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) February 1, 1996
Century Properties Fund XV
(Exact Name of Registrant as Specified in Its Charter)
California
(State or Other Jurisdiction of Incorporation)
0-9680 94-2625577
(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 February 1, 1996, Registrant sold its Northbank Complex
property located in Eugene, Oregon to an unaffiliated third party.
The purchase price for the property was $4,605,000. The sale resulted
in a gain of approximately $775,000. Net proceeds to Registrant after
payment of closing costs and existing debt were approximately
$1,900,000.
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
Registrants Annual Report on Form 10-K for the year ended December 31,
1995.
(c) Exhibits
10. Agreement of Purchase and Sale, dated as of October 20, 1995
between Northbank Partners and Century Properties Fund XV.
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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 XV
By: FOX CAPITAL MANAGEMENT
CORPORATION,
its general partner
Date: February , 1996 By: /s/ William H. Jarrard, Jr.
William H. Jarrard, Jr.
President
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EXHIBIT INDEX
Exhibit Page No.
10. Agreement of Purchase and Sale, dated as of 5
October 20, 1995 between Northbank Partners and
Century Properties Fund XV.
4
Exhibit 10
AGREEMENT OF PURCHASE AND SALE
by and between
Northbank Partners
("Buyer")
and
Century Properties Fund XV
("Seller")
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (this "Agreement") is
made and entered into as of October 20, 1995, by and between
Northbank Partners, an Oregon general partnership ("Buyer"), and
Century Properties Fund XV, a California limited partnership
("Seller") with respect to the sale by Seller to Buyer of fee
simple title to the property (together with items (a) through (e)
below the "Property") commonly known as Northbank Office Complex,
located at 22,44 and 66 Club Road, Eugene, Oregon and which is
more specifically described on Exhibit A to this Agreement (the
"Land"), together with (a) the buildings, structures and
improvements on the Land (the "Improvements") including without
limitation, all mechanical systems, fixtures; electrical systems,
fixtures and equipment; heating fixtures, systems and equipment;
and plumbing fixtures, systems and equipment; (b) the office
complex name and all personal property ("Personal Property")
owned by Seller and used in conjunction with the operation of the
Property; (c) all of Seller's interest in all equipment, service
and supply contracts (the "Contracts"), warranties and guaranties
with respect to the Property or operation thereof; (d) all site
plans, surveys, soil and substrata studies, architectural
renderings, plans and specifications, engineering plans and
studies, floor plans, landscape plans and other plans, diagrams
or studies of any kind owned by, and in the actual possession of
Seller which relate to the Land and the Improvements (the
"Plans"); and (e) all leases presently in force and effect
therefor including all tenant payment records and credit
information files (the "Leases").
NOW THEREFORE, in consideration of the foregoing premises
and the mutual covenants and conditions set forth herein, the
parties hereto agree as follows:
ARTICLE 1: PURCHASE AND SALE
1.1 Generally. Seller hereby agrees to sell the Property
to Buyer, and Buyer hereby agrees to purchase the Property from
Seller, upon and subject to all of the terms and conditions
contained herein.
1.2 Purchase Price. The total purchase price (the
"Purchase Price") to be paid by Buyer to Seller for the purchase
of the Property shall be $4,605,000.
1.3 Deposit. Within two (2) business days of Seller's
acceptance of this Agreement, Buyer shall deposit the sum of
$50,000 in immediately available funds as an earnest money
deposit (the "Deposit") with Evergreen Land Title Co. ("Escrow
Agent"). Escrow Agent shall hold the Deposit in an interest
bearing account acceptable to Buyer.
1.4 Payment of Balance Purchase Price. At the consummation
of the purchase and sale of the Property (the "Closing"), Buyer
shall deposit with the Escrow Agent an amount (the "Closing
Payment") equal to the Purchase Price less the Deposit and
interest earned thereon.
1.5 Access to Property and Tenant Information. Commencing
from the date that the Escrow Agent acknowledges receipt of this
Agreement (the "Acknowledgment Date"), Buyer and Buyer's
representatives or agents shall, on at least 48 hours prior
notice, be permitted to enter on to the Property from time to
time for physical inspections, investigations, inventories, and
surveys thereof and Seller shall make available to Buyer all
tenant payment records and credit information files. Buyer
hereby indemnifies, protects, and holds Seller harmless and
agrees to defend Seller from and against any and all claims,
demands, losses, damages, and liabilities (including but not
limited to personal injury and property damage claims and
mechanics' or other liens), together with related costs and
expenses, including reasonable attorney fees and litigation
costs, caused by Buyer or Buyers' agents on or to the Property.
In addition, Buyer shall keep the Property free from any liens
which could arise as a result of the exercise by Buyer of any of
its rights under this Section 1.5. The provisions of this
Section 1.5 shall survive the Closing or earlier termination of
this Agreement.
1.6 Feasibility Period and Deposit. Buyer shall have a
period (the "Feasibility Period") of 45 days from the
Acknowledgment Date in which to notify Seller whether it approves
or disapproves of all of its inspections, investigations,
inventories, and surveys of the Property and the status of title
thereto and the form and substance of the Leases. If Buyer
notifies Seller within the Feasibility Period that it
disapproves, in its sole and absolute discretion, of any findings
or results of any such inspections, investigations, inventories,
or surveys, or of the status of title to the Property or the form
and substance of the Leases, then this Agreement and all
obligations of Buyer and Seller hereunder (except such as
expressly survive this Agreement) shall immediately terminate.
