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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) August 8, 1995
BOETTCHER WESTERN PROPERTIES II LTD.
(Exact name of Registrant as specified in its charter)
COLORADO 0-11501 84-0879737
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
828 Seventeenth Street Denver, Colorado 80202
(Address of principal executive office) (Zip code)
Registrant's telephone number, including area code (303) 628-8000
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Item 5. Other Events
Boettcher Western Properties II Ltd. (the "Partnership") has previously
filed a report on Form 8-K dated August 8, 1995, regarding the sale of
its remaining investment in real estate and its prospective liquidation.
Such Form 8-K is incorporated herein by reference
Item 7. Financial Statements and Exhibits
(a) Exhibits -- 10.17 Real Estate Purchase and Sale Agreement of Iliff
Crossing Shopping Center
10.18 All-Inclusive Promissory Note and Endorsement,
secured by Westlakes Apartments
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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 thereunto duly authorized.
BOETTCHER WESTERN PROPERTIES II LTD.
By: Boettcher Properties, Ltd.
General Partner
By: BPL Holdings, Inc.
General Partner
Dated: September 18, 1995 By: /s/ Thomas M. Mansheim
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Treasurer; Principal Financial
and Accounting Officer of the
Partnership
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EXHIBIT 10.17
Iliff Crossing Shopping Center
PURCHASE AND SALE AGREEMENT
between
BOETTCHER WESTERN PROPERTIES II LTD.,
as Seller,
and
HEITLER/MERANSKI
as Buyer
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TABLE OF CONTENTS
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ARTICLE 1 - PURCHASE PRICE. . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 2 - CONDITIONS TO THE PARTIES' OBLIGATIONS . . . . . . . . . . . . . 3
2.1 Conditions to Buyer's Obligation to Purchase . . . . . . . . . 3
2.1.1 Performance by Seller . . . . . . . . . . . . . . . . 3
2.1.2 Accuracy of Representation . . . . . . . . . . . . . 3
2.1.3 Title Policy . . . . . . . . . . . . . . . . . . . . 3
2.2 Conditions to Seller's Obligation to Sell . . . . . . . . . . . 3
2.2.1 Performance by Buyer . . . . . . . . . . . . . . . . 3
2.2.2 Accuracy of Representations . . . . . . . . . . . . . 3
2.2.3 Payment of Purchase Price . . . . . . . . . . . . . . 3
ARTICLE 3 - BUYER'S DELIVERIES. . . . . . . . . . . . . . . . . . . . . . . 3
3.1 Deposit . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.2 Additional Deliveries . . . . . . . . . . . . . . . . . . . . . 4
3.2.1 Balance of Purchase Price . . . . . . . . . . . . . . 4
3.2.2 Assignment and Assumption of Leases . . . . . . . . . 4
3.2.3 Assignment and Assumption of Contracts. . . . . . . . 4
3.2.4 Cash - Prorations . . . . . . . . . . . . . . . . . . 4
3.2.5 Evidence of Authority . . . . . . . . . . . . . . . . 4
3.2.6 Transfer Declaration. . . . . . . . . . . . . . . . . 4
3.2.7 Settlement Statement. . . . . . . . . . . . . . . . . 4
3.3 Further Documents . . . . . . . . . . . . . . . . . . . . . . . 4
3.4 Failure to Deliver. . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE 4 - SELLER'S CLOSING DELIVERIES . . . . . . . . . . . . . . . . . . 5
4.1 Delivery of Instruments and Documents . . . . . . . . . . . . . 5
4.1.1 Deed . . . . . . . . . . . . . . . . . . . . . . . . 5
4.1.2 Bill of Sale and Assignment . . . . . . . . . . . . . 5
4.1.3 Assignment and Assumption of Leases . . . . . . . . . 5
4.1.4 Assignment and Assumption of Contracts. . . . . . . . 5
4.1.5 Tenant Notification . . . . . . . . . . . . . . . . . 5
4.1.6 Leases/Contracts . . . . . . . . . . . . . . . . . . 5
4.1.7 Section 1445 Affidavit. . . . . . . . . . . . . . . . 5
4.1.8 Conveyance Information. . . . . . . . . . . . . . . . 5
4.1.9 Settlement Statement. . . . . . . . . . . . . . . . . 5
4.1.10 Updated Rent Roll . . . . . . . . . . . . . . . . . . 6
4.1.11 Seller's Certificate. . . . . . . . . . . . . . . . . 6
4.1.12 Estoppel Certificate. . . . . . . . . . . . . . . . . 6
4.2 Further Documents . . . . . . . . . . . . . . . . . . . . . . . 6
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4.3 Failure to Deliver . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE 5 - INVESTIGATION OF PROPERTY. . . . . . . . . . . . . . . . . . . 6
5.1 Initial Delivery of Documents. . . . . . . . . . . . . . . . . 6
5.1.1 Title Commitment . . . . . . . . . . . . . . . . . . 7
5.1.2 Leases . . . . . . . . . . . . . . . . . . . . . . . 7
5.1.3 Income and Expenses. . . . . . . . . . . . . . . . . 7
5.1.4 Rent Roll. . . . . . . . . . . . . . . . . . . . . . 7
5.1.5 ALTA Survey. . . . . . . . . . . . . . . . . . . . . 7
5.1.6 Tax Bills. . . . . . . . . . . . . . . . . . . . . . 7
5.1.7 Environmental Audit. . . . . . . . . . . . . . . . . 7
5.2 Inspection of Property and Condition of Title. . . . . . . . . 7
5.2.1 Inspection Period. . . . . . . . . . . . . . . . . . 7
5.2.2 Termination . . . . . . . . . . . . . . . . . . . . 8
5.2.3 Title Defects. . . . . . . . . . . . . . . . . . . . 9
5.3 "As Is" Purchase . . . . . . . . . . . . . . . . . . . . . . . 9
5.3.1 Opportunity to Inspect . . . . . . . . . . . . . . . 9
5.3.2 No Implied Representations . . . . . . . . . . . . . 10
5.3.3 Waiver and Release . . . . . . . . . . . . . . . . . 10
5.3.4 Survival . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE 6 - FINANCING CONTINGENCY. . . . . . . . . . . . . . . . . . . . . 11
ARTICLE 7 - THE CLOSING. . . . . . . . . . . . . . . . . . . . . . . . . . 11
7.1 Date of Closing. . . . . . . . . . . . . . . . . . . . . . . . 11
7.2 Manner of Closing; Title Policy. . . . . . . . . . . . . . . . 11
ARTICLE 8 - PRORATIONS, FEES AND COSTS . . . . . . . . . . . . . . . . . . 11
8.1 Prorations . . . . . . . . . . . . . . . . . . . . . . . . . . 11
8.1.1 Property Taxes . . . . . . . . . . . . . . . . . . . 11
8.1.2 Income . . . . . . . . . . . . . . . . . . . . . . . 12
8.1.3 Deposits . . . . . . . . . . . . . . . . . . . . . . 12
8.1.4 Reimbursable Expenses. . . . . . . . . . . . . . . . 12
8.1.5 Other Expenses of Property . . . . . . . . . . . . . 13
8.1.6 Miscellaneous. . . . . . . . . . . . . . . . . . . . 13
8.2 Date of Proration . . . . . . . . . . . . . . . . . . . . . . 13
8.3 Buyer's Closing Costs. . . . . . . . . . . . . . . . . . . . . 14
8.4 Seller's Closing Costs . . . . . . . . . . . . . . . . . . . . 14
ARTICLE 9 - DISTRIBUTION OF FUNDS AND DOCUMENTS. . . . . . . . . . . . . . 14
9.1 Form of Disbursements . . . . . . . . . . . . . . . . . . . . 14
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9.2 Liens and Encumbrances . . . . . . . . . . . . . . . . . . . . 14
9.3 Recorded Documents . . . . . . . . . . . . . . . . . . . . . . 14
9.4 Nonrecorded Documents . . . . . . . . . . . . . . . . . . . . 14
9.5 Cash Disbursements . . . . . . . . . . . . . . . . . . . . . . 14
9.6 Copies of Documents . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE 10 - RETURN OF DOCUMENTS AND FUNDS UPON TERMINATION . . . . . . . 15
10.1 Return of Seller's Documents . . . . . . . . . . . . . . . . . 15
10.2 Return of Buyer's Documents . . . . . . . . . . . . . . . . . 15
10.3 No Effect on Rights of Parties . . . . . . . . . . . . . . . . 15
ARTICLE 11 - DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
11.1 Seller's Remedies . . . . . . . . . . . . . . . . . . . . . . 15
11.2 Buyer's Remedies . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE 12 - REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . 16
12.1 Seller's Representations and Warranties . . . . . . . . . . . 16
12.1.1 Authority . . . . . . . . . . . . . . . . . . . . . . 16
12.1.2 Consents; Binding Obligations; Violations . . . . . . 16
12.1.3 Litigation . . . . . . . . . . . . . . . . . . . . . 16
12.1.4 Condemnation . . . . . . . . . . . . . . . . . . . . 16
12.1.5 Special Assessments . . . . . . . . . . . . . . . . . 16
12.1.6 Hazardous Materials . . . . . . . . . . . . . . . . . 17
12.1.7 Survival; Seller's Knowledge . . . . . . . . . . . . 17
12.1.8 Reaffirmation . . . . . . . . . . . . . . . . . . . . 17
12.2 Buyer's Representations and Warranties . . . . . . . . . . . . 18
12.2.1 Authority . . . . . . . . . . . . . . . . . . . . . . 18
12.2.2 Consents; Binding Obligations; Violations . . . . . . 18
12.2.3 Survival . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE 13 - BROKER'S COMMISSION . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE 14 - SELLER'S COVENANTS . . . . . . . . . . . . . . . . . . . . . 19
14.1 Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
14.2 Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . 19
14.3 Personal Property . . . . . . . . . . . . . . . . . . . . . . 20
14.4 Maintenance and Operation of Property . . . . . . . . . . . . 20
14.5 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . 20
14.6 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE 15 - CASUALTY . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE 16 - CONDEMNATION . . . . . . . . . . . . . . . . . . . . . . . . 20
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16.1 Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
16.2 Termination . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE 17 - ASSIGNMENT . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE 18 - NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE 19 - TRANSFER OF POSSESSION . . . . . . . . . . . . . . . . . . . 22
ARTICLE 20 - GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . 22
20.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . 22
20.1.1 Cash . . . . . . . . . . . . . . . . . . . . . . . 23
20.1.2 Party . . . . . . . . . . . . . . . . . . . . . . . 23
20.2 Gender; Number . . . . . . . . . . . . . . . . . . . . . . . 23
20.3 Captions . . . . . . . . . . . . . . . . . . . . . . . . . . 23
29.4 Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
20.5 Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . 23
20.6 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . 23
20.7 Modification . . . . . . . . . . . . . . . . . . . . . . . . 23
20.8 Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . 23
20.9 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 23
20.10 Time of Essence . . . . . . . . . . . . . . . . . . . . . . . 24
20.11 Severability . . . . . . . . . . . . . . . . . . . . . . . . 24
20.12 Successors and Assigns . . . . . . . . . . . . . . . . . . . 24
20.13 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . 24
Exhibit A LEGAL DESCRIPTION . . . . . . . . . . . . . . . . . . . . . . A-1
Exhibit B ASSIGNMENT AND ASSUMPTION OF LEASES . . . . . . . . . . . . . B-1
Exhibit C ASSIGNMENT AND ASSUMPTION OF CONTRACTS . . . . . . . . . . . C-1
Exhibit D SPECIAL WARRANTY DEED . . . . . . . . . . . . . . . . . . . . D-1
Exhibit E BILL OF SALE AND ASSIGNMENT . . . . . . . . . . . . . . . . . E-1
Exhibit F ESTOPPEL CERTIFICATE . . . . . . . . . . . . . . . . . . . . F-1
Exhibit G SELLER'S WIRING INSTRUCTIONS . . . . . . . . . . . . . . . . G-1
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") dated as of April
26, 1995, is made by and among BOETTCHER WESTERN PROPERTIES II LTD., a Colorado
limited partnership ("Seller"), and HEITLER/MERANSKI, a Colorado general
partnership ("Buyer").
RECITALS
This Agreement is entered into with reference to the following facts:
A. Seller is the owner of fee title to a portion of that certain
retail center known as Iliff Crossing Shopping Center located at the northwest
corner of Buckley Road and Iliff Avenue in Aurora, Colorado.
B. As used in this Agreement, the term "Property" includes all of the
following:
(1) The real property described on Exhibit A attached hereto
together with all reversions, remainders, easements, rights-of-way and other
appurtenances appertaining to or otherwise benefiting or used in connection
with such real property or the "Improvements" (as defined below), and all of
Seller's right, title and interest in and to any strips of land, streets, and
alleys abutting or adjoining such real property (the "Land");
(2) The existing buildings and other improvements, structures,
open parking facilities, fixtures, plants and trees placed, constructed,
installed or located on the Land (collectively, the "Improvements"; the Land
and Improvements are sometimes hereinafter collectively referred to as the
"Real Property");
(3) Any items of equipment and other tangible personal
property owned by Seller, located on and used in connection with the operation
of the Real Property (the "Personal Property");
(4) All right, title and interest of Seller, as landlord,
under any leases, tenancies or other occupancy arrangements affecting any
portion of the Real Property (the "Leases");
(5) All right, title and interest of Seller in and to any
contracts, agreements or commitments, oral or written, other than the Leases,
including, without limitation, all construction contracts, contracts for repair
or maintenance, contracts for the provision of services (such as, e.g.,
contracts concerning security services or the maintenance of landscaping or
fire safety or mechanical systems), if any, relating to the Real Property or
the
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Personal Property, to the extent that they are assignable (the "Contracts");
(6) All right, title and interest of Seller in and to any
unexpired warranties, guaranties and bonds, including, without limitation,
contractors' and manufacturers' warranties or guaranties, if any, relating to
the Real Property or the Personal Property, but only to the extent that they
are assignable (the "Warranties");
(7) All right, title and interest of Seller in and to any
governmental permits, licenses, certificates and authorizations, including,
without limitation, certificates of occupancy, if any, relating to the
construction, use or operation of the Real Property or the Personal Property,
but only to the extent that they are assignable (the "Permits");
(8) All right, title and interest of Seller in and to any site
plans, surveys, soil and substratum studies, architectural drawings, plans and
specifications, engineering, electrical and mechanical plans and studies, floor
plans, landscape plans and other plans and studies that are in Seller's
possession and relate to the Real Property or the Personal Property, but only
to the extent that they are assignable and without representation or warranty
of any kind or nature as to the assignability of such items or any matter
contained therein (the "Plans"); and
(9) Any other rights, privileges and appurtenances owned by
Seller and in any way related to, or used in connection with the operation of
the Real Property or Personal Property, including all of Seller's right, title
and interest in and to the use of the Real Property's name, but only to the
extent that they are assignable (the "Intangible Property").
