Deposit shall become non-
refundable, but applicable to the purchase price in the event of
closing. Purchaser shall indemnify and defend Seller against and
hold Seller harmless from any and all loss, cost, claim,
liability and expense (including reasonable attorney's fees)
arising out of Purchaser's activities on the Property during the
Property Examination Period.
The above referenced Due Diligence Materials shall include:
(1) Plans, drawings, and specifications (including "as
built" plans and drawings, (if any) with regard to the Premises
to the extent presently available and in Seller's possession or
control;
(2) Real estate tax bills and statements for the current
year and past three (3) years with respect to the Property;
(3) Copies of all service contracts;
(4) Copies of any option contracts, construction contracts
and architectural contracts relating to the Property or any part
thereof which are in the possession or control of Seller;
(5) Copies of any agreements to which Seller is a party,
which provide for the payment of commissions in connection with
the leasing of the Property;
(6) A schedule of all current or pending litigation and
claims of which Seller has actual knowledge if any, pertaining to
the Property or any part thereof, together with a brief
description of each such proceeding or claim;
It is understood and agreed, and Purchaser hereby
acknowledges, that the Property Examination Period is more than
ample time to review and inspect the condition of the Property
and that if, for any reason, it is dissatisfied with the
condition of the Property or with the information provided or
available to Purchaser within the Property Examination Period, it
has the unrestricted right to terminate this Contract.
Accordingly, in the event Purchaser does not terminate this
Contract, and proceeds beyond the expiration of the Property
Examination Period,
it is understood and agreed that the Property is being sold "as
is", "where is" and "with all faults",and Seller makes no
representation or warranty whatsoever as to the condition or
value of the Property or otherwise except as set forth in Article
IX, or Addendum Paragraph One.
If this Contract is terminated for any mason, Purchaser
agrees to promptly supply Seller with the results of any tests,
studies or inspections of the Property performed hereunder,
unless prohibited by Contract or otherwise.
ARTICLE XII
Assignment of Contract
This Contract and Purchaser's rights and obligations
hereunder may not be assigned by Purchaser. Notwithstanding the
foregoing, Purchaser shall have the right, power, and authority
to assign this Contract and all rights hereunder to any
affiliated entity in which Purchaser has a fifty percent (50%) or
more ownership and control interest or, for a limited
partnership, in which Purchaser is a general partner or, for a
limited liability company, in which Purchaser is the managing
member. Purchaser shall be and remain liable and responsible for
payment and performance of all obligations hereunder or
undertaken by Purchaser to be paid or performed pursuant to any
permitted assignment. Purchaser shall notify Seller of any
permitted assignment and shall furnish written evidence of such
assignment to Seller.
ARTICLE XIII
Seller's Default
In the event that Seller fails to consummate the
transaction herein contemplated in accordance with the terms of
this Contract, after the performance or tender of performance by
Purchaser of all of its obligations hereunder, at Purchaser's
election, Purchaser shall:
(a) Be entitled to terminate this Contract whereupon the
Escrow Agent shall return the Earnest Money Deposit to Purchaser
and Purchaser shall be entitled to reimbursement from Seller of
its actual out-of-pocket expenses of Purchaser's counsel and
third parties conducting due diligence (i.e. title, survey,
engineer and environmental reports, based upon paid receipts
tendered by Purchaser to Seller) not to exceed Thirty Five
Thousand Dollars ($35,000.00); or
(b) Be entitled to sue Seller for specific performance of
this Contract provided, however, Seller shall not be required to
expend in excess of Thirty Five Thousand Dollars ($35,000.00) to
correct any matter Seller did not deliberately cause.
The parties agree that should Purchaser be unsuccessful in
obtaining the remedy set forth in (b) above, Purchaser's sole
remedy shall be as set forth in Subparagraph (a) above.
ARTICLE XIV
Miscellaneous
(a) This Contract, together with the Exhibits attached
hereto embodies the entire agreement between the parties and
cannot be varied except by the written agreement of the parties.