If Buyer notifies Seller during the Feasibility Period of its
approval, or if it fails to notify Seller within the Feasibility
Period of its approval or disapproval of the findings and results
of such inspections, inventories, investigations, and surveys, or
the status of title to the Property or the form and substance of
the Leases, then the same shall be deemed approved and the right
of termination provided in this Section 1.6 shall automatically
terminate. In the event that this Agreement is terminated
without Closing, Buyer shall deliver copies of all inspections,
investigations, tests or studies to Seller within ten (10) days
of the date of termination; provided, however, that Buyer shall
not be deemed to have made any representations or warranties to
Seller with respect to the contents thereof.
1.7 Other Contingency. In addition to any other conditions
of Buyer hereunder, Buyer's obligations under this Agreement
shall be contingent upon Buyer having received copies of all
Leases, within ten (10) days after the Acknowledgment Date.
Buyer may waive the foregoing contingency in its sole and
absolute discretion.
1.8 Confidentiality. Each party shall keep confidential
the results of all financial statements, reports or other
information provided to or generated by the other party and will
not disclose any such information to any person other than: (i)
those employed by Buyer or Seller, respectively; (ii) those who
are actively and directly participating in the evaluation of the
Property and the negotiation and execution of this Agreement or
financing of the purchase of the Property; (iii) governmental,
administrative, regulatory or judicial authorities with respect
to the investigation of the compliance of the Property with
applicable legal requirements; and (iv) as required by law or
court order; provided, however, that the party required to
disclose by law or court order shall immediately give the other
party notice in order to enable the other party to seek a
protective order from such disclosure. The provisions of this
Section 1.8 will survive the termination of this Agreement other
than by Closing.
ARTICLE 2: TITLE MATTERS
2.1 Title Report. No later than five (5) days after the
Acknowledgment Date, Seller will provide to Buyer a preliminary
title report (the "Title Report") for the Property prepared by
Escrow Agent and copies of all matters set forth therein as
exceptions to the proposed title insurance coverage. The Title
Report and the underlying documents shall hereinafter be referred
to as the "Title Documents".
2.2 Title Review. Buyer shall have until thirty(30) days
after the Acknowledgment Date (the "Title Review Period") within
which to review and disapprove of any title exception disclosed
by the Title Documents. Buyer shall notify Seller within the
Title Review Period of its disapproval of any exception to
Seller's title to and/or encumbrances against the Property
contained in or disclosed by the Title Documents. In the event
Buyer fails to notify Seller within the Title Review Period of
any such disapproval of the matters disclosed by Buyer's review
of the Title Documents, the state of title to the Property shall
be deemed approved. In the event Buyer does so notify Seller of
its objection to the state of title to the Property, Seller shall
have fifteen (15) days to determine whether it is desirable or
feasible, in Seller's discretion, to have the disapproved items
removed, modified, or insured against to Buyer's satisfaction.
In the event Seller does not notify Buyer within such fifteen
(15) day period that it intends to remove, modify, or insure
against such disapproved items then Seller shall have no
obligation to do so, and Buyer may consider such fact during the
Feasibility Period. If Seller does notify Buyer within such
fifteen (15) day period that it intends to remove, modify, or
insure against such disapproved items, then this Agreement shall
continue in full force and effect and Seller shall, at its cost,
remove, modify, or insure against the disapproved items to
Buyer's satisfaction on or prior to the Closing Date.
2.3 Taxes. Notwithstanding any other provision herein to
the contrary, Buyer need not notify Seller of its disapproval of
exceptions disclosed by the Title Documents consisting of
installments of state, county, and/or city taxes for the period
due prior to the Closing. Buyer and Seller understand,
acknowledge, and agree that such installments shall constitute
the obligations of Seller incident to the prorations provided for
in Section 4.1 below.
2.4 Title Policy. At the Closing, Seller shall deliver or
cause to be delivered to Buyer an A.L.T.A. Policy of Title
Insurance (the "Title Policy") issued by Escrow Agent dated the
date of the Closing and with liability in the full amount of the
Purchase Price, insuring Buyer as owner of fee title to the
Property subject only to the "Permitted Exceptions" (as
hereinbelow defined). Buyer shall be responsible for the
preparation and delivery of any survey of the Property which may
be required by Escrow Agent as a condition to the delivery of the
Title Policy. As used herein, the term "Permitted Exceptions"
shall mean: (i) exceptions to title to the Property disclosed in
the Title Report to which Buyer does not object as herein
provided; (ii) rights of tenants in possession; and (iii) taxes
and assessments with respect to the Property that are not
delinquent. Buyer agrees to take title to the Property subject
to the Permitted Exceptions. Buyer shall have the sole and
absolute right, exercisable in its discretion but deemed to be
exercised by Buyer in all respects upon the Closing, to waive any
title exceptions disapproved by Buyer which Seller does not or is
unable to cure under this Agreement, in which event the Property
shall be sold, assigned, and transferred subject to such
exception.
2.5 Leases and Estoppel Letters. No later than ten (10)
days prior to the Closing Date (as defined below), Seller will
obtain and deliver to Buyer copies of the tenant estoppel
certificates (hereinafter call the "Estoppel Certificates") to be
delivered at Closing, in a form attached hereto as Exhibit "B",
from tenants representing 90% of the leased space at the
Property, with written notification listing any required Estoppel
Certificates Seller has been unable to obtain and noting the
reason why the Estoppel Certificates have not been produced. In
the event that Seller has been unable to obtain the necessary
Estoppel Certificates, Buyer shall have the option, in its sole
discretion, to: (i) waive this requirement and proceed to
Closing, provided that Seller shall, on the Closing Date (as
hereinbelow defined), deliver to Buyer a certificate containing
all of the information required in the Estoppel Certificate and
warranting that such information is true and correct; or (ii)
terminate this Agreement.