C. Seller now desires to sell and Buyer now desires to purchase the
Property, upon the terms and covenants and subject to the conditions set forth
below.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and intending to
be legally bound hereby, the parties hereto agree as follows:
ARTICLE 1 - PURCHASE PRICE
In consideration of the covenants herein contained, Seller hereby
agrees to sell, and Buyer hereby agrees to purchase, the Property for a total
purchase price (the "Purchase Price") equal to Three Million One Hundred
Thousand ($3,100,000), subject
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to prorations and adjustments provided for herein, and payable as set forth in
Article 3 below.
ARTICLE 2 - CONDITIONS TO THE PARTIES' OBLIGATIONS
2.1 Conditions to Buyer's Obligation to Purchase. Buyer's obligation
to purchase the Property is expressly conditioned upon the satisfaction of each
of the following:
2.1.1 Performance by Seller. Timely performance of each
obligation and covenant of, and delivery required of, Seller hereunder.
2.1.2 Accuracy of Representations. The accuracy in all
material respects of each representation and warranty of Seller in Section
12.1.
2.1.3 Title Policy. Delivery at the "Closing" (as defined in
Section 7.1) of the "Title Policy" (as defined in Section 7.2) or an
unconditional commitment by the "Title Company" (as defined in Section 5.1.1)
to issue the Title Policy after Closing.
2.2 Conditions to Seller's Obligation to Sell. Seller's obligation to
sell the Property is expressly conditioned upon each of the following:
2.2.1 Performance By Buyer. Timely performance of each
obligation and covenant of, and delivery required of, Buyer hereunder.
2.2.2 Accuracy of Representations. The accuracy in all
material respects of each representation and warranty of Buyer in Section 12.2.
2.2.3 Payment of Purchase Price. Payment of the Purchase Price
at the Closing in the manner herein provided.
ARTICLE 3 - BUYER'S DELIVERIES
3.1 Deposit. Upon complete execution of this Agreement by Buyer and
Seller, Buyer shall deliver its check in the amount of Fifty Thousand Dollars
($50,000) to Stewart Title of Denver, Inc. ("Closing Agent"). Closing Agent
shall deposit the check in an interest bearing account (the $50,000, together
with all interest earned thereon, is herein referred to as the "Deposit"). The
Deposit shall be applied to the Purchase Price of the Property, subject to the
terms and provisions of this Agreement. In the event Buyer defaults hereunder,
the Deposit shall be paid to Seller as liquidated damages pursuant to the terms
of Article 11 below. In the event of the failure of a condition precedent set
forth in Section 2.1 or a termination of this
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Agreement pursuant to Section 5.2.2 and Article 6, Closing Agent shall return
the Deposit to Buyer.
3.2 Additional Deliveries. Buyer shall, at or before the Closing,
deliver to Seller or Closing Agent, as appropriate, the following funds,
instruments and documents, the delivery of each of which is an express
obligation of Buyer:
3.2.1 Balance of Purchase Price. Cash, constituting the
balance of the Purchase Price, in the amount of Three Million Fifty Thousand
Dollars ($3,050,000), less any prorations or adjustments in favor of Buyer
provided for herein.
3.2.2 Assignment and Assumption of Leases. Two counterparts of
the Assignment and Assumption of Leases in the form of Exhibit B attached
hereto (the "Assignment of Leases"), executed by Buyer, pursuant to which
Seller shall assign all of its right, title and interest in and to the Leases
to Buyer.
3.2.3 Assignment and Assumption of Contracts. Two counterparts
of the Assignment and Assumption of Contracts in the form of Exhibit C attached
hereto (the "Assignment of Contracts"), executed by Buyer, pursuant to which
Seller shall assign all of its right, title and interest in and to the
Contracts to Buyer.
3.2.4 Cash - Prorations. Buyer's share, if any, of prorations,
fees and costs, as described in Article 8 below.
3.2.5 Evidence of Authority. Certified resolutions of
Buyer or other appropriate evidence of authority, if applicable, confirming
that Buyer's execution, delivery and performance of this Agreement has been
duly authorized in all respects.
3.2.6 Transfer Declaration. A real property transfer
declaration, in form required by law and signed by Buyer, concerning the
transaction contemplated by this Agreement.
3.2.7 Settlement Statement. A settlement statement signed by
Buyer reflecting the Purchase Price, the Deposit, Buyer's share of the
prorations, costs and fees described in Article 8 and the amounts due from
Buyer pursuant to Sections 3.2.1 and 3.2.4.
3.3 Further Documents. Buyer shall execute and deliver such other
documents and shall take such other action at the Closing as may be necessary
or appropriate to carry out its obligations under this Agreement, without
further representations or warranties other than those contained herein.
3.4 Failure to Deliver. The delivery of the funds, instruments and
documents required above shall be express obligations of Buyer and a condition
precedent to Seller's
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performance hereunder, and the failure of Buyer to make any delivery required
above by the date, or within the time, set forth above, shall constitute a
material breach hereof by Buyer.
ARTICLE 4 - SELLER'S CLOSING DELIVERIES
4.1 Delivery of Instruments and Documents. Seller shall, at or before
the Closing, deliver to Buyer or Closing Agent, as appropriate, the following
instruments and documents, the delivery of each of which is an express
obligation of Seller:
4.1.1 Deed. A special warranty deed in the form of Exhibit D
attached hereto (the "Deed"), executed and acknowledged by Seller, conveying
the Real Property to Buyer, subject to the "Permitted Exceptions" (as defined
in Section 5.1.1).
4.1.2 Bill of Sale and Assignment. A bill of sale and
assignment in the form of Exhibit E attached hereto, executed by Seller,
conveying the Personal Property, Warranties, Permits, Plans and Intangible
Property to Buyer, without representation or warranty of any kind whatsoever.
4.1.3 Assignment and Assumption of Leases. Two counterparts of
the Assignment of Leases executed by Seller.
4.1.4 Assignment and Assumption of Contracts. Two counterparts
of the Assignment of Contracts executed by Seller.
4.1.5 Tenant Notification. Signed notification advising each
tenant under the Leases of the transfer of ownership and directing that all
further payments of rent be made as directed by Buyer.
4.1.6 Leases/Contracts. Originals or legible copies of the
Leases, and any written Contracts, and all keys to the Improvements in Seller's
possession.
4.1.7 Section 1445 Affidavit. An affidavit executed by
Seller which evidences that the Seller is exempt from the withholding
requirements of Section 1445 of the Internal Revenue Code of 1986, as amended.
4.1.8 Conveyance Information. Colorado Form DR-1083, in form
required by law and signed by Seller, concerning information with respect to a
conveyance of a Colorado real property interest.
4.1.9 Settlement Statement. A settlement statement signed by
Seller reflecting the Purchase Price, Seller's share of the prorations, costs
and fees described in Article 8 and the net proceeds due to Seller.
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4.1.10 Updated Rent Roll. An update to the rent roll delivered
pursuant to Section 5.1.4, which update shall be certified by Seller as true
and accurate, to Seller's knowledge, as of the date of Closing.
4.1.11 Seller's Certificate. The certificate concerning
Seller's representations and warranties that is described in Section 12.1.8.
4.1.12 Estoppel Certificates. An estoppel certificate executed
by each of the tenants under the Leases, substantially in the form of Exhibit F
attached hereto (or, in any form specified by such Lease) with the blanks
therein completed with information from (or corresponding with) that set forth
in the rent roll delivered pursuant to Section 5.1.4 (including any changes
approved by Buyer pursuant to Section 14.1 or otherwise disclosed by the
updated rent roll delivered pursuant to Section 4.1.10); provided, however,
that Seller's obligations under this Section 4.1.12 shall be deemed satisfied
if Seller delivers such estoppel certificates from tenants under Leases
covering at least 90% of the occupied rentable area of the Improvements and
Seller delivers substitute estoppel certificates executed by Seller from any
tenants from whom Seller is unable to obtain estoppel certificates (which
substitute estoppels shall be in substantially the same form and contain the
same information as would have been the case if signed by the tenants, but
which substitute estoppels shall terminate, and shall result in no liability to
Seller, unless a claim thereon is made before six (6) months following the date
of Closing); and provided further that if Seller is unable to satisfy its
obligations under this Section 4.1.12 and Buyer does not elect to waive such
obligations, then Buyer's sole remedy shall be to terminate this Agreement and
receive a refund of the Deposit.
4.2 Further Documents. Seller shall execute and deliver such other
documents and shall take such other action at Closing as may be necessary or
appropriate to carry out its obligations under this Agreement, without further
representations or warranties other than those contained herein.
4.3 Failure to Deliver. The delivery of the instruments and documents
required above shall be express obligations of Seller and a condition precedent
to Buyer's performance hereunder, and the failure of Seller to make any
delivery required above by the date, or within the time, set forth above shall
constitute a material breach hereof by Seller.
ARTICLE 5 - INVESTIGATION OF PROPERTY
5.1 Initial Delivery of Documents. Seller has delivered to Buyer or
has made available to Buyer (or will, not later than three (3) business days
following the execution of this Agreement by both parties, deliver or make
available to Buyer) the
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following items (collectively referred to herein as "Seller's Deliveries"):
5.1.1 Title Commitment. A current title commitment addressed
to Buyer contemplating the issuance of a standard coverage owner's policy of
title insurance, together with legible copies of all recorded exceptions to
title referred to in such report (collectively, the "Commitment") covering the
Real Property and issued by Stewart Title (the "Title Company"). Buyer shall
review the Commitment as part of its investigation of the Property. If Buyer
does not terminate this Agreement pursuant to Section 5.2.2, then the Leases
and all other exceptions to title disclosed in the Commitment, as amended by
any endorsements or revisions to the Commitment issued by the Title Company and
received by Buyer prior to the expiration of the Inspection Period, shall
constitute the "Permitted Exceptions" hereunder.
5.1.2 Leases. A copy of each of the Leases, including all
amendments thereto.
5.1.3 Income and Expenses. A statement of operating income
received and expenses incurred by Seller in connection with the ownership,
maintenance and operation of the Property for the fiscal years ended September
30, 1992 and 1993, for each of the twelve (12) months ended September 30, 1994
and for each of the six (6) months ended March 31, 1995, together with copies
of all property management reports received by Seller from CTX Commercial
Corporation of Colorado, Seller's property manager for the Property, for the
eighteen (18) months ended March 31, 1995.
5.1.4 Rent Roll. A rent roll of the Property, certified by
Seller as true and accurate to Seller's knowledge, as of date not earlier than
April 1, 1995.
5.1.5 ALTA Survey. A current ALTA improvement survey of the
Real Property (the "Survey"). The certification contained in the Survey shall
be amended prior to Closing to specifically name Buyer and Buyer's lender, if
any, if required by such lender.
5.1.6 Tax Bills. Copies of property tax bills from Arapahoe
County for the most recent years concerning the Real Property.
5.1.7 Environmental Audit. A copy of Phase I and Phase II
environmental audit(s) of the Real Property in Seller's possession.
5.2 Inspection of Property and Condition of Title.
5.2.1 Inspection Period. Buyer shall have until 5:00 p.m.
Mountain time on the twenty-first (21st) day following the day on which all of
Seller's Deliveries have been delivered or
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made available to Buyer (the "Inspection Period") to (i) review the contents of
the Seller's Deliveries, (ii) investigate the Property and all matters relevant
to its acquisition, development, usage, operation and marketability, and (iii)
conduct physical, environmental and similar inspections of the Property. Such
right of investigation shall include the right to have made, at Buyer's
expense, any studies or inspections of the Property as Buyer may deem necessary
or appropriate. Buyer shall not conduct or allow any physically intrusive
testing ("Testing") of, on or under the Property without first obtaining
Seller's written consent as to the timing and scope of any work to be
performed. Buyer agrees that, in making any inspections, or conducting any
Testing, on or under the Property, Buyer or Buyer's agents will carry not less
than $3,000,000 of comprehensive general liability insurance which names Seller
as an additional insured party and with contractual liability endorsement which
insures Buyer's indemnity obligations hereunder, and, upon request of Seller,
will provide Seller with written evidence of the same; Buyer will not
materially and adversely interfere with the activity of tenants or any persons
occupying or providing service at the Property, will not reveal, prior to
Closing, to any third party (other than Buyer's potential lender(s), if any,
and Buyer's attorneys and advisors) the results of its inspections or other
tests; and Buyer will not cause any physical damage to the Property by the
inspections or tests (provided, however, that if Buyer causes any physical
damage to the Property by its inspections or tests, at Seller's election, Buyer
will restore promptly any physical damage caused to the Property). Buyer shall
give Seller reasonable prior notice of its intention to conduct any inspections
or tests, and Seller reserves the right to have a representative present. Buyer
agrees to provide Seller with a copy of any inspection or test report generated
by or on behalf of Buyer in connection with Buyer's inspection of the Property
pursuant to this Section 5.2. Buyer agrees (which agreement shall survive
Closing or termination of this Agreement) to indemnify, defend, and hold Seller
free and harmless from any loss, injury, damage, claim, lien, cost or expense,
including attorneys' fees, and costs arising out of or in connection with
Buyer's inspection and Testing of the Property, including, but not limited to,
property damage claims, personal injury claims, mechanics' lien claims and any
claims arising out of a breach of the foregoing agreements by Buyer. Any
inspections and Testings shall be at Buyer's sole cost and expense.
