Form 8-K - CURRENT REPORT
(As last amended in Rel. No. 34-36968, eff. August 13, 1992.)
UNITED STATES
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) December 30, 1999
HCW Pension Real Estate Fund Limited Partnership (Exact name of
registrant as specified in its charter)
Massachusetts 0-14578 04-2825863
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification
Number)
55 Beattie Place
Post Office Box 1089
Greenville, South Carolina 29602
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (864) 239-1000
N/A
(Former name or former address, if changed since last report)
<PAGE>
Item 2. Acquisition or Disposition of Assets.
Highland Professional Tower, located in Kansas City, Missouri, was sold by HCW
Pension Real Estate Fund Limited Partnership (the "Registrant") on December 30,
1999. The property was sold to The Cadle Company, an Ohio Corporation, an
unrelated party, for $1,500,000.
Item 7. Financial Statements and Exhibits
(b) Pro forma financial information.
The required pro forma financial information will be provided in the
Registrant's annual report on Form 10-KSB for the year ended December 31, 1999.
(c) Exhibits
10.2 Purchase and Sale Contract between Registrant and The Cadle
Company, an Ohio Corporation, dated December 30, 1999.
10.3 Addendum to Purchase and Sale Contract between Registrant and The
Cadle Company, an Ohio Corporation, dated December 30, 1999.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
HCW PENSION REAL ESTATE FUND LIMITED PARTNERSHIP
By: HCW General Partner, Ltd.
the General Partner
By: IH, Inc.
the General Partner
By: /s/ Patrick J. Foye
Patrick J. Foye
Executive Vice President
Date: January 10, 2000
<PAGE>
Exhibit 10.2
PURCHASE AND SALE CONTRACT
BETWEEN
HCW Pension Real Estate Fund, LP
AS SELLER
AND
The Cadle Company
AS PURCHASER
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINED TERMS......................................................1
ARTICLE 2 PURCHASE AND SALE OF PROPERTY......................................4
ARTICLE 3 PURCHASE PRICE & DEPOSIT...........................................4
ARTICLE 4 FINANCING..........................................................6
ARTICLE 5 FEASIBILITY PERIOD.................................................6
ARTICLE 6 TITLE..............................................................8
ARTICLE 7 CLOSING...........................................................11
ARTICLE 8 REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER.16
ARTICLE 9 CONDITIONS PRECEDENT TO CLOSING..................................20
ARTICLE 10 BROKERAGE........................................................21
ARTICLE 11 POSSESSION.......................................................21
ARTICLE 12 DEFAULTS AND REMEDIES............................................21
ARTICLE 13 RISK OF LOSS OR CASUALTY.........................................22
ARTICLE 14 RATIFICATION.....................................................22
ARTICLE 15 EMINENT DOMAIN...................................................22
ARTICLE 16 MISCELLANEOUS....................................................23
EXHIBITS
EXHIBIT A - LEGAL DESCRIPTION...............................................30
EXHIBIT B - ESCROW AGREEMENT................................................32
EXHIBIT 1.1.4 - SCHEDULE OF COMMERCIAL LEASES...............................38
EXHIBIT 1.1.7 - EXCLUDED PERMITS............................................39
EXHIBIT 1.1.9 - FIXTURES AND TANGIBLE PERSONAL PROPERTY.....................40
EXHIBIT 1.1.16 - SCHEDULE OF PROPERTY CONTRACTS.............................41
EXHIBIT 6.2.1 - EXCEPTIONS..................................................42
EXHIBIT 7.2.1.1 - FORM OF GENERAL WARRANTY DEED.............................43
EXHIBIT 7.2.1.2 - FORM OF BILL OF SALE......................................49
EXHIBIT 7.2.1.3 - FORM OF GENERAL ASSIGNMENT................................55
EXHIBIT 7.2.1.6 - SELLER'S CERTIFICATE OF NON-FOREIGN STATUS................63
EXHIBIT 8.1.1.3 - PARTIES IN POSSESSION OF PROPERTY.........................64
EXHIBIT 9.1.4 - FORM OF ESTOPPEL CERTIFICATE................................65
<PAGE>
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT ("Purchase Contract") is entered into as of the
_______ day of ________, 1999 (the "Effective Date") by and between HCW PENSION
REAL ESTATE FUND, LP, a Massachusetts limited partnership, having a principal
address at c/o AIMCO, 1873 South Bellaire Street, Suite 1700, Denver, Colorado
80222 ("Seller") and THE CADLE COMPANY, an Ohio corporation, having a principal
address at 100 North Center Street, Newton Falls, Ohio 44444 ("Purchaser").