2.6 Lease Approval Requirements. Seller shall, at the
Closing, deliver to Buyer original executed counterparts of each
Lease and amendment, and of each new Lease and each
amendment(including extensions or renewals) of an existing Lease
executed after the date hereof in accordance with the provisions
of this Agreement. Seller shall deliver to Buyer a copy of any
new Lease and any Lease amendment, including without limitation,
any cancellation, extension or renewal of an existing Lease
("Amendment") entered into subsequent to the delivery of copies
of the Leases set forth in Section 1.7 of this Agreement. No new
Lease, and no Amendment shall be made by Seller or its agent for
space at or in the Property subsequent to the Feasibility Period,
without the prior written approval of Buyer, which Buyer will not
unreasonably withhold. In the event Seller desires to enter into
a new Lease or Amendment between the expiration of the
Feasibility Period and the Closing Date, Seller shall notify
Buyer in writing of its intent to do so and Buyer shall approve
or disapprove such request in writing within five (5) working
days thereafter.
ARTICLE 3: CLOSING
3.1 Opening of Escrow. The Closing shall be through an
escrow to be opened with the Escrow Agent (the "Escrow"). Within
two (2) business days after receipt of executed counterparts of
this Agreement by both parties, Escrow shall be opened, and Buyer
and Seller shall deliver one (1) fully executed copy of this
Agreement to the Escrow Agent. This Agreement, together with any
supplemental instructions jointly executed or executed in
counterparts by Buyer and Seller and delivered to Escrow Agent,
shall constitute the escrow instructions by which the transaction
contemplated herein shall be consummated. In the event of any
inconsistency between any such supplemental instructions and the
terms of this Agreement, the terms of this Agreement shall
prevail.
3.2 Closing Date. The Closing shall occur on or before the
date which is 75 days after the Acknowledgment Date (the "Closing
Date"), unless Buyer designates an earlier specific Closing Date
by notice to Seller, said date not to be earlier than ten (10)
days from the date of said notice. All interest earned on the
Deposit in Escrow shall accrue for the benefit of Buyer. Such
interest shall be credited against the Purchase Price for the
benefit of Buyer at Closing.
3.3 Closing. The Closing shall take place (and each party
hereto shall take such actions within its control to ensure that
all requirements (including those contained in this Section 3.3)
are timely satisfied on the Closing Date) when the Escrow Agent
is prepared to record Seller's special warranty deed conveying
good and marketable title to the Property to Buyer, subject only
to the Permitted Exceptions (the "Deed"), as hereinafter set
forth. Prior to the Closing Date, the following actions shall be
taken and deliveries shall be made with respect to the Property:
(i) the Deed, duly executed and acknowledged by Seller shall be
delivered to Escrow Agent by Seller; (ii) two (2) identical
originals of an assignment and assumption of the Contracts and
the Leases (the "Assignment"), duly executed by Seller and Buyer,
shall be delivered to Escrow Agent; (iii) the Title Policy shall
be delivered to Buyer, or the Escrow Agent shall commit in
writing to deliver the same; (iv) an Affidavit of Non-Foreign
Status shall be delivered by Seller to Escrow Agent to be held
for Buyer; (v) the Estoppel Certificates shall be delivered to
Buyer; (vi) a bill of sale for the Personal Property in a form
acceptable to Buyer and duly executed by Seller shall be
delivered to Buyer; and (vii) Buyer shall cause the Closing
Payment and closing costs to be paid into Escrow in immediately
available funds by cashier's or certified check or wire transfer.
3.4 Buyer's Conditions. The obligation of Buyer to
purchase the Property is subject to the condition (which may be
waived in writing by Buyer in its sole discretion) that a
"Seller's Event of Default" (as hereinafter defined) shall not
have occurred.
3.5 Seller's Conditions. The obligation of Seller to sell
the Property is subject to the condition (which may be waived in
writing by Seller in its sole discretion) that a "Buyer's Event
of Default" (as hereinafter defined) shall not have occurred.
3.6 Deliveries After the Closing. Upon satisfaction of all
of the conditions to the Closing specified in Sections 3.4 and
3.5, and the delivery of all monies, documents, and instruments
required in Section 3.3, Escrow Agent shall immediately record
the Deed, and after taking account of all prorations and
adjustments specified herein, the following actions shall be
taken all of which will be deemed taken simultaneously at the
Closing and no one of which will be deemed completed until all
have been completed: (i) any excess funds deposited by Buyer in
Escrow (after payment of all of Buyer's Closing Expenses as
contemplated herein) shall be returned to Buyer, together with
the Bill of Sale at its address as set forth herein, (ii) all
other funds in Escrow to which Seller is entitled hereunder
(after payment of all of Sellers Closing Expenses as
contemplated herein), shall be paid to Seller; (iii) one (1)
original of the Assignment shall be delivered to each of Seller
and Buyer; and (iv) Seller shall deliver possession of the
Property to Buyer subject to all tenancy rights to the Property
pursuant to the Leases.
ARTICLE 4: PRORATIONS AND CLOSING EXPENSES
4.1 Taxes and Rents. Real property taxes and assessments
for the tax year in which the Closing occurs shall be apportioned
between Buyer and Seller as of 11:59 p.m. of the day prior to the
Closing Date. All rents, if any, which are actually received by
Seller as of the Closing will be prorated; provided, however,
that Buyer will use good faith efforts to collect delinquent
rents within sixty (60) days of the Closing Date, but will in no
event be obligated to commence legal action in connection with
such collection activities. Delinquent rents and rents not paid
by the Closing will not be prorated, but any delinquent rents
received by Buyer subsequent to Closing will be delivered to
Seller. Rents allocable to the period prior to the Closing will
be retained by Seller. Rents allocable to the period after the
Closing will be delivered to Buyer. Furthermore, all security
deposits shall be credited to Buyer at Closing. In the event
that final documentation of any such item is not available at the
Closing, the required proration shall be made on the basis of the
best available documentation and a further proration shall be
made between the parties when the final documentation or billing
becomes available. This provision shall survive the Closing for
a period of sixty (60) days.