(b) Any notice, request, demand, or other communication
required or permitted to be delivered hereunder shall be given in
writing by delivering the same in person to the intended
addressee, or by United States Mail, postage prepaid, registered
or certified mail, return receipt requested, or by facsimile
(provided that such facsimile is confirmed by mail in the manner
previously described), or by overnight courier, sent to the
intended addressee at the address set forth opposite the
signature of such party hereto. Such notice shall be deemed to be
delivered, whether or not actually received, when deposited in
United States Mail, if used, or the day after deposit with the
overnight courier, if used, or actual receipt if sent by
facsimile, as provided herein.
(c) All the terms and conditions of this Contract are
hereby made binding on the executors, heirs, administrators,
successors, and assignees of both parties hereto.
(d) Words of any gender used in this Contract shall be held
and construed to include any other gender, and words in the
singular number shall be held to include the plural, and vice
versa, unless the context requires otherwise.
(e) The captions used in connection with paragraphs of this
Contract are for convenience only and shall not be deemed to
construe or limit the meaning of the language of this Contract.
ARTICLE XV
Time of the Essence
Time is of the essence of each and every provision of this
Agreement.
ARTICLE XVI
Destruction Damage or Taking Prior to Closing
Prior to Closing, risk of loss with regard to the Property shall
be borne by Seller. If, prior to the Closing, the Property is
destroyed or damaged, or becomes subject to a taking by virtue of
eminent domain, to any extent whatsoever, Purchaser may, in
Purchaser's sole discretion, either terminate this Agreement,
whereupon Title Company shall deliver the Escrow Deposit, and
neitherparty hereto shall have any further rights or obligations
hereunder, or close this Agreement in which case Purchaser shall
receive an assignment of the insurance or condemnation proceeds.
ARTICLE XVII
Governing Law
This Agreement shall be governed by and construed in
accordance with laws of the State of Arizona.
ARTICLE XVIII
Severability
In case any one or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provision hereof, and
this Agreement shall be construed as if such invalid, illegal, of
unenforceable provision had never been contained herein.
ARTICLE XIX
Construction
The parties acknowledge that each party and their counsel
have reviewed and revised this Agreement and that the normal rule
of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the
interpretation of this Agreement or any amendments or exhibits
hereto.
ARTICLE XX
Foreign Person Status
If Seller is not a "foreign person", as defined in the federal
Foreign Investment in Real Property Tax Act of 1980 and the 1984
Tax Reform Act, as amended (the "federal tax law"), then at the
Closing, Seller will deliver to Purchaser a certificate so
stating, in a form complying with the federal tax law. If Seller
is a "foreign person" or if Seller fails to deliver the required
certificate at the Closing, then in either such event the funding
to Seller at the Closing will be adjusted to the extent required
to comply with the withholding provisions of the federal tax law;
and although the amount withheld will still be paid at the
Closing by Purchaser, it will be retained by a mutually
acceptable escrow agent for delivery to the Internal Revenue
Service together with the appropriate federal tax law forwarding
forms (and with copies being provided both to Seller and to
Purchaser). The following parties are hereby approved as mutually
acceptable escrow agents in the event that withholding is
warranted in accordance with the immediately preceding sentence
(listed in order of decreasing performance): the Title Company,
the Purchaser's "independent CPA" (i.e., a certified public
accountant who is associated with an independent CPA firm), the
Purchaser's "outside counsel" (i.e., a licensed attorney who is
associated with an independent law firm), the Seller's
"independent CPA," the Seller's "independent attorney," and a
mutually acceptable financial institution.
ARTICLE XXI
Internal Revenue Code Section 6045
Seller and Purchaser hereby acknowledge that the Tax Reform
Act of 1986 requires title companies to report the terms of any
real estate transaction to the Internal Revenue Service. Seller
hereby agrees to execute and deliver to the Title Company at
Closing any certificates or other documentation required by the
Title Company in order to comply with these requirements.