NOW, THEREFORE WITNESSETH: That for and in consideration of mutual
covenants and agreements herein after set forth, Seller and Purchaser hereby
agree as follows:
RECITALS
R-1...Seller holds legal title to two parcels of real estate more particularly
described in EXHIBIT A attached hereto and made a part hereof located in the
County of Jackson, Missouri on each of which parcel improvements have been
constructed.
R-2...Purchaser desires to purchase and Seller has agreed to sell such land,
improvements and certain associated property, defined below as the "Property" on
the terms and conditions set forth below (which terms and conditions shall
control in the event of any conflict with these Recitals), such that on the
Closing Date as defined in this Purchase Contract the Property will be conveyed
by general warranty or equivalent deed to Purchaser or its designee.
R-3...Purchaser has agreed to pay to Seller the Purchase Price for the Property,
and Seller has agreed to sell the Property to Purchaser on the terms and
conditions set forth below.
R-4...Purchaser has made such investigations regarding the Property, and
Purchaser's intended uses of each of the Property as Purchaser has deemed
necessary and desirable, has approved the same in all respects, subject only to
the representations, warranties and covenants set forth in this Purchase
Contract and does hereby agree to consummate the transactions contemplated by
this Purchase Contract as set forth below.
ARTICLE 1
DEFINED TERMS
1.1 Terms with initial capital letters in this Purchase Contract shall have
the meanings set forth in this Article 1 below.
1.1.1 "Business Day" means any day other than a Saturday or Sunday or
Federal holiday or legal holiday in the State of Missouri.
1.1.2 "Closing" means the consummation of the purchase and sale and
related transactions contemplated by this Purchase Contract in
accordance with the terms and conditions of this Purchase Contract.
1.1.3 "Closing Date" means the date on which date the Closing of the
conveyance of the Property is required to be held under the terms
and conditions of this Purchase Contract and on which date full
payment of the Purchase Price for the Property shall have been paid
to and received by Seller in immediately available U.S. funds, which
Closing Date shall be on or before thirty (30) days after the
expiration of the Purchaser's Feasibility Period, as defined in
ARTICLE 5 or such other date or extension date provided for by
ARTICLE 7 or by the written mutual consent of the parties hereto,
given or withheld in their respective sole discretion.
1.1.4 "Commercial Lease(s)" means the interest of Seller in and to all
leases, subleases and other occupancy agreements, whether or not of
record, which provide for the use or occupancy of space or
facilities on or relating to the Property scheduled on EXHIBIT 1.1.4
attached hereto.
1.1.5 This subsection is intentionally left blank.
1.1.6 This subsection is intentionally left blank.
1.1.7 "Excluded Permits" means those Permits which, under applicable law,
are nontransferable and such other Permits as may be designated as
Excluded Permits on EXHIBIT 1.1.7, if any, attached hereto.
1.1.8 "Financing Commitments" means the written commitment(s) to finance
the purchase and operation of the Property from [NAME OF LENDER]
dated [DATE OF LOAN COMMITMENT].
1.1.9 "Fixtures and Tangible Personal Property" means all fixtures,
furniture, furnishings, fittings, equipment, machinery, apparatus,
appliances and other articles of personal property now located on
the Land or in the Improvements as of the date of this Purchase
Contract and as of the date of the end of the Feasibility Period
described below and used or usable in connection with any present or
future occupation or operation of all or any part of the Property.
The term "Fixtures and Tangible Personal Property" does not include
(i) equipment leased by Seller and the interest of Seller in any
equipment provided to the Property for use, but not owned or leased
by Seller, or (ii) property owned or leased by Tenants and guests,
employees or other persons furnishing goods or services to the
Property or (iii) property and equipment owned by Seller, which in
the ordinary course of business of the Property is not used
exclusively for the business, operation or management of the
Property or (iv) the property and equipment, if any, expressly
identified in EXHIBIT 1.1.9.
1.1.10"Improvements" means all buildings and improvements, located on the
Land taken "as is" containing approximately 118, 436 gross square
feet of [TYPE OF IMPROVEMENTS].