4.2 Other Provisions. Any amounts or fees payable under
any Permitted Exceptions shall be prorated as of the Closing
Date.
4.3 Service Contracts and Utilities. Seller will notify
all contract vendors and utility companies servicing the Property
of the sale of the Property to Buyer and will request that such
companies send Seller a final bill for the period ending the
Closing Date. Buyer will notify the contract vendors and utility
companies that all bills for the period subsequent to the Closing
Date are to be sent to Buyer. In the event that final
documentation is not available at the Closing, the required
proration shall be made on the basis of the best available
documentation and a further proration shall be made at such time
as the final documentation or billing becomes available. This
Section 4.3 shall survive Closing for a period of sixty (60)
days.
4.4 Closing Expenses. The expenses of the Closing shall be
paid as follows:
(a) Seller shall pay (i) the premium for the Title
Report and the premium for the Title Policy up to the premium for
a standard A.L.T.A. Policy of Title Insurance; (ii) documentary
transfer and/or stamp taxes; (iii) recording fees; and (iv) one-
half (1/2) of the Escrow fees (collectively, "Seller's Closing
Expense").
(b) Buyer shall pay: (i) any additional premium
amount for the Title Policy, including the cost of any
endorsements requested by Buyer; (ii) one-half (1/2) of the
Escrow fees; and (iii) the cost of any survey (collectively,
"Buyer's Closing Expenses").
ARTICLE 5: REPRESENTATIONS AND WARRANTIES
5.1 Buyer's Representations and Warranties. Buyer hereby
represents and warrants to Seller, which representations and
warranties shall be true and correct as of the date hereof and as
of the Closing:
(a) Buyer is a general partnership duly organized and
existing under the laws of the State of Oregon;
(b) The execution of this Agreement and the
consummation of all transactions contemplated hereunder: (i) are
within the powers of Buyer; (ii) have been duly authorized by
appropriate action; and (iii) will not conflict with, result in
any breach of any of the provisions of, or constitute a default
(or an event which upon the giving of any required notice or
lapse of time would constitute a default) under Buyer's
organizational documents or the provisions of any agreement,
court or administrative order, consent decree, or other
instrument to which Buyer is a party; and
(c) There are not (and, in the event Buyer assigns its
rights hereunder as provided for in this Agreement to any entity,
there will not be against such assignee), any actions, suits, or
proceedings, pending or threatened, against Buyer (or such
assignee) in any court or before any administrative agency which
would prevent Buyer (or such assignee) from completing the
transactions provided for herein.
5.2 Seller's Representation and Warranties. Seller hereby
represents and warrants the following to Buyer, which
representations and warranties shall be true and correct as of
the date hereof and as of the Closing:
(a) Seller is a limited partnership duly organized and
existing under the laws of the State of California.
(b) The execution of this Agreement and the
consummation of all transactions contemplated hereunder: (i) are
within the powers of Seller; (ii) have been duly authorized by
appropriate action; and (iii) will not conflict with, result in
any breach of any of the provisions of, or constitute a default
(or an event which upon the giving of any required notice or
lapse of time would constitute a default) under Seller's
organizational documents or the provisions of any agreement,
court or administrative order, consent decree, or other
instrument to which Seller is a party.
(c) There are no actions, suits, or proceedings,
pending or to the best of Seller's knowledge, threatened with
respect to the Property, against Seller in any court or before
any administrative agency, which would prevent Seller from
completing the transactions for the Property provided for herein.
(d) Seller is not a foreign person within the meaning
of Section 1445 of the Internal Revenue Code of 1986, as amended.
(e) To the best of Seller's knowledge, the Property is
not in violation or subject to any existing, pending or
threatened investigation under any environmental law. To the
best of Seller's knowledge, neither Seller's prior or current use
of the Property has resulted or will result in the disposal or
release of any hazardous substance, in, on or onto the Property.
To the best of Seller's knowledge during Seller's period of
ownership, no hazardous substance has been disposed of or
released or otherwise exists in, on or onto the Property or any
adjacent premises now or previously owned by Seller. Seller has
complied with and continues to comply and has required all
occupants of the Property to comply with all laws, regulations
and ordinances applicable to hazardous substances. For the
purpose of this Section 5.2(e), "environmental law" means any
law, statute, ordinance or regulation pertaining to health,
industrial hygiene or the environment including, without
limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 and the Resources
Conservation and Recovery Act of 1976 and, in addition,
"hazardous substance" means any asbestos or any substance,
material or waste which is or becomes designated, classified or
regulated as being "toxic" or "hazardous" or a "pollutant" or
which is or becomes similarly designated, classified or
regulated, under any federal state or local law, regulation or
ordinance. The term "hazardous substances" does not include
usual and customary cleaning and other supplies necessary for the
normal operations, maintenance and/or occupancy of the Property.