This Contract may be executed in separate counterparts and
this Contract shall be effective at such time as each party has
transmitted to the other an executed copy of said contract.
THE PARTIES HERETO have executed this Contract upon the
date set opposite each signature. The Contract Date shall be the
date the Contract is acknowledged by the Title Company.
Address: Purchaser:
3500 Oaklawn, Suite 650 MACLAY PROPERTIES COMPANY, INC.
Dallas, Texas 75219
Date: 1/29/96 By: /s/Steven F. Shellenberger
Steven F. Shellenberger
Its: Vice President
Address: Seller:
CENTURY PROPERTIES FUND XII
By: Exeter Capital Corporation,
Authorized Representative
Date: 2/8/96 By: /s/Peter Braverman
Peter Braverman,
Vice President
Receipt of an original of this Contract and the Earnest Money
Deposit is acknowledged by the Title Company on the date and time
set opposite the signature below:
Address: Title Company:
4647 North 32nd Street, Transamerica Title Insurance
Company
Suite 135
Phoenix, Arizona 85018
Date: 2/13/96 By: /s/Pamela Hannappel
REAL ESTATE CONTRACT
Exhibit "A"
Legal Description
INTENTIONALLY OMITTED
Exhibit "B"
Survey Specifications
INTENTIONALLY OMITTE
Exhibit "C"
Rent Roll
INTENTIONALLY OMITTED
ADDENDUM
1. Seller represents, warrants and agrees that (a) Seller has
received no written notice of any threatened or pending
litigation against Seller which would materially and adversely
affect the Property; (b) the documents delivered by Seller to
Purchaser pursuant to Article Xl above will be true, correct and
complete as of the date thereof; (c) from the date of execution
of the Contract until closing Seller will keep the Property
maintained in relative the same condition as existed prior to
execution of the Contract, reasonable wear and tear excepted but
in no event shall Seller be obligated to expend in excess of
Twenty Five Thousand Dollars ($25,000.00) for the repair (but not
usual and customary maintenance) of any portion of the Property;
(d) Seller will maintain the existing insurance coverage on the
Property until closing; (e) Seller has not received any prepaid
rents from any tenant for any period greater than one month
except as set forth in rent roll attached as Exhibit "C"; (f)
Seller will pay all bills incurred with respect to the Property
at or prior to closing; (g) there are no lease commissions with
respect to the Property due or to become due to any party except
pursuant to written agreements delivered to Purchaser pursuant to
Article XI above; (h) the rights of landlord under the tenant
leases have not been assigned or encumbered or if so, will be
released at Closing; (i) Seller has received no written notice of
default or non-compliance from any governmental authority or
insurance company; and (i) the person signing this Contract and
any and all documents pursuant to this Contract has the authority
to bind Seller and to act on behalf of Seller. Notwithstanding
anything to contrary provided herein, Purchaser shall have no
right to pursue any action against Seller pursuant to this
Paragraph or Article IX as a result of any of Seller's
representations and warranties being untrue, inaccurate or
incorrect if Purchaser has actual knowledge at the time of
Closing that such representation or warranty was untrue,
inaccurate or incorrect at the time of Closing and Purchaser,
nevertheless closes the transfer of title hereunder. The
representations and warranties of Seller contained in Paragraph 1
and Article IX will survive the Closing for a period of one (1)
year after the Closing Date; and (i) any claim based upon any
alleged breach thereof must be alleged (in writing) within such
one (1) year period and (ii) any action based upon any alleged
breach thereof must be commenced within eighteen (18) months
after Closing. Failure to give notice or commence an action on
any alleged breach within the time period specified herein shall
constitute a waiver of any such claim.