1.1.11"Land" means all of that certain tract of land located in Jackson
County, Missouri, commonly known as 6724 Troost Avenue, Kansas City,
Missouri, more particularly described in EXHIBIT A attached hereto
and made a part hereof and all rights, privileges and appurtenances
pertaining thereto.
1.1.12"Miscellaneous Property Assets" means all contract rights, leases,
concessions, warranties, plans, drawings and other items of
intangible personal property relating to the ownership or operation
of the Property and owned by Seller, excluding, however, (i)
receivables which includes past due rent, (ii) Property Contracts,
(iii) Commercial Leases, (iv) Permits, (v) cash or other funds,
whether in petty cash or house "banks," or on deposit in bank
accounts or in transit for deposit, (vi) refunds, rebates or other
claims, or any interest thereon, for periods or events occurring
prior to the Closing Date, (vii) utility and similar deposits,
(viii) insurance or other prepaid Items, or (ix) books and records,
except to the extent that Seller receives a credit on the closing
statement for any such item.
1.1.13"Permits" means all licenses and permits granted by governmental
authorities having jurisdiction over the Property in respect of the
matter to which the applicable license or permit applies and owned
by Seller or used in or relating to the ownership, occupancy or
operation of the Property or any part thereof not subject to a
Commercial Lease.
1.1.14"Permitted Exceptions" means those exceptions or conditions
permitted to encumber the title to the Property in accordance with
the provisions of Section 6.2.
1.1.15"Property" means the Land and Improvements described in the
Recitals and all rights of Seller relating to the Land and the
Improvements, including without limitation, any rights, title and
interest of Seller, if any, in and to (i) any strips and gores
adjacent to the Land and any land lying in the bed of any street,
road, or avenue opened or proposed, in front of or adjoining the
Land, to the center line thereof; (ii) any unpaid award for any
taking by condemnation or any damage to the Property by reason of a
change of grade of any street or highway; (iii) all of the
easements, rights, privileges, and appurtenances belonging or in any
way appertaining to the Property; together with all Fixtures and
Tangible Personal Property, the right, if any and only to the extent
transferable, of Seller issued to Property Contracts (other than
those contracts, if any, which are identified for termination by
Purchaser during the Feasibility Period) and Commercial Leases,
Permits other than Excluded Permits and the Miscellaneous Property
Assets owned by Seller which are located on the Property and used in
its operation.
1.1.16"Property Contracts" means all purchase orders, maintenance,
service or utility contracts and similar contracts, which relate to
the ownership, maintenance, construction or repair and/or operation
of the Property and which are not cancelable on ninety (90) days' or
shorter Notice, except Commercial Leases, identified on EXHIBIT
1.1.16.
1.1.17 "Purchase Contract" means this Purchase and Sale Contract
by and between Seller and Purchaser.
1.1.18 "Purchase Price" means the total consideration to be paid
by Purchaser to Seller for the purchase of the Property.
1.1.19 "Survey" shall have the meaning ascribed thereto in Section
6.11.
1.1.20 "Tenant" means any person or entity entitled to occupy any
portion of the Property under a Commercial Lease.
1.1.21 "Title Commitment" or "Title Commitments" shall have the
meaning ascribed thereto in Section 6.1.
1.1.22 "Title Insurer" shall have the meaning set forth in Section
6.1.
ARTICLE 2
PURCHASE AND SALE OF PROPERTY
2.1 Seller agrees to sell and convey the Property to Purchaser and Purchaser
agrees to purchase the Property from Seller, in accordance with the terms
and conditions set forth in this Purchase Contract.
ARTICLE 3
PURCHASE PRICE & DEPOSIT
3.1 The total purchase price ("Purchase Price") for the Property shall be One
Million Five Hundred Thousand Dollars ($1,500,000.00), subject to payment
in accordance with Section 3.1.2 hereinbelow. The Purchase Price shall be
paid by Purchaser, subject to credit and adjustment hereinafter provided
subject to all the terms and conditions herein contained.
3.1.1 Deposit
3.1.1.1 On the date hereof, Purchaser shall deliver to Fidelity
National Title Insurance Company ("Escrow Agent" or the "Title
Company") a deposit in the sum of Twenty-Five Thousand Dollars
($25,000.00) in cash (such sum being hereinafter referred to
as the "Deposit"). Purchaser and Seller each approve the form
of Escrow Agreement attached as EXHIBIT B.