(f) With respect to the leases, tenancies, and
occupancies set forth on Exhibit "C", Seller represents and
warrants that:
(i) Exhibit "C" is a complete list of all
tenants, concessionaires, franchisees, and other persons and
entities ("Tenants") having the right to use space at or in the
Property and accurately sets forth the name of each such tenant,
the space occupied, the term of the letting, all renewal and
extension options, and the rent payable thereunder;
(ii) The Leases which Seller will deliver to
Buyer pursuant to Section 1.7 above are true, complete, and
correct copies of each Lease (and any amendments) and there are
no other agreements, either written or oral, with any tenants,
and no other rights of occupancy;
(iii) The rents set forth on Exhibit "C" are,
unless otherwise noted on Exhibit "C", the rents currently being
collected and were actually collected for the month immediately
preceding the date hereof; that each Tenant listed on Exhibit "C"
is in actual possession and conducting business in the normal
course; and that there are no arrears in excess of one month
except as set forth on Exhibit "C";
(iv) All of the Leases are in full force and
effect and none of them has been modified, amended, or extended
except as required by law or as disclosed to Buyer; Seller has
not sent written notice to any Tenant claiming that such Tenant
is in default, which default remains uncured, except as set forth
on Exhibit "C"; and to the best of Seller's knowledge, there is
no outstanding counterclaim or offset against the payment of any
rent or other amount payable thereunder.
(v) Except as approved in writing by Buyer,
all work required to be performed subsequent to the expiration of
the Feasibility Period and prior to the Closing Date by landlord
under each of the Leases will be performed and all allowances and
credits due pursuant to the Leases have been paid by Seller to
the Tenants; and
(vi) Exhibit "D" is a complete list of the
security deposits, if any, for each Tenant occupying space on the
Property. All such security deposits shall be credited to Buyer
at Closing.
5.3 Further Representations and Warranties. Seller further
represents and warrants to Buyer, as of the date hereof and as of
the Closing, that to the best of Seller's knowledge:
(a) No approval, consent, order, or authorization of
or designation, registration, or declaration with, any
governmental authority is required in connection with the valid
execution and delivery of and compliance with this Agreement by
Seller.
(b) There is no condemnation proceeding pending with
regard to any part of the Property and to the best of Seller's
knowledge there is no such proceeding contemplated by any
governmental authority.
(c) All certificates, permits, and licenses from any
governmental authority having jurisdiction over the Property
which are necessary to permit the lawful use and operation of the
buildings and improvements on the Property, have been obtained
and are in full force and effect, and, to the best of Seller's
knowledge, there is no pending threat of modification or
cancellation of any such permit, approval, or license. All
utilities required for the operation of the Property either enter
the Property through adjoining public streets or if they pass
through adjoining private land, do so in accordance with valid
public easements or private easements. All of said utilities are
installed and operating and all installation and connection
charges have been paid for in full.
(d) There are no equipment leases, building service
agreements, or other agreements relating to the operation of the
Property except as set forth in Exhibit "E" annexed hereto. None
of said agreements have been amended. Each of said agreements is
in full force and effect and that the Seller is not in default
thereunder and to the best of Seller's knowledge the other
parties to said agreements are not in default thereunder. Seller
has delivered true, complete, and correct copies of all said
agreements to Buyer.
(e) Seller has not received any written notice from
any insurance company which has issued a policy with respect to
the Property requesting performance of any structural or other
major repairs or alterations to the Property, which has not been
complied with.
(f) No work has been performed or is in progress at
and no materials have been furnished to the Property or any
portion thereof which, though not presently the subject of, might
give rise to, mechanic's, materialman's or other liens against
the Property or any portion thereof.
(g) Seller, its agents and employees have received no
written notice of a violation of any federal, state, or municipal
laws, ordinances, orders, regulations or requirements, affecting
any portion of the Property.
Each reference in this Article 5 to Seller's "knowledge",
"actual knowledge", "best of knowledge" or the like, or
reflecting receipt of written notice by Seller shall be deemed to
mean the actual knowledge of, or receipt of actual notice by, NPI
Equity Investments II, Inc., the entity with the controlling
interest in the general partner of Seller, after reasonable
written inquiry to Seller's property management company. The
requirement of reasonable inquiry shall be deemed satisfied if
Seller requests in writing that an authorized representative of
its property management company confirm in writing the veracity
of the provisions of this Article 5, and such inquiry shall not
be deemed to impute to Seller the knowledge of its property
management company.
The representations and warranties in Sections 5.2 and 5.3
shall be true and correct on the Closing Date as if made as of
that date and shall survive the Closing for a period of six (6)
months after the Closing Date; and (i) any claim based upon any
alleged breach thereof must be alleged (in writing) within such
six month period (unless requiring notice within six months would
be unreasonable under the circumstances, in which event written
notice must be given as soon thereafter as is reasonable) and
(ii) any action based upon any alleged breach thereof must be
commenced within one year 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. Notwithstanding anything to the contrary provided herein,
Buyer shall have no right to pursue any action against Seller
pursuant to Sections 5.2 and 5.3 as a result of any of Seller's
representations and warranties being untrue, inaccurate or
incorrect if Buyer has actual knowledge at the time of Closing
that such representation or warranty was untrue, inaccurate or
incorrect at the time of Closing and Buyer nevertheless closes
the transfer of title hereunder.
5.4 As-Is. Buyer acknowledges that, except as expressly
stated in Sections 5.2 and 5.3 above, Seller has made no
representations or warranties, written or oral, express or
implied, with respect to the Property (including, without
limitation, the Leases). Buyer is relying upon its own expertise
and upon its own investigation of the Property. Except as
expressly stated in Sections 5.2 and 5.3 above, Buyer shall
acquire the Property (including without limitation, the Leases)
AS IS; provided, however, that during the period that this
Agreement is in effect, Seller shall maintain the Property in its
current condition, reasonable wear and tear excepted but in no
event shall Seller be obligated to expend in excess of Fifty
Thousand Dollars ($50,000) for the repair (but not usual and
customary maintenance) of any portion of the Property. Buyer
acknowledges that a material consideration in negotiating the
Purchase Price and in entering into this Agreement has been
Buyer's express agreement to rely upon its own investigation in
consummating this transaction.