5.2.2 Termination. If, on or before the expiration of the
Inspection Period, Buyer gives Seller and Closing Agent written notice setting
forth Buyer's dissatisfaction with the Property for any reason whatsoever, then
(i) this Agreement shall terminate, (ii) the Deposit shall be returned to
Buyer, (iii) Closing Agent shall return all other items held by Closing Agent
to the party who delivered the same, and (iv) both parties shall be relieved
from any further liability hereunder, other than Buyer's indemnity under
Section 5.2.1 of this Agreement. If Buyer does not terminate this Agreement as
described in the preceding
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sentence, then this Agreement shall remain in full force and effect in
accordance with its terms.
5.2.3 Title Defects. If, prior to Closing, Buyer notifies
Seller of the existence of any encumbrance, encroachment, defect in or other
matter affecting title, other than the Permitted Exceptions, Seller shall use
such efforts and shall expend such amount as it may, in its sole judgment, deem
appropriate to remove or cure any such defect of title prior to Closing. Seller
shall have no obligation, however, to cure any such defect. If Seller does not
or is unable to so remove or cure all such defects of title prior to Closing,
Buyer may (i) waive all such uncured defects of title and accept such title as
Seller is able to convey as of Closing without an abatement of the Purchase
Price; or (ii) terminate this Agreement by notice to Seller, whereupon this
Agreement shall terminate as provided in Section 5.2.2.
5.3 "As Is" Purchase.
5.3.1 Opportunity to Inspect. Buyer acknowledges and agrees,
for Buyer and Buyer's successors and assigns, that (i) Buyer is being given a
reasonable opportunity to inspect and investigate the Property and all aspects
relating thereto, either independently or through agents, consultants or
experts of Buyer's choosing; (ii) Buyer shall inspect and investigate the
Property during the Inspection Period and engage such qualified agents,
consultants or experts, including, without limitation, environmental
consultants, as Buyer deems necessary to make all appropriate inquiry regarding
the condition of the Property and adjacent property, including, without
limitation, the presence thereon, or the condition thereof with respect to, any
"Hazardous Materials" (as defined below); and (iii) if Buyer does not terminate
this Agreement pursuant to Section 5.2.2, then at Closing, Buyer shall acquire
and accept the Property in its then-existing condition on an "AS IS, WHERE IS,
AND WITH ALL FAULTS" basis, with no right of set-off or reduction in the
Purchase Price. As used in this Agreement, "Hazardous Materials" shall mean any
hazardous or toxic substances, materials or wastes, defined or regulated as
such in or under any "Environmental Law" (as defined below), including, without
limitation, asbestos, gasoline and any other petroleum products (including
crude oil or any fraction thereof), polychlorinated biphenyls and
urea-formaldehyde insulation. As used in this Agreement, "Environmental Law"
shall mean any and all federal, state, local or municipal laws, rules, orders,
regulations, statutes, ordinances, codes, decrees or requirements of any
governmental authority or requirements of law (including common law) relating
to or imposing liability or standards of conduct concerning the protection of
human health, the environment or natural resources, or to releases or
threatened releases of Hazardous Materials into the environment, including,
without limitation, ambient air, surface water, groundwater or land, or
otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or
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handling of Hazardous Materials, as now or may hereafter be in effect.
5.3.2 No Implied Representations. Buyer acknowledges and
agrees that, except for Seller's express representations and warranties set
forth in Section 12.1 below or in any instrument of conveyance signed by Seller
and delivered to Buyer at Closing (collectively, "Seller's Express
Representations"), NEITHER SELLER NOR ANY AGENT, EMPLOYEE, OFFICER, DIRECTOR,
BROKER, CONTRACTOR OR REPRESENTATIVE OF SELLER HAS MADE, AND SELLER
SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE
WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR
FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO THE PROPERTY, INCLUDING,
WITHOUT LIMITATION: (A) THE NATURE, QUANTITY, QUALITY OR CONDITION OF THE
PROPERTY, INCLUDING, WITHOUT LIMITATION, THE AREA, OR THE CONDITION WITH
RESPECT TO WATER, SOILS OR GEOLOGY, OF ANY LAND INCLUDED IN THE PROPERTY, THE
PLUMBING, ELECTRICAL OR MECHANICAL EQUIPMENT OR SYSTEMS OR THE ROOFS,
FOUNDATIONS OR OTHER STRUCTURAL COMPONENTS OF ANY IMPROVEMENTS INCLUDED IN THE
PROPERTY, OR THE FITNESS OF ANY PERSONAL PROPERTY INCLUDED IN THE PROPERTY; (B)
THE INCOME TO BE DERIVED FROM THE PROPERTY BY VIRTUE OF THE LEASES OR
OTHERWISE; (C) THE COSTS OF OWNING, OPERATING, REPAIRING OR MAINTAINING THE
PROPERTY; (D) THE MARKETABILITY OF THE PROPERTY OR ANY POTENTIAL TO DEVELOP,
CONSTRUCT OR ALTER IMPROVEMENTS ON, OR LEASE OR SELL THE PROPERTY; (E) THE
HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE
PROPERTY; OR (F) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY
LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL
AUTHORITY, INCLUDING, WITHOUT LIMITATION, ANY ENVIRONMENTAL LAW; AND THAT
NEITHER SELLER NOR ANY AGENT, EMPLOYEE, OFFICER, DIRECTOR, BROKER, CONTRACTOR
OR REPRESENTATIVE OF SELLER HAS MADE, AND SELLER SPECIFICALLY DISCLAIMS, ANY
REPRESENTATIONS CONCERNING HAZARDOUS MATERIALS. BUYER ACKNOWLEDGES AND AGREES
THAT, EXCEPT FOR SELLER'S EXPRESS REPRESENTATIONS, BUYER IS RELYING SOLELY UPON
ITS OWN INSPECTION OF THE PROPERTY AND NOT UPON ANY INFORMATION PROVIDED BY OR
ON BEHALF OF, OR TO BE PROVIDED BY OR ON BEHALF OF, SELLER OR UPON ANY
REPRESENTATIONS MADE TO IT BY SELLER OR ANY AGENT, EMPLOYEE, OFFICER, DIRECTOR,
BROKER, CONTRACTOR OR REPRESENTATIVE OF SELLER. BUYER FURTHER ACKNOWLEDGES AND
AGREES THAT ANY INFORMATION PROVIDED OR TO BE PROVIDED WITH RESPECT TO THE
PROPERTY WAS OR MAY BE OBTAINED FROM A VARIETY OF SOURCES AND THAT SELLER HAS
NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND
MAKES NO REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF SUCH
INFORMATION.
5.3.3 Waiver and Release. Buyer, for Buyer and Buyer's
successors and assigns, releases Seller and Seller's agents, employees,
officers, directors, brokers, contractors and representatives from, and waives
any and all causes of action or claims against any of such persons for (i) any
and all liability attributable to any physical condition of or at the Property;
and (ii) any liabilities, damages or injury arising from, connected with or
otherwise caused by statements, opinions or information
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obtained from any of such persons with respect to the Property. The release and
waiver set forth in this Section 5.3.3 shall not apply to any breach by Seller
of Seller's Express Representations.
5.3.4 Survival. The provisions of this Section 5.3 shall
survive Closing or any termination of this Agreement.
ARTICLE 6 - FINANCING CONTINGENCY
Buyer shall have until 5:00 p.m. Mountain time on the fifty
first (51st) day from the date this Agreement is executed by both parties to
secure a commitment for a new first trust deed loan of not less than two
million one hundred seventy thousand dollars ($2,170,000) with terms and
conditions satisfactory to Buyer. In the event Buyer is unable to obtain said
financing within said sixty (60) day period, then (i) this Agreement shall
terminate, (ii) the Deposit shall be returned to Buyer, (iii) Closing Agent
shall return all other items held by Closing Agent to the party who delivered
the same, and (iv) both parties shall be relieved from any further liability
hereunder, other than Buyer's indemnity under Section 5.2.1 of this Agreement.
ARTICLE 7 - THE CLOSING
7.1 Date of Closing. If this Agreement has not then been terminated in
accordance with Section 5.2.2 or Article 6, the closing of the transaction
contemplated by this Agreement (the "Closing") shall take place at the offices
of the Closing Agent, on the forty fifth (45th) day after the expiration of the
Inspection Period or, by mutual agreement of the parties, on an earlier date
(the "Closing Date").
7.2 Manner of Closing; Title Policy. At Closing, the parties shall
make all deliveries described in Articles 3 and 4 that have not previously been
made and the Title Company shall issue to Buyer, or shall unconditionally
commit to issue to Buyer after Closing, its standard owner's policy of title
insurance contemplated by the Commitment, with liability in the amount of the
Purchase Price, insuring that fee title to the Real Property vests in Buyer,
subject only to the Permitted Exceptions (the "Title Policy").
ARTICLE 8 - PRORATIONS, FEES AND COSTS
8.1 Prorations. Closing Agent will prorate and adjust between the
parties, in Cash at Closing, the following (all prorations are to be made on
the basis of a 365-day year, unless otherwise specifically instructed in
writing):
8.1.1 Property Taxes. All real property and personal property
taxes and assessments (except special assessments) shall be prorated as of the
Closing Date. Buyer shall
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be solely responsible for payment of any special assessments payable in
installments due on or after the Closing Date. Seller shall pay all
installments of any special assessments due prior to the Closing. If the
applicable tax rate and assessments for the Property have not been established
for the year in which Closing occurs, the proration of real estate and/or
personal property taxes, as the case may be, shall be based upon the most
recent assessed valuations and mill levy available, which proration shall be
deemed a final settlement between the parties.
8.1.2 Income. All income from the Leases, including, without
limitation, both net rents and additional rents due pursuant to the Leases for
the tenants' respective shares of common area maintenance costs, real estate
taxes, insurance and similar costs of ownership or operation (collectively,
"Reimbursable Expenses"), shall be prorated as of the Closing Date. Buyer shall
receive all income accruing on the Closing and thereafter. Seller shall receive
all income accruing prior to the Closing. Delinquent rent due from tenants
under the Leases for any period prior to the Closing shall not be prorated. If
any such delinquent rents are collected by Buyer after the Closing, they shall
be paid over by Buyer to Seller as and when collected. All rents received by
Buyer after Closing shall be deemed to be applied first to satisfy any rents
for periods subsequent to Closing due and owing as of the date such rents are
received, and secondly, to delinquent rental obligations for any period before
Closing not prorated at Closing. Seller shall retain all ownership rights
relating to any such delinquent rents and if Buyer has not collected the same
within sixty (60) days from the Closing Date, Seller may take such action as it
deems necessary to collect such delinquent rents, including the commencement of
an action against the tenant under the Lease or any other person liable for
such delinquent rents, but Seller shall not have the right to cause the tenancy
of such tenant to be terminated.
8.1.3 Deposits. Buyer shall be entitled to a credit at Closing
for the amount of any security or other refundable deposits paid by tenants
under the Leases.
8.1.4 Reimbursable Expenses. For each of the tenants under the
Leases, there shall be calculated the difference, if any, between (i) the
rental payments made by such tenant to Seller through the Closing Date for such
tenant's prorata share of Reimbursable Expenses for the year of Closing; and
(ii) such tenant's prorata share, pursuant to the terms of its Lease, of the
actual Reimbursable Expense incurred by Seller for the year of Closing through
the Closing Date. In calculating such amounts, any rental payments for
Reimbursable Expenses that are credited to Buyer at Closing shall be subtracted
from rental payments for Reimbursable Expenses deemed received by Seller and
all prorations charged to Seller for expenses that constitute Reimbursable
Expenses shall be deemed amounts incurred by Seller through the Closing Date.
The amounts of such differences (whether positive or negative) for each of the
tenants under the Leases shall then be
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added together and (A) if Seller has received more rental for Reimbursable
Expenses for the year of Closing through the Closing Date than the actual
amount of Reimbursable Expenses incurred by Seller during such period for which
Seller is entitled to reimbursement under the Leases, then Seller shall credit
the amount of such excess to Buyer at Closing; and (B) if Seller has received
less rental for Reimbursable Expenses for the year of Closing through the
Closing Date than the actual amount of Reimbursable Expenses incurred by Seller
during such period for which Seller is entitled to reimbursement under the
Leases, then Buyer shall pay the amount of such deficiency to Seller at
Closing. Such adjustment between Seller and Buyer for reimbursements due from
the tenants under the Leases for Reimbursable Expenses shall be deemed a final
settlement. Buyer shall be solely responsible for any adjustments that are
required to be made with the tenants under the Leases after the end of the year
of Closing for any differences between the rental payments made by such tenants
for Reimbursable Expenses for the year of Closing and the actual total
Reimbursable Expenses for such year. Such obligation of Buyer shall survive
Closing.
8.1.5 Other Expenses of Property. In general, all expenses
relating to the operation of the Property accruing prior to the Closing shall
be paid by Seller and all such expenses accruing on or after Closing shall be
paid by Buyer. Buyer shall arrange with all utilities services and companies
servicing the Property to have new accounts started in the name of Buyer or
Buyer's designee beginning at 12:01 a.m. on the Closing Date (except with
respect to those accounts maintained in the names of the tenants under the
Leases).
8.1.6 Miscellaneous. All of the prorations respecting the
Property, except as otherwise provided herein, shall be made in accordance with
the custom of Arapahoe County, Colorado.
8.2 Date of Proration. The prorations and adjustments provided for in
this Article 7 shall be made so that the Buyer shall receive the income and be
charged with the expense of the operation of the Property for the Closing Date,
provided that the Purchase Price (subject to the adjustments and prorations
provided for herein) is delivered to Seller in sufficient time on the Closing
Date so that such proceeds may be invested and Seller shall receive interest on
such investment for the Closing Date. If the proceeds of the Purchase Price are
not so delivered to the Seller on the Closing Date, the prorations and
adjustments to be made under this Article 7 shall not be changed, but Buyer
shall pay to Seller interest on the amounts due to Seller at a rate equal to
ten percent (10%) per annum, calculated on a 360-day year, to compensate Seller
for the loss of interest for such date.