Seller's Knowledge; Due Inquiry
(a) As used in this Contract, the words "to Seller's
knowledge" or words of similar import shall be deemed to mean and
shall be limited to, the actual (as distinguished from implied,
imputed or constructive) knowledge of NPI Equity Investments II
Inc., without such person having any obligation to make
independent inquiry or investigation whatsoever, except "due
inquiry" as described below. Nothing in this Contract shall be
deemed to create or impose any personal liability of any kind
whatsoever on any of the officers of NPI Equity Investments II,
Inc.
(b) As used in this Contract, the words "after due inquiry"
or words of similar import shall be deemed to mean, and shall be
Limited to mean, that NPI Equity Investments II, Inc. has
confirmed (orally or in writing) the accuracy of a particular
representation or warranty with Metric Property Management who is
the current property manager for the Property. As noted in
Subsection (a) above, nothing in this Contract shall be deemed to
create or impose any personal liability of any kind whatsoever on
any of the within named individuals.
2. Except as set forth herein, Seller and Purchaser and
any agent each represent to the others that no party has any
agreement with a third party regarding finder's or consultant's
fees or real estate commissions or similar payments to be paid
relative to the negotiation of this Contract or sale of the
Property or any interest therein and accordingly each party
agrees to indemnify and hold the parties harmless from anyone
claiming such commission by, through or under the indemnifying
party.
3. In addition to the items described in Article VII(c),
all other income and operating expenses of the Property,
including without limitation, public utility charges, percentage
rentals, maintenance, management and other service charges, and
all other normal operating charges with respect to the Property
shall be prorated on an accrual basis effective as of the date of
closing based on the best available estimates of such amounts;
provided, however, that as soon as Purchaser is able to determine
the exact amount of such charges and expenses, Seller and
Purchaser, if appropriate, shall readjust in cash the amount of
such income and operating expenses and charges to be paid by each
party within ten (10) days following such determination, with the
result that Seller shall pay only those expenses and charges
attributable to the period of time up to and including the date
of closing and Purchaser shall pay only for those expenses and
charges attributable to the period of time subsequent to the date
of closing. All adjustments will be deemed final thirty (30) days
after the Closing. With respect to any service or other contracts
affecting the property, Purchaser shall have the option with
respect to any such contract of continuing such contract in
effect after the closing, in which event Purchaser shall assume
all obligations arising pursuant to such contract from and after
the closing date, subject to the proration provisions contained
in this Paragraph. All such service or other contracts relative
to the Property which Purchaser does not elect in writing to
assume shall be terminated by Seller as of the date of the
closing. Purchaser shall notify Seller of Purchaser's election
with respect to each such contract within at least thirty (30)
days prior to closing. With respect to any such contract which
Purchaser does not elect to assume, Purchaser shall have no
obligation with respect to any fees, charges or expenses incurred
pursuant to any such Contract, such fees, charges and expenses
shall not be subject to the proration provisions contained in
this paragraph and Seller shall indemnify and hold Purchaser
harmless from any fees, charges or expenses arising under any
such contract. At the closing, Seller and Purchaser shall each
execute and deliver to the other such additional documentation as
such other party may reasonably request to confirm the
obligations described in this Paragraph.
4. If the final date of any period which is set forth in
any term or provision in this Contract falls on a Saturday,
Sunday or legal holiday under the laws of the United States of
the State of Arizona, then in such event, the time of such period
shall be extended to the next day which is not a Saturday, Sunday
or legal holiday.
5. At the closing of the Contract, Seller will also (a)
deliver a blanket bill of sale, conveyance and assignment to
Purchaser in a form reasonably satisfactory to Purchaser, whereby
Seller conveys and assigns to Purchaser all rights of Seller in
and to the tenant leases and all rentals due and payable pursuant
thereto, personal property, warranties and guaranties, contract
rights and other items related to the Property; (b) execute and
deliver to the Title Company any other instruments or documents
reasonably necessary to close this Contract, including, but not
limited to, closing statements, evidence of the authority of the
person executing instruments on Seller's behalf and deliver of
instruments required by the Title Company.
6 Purchaser, at Purchaser's expense, may secure a termite
report for the property.