ARTICLE 6: DEFAULTS
6.1 Buyer's Default and Liquidated Damages. Buyer
recognizes that the Property will be removed from the market
during the existence of this Agreement and that, if this
transaction is not consummated because of a Buyer's Event of
Default, Seller should be entitled to compensation for such
detriment. Buyer and Seller acknowledge that it is extremely
difficult and impractical to ascertain the extent of such
detriment, and, to avoid this problem, Buyer and Seller have
agreed that, in the event that this Agreement is not terminated
by Buyer pursuant to any provision of this Agreement, and the
Closing fails to occur because of a Buyer's Event of Default,
Seller, as its sole and exclusive remedy at law hereunder, may
terminate this Agreement upon notice to Buyer and retain the
Deposit as liquidated damages. The Deposit has been agreed upon,
after negotiation, as the best estimate of Seller's damages.
Accordingly, if for any reason the Deposit is held by Escrow
Agent at the time of a Buyer's Event of Default, Seller shall
deliver to Escrow Agent a written declaration of Buyer's default
("Seller's Declaration of Default"). Upon Escrow Agent's receipt
of Seller's Declaration of Default, Escrow Agent shall proceed as
provided in Section 7.19 below and, if Escrow Agent does not
receive a conflicting notice as provided in that Section, shall
release the Deposit, with any interest earned thereon, to Seller.
Upon a termination of this Agreement by Seller by reason of a
Buyer's Event of Default, Buyer shall be solely responsible for
any cancellation charge in connection with the Title Report or
Title Policy and for all charges in connection with the Escrow.
6.2 Seller's Default and Buyer's Remedies. In the event of
a Seller's Event of Default (as defined below), Buyer shall have
the right to:
(a) declare this Agreement terminated, in which event
the Deposit and all interest thereon shall be returned to Buyer,
it being agreed that the Deposit to be paid by Escrow Holder to
Buyer shall be deemed liquidate damages, and not a penalty. As
Buyer's actual damages may be impossible to estimate, the amount
of liquidated damages is a good faith estimate of the actual
damages to be suffered by Buyer. In addition, in the event of a
willful refusal by Seller to consummate this transaction,
provided that all Buyer's conditions required hereunder have been
otherwise satisfied; then, in addition to the return of the
Deposit and all interest thereon, Seller shall pay to Buyer,
Buyer's actual out-of-pocket expenses of Buyer's attorney and
third parties conducting due diligence (i.e., title, survey,
engineers and environmental, based upon paid receipts tendered by
Buyer to Seller for reimbursement) not to exceed Twenty Five
Thousand Dollars ($25,000). If Buyer receives reimbursement from
Seller for due diligence reports, surveys, inspections, etc.,
contemplated in the prior sentence, then Buyer shall give copies
of such reports to Seller. Thereupon, all further rights and
obligations of the parties hereunder shall cease; or
(b) enforce specific performance of the obligations of
Seller hereunder; provided, however, in exercising its right of
specific performance, Buyer may not require Seller to expend in
excess of Fifty Thousand Dollars ($50,000) to correct any matter
which Seller did not cause.
6.3 Buyer's Event of Default. As used herein, the term
"Buyer's Event of Default" shall mean the occurrence of any of
the following: (i) failure of Buyer to deposit and make any and
all deposits and payments required hereunder on or before the
dates required hereby; (ii) any of the representations and
warranties contained in Section 5.1 hereof is materially false as
of the Closing Date; or (iii) Buyer breaches any other covenant
of Buyer contained herein and such breach remains uncured for two
(2) business days after notice of such breach is delivered by
Seller to Buyer.
6.4 Seller's Event of Default. As used herein, the term
"Seller's Event of Default" shall mean the occurrence of any of
the following: (i) the unexcused failure of Seller to sell,
assign, and transfer the required right, title, and interest in
and to the Property and to make the deliveries required hereunder
on or before the dates required hereunder; (ii) any of the
representations and warranties of Seller contained in Section 5.2
is materially false at the date hereof; or (iii) Seller breaches
without excuse any other covenant of Seller contained herein and
such breach remains uncured for two (2) business days after
notice of such breach is delivered by Buyer to Seller.
ARTICLE 7: MISCELLANEOUS
7.1 Notices. All notices, demands, requests, consents,
approvals or other communication (collectively, "Notices")
required or permitted to be given hereunder or which are given
with respect to this Agreement shall be in writing and shall be
deemed given and received on the day (or, if such day is not a
business day or such receipt is after 5:00 p.m. then current
eastern time on any business day, the next following business
day): (i) when hand delivered to a person of suitable age and
discretion at the address of the receiving party; (ii) when
delivered to the address of the receiving party by Express Mail,
Federal Express or other overnight delivery service; or (iii)
when successfully transmitted by telecopier transmission with a
confirming Notice sent by method (i) or (ii) above, in any of
such cases, delivered, addressed or dispatched as follows:
If to Buyer: Northbank Partners
388 Pearl Street
Eugene, Oregon 97401
Attention: David Davine
Facsimile No.: (503) 485-2050
With a copy to: Arnold, Gallagher, Saydack, Purcell
& Roberts
101 East Broadway, Suite 220
Eugene, Oregon 97401
Attention: Rohn M. Roberts, Esq.