8.3 Buyer's Closing Costs. Buyer will pay (i) all excise, transfer
(such as documentary fees or stamps), sales and use taxes, (ii) one-half of
Closing Agent's closing fee, (iii) the cost of any endorsements to the Title
Policy, (iv) usual buyer's recording charges, and (v) Buyer's attorneys' fees.
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8.4 Seller's Closing Costs. Seller will pay (i) one-half of Closing
Agent's closing fee, (ii) the Title Company's premium for the Title Policy
(excluding the costs of any endorsements thereto), (iii) the cost of the
Survey, (iv) usual seller's recording charges, and (v) Seller's attorneys'
fees.
ARTICLE 9 - DISTRIBUTION OF FUNDS AND DOCUMENTS
9.1 Form of Disbursements. All disbursements by Closing Agent to
Seller shall be made by wire transfer to the account of Seller in accordance
with the wiring instructions attached as Exhibit G hereto.
9.2 Liens and Encumbrances. At the time of Closing, Closing Agent
shall pay, from funds to which Seller shall be entitled, to the obligees
thereof, any lien, deed of trust, mortgage or other encumbrance then affecting
the Property.
9.3 Recorded Documents. Closing Agent will cause the County Recorder
of Arapahoe County, Colorado to mail the Deed (and each other document which is
herein expressed to be, or by general usage is, recorded) after recordation, to
the grantee, beneficiary or person (i) acquiring rights under said document or
(ii) for whose benefit said document was acquired.
9.4 Nonrecorded Documents. Closing Agent will, at the Closing, deliver
at least one duplicate original of each nonrecorded document received hereunder
by Closing Agent to Buyer and Seller.
9.5 Cash Disbursements. Closing Agent will, at the Closing, arrange
for wire transfer, (i) to Seller, or order, the Purchase Price, plus any
prorations or other credits to which Seller will be entitled and less any
appropriate prorations or other charges and (ii) to Buyer, or order, any excess
funds theretofore delivered to Closing Agent by Buyer.
9.6 Copies of Documents. Closing Agent will, as soon as possible after
Closing, deliver to Buyer and to Seller a copy of the Deed (conformed to show
recording data) and each document recorded or delivered to or through Closing
Agent herein.
ARTICLE 10 - RETURN OF DOCUMENTS AND FUNDS UPON TERMINATION
10.1 Return of Seller's Documents. In the event this Agreement is
terminated for any reason (other than the default of Seller), Buyer shall,
within fifteen (15) calendar days following such termination, deliver to Seller
all documents and materials, if any, relating to the Property previously
delivered to Buyer by Seller. Closing Agent shall deliver all documents and
materials delivered by Seller and then in Closing Agent's possession to Seller.
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10.2 Return of Buyer's Documents. In the event this Agreement is
terminated for any reason (other than the default of Buyer), Closing Agent
shall, within fifteen (15) calendar days following such termination, deliver to
Buyer all funds and documents, if any, delivered by Buyer and then in Closing
Agent's possession to Buyer.
10.3 No Effect on Rights of Parties. The return of documents and
monies as set forth above shall not affect the right of either party to seek
such legal or equitable remedies as such party may be entitled by the terms of
this Agreement.
ARTICLE 11 - DEFAULT
11.1 Seller's Remedies. If Buyer fails to complete the acquisition as
herein provided by reason of any default by Buyer, Seller shall be released
from any further obligations hereunder and shall be entitled to the following:
Buyer's INSOFAR AS IT WOULD BE EXTREMELY IMPRACTICABLE AND DIFFICULT
Initials TO ESTIMATE THE DAMAGE AND HARM WHICH SELLER WOULD SUFFER IN
THE EVENT BUYER DEFAULTS HEREUNDER AND FAILS TO COMPLETE THE
--------- ACQUISITION HEREUNDER AND INSOFAR AS A REASONABLE ESTIMATE OF
THE TOTAL NET DETRIMENT THAT SELLER WOULD SUFFER IN THE EVENT
OF BUYER'S DEFAULT AND FAILURE TO DULY COMPLETE THE
Seller's ACQUISITION HEREUNDER IS THE SUM OF $50,000, SELLER SHALL
Initials THEREFORE BE ENTITLED TO BUYER'S DEPOSIT OF $50,000 PLUS ANY
INTEREST THEREON, DELIVERED TO SELLER IN ACCORDANCE WITH
-------- SECTION 3.1 OF THIS AGREEMENT AS AND FOR THE SOLE REMEDY FOR
DAMAGES ARISING FROM BUYER'S FAILURE TO COMPLETE THE
ACQUISITION IN ACCORDANCE WITH THE TERMS HEREOF.
11.2 Buyer's Remedies. In the event of any failure of Seller to comply
with any of its obligations hereunder which are required to be performed at or
prior to the Closing, Buyer may, at Buyer's option and as its exclusive remedy,
either (i) terminate this Agreement by giving written notice of termination to
Seller and to Closing Agent whereupon Closing Agent shall return the Deposit to
Buyer and both Buyer and Seller shall be relieved of further obligations or
liabilities hereunder, or (ii) Buyer may seek specific performance of this
Agreement.
ARTICLE 12 - REPRESENTATIONS AND WARRANTIES
12.1 Seller's Representations and Warranties. Seller represents and
warrants to Buyer that, as of the date of this Agreement and as of the date on
which Closing shall occur:
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12.1.1 Authority. Seller is a limited partnership, duly
organized and existing in good standing under the laws of the State of
Colorado. Seller has full right and authority to enter into this Agreement and
consummate the transaction contemplated hereby. All requisite action, if any,
has been taken by Seller in connection with the entering into of this Agreement
and the instruments referenced herein and the consummation of the transaction
contemplated hereby.
12.1.2 Consents; Binding Obligations; Violations. All consents
and approvals which may be required in order for Seller to enter into this
Agreement or consummate the transaction contemplated hereby have been obtained.
This Agreement and all documents required hereby to be executed by Seller are
and shall be valid, legally binding obligations of and enforceable against
Seller in accordance with their terms. Neither the execution of this Agreement,
nor the consummation of the transaction contemplated hereby will be in
violation of any judgement, order, permit, writ, injunction, or decree of any
court, commission, bureau or agency to which Seller is subject or by which
Seller is bound, or constitute a breach or default under any agreement or other
obligation to which Seller is a party or otherwise bound.
12.1.3 Litigation. To Seller's knowledge, there are no
actions, suits, investigations or proceedings pending or threatened, with
respect to or in any manner affecting the Property or the ability of Seller to
sell the Property on the terms and conditions set forth herein.
12.1.4 Condemnation. To Seller's knowledge, there are no
pending or threatened condemnation or similar proceedings affecting the
Property, or any part thereof, and to Seller's knowledge, no such proceeding is
contemplated by any governmental authority.
12.1.5 Special Assessments. To Seller's knowledge, the Real
Property is not situated within any special assessment district other than the
districts revealed by the most recent statement for real property taxes for the
Real Property which Seller has delivered to Buyer. Seller has no knowledge of
any proposal under which the Real Property is to be included in any other
special assessment district. Seller makes the following disclosure to
Purchaser, which disclosure is required in certain circumstances by Colorado
law: SPECIAL TAXING DISTRICTS MAY BE SUBJECT TO GENERAL OBLIGATION INDEBTEDNESS
THAT IS PAID BY REVENUES PRODUCED FROM ANNUAL TAX LEVIES ON THE TAXABLE
PROPERTY WITHIN SUCH DISTRICTS. PROPERTY OWNERS IN SUCH DISTRICTS MAY BE PLACED
AT RISK FOR INCREASED MILL LEVIES AND EXCESSIVE TAX BURDENS TO SUPPORT THE
SERVICING OF SUCH DEBT WHERE CIRCUMSTANCES ARISE RESULTING IN THE INABILITY OF
SUCH A DISTRICT TO DISCHARGE SUCH INDEBTEDNESS WITHOUT SUCH AN INCREASE IN MILL
LEVIES. PURCHASERS SHOULD INVESTIGATE THE DEBT FINANCING REQUIREMENTS OF THE
AUTHORIZED GENERAL OBLIGATION INDEBTEDNESS OF SUCH DISTRICTS, EXISTING MILL
LEVIES OF SUCH
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DISTRICT SERVICING SUCH INDEBTEDNESS, AND THE POTENTIAL FOR AN INCREASE IN SUCH
MILL LEVIES.
12.1.6 Hazardous Materials. To Seller's knowledge, and except
as may be disclosed to the contrary in any of Seller's Deliveries, there are no
Hazardous Materials present on the Real Property in any quantity or manner that
violates any Environmental Law.
12.1.7 Survival; Seller's Knowledge. The foregoing
representations and warranties shall terminate as of the earlier to occur of
(i) the termination of this Agreement, or (ii) the date six (6) months
following the Closing Date. Seller shall indemnify and hold Buyer harmless and
defend Buyer from any loss, liability or expense incurred by Buyer or any claim
made against Buyer by reason of the breach of any of the foregoing
representations or warranties; provided that Seller shall have no obligation
hereunder with respect to any loss, liability or expense incurred by Buyer, or
claim made against Buyer, subsequent to the termination of such representations
and warranties as provided above or with respect to any matter as to which
Buyer fails to notify Seller prior to such termination. As used in this Section
11.1, phrases such as "to Seller's knowledge" and "Seller has no knowledge of"
shall refer solely to matters within the current, actual (as opposed to
constructive) knowledge of the officers of the general partner of Seller's
general partner.
12.1.8 Reaffirmation. All of the representations and
warranties made by Seller in this Section 12.1 are made as of the date of this
Agreement. At Closing, Seller shall deliver to Purchaser a certificate pursuant
to which Seller shall reaffirm such representations and warranties as true and
correct as of the date of Closing, provided that such certificate may reflect
any changes to such representations and warranties of which Seller has become
aware prior to Closing. In the event that such certificate indicates any
material changes to the foregoing representations and warranties, Seller shall
not be deemed in default hereunder and Purchaser's sole remedy shall be to
terminate this Agreement and receive a refund of the Deposit. In the event such
certificate does indicate any such changes and Purchaser does not elect to
terminate this Agreement, the representations and warranties made by Seller to
Purchaser pursuant to this Agreement as of the date of Closing shall be deemed
made subject to any such changes reflected in such certificate.
12.2 Buyer's Representations and Warranties. Buyer represents and
warrants to Seller that, as of the Closing:
12.2.1 Authority. Buyer is a sole proprietorship or limited
liability company, duly organized and existing in good standing under the laws
of the State of Colorado. Buyer has full right and authority to enter into this
Agreement and consummate the transaction contemplated hereby. All requisite
action, if any, has been taken by Buyer in connection with the entering into of
this
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<PAGE> 23
Agreement and the instruments referenced herein and the consummation of the
transaction contemplated hereby.
12.2.2 Consents; Binding Obligations; Violations. All consents
and approvals which may be required in order for Buyer to enter into this
Agreement or consummate the transaction contemplated hereby have been obtained.
This Agreement and all documents required hereby to be executed by Buyer are
and shall be valid, legally binding obligations of and enforceable against
Buyer in accordance with their terms. Neither the execution of this Agreement,
nor the consummation of the transaction contemplated hereby will be in
violation of any judgement, order, permit, writ, injunction, or decree of any
court, commission, bureau or agency to which Buyer is subject or by which Buyer
is bound, or constitute a breach or default under any agreement or other
obligation to which Buyer is a party or otherwise bound.
12.2.3 Survival. The foregoing representations and warranties
shall terminate as of the earlier to occur of (i) the termination of this
Agreement, or (ii) the date six (6) months following the Closing Date. Buyer
shall indemnify and hold Seller harmless and defend Seller from any loss,
liability or expense incurred by Seller or any claim made against Seller by
reason of the breach of any of the foregoing representations or warranties;
provided that Buyer shall have no obligation hereunder with respect to any
loss, liability or expense incurred by Seller, or claim made against Seller,
subsequent to the termination of such representations and warranties as
provided above or with respect to any matter as to which Seller fails to notify
Buyer prior to such termination.
ARTICLE 13 - BROKER'S COMMISSION
The parties hereto represent and warrant that they know of no
broker's commissions, agents' or finders' fees due in connection with this
transaction, except for the commission due to CTX Commercial Corporation
("Broker") for the work of its agent, Bill Utz, which shall be the sole
responsibility of Seller, and any commissions payable to Western Centers
("Buyer's Agent") for the work of its agent, Arnie Meranski. Any fees or
commissions payable to Buyer's Agent or any other cooperating brokers shall be
paid by Broker pursuant to a separate agreement between Broker and Buyer's
Agent. The parties hereto hereby agree to hold harmless, indemnify and defend
each other from all expenses, liabilities and damages, including without
limitation, attorneys' fees, resulting from claims of brokers, agents or
finders, licensed or otherwise claiming through, under or by reason of the
conduct of the indemnifying party respecting the transaction contemplated
herein.
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<PAGE> 24
ARTICLE 14 - SELLER'S COVENANTS
Seller covenants for the benefit of and agrees with Buyer
that, pending Closing, Seller shall:
14.1 Leases. Perform in a timely manner all of Seller's obligations
under the Leases, consistent with Seller's ordinary business practices in
effect as of the date hereof. Subsequent to the expiration of the Inspection
Period, Seller shall not enter into any new Leases without Buyer's prior
written consent, which consent shall not be unreasonably withheld or delayed.
In addition, Seller shall not modify or terminate any of the Leases without
Buyer's prior written consent, which consent shall not be unreasonably withheld
or delayed. If Seller desires to enter into a new Lease subsequent to the
expiration of the Inspection Period, which Lease requires the consent of Buyer
thereto as provided in this Section 13.1 Seller shall deliver written notice to
Buyer requesting Buyer's approval thereof and providing therewith the most
current draft of the proposed new Lease. Seller also agrees to provide any
other information concerning the new Lease and proposed tenant which Buyer
reasonably requests. Buyer shall respond to Seller's request for approval of
the new Lease transaction within two (2) business days after the delivery of
Seller's notice. Unless Buyer shall deliver written notice to Seller
disapproving the proposed new Lease within such two (2) business day period,
Buyer shall be deemed to have approved such Lease transaction for all purposes
of this Agreement and Seller may proceed to consummate such new Lease in the
form most recently approved (or deemed approved) by Buyer.