3.1.1.2 The Escrow Agent shall hold the Deposit and make delivery of
the Deposit to the party entitled thereto under the terms
hereof. Escrow Agent shall invest the Deposit in such
short-term, high-grade securities, interest-bearing bank
accounts, money market funds or accounts, bank certificates of
deposit or bank repurchase agreements as Escrow Agent, in its
discretion, deems suitable, (provided that Escrow Agent shall
invest the Deposit as jointly directed by Seller and Purchaser
should Seller and Purchaser each in their respective sole
discretion determine to issue such joint investment
instructions to the Escrow Agent), and all interest and income
thereon shall become part of the Deposit and shall be remitted
to the party entitled to the Deposit, as set forth below.
3.1.1.3 If the sale of the Property is closed by the date fixed
therefor (or any extension date provided for by the mutual
written consent of the parties hereto, given or withheld in
their respective sole discretion), monies held as the Deposit
shall be applied (and paid over to the Seller) on the Date of
Closing. If the sale of the Property is not closed by the date
fixed therefor (or any such extension date) owing to failure
of satisfaction of a condition precedent to Purchaser's
obligations, the Deposit shall be returned and refunded to
Purchaser, and neither party shall have any further liability
hereunder, subject to and except for Purchaser's liability
under Section 5.3.
3.1.1.3 If the sale of the Property is not closed by the date fixed
therefor (or any such extension date) owing to failure of
performance by Seller, Purchaser shall be entitled to the
remedies set forth in ARTICLE 12 hereof. If the sale of the
Property is not closed by the date fixed therefor (or any such
extension date) owing to failure of performance by Purchaser,
the Deposit shall be forfeited by Purchaser and the sum
thereof shall go to Seller forthwith as liquidated damages for
the lost opportunity costs and transaction expenses incurred
by Seller, as more fully set forth in ARTICLE 12 below.
3.1.2 Purchaser shall, on the Date of Closing, pay Seller the purchase
price subject to credit and adjustment as provided herein, jointly
in cash or by wire transfer of current funds.
ARTICLE 4
FINANCING
4.1 Purchaser assumes full responsibility to expeditiously and diligently
initiate and pursue all steps necessary to obtain the funds required for
settlement. Purchaser will use its best efforts to obtain the necessary
financing.
ARTICLE 5
FEASIBILITY PERIOD
5.1 Subject to the terms of Section 5.3 below, for forty-five (45) calendar
days following the Effective Date (the "Feasibility Period"), Purchaser,
and its agents, contractors, engineers, surveyors, attorneys, and
employees ("Consultants") shall have the right from time to time to enter
onto the Property:
5.1.1 To conduct and make any and all customary studies, tests,
examinations and inspections, or investigations of or concerning the
Property (including without limitation, engineering and feasibility
studies, evaluation of drainage and flood plain, soil tests for
bearing capacity and percolation and surveys, including
topographical surveys). Notwithstanding the foregoing, in no event
shall Purchaser conduct any invasive environmental assessment, test
or other inspection of the Property without the prior written
consent of Seller, which consent may be withheld in Seller's sole
discretion.
5.1.2 To confirm any and all matters which Purchaser may reasonably desire
to confirm with respect to the Property.
5.1.3 To ascertain and confirm the suitability of the property for
Purchaser's intended use of the Property.
5.2 Should the results of any of the matters referred to in Section 5.1 above
appear unsatisfactory to Purchaser for any reason Purchaser shall provide
Seller with written Notice during the Feasibility Period of each basis for
such determination by Purchaser (including, without limitation, title and
survey objections other than the permitted exceptions) or such objections
shall be deemed waived by Purchaser in which case Purchaser and Seller
shall proceed to consummate the Closing on the Closing Date. If Purchaser
gives Seller such Notice, Seller at its sole discretion and option within
(10) business days following receipt of such Notice may elect to cure such
objection or satisfy such condition. Should Seller so elect to cure such
objection or satisfy such condition, or should Purchaser subsequently
waive such objection or condition, then the Closing shall take place
conditioned on such cure or based on such waiver on terms agreed upon by
the Parties. Should Seller not elect to cure such objection or satisfy
such condition, this agreement shall automatically terminate, in which
event the Title Company shall return the Deposit to Purchaser and
Purchaser shall release and quitclaim all of Purchaser's rights and
interest in the property to Seller, and the parties hereto shall have no
further obligation to each other, subject to and except for Purchaser's
liability under Section 5.3.