Facsimile No.: (503) 484-0536
If to Seller: Century Properties Fund XV
100 Jericho Quadrangle, Suite 214
Jericho, New York 11753
Attention: Peter Braverman
Facsimile No.: (516) 433-2777
With a copy to: Post & Heymann, LLP
100 Jericho Quadrangle, Suite 214
Jericho, New York 11753
Attention: David J. Heymann, Esq.
Facsimile No.: (516) 433-2777
If to Escrow Agent: Evergreen Land Title Co.
1570 Mohawk Blvd.
Springfield, Oregon 97472
Attention: Jessie Fountain
Facsimile No.: (503) 741-0569
or to such other address as such party shall have specified most
recently by a Notice given in the manner required hereunder.
7.2 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, and all
of which, taken together, shall constitute but one and the same
instrument.
7.3 Governing Law; Choice of Forum. This Agreement shall
be governed by, interpreted under, and construed and enforced in
accordance with the laws of the State of Oregon applicable to
agreements made and to be performed wholly within the State of
Oregon. Each of the parties hereto consents to the exclusive
jurisdiction of and agrees that any and all disputes with respect
hereto shall be adjudicated by the state and federal courts
located within Oregon.
7.4 Entire Agreement. This Agreement constitutes the
entire agreement between the parties with respect to the subject
matter hereof and supersedes all prior understandings writings
with respect thereto. This Agreement may not be modified,
changed or supplemented, nor may any obligations hereunder be
waived, except by a written instrument signed by the party to be
charged or by its agent duly authorized in writing or as
otherwise expressly permitted herein. This provision shall
survive the Closing or earlier termination of this Agreement.
7.5 No Third Party Benefits. This Agreement is for the
benefit of the parties hereto and their respective permitted
successors and assigns. The parties neither intend to confer any
benefit hereunder on any person, firm or corporation other than
the parties hereto, nor shall any such third party have any
rights hereunder.
7.6 Non-Waiver of Rights. No failure or delay of either
party in the exercise of any right given to such party hereunder
shall constitute a waiver thereof unless the time specified
herein for exercise of such right has expired, nor shall any
single or partial exercise of any right preclude any other or
further exercise thereof or of any other right. The waiver of
any breach hereunder shall not be deemed to be a waiver of any
other or any subsequent breach hereof.
7.7 Titles and Headings. Titles and headings of sections
of this Agreement are for convenience of reference only and shall
not affect the construction of any provisions of this Agreement.
7.8 Pronouns, Joint and Several Liability. All pronouns
and any variations thereof shall be deemed to refer to the
masculine, feminine or neuter, singular or plural, as the
identity of the parties require.
7.9 Further Assurances. Seller and Buyer each agree to do
such further acts and things to execute and deliver such
additional agreements and instruments, prior to or subsequent to
the Closing, to consummate, evidence or confirm the purchase and
sale contemplated herein and each shall use its best efforts to
accomplish the Closing in accordance with the provisions hereof.
This provision will survive the Closing.
7.10 Time. Any time period to be computed pursuant to this
Agreement shall be computed by excluding the first day and
including the last. If the last day falls on a Saturday, Sunday
or holiday, the last day shall be extended until the next
business day that the Escrow Agent is open for business, but in
no case will the extension be for more than three (3) days.
7.11 Severability. The determination that any covenant,
agreement, condition or provision of this Agreement, which is not
necessary to the enjoyment by either party of the benefit
contemplated herein, is invalid shall not affect the
enforceability of the remaining covenants, agreements, conditions
or provisions hereof and, in the event of any such determination,
this Agreement shall be construed as if such invalid covenant
agreement, condition or provision were not included herein.
7.12 Drafting Ambiguities. Each party to this Agreement
and its counsel have reviewed and revised this Agreement. 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 of any
amendments or exhibits to this Agreement.
7.13 Assignment; Successors and Assigns. This Agreement
shall be binding upon, and shall inure to the benefit of, the
successors and assigns of the parties hereto and shall not be
assignable without the prior written consent of the other party
thereto; provided, however, that Buyer may assign this Agreement
to any partnership or limited liability company in which Buyer or
any entity controlling, controlled by or under common control
with Buyer is a managing partner, general partner or managing
member.
7.14 Time of Essence. Time is of the essence with respect
to all of Buyer's and Seller's obligations set forth in this
Agreement and each and every such obligation must be performed
fully and punctually.
7.15 [Intentionally Omitted]
7.16 Brokerage Fees. Buyer represents and warrants to
Seller that it has dealt with no real estate salesman, broker, or
finder relative to the transaction contemplated in this Agreement
other than representatives of Western Properties. Seller agrees
to pay a commission of three percent of the Purchase Price in
connection with this transaction and to otherwise satisfy and
hold Buyer harmless from any and all claims and liabilities for
real estate brokerage commissions and finders fees to Western
Properties or any other party which commissions and fees are
related in any way to the transaction which is the subject of
this Agreement. The provisions of this Section 7.16 shall
survive the Closing.
7.17 Attorney Fees. If legal action is initiated relative
to this Agreement or the rights or obligations of any party
hereunder, the non-prevailing party in such action shall pay
reasonable attorney fees to the prevailing party, with the amount
to be determined by the court in said action.
7.18 Section 1031 Exchange. Seller acknowledges that in
the event Buyer determines, in its sole discretion, to purchase
the property pursuant to an exchange under Section 1031 of the
Internal Revenue Code. Seller agrees to cooperate with Buyer in
effectuating such exchange at no cost to Seller.