14.2 Contracts. Perform in a timely manner all of Seller's obligations
under the Contracts, consistent with Seller's ordinary business practices in
effect as of the date hereof. Subsequent to the expiration of the Inspection
Period, Seller shall not enter into any new Contracts except those which by
their terms may be terminated upon no more than thirty (30) days' written
notice (and to deliver to Buyer copies of any such new Contracts) without
Buyer's prior written consent, which consent shall not be unreasonably
withheld. In addition, Seller shall not modify or terminate any of the
Contracts except as consented to in writing by Buyer, which consent shall not
be unreasonably withheld or delayed. Buyer's consent shall be deemed to have
been given by Buyer if Buyer does not notify Seller to the contrary within two
(2) business days after receipt of Seller's request for such consent. Seller
shall promptly notify Buyer of any such agreements entered into by Seller prior
to the expiration of the Inspection Period.
14.3 Personal Property. Except in the ordinary course of Seller's
business, not remove any Personal Property except to make repairs and
replacements.
14.4 Maintenance and Operation of Property. Maintain the Property in
its present condition, ordinary wear and tear
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<PAGE> 25
excepted, and operate the Property in substantially the same manner as the
Property has previously been operated by Seller.
14.5 Insurance. Maintain in full force and effect all insurance
policies covering the Property as of the date of this Agreement.
14.6 Notices. Promptly deliver to Buyer a copy of any notice received
by Seller of any lawsuits threatened or pending involving all or a portion of
the Property or concerning any building, zoning, fire or health code violation.
ARTICLE 15 - CASUALTY
In the event that the Property should be damaged by any
casualty prior to Closing, Seller shall promptly give Buyer written notice of
such occurrence, and as soon thereafter as practicable, shall provide Buyer
with an estimate (the "Estimate") made by an architect, engineer or contractor
selected by Seller and approved by Buyer (which approval shall not be
unreasonably withheld or delayed) of the cost required to repair such damage.
If it is so estimated that the cost to make any such repairs shown on the
Estimate would exceed an amount equal to ten percent (10%) of the Purchase
Price, then Buyer, at its option, may terminate this Agreement upon written
notice to the Seller given within ten (10) days after both parties' receipt of
the Estimate, in which event Closing Agent shall return the Note (or, if the
Note has then been paid, the Deposit) to Buyer and both parties shall be
relieved of any further obligations hereunder. If Buyer does not elect to so
terminate this Agreement, then this Agreement shall remain in full force and
effect, and Seller shall assign all insurance proceeds payable as a result of
such casualty to Buyer at the Closing.
ARTICLE 16 - CONDEMNATION
16.1 Notice. If, prior to Closing, Seller learns of any actual or
threatened taking in condemnation or by eminent domain (or a sale in lieu
thereof) of all of any portion of the Property, Seller will notify Buyer
promptly thereof.
16.2 Termination. Other than with respect to an "Immaterial Taking"
(as defined below), any actual or threatened taking or condemnation for any
public or quasi-public purpose or use by any competent authority in appropriate
proceedings or by any right of eminent domain of all or any part of the
Property between the date of this Agreement and the Closing Date shall, at the
option of Buyer, cause a termination of this Agreement. The election to
terminate provided hereby must be exercised (or will be deemed to have been
waived) by notice to the other party to that effect given within fifteen (15)
days following delivery of Seller's notice pursuant to Section 15.1 above. Upon
delivery of such termination notice, Closing Agent shall return the Note (or,
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<PAGE> 26
if the Note has then been paid, the Deposit) to Buyer and both parties shall be
relieved of any future obligations hereunder. If Buyer does not elect to so
terminate this Agreement, or in the event of an Immaterial Taking, Seller shall
be relieved of all obligations under this Agreement with respect to the portion
of the Property so taken or condemned, but Buyer will be entitled to receive
all proceeds of any such taking or condemnation, and Seller agrees that it will
not make any adjustment or settlement of any such taking or condemnation
proceeding without Buyer's consent and will take at Closing all action
necessary to assign its entire interest in such award to Buyer or its designee.
Any taking or condemnation for any public or quasi-public purpose or use which
does not affect access, reduce parking or take any part of the Improvements
shall be deemed an "Immaterial Taking."
ARTICLE 17 - ASSIGNMENT
Except for an assignment to an LLC or limited partnership in which
Daniel Weingarten, the Buyer or one or both of the Buyer's partners, Bruce
Heitler and Arnie Meranski, have management control and a substantial financial
interest, Buyer may not assign this Agreement to any other party or entity
without the written consent of Seller, which consent may be granted or withheld
in Seller's sole and absolute discretion. No assignment shall release the Buyer
herein named from any obligation or liability under this Agreement. Any
assignee shall be deemed to have made any and all representations and
warranties made by Buyer hereunder, as if the assignee were the original
signatory hereto.
If Buyer requests Seller's written consent to any assignment, Buyer
shall (1) notify Seller in writing of the proposed assignment; (2) provide
Seller with a name and address of the proposed assignee; (3) provide Seller
with financial information including financial statements of the proposed
assignee; and (4) provide Seller with a copy of the proposed assignment.
ARTICLE 18 - NOTICES
Unless otherwise specifically provided herein, all notices,
demands or other communications given hereunder shall be in writing and any and
all such items shall be deemed to have been duly delivered upon personal
delivery; or as of the third business day after mailing by United States mail,
certified, return receipt requested, postage prepaid, addressed as follows; or
as of 12:00 Noon on the immediately following business day after deposit with
Federal Express or a similar overnight courier service, addressed as follows;
or as of the third business hour (a business hour being one of the hours from
8:00 a.m. to 5:00 p.m., local time of the recipient, on business days) after
transmitting by telecopier to the telecopy number set forth below:
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<PAGE> 27
If to Seller, to:
Boettcher Western Properties II, Ltd.
c/o Kemper Securities, Inc.
828 17th Street, Suite 400
Denver, Colorado 80202
Attention: Vincent L. Dodds
Telecopy: (303) 628-8555
with a copy at the same time to:
Otten, Johnson, Robinson,
Neff & Ragonetti, P.C.
950 17th Street, Suite 1600
Denver, Colorado 80202
Attention: John D. Sternberg, Esq.
Telecopy: (303) 825-6525
If to Buyer, to:
Heitler/Meranski
c/o Heitler Development, Inc.
1410 Grant Street, Suite B303
Denver, CO 80203
Attention: Bruce Heitler
Telecopy: (303) 861-8782
If to Closing Agent, to:
Stewart Title of Denver, Inc.
50 South Steele, Suite 600
Denver, CO 80209
Attention:
Telecopy: (303) 331-0220
or to such other address or to such other person as any party shall designate
to the others for such purpose in the manner hereinabove set forth.
ARTICLE 19 - TRANSFER OF POSSESSION
Possession of the Property shall be transferred to Buyer at Closing,
subject to the Permitted Exceptions.
ARTICLE 20 - GENERAL PROVISIONS
20.1 Definitions. Unless the context otherwise indicates, whenever
used in this Agreement:
20.1.1 Cash. The word "Cash" means (i) United States currency or
(ii) an amount in United States currency
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<PAGE> 28
credited by wire-transfer or by other means providing immediately available
funds.
20.1.2 Party. The word "party" or "parties" means Buyer and/or
Seller, as the context may require.
20.2 Gender; Number. The use herein of (i) the neuter gender includes
the masculine and the feminine and (ii) the singular number includes the
plural, whenever the context so requires.
20.3 Captions. Captions in this Agreement are inserted for convenience
of reference only and do not define, describe or limit the scope or the intent
of this Agreement or any of the terms hereof.
20.4 Dates. If any date set forth in this Agreement for the delivery
of any document or the happening of any event (such as, for example, the
expiration of the Inspection Period or the date of Closing) should, under the
terms hereof, fall on a weekend or holiday, then such date shall be
automatically extended to the next succeeding weekday that is not a holiday.
20.5 Exhibits. All exhibits referred to herein and attached hereto are
a part hereof.
20.6 Entire Agreement. This Agreement contains the entire agreement
between the parties relating to the transactions contemplated hereby and all
prior or contemporaneous agreements, understandings, representations and
statements, oral or written, are merged herein.
20.7 Modification. No modification, waiver, amendment, discharge or
change of this Agreement shall be valid unless the same is in writing and
signed by the party against which the enforcement of such modification, waiver,
amendment, discharge or change is or may be sought.
20.8 Attorneys' Fees. Should any party hereto employ an attorney for
the purpose of enforcing or construing this Agreement, or any judgment based on
this Agreement, in any legal proceeding whatsoever, including insolvency,
bankruptcy, arbitration, declaratory relief or other litigation, including
appeals or rehearing, the prevailing party shall be entitled to receive from
the other party or parties thereto reimbursement for all attorneys' fees and
all costs, including but not limited to service of process, filing fees, court
and court reporter costs, investigative costs, expert witness fees, and the
cost of any bonds, whether taxable or not.
20.9 Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Colorado.
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<PAGE> 29
IN WITNESS WHEREOF, this Agreement has been executed as of the
date(s) set forth below.
SELLER:
BOETTCHER WESTERN PROPERTIES II LTD., a
Colorado limited partnership
By: BOETTCHER PROPERTIES, LTD., a
Colorado limited partnership, its
general partner
By: BPL HOLDINGS, INC., a Delaware
corporation, its general
partner
By: /s/ Vincent L. Dodds
---------------------
Vincent L. Dodds
Vice President
Date: 4-25-95
-------------------
BUYER:
HEITLER/MERANSKI, a Colorado general
partnership
By: /s/ Bruce Heitler
-----------------
General Partner
By: /s/ Arnold Meranski
-------------------
General Partner
Date: 4-26-95
------------------
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<PAGE> 30
Exhibit A
LEGAL DESCRIPTION
LOTS 2 AND 4, BLOCK 1, ILIFF CROSSING SUBDIVISION FILING NO. 1, ACCORDING TO
THE RECORDED PLAT THEREOF, COUNTY OF ARAPAHOE, STATE OF COLORADO,
TOGETHER WITH VACATED SOUTH NUCLA STREET AS VACATED BY ORDINANCE 80-817,
RECORDED FEBRUARY 19, 1981 IN BOOK 3368 AT PAGE 183,
TOGETHER WITH AN EASEMENT GRANTED BY ALBERTSON'S INC., A DELAWARE CORPORATION
RECORDED NOVEMBER 17, 1980 IN BOOK 3319 AT PAGE 55, AN EASEMENT GRANTED BY
LINCOLN DEVELOPMENTS LIMITED, RECORDED NOVEMBER 17, 1980 IN BOOK 3319 AT PAGE
30 AND AMENDED BY FIRST AMENDMENT TO EASEMENT AGREEMENT RECORDED JUNE 4, 1981
IN BOOK 3425 AT PAGE 311 AN EASEMENT RESERVED BY ILIFF CROSSING ASSOCIATES, A
COLORADO CORPORATION, RECORDED FEBRUARY 6, 1980 IN BOOK 3166 AT PAGE 583, AND
AMENDED FEBRUARY 25, 1980 IN BOOK 3175 AT PAGE 212, COUNTY OF ARAPAHOE, STATE
OF COLORADO.
A-1
<PAGE> 31
EXHIBIT B
ASSIGNMENT AND ASSUMPTION OF LEASES
THIS ASSIGNMENT AND ASSUMPTION OF LEASES (this "Agreement") is made
and entered into this _____ day of _______________, 19 __ between BOETTCHER
WESTERN PROPERTIES II LTD., a Colorado limited partnership ("Assignor"), and
_______________, a _________________ ("Assignee").
For Ten Dollars and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged by Assignor, Assignor hereby
assigns, transfers and conveys to Assignee, all right, title and interest of
Assignor as landlord in and to those leases, tenancies and other occupancy
arrangements (the "Leases") described in Schedule 1 attached hereto and made a
part hereof.
Assignor shall indemnify and hold Assignee harmless from all
obligations on the part of the landlord arising under the Leases prior to the
date hereof and from all liabilities, costs and expenses (including, without
limitation, reasonable attorney's fees) incurred in connection therewith.
Assignee hereby expressly assumes all liabilities and agrees to
perform all obligations of Assignor under the Leases to be performed from and
after the date hereof and shall indemnify and hold Assignor harmless from all
obligations on the part of the landlord arising under the Leases from and after
the date hereof and from all liabilities, costs and expenses (including,
without limitation, reasonable attorney's fees) incurred in connection
therewith.
This Assignment shall bind and inure to Assignor and Assignee and
their respective successors and assigns.
ASSIGNOR:
BOETTCHER WESTERN PROPERTIES II LTD.,
a Colorado limited partnership
By: BOETTCHER PROPERTIES, LTD.,
a Colorado limited partnership, its
general partner
By: BPL HOLDINGS, INC., a Delaware
corporation, its general
partner
By: _______________________
Vincent L. Dodds
Vice President
B-1
<PAGE> 32
ASSIGNEE:
_______________________________, a
_______________________________
By:____________________________
Name:__________________________
Title:_________________________
B-2
<PAGE> 33
Schedule 1
Leases
B-3
<PAGE> 34
EXHIBIT C
ASSIGNMENT AND ASSUMPTION OF CONTRACTS
THIS ASSIGNMENT AND ASSUMPTION OF CONTRACTS (this "Agreement") is made
and entered into as of 19 , by and between BOETTCHER WESTERN PROPERTIES II
LTD., a Colorado limited partnership ("Assignor"), and, a ("Assignee").
Recitals
This Agreement is made with respect to the following facts:
A. Assignor has this date conveyed to Assignee the real property
described on Schedule 1 attached hereto (the "Property").
B. In connection with the conveyance of the Property to Assignee,
Assignor desires to assign all of Assignee's right, title and interest in and
to those contracts, agreements and commitments for the repair, maintenance,
service and supply of the Property that are listed on Schedule 2 attached
hereto and made a part hereof (the "Contracts").
C. Assignee desires to assume Assignor's obligations under the
contracts.
Agreement
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Assignor hereby assigns to Assignee all of its right, title and
interest in and to the Contracts and Assignor agrees to indemnify and hold
Assignee harmless from all obligations on the part of the owner of the Property
arising under the Contracts prior to the date hereof and from all liabilities,
costs and expenses (including, without limitation, reasonable attorney's fees)
incurred in connection therewith.
2. Assignee hereby expressly assumes and agrees to perform all the
obligations of Assignor under the Contracts to be performed from and after the
date hereof and Assignee agrees to indemnify and hold Assignor harmless from
all obligations on the part of the owner of the Property arising under the
Contracts from and after the date hereof and from all liabilities, costs and
expenses (including, without limitation, reasonable attorney's fees) incurred
in connection therewith.
3. This Assignment shall bind and inure to Assignor and Assignee and
their respective successors and assigns.
C-1
<PAGE> 35
Executed as of the date set forth above.
ASSIGNOR:
BOETTCHER WESTERN PROPERTIES II LTD., a
Colorado limited partnership
By: BOETTCHER PROPERTIES, LTD., a
Colorado limited partnership, its
general partner
By: BPL HOLDINGS, INC., a Delaware
corporation, its general partner
By:______________________
Vincent L. Dodds
Vice President
ASSIGNEE:
________________________________, a
___________________________________
By:_______________________________
Name:_____________________________
Title:____________________________
C-2
<PAGE> 36
Schedule 1
Legal Description of the Property
LOTS 2 AND 4, BLOCK 1, ILIFF CROSSING SUBDIVISION FILING NO. 1, ACCORDING TO
THE RECORDED PLAT THEREOF, COUNTY OF ARAPAHOE, STATE OF COLORADO,
TOGETHER WITH VACATED SOUTH NUCLA STREET AS VACATED BY ORDINANCE 80-817,
RECORDED FEBRUARY 19, 1981 IN BOOK 3368 AT PAGE 183,
TOGETHER WITH AN EASEMENT GRANTED BY ALBERTSON'S INC., A DELAWARE CORPORATION
RECORDED NOVEMBER 17, 1980 IN BOOK 3319 AT PAGE 55, AN EASEMENT GRANTED BY
LINCOLN DEVELOPMENTS LIMITED, RECORDED NOVEMBER 17, 1980 IN BOOK 3319 AT PAGE
30 AND AMENDED BY FIRST AMENDMENT TO EASEMENT AGREEMENT RECORDED JUNE 4, 1981
IN BOOK 3425 AT PAGE 311 AN EASEMENT RESERVED BY ILIFF CROSSING ASSOCIATES, A
COLORADO CORPORATION, RECORDED FEBRUARY 6, 1980 IN BOOK 3166 AT PAGE 583, AND
AMENDED FEBRUARY 25, 1980 IN BOOK 3175 AT PAGE 212, COUNTY OF ARAPAHOE, STATE
OF COLORADO.
C-3
<PAGE> 37
Schedule 2
Contracts
[There shall be added here a list of all Contracts that are in effect on the
Closing Date and that either (i) do not require the consent of the other party
to such Contract for the assignment thereof to Buyer; or (ii) require the
consent of the other party to such Contract for the assignment thereof to
Buyer, which consent Buyer has obtained and delivered to Seller on or before
Closing.]
C-4
<PAGE> 38
EXHIBIT D
SPECIAL WARRANTY DEED
[Statutory Form - C.R.S. Section 38-30-115]
BOETTCHER WESTERN PROPERTIES II LTD., a Colorado limited partnership
("Grantor"), whose street address is 828 17th Street, Suite 400, Denver,
Colorado 80202, Attention: Vincent L. Dodds, for the consideration of Three
Million Three Hundred Fifty Thousand Dollars ($3,350,000), in hand paid, hereby
sells and conveys to _________________, a ________________________, whose
street address is ____________, Attention: ____________________, the real
property in the County of Arapahoe and State of Colorado that is described on
Schedule 1 attached hereto and made a part hereof, with all its appurtenances,
and warrants the title to the same against all persons claiming under Grantor,
subject to the matters set forth on Schedule 2 attached hereto and made a part
hereof.
Signed this _____ day of _________________ , 19____.
BOETTCHER WESTERN PROPERTIES II LTD.,
a Colorado limited partnership
By: BOETTCHER PROPERTIES, LTD., a
Colorado limited partnership, its
general partner
By: BPL HOLDINGS, INC., a Delaware
corporation, its general partner
By:___________________________
Vincent L. Dodds
Vice President
D-1
<PAGE> 39
STATE OF ___________)
) ss.
COUNTY OF___________)
The foregoing instrument was acknowledged before me this
__ day of_________, 19 __ by Vincent L. Dodds, as Vice President of BPL
Holdings, Inc., a Delaware corporation, as general partner of Boettcher
Properties, Ltd., a Colorado limited partnership, as general partner of
Boettcher Western Properties II Ltd., a Colorado limited partnership.
Witness my hand and official seal.
My commission expires:_____________________________________
______________________________________
Notary Public
D-2
<PAGE> 40
Schedule 1
Legal Description
LOTS 2 AND 4, BLOCK 1, ILIFF CROSSING SUBDIVISION FILING NO. 1, ACCORDING TO
THE RECORDED PLAT THEREOF, COUNTY OF ARAPAHOE, STATE OF COLORADO,
TOGETHER WITH VACATED SOUTH NUCLA STREET AS VACATED BY ORDINANCE 80-817,
RECORDED FEBRUARY 19, 1981 IN BOOK 3368 AT PAGE 183,
TOGETHER WITH AN EASEMENT GRANTED BY ALBERTSON'S INC., A DELAWARE CORPORATION
RECORDED NOVEMBER 17, 1980 IN BOOK 3319 AT PAGE 55, AN EASEMENT GRANTED BY
LINCOLN DEVELOPMENTS LIMITED, RECORDED NOVEMBER 17, 1980 IN BOOK 3319 AT PAGE
30 AND AMENDED BY FIRST AMENDMENT TO EASEMENT AGREEMENT RECORDED JUNE 4, 1981
IN BOOK 3425 AT PAGE 311 AN EASEMENT RESERVED BY ILIFF CROSSING ASSOCIATES, A
COLORADO CORPORATION, RECORDED FEBRUARY 6, 1980 IN BOOK 3166 AT PAGE 583, AND
AMENDED FEBRUARY 25, 1980 IN BOOK 3175 AT PAGE 212, COUNTY OF ARAPAHOE, STATE
OF COLORADO.
D-3
<PAGE> 41
Schedule 2
Title Exceptions
[Permitted Exceptions to be added.]
D-4
<PAGE> 42
EXHIBIT E
BILL OF SALE AND ASSIGNMENT
This Bill of Sale and Assignment dated as of ____, 19 ____, is between
BOETTCHER WESTERN PROPERTIES II LTD., a Colorado limited partnership ("Seller")
and _______________________, a _________________________("Buyer").
For Ten Dollars and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged by Seller, Seller hereby
sells, conveys, transfers, assigns, and sets over unto Buyer, without warranty
of any kind or nature, all right, title and interest of Seller in and to the
following:
(a) Any items of equipment and other tangible personal property
(the "Personal Property") owned by Seller, located on and used
in connection with the operation of the real property
described in Schedule 1 attached hereto and made a part hereof
(the "Real Property");
(b) Any unexpired warranties, guaranties and bonds, including,
without limitation, contractors' and manufacturers' warranties
or guaranties, if any, relating to the Real Property or the
Personal Property, but only to the extent that they are
assignable;
(c) Any governmental permits, licenses, certificates and
authorizations, including, without limitation, certificates of
occupancy, if any, relating to the construction, use or
operation of the Real Property or the Personal Property, but
only to the extent that they are assignable;
(d) Any site plans, surveys, soil and substratum studies,
architectural drawings, plans and specifications, engineering,
electrical and mechanical plans and studies, floor plans,
landscape plans, and other plans and studies that are in
Seller's possession and relate to the Real Property or the
Personal Property, but only to the extent that they are
assignable and without representation or warranty of any kind
whatsoever as to the assignability of such items or any matter
contained therein; and
(e) Any other rights, privileges and appurtenances owned by Seller
and in any way related to, or used in connection with the
operation of, the Real Property or Personal Property,
including all of Seller's right, title and interest in and to
use of the name "Iliff Crossing Shopping Center" in connection
with the ownership and operation of the Real Property, but
only to the extent that they are assignable.
Executed as of the date set forth above.
E-1
<PAGE> 43
BOETTCHER WESTERN PROPERTIES II LTD., a
Colorado limited partnership
By: BOETTCHER PROPERTIES, LTD., a
Colorado limited partnership, its
general partner
By: BPL HOLDINGS, INC., a Delaware
corporation, its general
partner
By: _________________________
Vincent L. Dodds
Vice President
E-2
<PAGE> 44
Schedule 1
Legal Description of the Real Property
LOTS 2 AND 4, BLOCK 1, ILIFF CROSSING SUBDIVISION FILING NO. 1, ACCORDING TO
THE RECORDED PLAT THEREOF, COUNTY OF ARAPAHOE, STATE OF COLORADO,
TOGETHER WITH VACATED SOUTH NUCLA STREET AS VACATED BY ORDINANCE 80-817,
RECORDED FEBRUARY 19, 1981 IN BOOK 3368 AT PAGE 183,
TOGETHER WITH AN EASEMENT GRANTED BY ALBERTSON'S INC., A DELAWARE CORPORATION
RECORDED NOVEMBER 17, 1980 IN BOOK 3319 AT PAGE 55, AN EASEMENT GRANTED BY
LINCOLN DEVELOPMENTS LIMITED, RECORDED NOVEMBER 17, 1980 IN BOOK 3319 AT PAGE
30 AND AMENDED BY FIRST AMENDMENT TO EASEMENT AGREEMENT RECORDED JUNE 4, 1981
IN BOOK 3425 AT PAGE 311 AN EASEMENT RESERVED BY ILIFF CROSSING ASSOCIATES, A
COLORADO CORPORATION, RECORDED FEBRUARY 6, 1980 IN BOOK 3166 AT PAGE 583, AND
AMENDED FEBRUARY 25, 1980 IN BOOK 3175 AT PAGE 212, COUNTY OF ARAPAHOE, STATE
OF COLORADO.
E-3
<PAGE> 45
EXHIBIT F
ESTOPPEL CERTIFICATE
TO:______________________________
______________________________
______________________________
______________________________
Attention: _______________________________________________ "Purchaser")
RE: Lease dated _________________________(the "Lease") for
premises known as _______________________________ (the
"Premises") in the Iliff Crossing Shopping Center (the
"Property")
The undersigned hereby certifies to Purchaser as follows:
1. The undersigned is the "Tenant" under the above-referenced Lease
covering the above-referenced Premises. A true, correct and complete copy of
the Lease (including all addendums, riders, amendments, modifications and
supplements thereto) is attached as Exhibit A.
2. The Lease constitutes the entire agreement between the landlord
under the Lease ("Landlord") and Tenant with respect to the Property and the
Lease has not been modified, changed, altered or amended in any respect except
as set forth above.
3. The term of the Lease commenced on _____, 19 _____, and, including
any presently exercised option or renewal term, will expire on
_______________, 19 _____. Tenant has accepted possession of the Premises and
is the actual occupant in possession and has not sublet or assigned Tenant's
leasehold interest, except as follows: ___________________________________. All
improvements to be constructed on the Premises by Landlord have been completed
and accepted by Tenant and any construction allowances payable by Landlord have
been paid in full.
4. To the best of the Tenant's knowledge, as of the date of this
Estoppel Certificate, there exists no breach or default, nor state of facts
which, with notice, the passage of time, or both, would result in a breach or
default on the part of either Tenant or Landlord under the Lease.
5. Tenant is currently obligated to pay base or minimum annual rental
of $ _____________ in monthly installments of $ ________________ per month and
monthly installments of annual rental have been paid through _____________ ,
19 _____. No rent has been paid in advance for any period after such date.
Tenant is also obligated to pay percentage rent calculated as follows:
______________ (if none, write "NONE"). For the lease year expiring
___________________(fill in the most recent date as to which percentage rent
has been calculated) Tenant has paid $ ____________ as percentage rent (if
none, write "NONE"). Tenant has no claim against
F-1
<PAGE> 46
Landlord for any security or other deposits except $ _____________ (if none,
write "NONE") which was paid pursuant to the Lease.
6. Tenant has no option, right of first offer or right of first
refusal to lease or occupy any other space within the Property except as
expressly set forth in the Lease.
7. Tenant has no option or preferential right to purchase all or part
of the Premises (or the Property) nor any right or interest with respect to the
Property other than as Tenant under the Lease.
8. Tenant has made no agreement with Landlord or any agent,
representative or employee of Landlord concerning free rent, partial rent,
rebate of rental payments or any other type of rental or other concession
except as expressly set forth in the Lease.
9. There has not been filed by or, to the best of Tenant's knowledge,
against Tenant a petition in bankruptcy, voluntary or otherwise, any assignment
for the benefit of creditors, any petition seeking reorganization or
arrangement under the bankruptcy laws of the United States, or any state
thereof, or any other action brought under said bankruptcy laws with respect to
Tenant.
This Certificate is made to Purchaser in connection with the
prospective purchase by Purchaser, or Purchaser's assignee, of the building
containing the Premises. This Certificate may be relied on by Purchaser and any
other party who acquires an interest in the Premises in connection with such
purchase or any person or entity which may finance such purchase.
Dated this ________ day of_________, 19 _____.
______________________
By:______________________
Its:_____________________
"TENANT"
F-2
<PAGE> 47
EXHIBIT G
SELLER'S WIRING INSTRUCTIONS
CitiBank of New York
ABA # 021 000 089
For the account of: Kemper Clearing Corp.
Account No. 3889-7669
Reference: Boettcher Western Properties II Ltd.