7.19 Escrow Instructions. The Escrow Agent is hereby
authorized by each of the parties to disburse funds and to
deliver and record such documents as may be appropriate in
accordance with the terms of this Agreement. If this Agreement
or any other matter related hereto shall become the subject of
any litigation or controversy, Buyer and Seller agree to jointly
and severally hold the Escrow Agent free and harmless from any
loss or expense, including reasonable attorney fees, that may be
suffered by the Escrow Agent by reason hereof, except where
caused by an act or omission of the Escrow Agent. If either
Buyer or Seller gives Escrow Agent any Buyer's Declaration of
Default, Seller's Declaration of Default, or any written claim or
notice that the transaction contemplated herein and the Escrow
have terminated, the Escrow Agent shall: (i) provide the other
party (Buyer or Seller) with a copy of the Declaration, claim, or
notice; and (ii) give further notice to that party that the
Escrow Agent shall consider the transaction and Escrow terminated
and shall perform as required by this Agreement, unless that
party gives the Escrow Agent a conflicting notice or claim within
five (5) business days of the date the Escrow Agent's notice is
given to that party. Unless conflicting notice or claim is given
to the Escrow Agent by that party within said five (5) business
days, the Escrow Agent may thereupon and shall thereupon perform
as required by this Agreement. If conflicting demands, claims,
or notices are given to the Escrow Agent with respect to this
Agreement, the parties agree that the Escrow Agent shall be
entitled to refrain from any further action until it shall have
received further instructions executed by Buyer and Seller or, in
the alternative, the Escrow Agent shall be entitled to file a
suit in interpleader upon twenty (20) days notice to Buyer and
Seller of its intent to do so. Upon filing of any action in
interpleader and the deposit of all documents and funds in its
possession with the judicial court in which the action is
commenced or such other depository as may be agreed upon by the
parties, the Escrow Agent shall be fully released and discharged
from any further obligation imposed upon it by this Agreement.
The Escrow Agent shall not be liable in its capacity as such for
any deficiency or correctness as to format or execution or
validity of any instruments deposited with it, nor as to the
identity, authority, or rights of any person executing them, nor
for the failure by any person other than the Escrow Agent to
comply with any of the provisions of any agreement, contract, or
any other instrument deposited with the Escrow Agent or referred
to herein. The Escrow Agent's duties hereunder shall be limited
to the safekeeping of all monies, instruments, and other
documents received by it as the Escrow Agent and for disposition
in accordance with the terms of this Agreement or as the Escrow
Agent may be further instructed.
IN WITNESS WHEREOF, Seller and Buyer have duly executed this
Agreement as of the day and year first above written.
SELLER:
CENTURY PROPERTIES FUND XV
By: Fox Capital Management Corporation
By: __________________________
Peter Braverman,
Vice President
BUYER:
NORTHBANK PARTNERS
By: ______________________
General Partner
ACKNOWLEDGMENT OF ESCROW AGENT
Evergreen Land Title Co., as Escrow Agent, hereby
acknowledges receipt of the foregoing Agreement of Purchase and
Sale and the Deposit and agrees to perform its duties as Escrow
Agent consistently therewith.
Dated: October ___, 1995 ESCROW AGENT
EVERGREEN LAND TITLE CO.
______________________________
Name:
Title:
EXHIBIT A
LEGAL DESCRIPTION
EXHIBIT B
TENANT ESTOPPEL CERTIFICATE
TO: __________________ or one or more of its affiliates or
designees ("Buyer") and/or whom else it may concern:
THIS IS TO CERTIFY THAT:
1. The undersigned is the lessee ("Tenant") under that certain
lease dated ________, 19__ ("Lease") by and between
_____________, as lessor ("Landlord"), and _____________, as
Tenant, covering those certain premises commonly known and
designated as ___________________ ("Premises"). A TRUE AND
CORRECT COPY OF THE LEASE AND ALL AMENDMENTS THERETO IS
ATTACHED HERETO. No other modifications, changes,
amendments, supplements or assignments of the Lease have
been made.
2. This Lease is valid and in full force and effect on the date
hereof. The Lease is the only Lease or agreement between
the Tenant and the Landlord affecting or relating to the
Premises. The Lease represents the entire agreement between
the Landlord and the Tenant with respect to the Premises.
3. The Tenant is not entitled to, and has made no agreements(s)
with the Landlord or its agents or employees concerning,
free rent, rebate of rent payments, credit or offset or
deduction in rent, unpaid or unearned tenant improvement
allowance, or any other type of rental concession,
including, without limitation, lease support payments or
lease buy-outs except as indicated below (if none, state
none): _________________________________________________
4. The Tenant has accepted and now occupies the Premises, and
is and has been open for business since ______, 19__. The
Lease term began ______, 19__. The termination date of the
present term of the Lease, excluding unexercised renewals,
is ________, 19__.
5. The Tenant has no renewal options to extend the term of the
Lease except as indicated below (if none, state none):
____________.
6. The Tenant has paid rent for the Premises for the period up
to and including ______, 19__. The fixed minimum rent and
any additional rent payable by the Tenant presently is
$________ per month. The Tenant's security deposit is
$________.
7. No event has occurred and no condition exists which, with
giving of notice or the lapse of time or both, will
constitute a default under the Lease. The Tenant has no
existing defenses or offsets against the enforcement of this
Lease by the Landlord.
8. The Lease contains, and the Tenant has, no outstanding
options or rights of first refusal to purchase the Premises
or any part thereof or all or any part of the real property
of which the Premises are a part.
9. No actions, whether voluntary or otherwise, are pending
against the Tenant or any general partner of the Tenant
under the bankruptcy laws of the United States or any state
thereof.
TENANT:
____________________
By:_________________
Name:_______________
Title:______________
EXHIBIT C
RENT ROLL
EXHIBIT D
SECURITY DEPOSITS
EXHIBIT E
CONTRACTS