#1565-8068
G-1
<PAGE> 48
EXHIBIT A
AMENDMENT
to the
PURCHASE AND SALE AGREEMENT ("Agreement")
dated
April 26, 1995
by and between
BOETTCHER WESTERN PROPERTIES II, LTD ("Seller")
and
HEITLER/MERANSKI ("Buyer")
1. DATE. The effective date of this Amendment shall be May 8, 1995.
2. CO-OPERATIVE COMMISSION. Signature Corporation of Colorado ("Broker"), as
exclusive listing broker for the Seller, agrees to pay 50% (1/2) of the
commission received from the Seller at the closing of a sale in accordance with
the above referenced agreement, to Western Centers, Inc. as cooperating broker
("Co-op") subject to the following provisions. Such cooperative commission
shall be reduced to 25% (1/4) of the broker's commission received if either of
the following occur:
a) Request and receipt by the Buyer from the Seller of an
extension of the Inspection Period as defined in
Section 5.2.1; or
b) Request and receipt by the Buyer from the Seller of an
extension of time to obtain a financing commitment pursuant to
Article 6 in excess of fifteen (15) calendar days beyond the
time permitted within such Article, or any agreement
modification requiring an increase of the loan amount as
specified therein.
Any payment to the Co-op is strictly contingent upon Broker receiving four
percent (4%) of the purchase price of the Three Million One Hundred Thousand
Dollars ($3,100,000.00). Seller is under no obligation to grant an extension of
time under either (a) or (b) above. Notwithstanding the foregoing, if the
closing occurs later than 120 days from the date of this amendment the Broker
shall retain 100% of the commission and Co-op shall not receive any portion of
the commission.
3. LOAN FEE. The Buyer hereby agrees to pay a loan brokerage fee of one percent
(1%) of the loan amount to CTX Capital Corporation and/or assigns for a loan
closed for the benefit of the Buyer by any of the following named lenders:
-Commercial Federal Mortgage Corporation
-Wells Fargo
-RFG Financial (Salomon Bros./Reckson Mortgage)
-Chemical Bank
-Bank One
-Midland Commercial Funding
<PAGE> 49
Page 2 of 3
Amendment
4. INSPECTION PERIOD. The parties hereby agree that Sellers Deliveries required
by Section 5.1 have all been made as of May 8, 1995 and that the expiration of
the Inspection Period under Section 5.2.1 is 5:00 p.m. Mountain Time on May 29,
1995.
5. FINANCING CONTINGENCY. The financing contingency provided in Article 6 of
the Agreement will expire on June 28, 1995. Accordingly, in the second line of
Article 6, the words "the fifty first (51st) day from the date this Agreement
is executed" are deleted and the date "June 28, 1995" is added in their place.
In the seventh line of Article 6, the words "within said sixty (60) day
period," are deleted and the words "on or before 5:00 p.m. Mountain time on
June 28, 1995," are added in their place.
6. CLOSING DATE. Section 7.1 of the Agreement is modified to reflect that the
"Closing Date" will be July 31, 1995 or, by mutual agreement, an earlier date.
7. The following sections are hereby added to Section 20:
20.10 Time of Essence. Seller and Buyer hereby acknowledge and agree
that TIME IS STRICTLY OF THE ESSENCE with respect to each and every term,
condition, obligation and provision herein and the failure to TIMELY AND FULLY
perform or satisfy any of the terms, conditions, obligations or provisions of
this Agreement shall constitute a material default hereunder.
20.11 Severability. In the event any term, covenant, condition,
provision or agreement herein contained is held to be invalid, void or
otherwise unenforceable by any court of competent jurisdiction, the fact that
such term, covenant, condition, provision or agreement is invalid, void or
otherwise unenforceable shall in no way affect the validity or enforceability
of any other term, covenant, condition, provision or agreement herein
contained.
20.12 Successors and Assigns. Subject to any provisions concerning
assignment hereinabove set forth, all terms of this Agreement shall be binding
upon, inure to the benefit of, and be enforceable by, the parties hereto and
their respective legal representatives, successors and assigns.
20.13 Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed an original; such
counterparts shall together constitute but one agreement.
8. RATIFICATION. All capitalized terms used in this Amendment without
definition shall have the same meanings as set forth for those terms in the
Agreement. Except as amended hereby, the Agreement has not been modified and,
as amended hereby, the Agreement is hereby ratified and confirmed.
<PAGE> 50
Page 3 of 3
Amendment
Executed as of the date set forth above.
CO-OP: BROKER:
WESTERN CENTERS. INC. Signature Corporation of Colorado
a Colorado Corporation
/s/ Arnold Meranski /s/ William G. Utz
------------------------------ ----------------------------------
Arnold Meranski William G. Utz
President and Broker Broker
BUYER:
HEITLER/MERANSKI CTX CAPITAL CORPORATION
a Colorado General Partnership a Nevada Corporation
/s/ Bruce Heitler /s/ Brian M. Cuje
----------------------------- -----------------------
Bruce Heitler, General Partner Brian M. Cuje
Vice President
SELLER:
BOETTCHER WESTERN PROPERTIES II LTD.,
a Colorado limited partnership
By: BOETTCHER PROPERTIES, LTD., A
Colorado limited partnership, its
general partner
By: BPL HOLDINGS, INC. a Delaware
corporation, its general partner
By: /s/ Vincent L. Dodds
----------------------------
Vincent L. Dodds
Vice President
<PAGE> 51
ASSIGNMENT OF PURCHASE AND SALE AGREEMENT
July 26, 1995
WHEREAS Heitler/Meranski, a Colorado general partnership, (the
"Buyer") entered into an agreement (the "Agreement") with Boettcher Western
Properties II, Ltd. (the "Seller") dated April 26, 1995, which was modified by
the Amendment dated April 26, 1995, and
WHEREAS Article 17 of the Agreement permits assignment to an LLC in
which one or both of the Buyer's partners, Bruce Heitler and Arnie Meranski,
have management controll and a substantial financial interest without consent of
the Seller, and
WHEREAS Iliff Crossing Company LLC is a Colorado limited liability
company in which Bruce Heitler and Arnie Meranski have management control and a
substantial financial interest,
NOW THEREFORE, For valuable consideration the adequacy of which is
acknowledged by the parties, Heitler/Meranski hereby assigns to Iliff Crossing
Company LLC, all of its right, title and interest in the Agreement and Iliff
Crossing Company LLC hereby agrees to assume and perform all of the obligations
of the Buyer under the Agreement.
HEITLER/MERANSKI a Colorado general partnership
By: /s/ Bruce F. Heitler
----------------------------------
Bruce F. Heitler, General partner
APPROVED AND ACCEPTED:
BOETTCHER WESTERN PROPERTIES,
Iliff Crossing Company LLC II, LTD., a Colorado limited partnership
By: /s/ Bruce F. Heitler
--------------------------
Bruce F. Heitler, Manager
By: BOETTCHER PROPERTIES, LTD.,
a Colorado limited partnership,
its general partner,
By: BPL HOLDINGS, INC., a Delaware
corporation, its general
By: /s/ Vincent L. Dodds
--------------------------------
Vincent L. Dodds, vice president
<PAGE> 52
AGREEMENT
The undersigned, as parties to that certain Purchase and Sale Agreement
between Boettcher Western Properties II Ltd., as Seller, and Iliff Crossing
Company LLC, as Buyer (the "Agreement"), hereby acknowledge and agree that the
provisions of paragraph 8.1.2 of the Agreement shall survive the closing of the
purchase and sale of the property contemplated in the Agreement.
Executed as of the 8th day of August, 1995.
BOETTCHER WESTERN PROPERTIES, LTD.,
a Colorado limited partnership
By: BOETTCHER PROPERTIES, LTD., a
Colorado limited partnership,
its General Partner
By: BPL HOLDINGS, INC., a Delaware
corporation, its General
Partner
By: /s/ Vincent L. Dodds
------------------------------
Vincent L. Dodds,
Vice President
ILIFF CROSSING COMPANY LLC, a
Colorado limited liability company
By: /s/ Bruce F. Heitler
------------------------------
Bruce F. Heitler, Manager
<PAGE> 1
EXHIBIT 10.18
ALL-INCLUSIVE
PROMISSORY NOTE
$4,920,000.00
Olympia, Washington
July 10, 1990
FOR VALUE RECEIVED, the undersigned ("Maker") promises to pay to the order
of BOETTCHER WESTERN PROPERTIES II, LTD., a Colorado limited partnership
("Holder"), at 828 17th Street, Suite 400, Denver, Colorado 80202, or such
other place as Holder may designate from time to time in writing, Four Million
Nine Hundred Twenty Thousand and no/100 Dollars ($4,920,000.00), with interest
on the outstanding principal balance as provided below and upon the following
terms and conditions:
1. UNDERLYING FINANCING
This Note is secured by that certain Deed of Trust, Assignment of Rents
and Security Agreement of even date herewith (the "Deed of Trust") encumbering
certain real and personal property described therein located in the City of
Olympia, County of Thurston, State of Washington (the "Property"). The Property
is also encumbered by that certain prior Deed of Trust and Security Agreement
(the "LNL Deed of Trust") dated July 23, 1988, granted by Holder, as grantor,
to Security Union Insurance Company, as trustee, for the benefit of The Lincoln
National Life Insurance Company, an Indiana corporation ("LNL") as beneficiary,
to secure repayment of that certain Promissory Note executed by Holder in the
original principal amount of $3,600,000.00 and also dated July 23, 1988 (the
"LNL Note"). The LNL Deed of Trust was recorded with the Thurston County
Auditor on July 27, 1988, under Thurston County Recording No. 8807270148. The
LNL Note is also secured by that certain General Assignment of Leases dated
July 23, 1988, and recorded under Thurston County Recording No. 8807270150 (The
"LNL Assignment of Leases"), that certain Assignment of Rents and Profits dated
July 23, 1988, and recorded under Thurston County Recording No. 8807270151
(the "LNL Assignment of Rents"), that certain Assignment of Management
Agreement dated July 23, 1988, and recorded under Thurston County Recording No.
8807270152 (the "LNL Assignment of Management Agreement"), that certain UCC-1
filed in Thurston County under Recording No. 8807270149 (the "LNL UCC"), that
certain Security Agreement dated July 23, 1988, and recorded under Thurston
County Recording No. 8807270153 (the "LNL Security Agreement"), and those
certain UCC-1 Financing Statements filed with the Washington State Department
of Licensing, UCC Division, under File Nos. 88-209-0105 and 88-209-0106 (the
"LNL Financing Statements"). The LNL Note, the LNL Deed of Trust, the LNL
Assignment of Leases, the LNL Assignment of Rents, the LNL Assignment of
Management Agreement, LNL UCC-1, the LNL Security Agreement and the LNL
Financing Statements are hereinafter called the "LNL Loan Documents." This Note
is an all-inclusive, or "wrap-around," note and, by reason thereof, the balance
herein stated includes the balance of the LNL Note.
<PAGE> 2
2. INTEREST
Interest will begin to accrue on the date of this Note and will be
computed, based on a 365-day year and actual days elapsed, on the outstanding
principal balance as it may exist from time to time. The initial rate of
interest shall be nine and 68/100 percent (9.68%) per annum. All past due
installments of interest and principal, or any portion thereof, not paid when
due shall, at the option of Holder, bear interest at a per annum rate which
shall be the lesser of (i) 5% per annum in excess of the interest rate
otherwise applicable to this Note or (ii) the maximum amount allowed by law
("Default Rate"). During the existence of any default hereunder or under the
Deed of Trust, the entire unpaid balance of principal shall, at the option of
Holder, bear interest at the Default Rate.
The LNL Note gives LNL the option and discretion to increase the interest
rate payable on said Note to a rate equal to LNL's best mortgage rate for
comparable loans and comparable properties, as of the time of exercise of said
option, which option may be elected by LNL by written notice of such election
sent to Holder by registered or certified mail not less than 90 days prior to
August 1, 1991. Holder agrees to send said notice to Maker within three days
after Holder has received said notice from LNL. If LNL elects to increase the
interest rate under the LNL Note, then interest on this All-Inclusive Note
shall be increased by an amount equal to one-half of the increase under the LNL
Note and monthly payments, as set forth hereinbelow, shall be adjusted
accordingly. For example, if LNL elects to increase the interest rate under the
LNL Note from 9.75% to 10.25% and the principal balance then due on the LNL
Note is $3,580,000.00, additional interest on the LNL Note (disregarding the
effect of principal payments, for purposes of this example) would be $17,950,
additional interest due under this Note would be $8,975.00, and monthly
payments under this Note would be increased by $747.92 per month. Increased
interest, under the provisions of this Note, shall accrue in tandem with the
LNL Note, i.e., from and after August 1, 1991; provided, however, without
regard to the increase elected by LNL under the LNL Note, interest hereunder
shall not be increased by more than $71,600.00 per year or $5,996.67 per month.
Upon written request of Maker, Holder shall notify LNL that it rejects said
increase but only if Maker (i) notifies Holder hereof in writing of said
rejection within 20 days after receiving notice of LNL's exercise of its option
and (ii) prepays in full (without penalty) entire principal amount and any
accrued interest due on this Note, such prepayment to occur on August 1, 1991.
2
<PAGE> 3
3. PAYMENTS
Accrued interest only on the outstanding principal balance of this Note
shall be due and payable on the first day of the calendar month next following
the date of this Note. Thereafter, on the first day of each succeeding calendar
month, interest only in the amount of $39,688.00 per month shall be due and
payable until June 1, 1995, when the entire amount of outstanding principal and
accrued but unpaid interest shall be immediately due and payable. If interest
under this Note is increased, in the manner set forth in the preceding
paragraph 2 hereof, by reason of LNL's electing to increase the interest rate
under the LNL Note, then the monthly interest only payments under this Note
shall increase, commencing September 1, 1991, by an amount equal to one-half of
the additional interest payable by Holder to LNL (but in no event more than
$5,966.67) so that all accrued and unpaid interest is paid monthly the first
day of each calendar month.
If any of the payments of principal or interest are not so paid when due,
or if any other indebtedness of Maker to Holder is not paid when due, or if
Maker remains in default under or in breach of any term or condition contained
in the Deed of Trust securing this Note or contained in any of the LNL Loan
Documents, five (5) days after written notice of such default or breach from
Holder to Maker, the whole sum of principal and interest shall become due and
payable at the option of the Holder hereof without any notice, demand, or the
necessity of dishonor. If the entire outstanding balance hereof becomes due and
payable, whether by acceleration or at maturity, the total principal balance
and all accrued interest shall thereafter bear interest at the Default Rate.
Maker shall be responsible for any prepayment premiums or other charges that
come due under the LNL Loan Documents by reason of any default by Maker.
If any payment of principal or interest, or principal and interest
combined, due under this Note, or any amounts due under the Deed of Trust, are
not paid when due, Holder shall be entitled to damages for the detriment caused
thereby in an amount equal to four cents ($.04) for each one dollar ($1.00) of
each payment which becomes delinquent. A similar charge of $.04 for each dollar
overdue shall be charged on the due date of each subsequent payment so long as
such dollar(s) remains unpaid. Payments are deemed timely paid if received by
the date due or postmarked five (5) days in advance thereof.
Maker and Holder shall use their best efforts to obtain and maintain an
escrow service to which Maker shall make all payments under this Note and which
such escrow shall then make the payment to LNL under the LNL Note, with the
balance to be paid to Holder. Maker shall be required to pay any set-up fee of
the escrow service (but not to exceed $100.00) and Holder shall pay the monthly
service fee for said escrow service (but not to exceed $10.00 per month). In
the event that Maker and Holder are
3
<PAGE> 4
not able to obtain an escrow service to perform the aforesaid payments for the
fees provided, Maker shall have the right to make payments directly to LNL
under the LNL Note, so long as Maker complies with the terms and conditions of
said Note (including, but not limited to, the requirement that all payments
under the LNL Note shall be made by electronic fund transfer debit entries at
an Automated Clearing House member bank) and to subtract the amount of such
payments made from the amount then or thereafter due to Holder, paying to
Holder directly only the difference between each payment due under this Note
and the amount paid to LNL.
4. PREPAYMENT
Maker may prepay this Note at any time upon sixty (60) days prior notice,
in whole or in part, without penalty; provided, however, that any prepayment of
this Note which reduces the principal balance hereof below the then principal
balance of the LNL Note shall only be allowed to the extent prepayment is
allowed under the LNL Note and then only so long as Maker pays all prepayment
penalties or premiums or other charges required to be paid under the LNL Note
by reason of said prepayment.
5. COMPLIANCE WITH LNL DOCUMENTS
Provided Maker is not in default of its obligations under this Note or the
Deed of Trust securing this Note, Holder agrees that it will fully and
completely perform, in a timely manner, each, every, and all obligations under
the LNL Documents, except those obligations which are assumed by Maker under
this Note or the Deed of Trust securing this Note. Holder further agrees (i) to
give immediate written notice to Maker upon the receipt of any notice of
default under the LNL Documents; and (ii) that it will not modify, alter, or
amend the LNL Documents, or waive or relinquish any rights thereunder, without
Maker's prior written consent. Holder agrees that it will neither commit, nor
knowingly cause to exist, any act or condition which would cause a default
under the LNL Documents. Any acts or omissions of Maker which would cause a
default under the LNL Loan Documents shall not in any way be attributable to
Holder.
Holder hereby agrees to indemnify, defend and hold harmless Maker from any
loss, damage, expense, or liability incurred as a result of the breach or
default by Holder under the LNL Loan Documents, including reasonable attorney's
fees, provided such breach or default is not occasioned by the breach or
default of Maker of its obligations hereunder or under the Deed of Trust.
Maker agrees that it will neither commit, nor knowingly cause or allow to
exist, any act or condition that would cause Holder to be in default under the
LNL Documents.
4
<PAGE> 5
6. NON-RECOURSE PROVISIONS
Notwithstanding the terms of this Note or any document executed to secure
the same, and except to the extent Maker or any person or entity comprising
Maker are otherwise liable in some capacity other than as Maker of this Note or
as grantor, assignor or debtor in any lien or security interest granted to
secure this Note, neither Maker nor any person or entity comprising Maker shall
have any personal liability for the repayment of any amounts evidenced hereby
or for the performance or observance of any covenant, indemnification or
condition contained in any of said documents and no personal or deficiency
judgment shall be sought or entered against Maker or any person or entity
comprising Maker as a result of any default; provided, however, Maker shall be
liable to Holder to the extent of Holder's losses, liabilities and damages
caused by (i) during any period that Maker is in default under the Note or any
provision of the Deed of Trust the retention of any rental or other income
arising with respect to the Property which is collected by Maker and which is
not applied to the repayment of the Note secured by this Deed of Trust or to
normal operating expenses of the Property during any period that Maker is in
default under the Note or any provision of the Deed of Trust; (ii) the failure
by Maker to return tenants' security deposits to tenants of the Property, as
required by the terms of such tenants' leases or rental agreements or by
Washington law; (iii) the misapplication by Maker of any insurance proceeds or
awards in condemnation or proceeds of sale in lieu thereof in violation of the
terms of the Deed of Trust; (iv) the retention of any rental or other income
arising with respect to the Property which is collected by Maker more than one
month in advance; provided that the liability for damages described in this
paragraph shall not cause Maker or the partners of Maker to be liable for the
payment of the principal and interest of this Note other than to the extent of
such damages; and (v) the presence of any "Hazardous Material" (as defined in
the Deed of Trust) on, in or under the Property, if, but only if, such
Hazardous Material was not on, in or under the Property upon the date of this
Note.
Nothing contained in the foregoing paragraph shall in any manner or way
constitute or be deemed to be a release or impairment of the debt evidenced by
this Note or otherwise affect or impair the enforceability of this Note or the
liens, assignments, rights, and security interests securing this Note, except
to the extent expressly provided herein. Further, nothing in the foregoing
paragraph shall preclude Holder from foreclosing under the Deed of Trust
securing this Note, proceeding without limitation against any and all security
for this Note, or from enforcing any of its rights or remedies in law or in
equity except as expressly provided in the foregoing paragraph. Maker further
acknowledges and agrees that all property pledged or assigned by Maker to
Holder is security for the entirety of all
5
<PAGE> 6
indebtedness evidenced by this Note.
7. DUE ON SALE
Maker acknowledges and agrees the indebtedness evidenced by this Note is
personal to Maker, and that Maker's, and its managing general partner, Harlan
Bixby's, personal responsibility, financial capability and control of the
Property are material inducements upon which Holder has relied in accepting
this Note from Maker and upon which LNL relied in consenting to the sale of the
Property from Holder to Maker. If Maker should sell, assign, alienate, transfer
or contract to sell, assign, alienate or transfer title to or possession of any
part of the Property by deed, assignment, contract of sale, lease with an
option to purchase or other transfer or conveyance agreement, or if Harlan
Bixby sells or otherwise disposes of his partnership interest or is no longer
managing general partner of Maker, in either event other than by reason of
death or disability of Harlan K. Bixby, Holder may, in its sole discretion,
declare the entire principal balance of this Note (plus interest at the Default
Rate) immediately due and payable. Maker shall be solely responsible for
payment of any prepayment premiums or charges incurred as a result of any
transfer of the Property by Maker or transfer by Harlan K. Bixby in violation
of this paragraph.
8. GOVERNING LAW
This Note is to be governed and construed by the laws of the State of
Washington.
9. NOTICE PROVISION
Except for any notice required under applicable law to be given in another
manner, any notice to Maker or Holder provided for in this Note shall be given
by mailing such notice by registered or certified mail, return receipt
requested, or by personal delivery by a recognized "overnight, door-to-door"
carrier addressed to Maker or Holder at the addresses stated herein or at such
other addresses as they may designate by notice as provided herein. Any notice
provided for in this Note shall be deemed to have been served and received on
the date of actual delivery as shown by the addressee's registry or
certification of receipt or at the expiration of the second (2nd) day after the
date of mailing or depositing with the courier, whichever is earlier in time.
If notice cannot be so given by reason of force majeure, including without
limitation strike, another available method reasonably calculated to effect
such notice shall suffice.
6
<PAGE> 7
10. WAIVER OF PRESENTMENT
Maker and all endorsers, sureties, accommodation parties and guarantors of
this Note and each of them, and all other persons liable or to become liable on
this Note, jointly and severally waive (a) diligence, demand, protest,
presentment for payment, and (b) notice of nonpayment, of protest, of demand,
of dishonor and of maturity and recourse to suretyship defenses generally. Each
and every party signing or endorsing this Note binds itself as a principal and
not as a surety. In any action or proceeding to recover any sums herein
provided for, no defense of adequacy of security or that resort must first be
had to security or to any other person shall be asserted. This Note shall bind
each Maker and its successors and assigns and the marital community of each
Maker, jointly and severally.
11. BUSINESS PURPOSE
Maker represents and warrants to Holder that the proceeds of this Note
shall be used by Maker exclusively for commercial and business purposes, and
that none of the proceeds of this Note shall be used by Maker for personal,
family or household purposes.
12. COSTS AND EXPENSES
Subject to Paragraph 6 hereof, Maker and all endorsers, guarantors,
accommodation parties and all other persons or entities liable or to become
liable for the Note shall be jointly and severally liable for all costs,
expenses and fees incurred by or on behalf of Holder in connection with this
Note, including without limitation: (a) costs incurred by Holder in connection
with any default by Maker relating to this Note or determination of any rights
or remedies of Holder under this Note; (b) costs and expenses in protecting the
security for this Note or in foreclosing or enforcing the Deed of Trust or any
other Loan Document; and (c) lawyer's costs and fees, incident to subparagraphs
(a) and (b). All such parties shall be liable for such costs and fees and
expenses, regardless of whether or not suit is brought and in courts of
jurisdiction, appellate jurisdiction, bankruptcy court or in original other
legal proceedings. Any judgment recovered by Holder shall bear interest at the
Default Rate, not to exceed the highest rate then permitted by law on such a
judgment.
13. JURISDICTION AND VENUE
The parties hereto hereby irrevocably submit to the jurisdiction of any
federal, state or other court sitting in the county (as to State courts) or
federal court district (as to Federal courts) in which the real property which
is the subject of the Deed of Trust is located, and agree that venue in any
suit or action hereunder may, at the election of Holder, be in any court having
jurisdiction and they will not claim that any such
7
<PAGE> 8
forum selected is an inconvenient forum.
DATED as of the day and year first above-written.
Maker: WESTLAKES APARTMENTS LIMITED PARTNERSHIP,
A CALIFORNIA LIMITED PARTNERSHIP
By: /s/ HARLAN K. BIXBY
-------------------------------
HARLAN K. BIXBY, General Partner
624 West Duarte Road, Suite 207
Arcadia, California 91006
8
<PAGE> 9
ENDORSEMENT TO PROMISSORY NOTE
EXTENDING MATURITY DATE
This Endorsement to Promissory Note is made effective the 1st day of June,
1995, by and between BOETTCHER WESTERN PROPERTIES II, LTD., a Colorado limited
partnership ("Lender") and WESTLAKES APARTMENTS LIMITED PARTNERSHIP, a
California limited partnership ("Borrower").
1. Borrower has previously executed that certain All-Inclusive Promissory
Note dated July 10, 1990 (the "Note") in favor of Lender in the amount of FOUR
MILLION NINE HUNDRED TWENTY THOUSAND AND NO/100 DOLLARS ($4,920,000.00), which
Note is secured by that certain Deed of Trust dated July 10, 1990, and recorded
in Thurston County, Washington on July 10, 1990, under Thurston County
Recording No. 9007100187 (the "Deed of Trust"). Under the terms of the Note,
the entire amount of the outstanding principal and accrued, but unpaid,
interest is due in full on June 1, 1995 (the "Maturity Date"). Borrower has
requested of Lender that the Maturity Date of the Note be extended to August 1,
1995, to which request Lender has agreed upon the terms and conditions
contained herein.
2. Lender hereby agrees that the Maturity Date of the Note is extended to
August 1, 1995.
3. Lender agrees with Borrower that the following shall be credited
against repayment of the Note at the time of full repayment of the Note:
(a) Borrower shall be credited with the positive difference between:
(1) the actual interest paid by Borrower to Lender under the Note from,
and including, June 1, 1995, through, and including, the earlier of: (i)
full repayment of the Note, or (ii) July 31, 1995, and (2) the interest
that would have accrued under the Note at the interest rate that Borrower
is given on the loan that Borrower obtains to pay off the Note; provided,
that the maximum credit to Borrower under this subparagraph 3(a) shall be
$8,400; and provided, further, that the loan Borrower obtains to pay off
the Note shall be a fixed rate loan and shall have a term of not less than
five (5) years. To illustrate the foregoing, if the interest rate on the
loan Borrower obtains is 9%, and the pay off occurs on August 1, 1995,
Lender will credit Borrower with the sum of $5,576, computed as follows:
$4,920,000 x (9.68% - 9.00%) x 2/12 = $5,576.00.
(b) Borrower shall be credited with $5,000.00 to help defray
Borrower's legal and any other costs
<PAGE> 10
associated with the extension. Borrower shall not be required to
substantiate its costs.
4. Borrower represents and warrants to Lender that Borrower has no
defenses or claims of offset to payment of the Note or any other defenses or
offsets with respect to the Note or the Deed of Trust.
5. This Agreement shall only become effective upon Lender's receipt of an
Endorsement 110.5A to Lender's Title Insurance Policy No. 22901 issued by First
American Title Insurance Company, which endorsement shall be paid by Lender.
Each party shall be responsible for their own legal fees and costs associated
with the negotiation and execution of this Agreement.
6. This Agreement constitutes the entire agreement between the parties
hereto with respect to the extension of the Loan and shall not be amended,
modified or terminated except by a writing signed by both of the parties. The
provisions of this paragraph 6 may not be waived except by a written waiver.
NOTICE: ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT
OR FORBEAR FROM ENFORCING PAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER
WASHINGTON LAW.
BOETTCHER WESTERN PROPERTIES WESTLAKES APARTMENTS LIMITED
II, LTD. a Colorado PARTNERSHIPO, a California
limited partnership limited partnership
By: Boettcher Properties,
Ltd., a Colorado limited
partnership
By: BPL Holdings, Inc. a By: /s/ Harlan K. Bixby
Delaware corporation ------------------------
Harlan K. Bixby
General Partner
By: /s/ Vincent L. Dodds
----------------------
Vincent L. Dodds
Vice-President
2