5.3 Purchaser shall indemnify and hold Seller harmless for any actions taken
by Purchaser and its Consultants on the Property. Purchaser shall
indemnify, defend (with attorneys selected by Seller) and hold Seller
harmless from any and all claims, damages, costs and liability which may
arise due to such entries, surveys, tests, investigations and the like.
Seller shall have the right, without limitation, to disapprove any and all
entries, surveys, tests, investigations and the like that in their
reasonable judgment could result in any injury to the Property or breach
of any agreement, or expose Seller to any liability, costs, liens or
violations of applicable law, or otherwise adversely affect the Property
or Seller's interest therein. No consent by the Seller to any such
activity shall be deemed to constitute a waiver by Seller or assumption of
liability or risk by Seller. Purchaser hereby agrees to restore the
Property to the same condition existing immediately prior to Purchaser's
exercise of its rights pursuant to this ARTICLE 5 at Purchaser's sole cost
and expense. Purchaser shall maintain casualty insurance and comprehensive
public liability insurance with broad form contractual and personal injury
liability endorsements with respect to the Property and Purchaser's
activities carried on therein, in amounts (including deductible amounts)
and with such insurance carriers as shall be approved by Seller and naming
Seller and its affiliates as Loss Payees or Additional Insureds (at the
option of Seller), with endorsements acceptable to Seller, including a
waiver of defenses of the insurer based on the actions or inaction of
Purchaser. Such liability insurance shall provide coverages of not less
than $1,000,000.00 for injury or death to any one person and $3,000,000.00
for injury or death to more than one person and $500,000.00 with respect
to property damage, by water or otherwise). The provisions of this Section
shall survive the Closing or termination of this Purchase Contract.
5.4 Purchaser shall not permit any mechanic's or materialman's liens or any
other liens to attach to the Property by reason of the performance of any
work or the purchase of any materials by Purchaser or any other party in
connection with any studies or tests conducted by or for Purchaser.
Purchaser shall give notice to Seller a reasonable time prior to entry
onto the Property and shall permit Seller to have a representative present
during all investigations and inspections conducted with respect to the
Property. Purchaser shall take all reasonable actions and implement all
protections necessary to ensure that all actions taken in connection with
the investigations and inspections of the Property, and all equipment,
materials and substances generated, used or brought onto the Property pose
no material threat to the safety of persons or the environment and cause
no damage to the Property or other property of Seller or other persons.
All information made available by Seller to Purchaser in accordance with
this Purchase Contract or obtained by Purchaser in the course of its
investigations shall be treated as confidential information by Purchaser,
and, prior to the purchase of the Property by Purchaser, Purchaser shall
use its best efforts to prevent its agents and employees from divulging
such information to any unrelated third parties except as reasonably
necessary to third parties engaged by Purchaser for the limited purpose of
analyzing and investigating such information for the purpose of
consummating the transaction contemplated by this Purchase Contract,
including Purchaser's attorneys and representatives, prospective lenders
and engineers.
ARTICLE 6
TITLE
6.1 Seller shall provide to Purchaser a Preliminary Title Report for the
Property within ten (10) days after the Effective Date. Purchaser shall
promptly secure a commitment for title insurance for the Property in an
amount equal to the Purchase Price ("Title Commitment,") issued by
Fidelity National Title Insurance Company ("Title Insurer") for an owner's
title insurance policy on the most recent standard American Land Title
Association ("ALTA") Policy form, together with legible copies of all
instruments identified as exceptions therein. Purchaser agrees that it
shall be solely responsible for payment of all costs relating to
procurement of the Title Commitment and any Owner's or Lender's title
policies.
6.2 Purchaser agrees to accept title to the Land and Improvements, so long as
the same is insurable at ordinary rates. Any conveyance by general
warranty or equivalent deed pursuant to this Purchase Contract shall be
subject to the following, all of which shall be deemed "Permitted
Exceptions" and Purchaser agrees to accept the deed and title subject
thereto:
6.2.1 All exceptions shown in the Preliminary Title Report (other than
mechanics' liens and taxes due and payable in respect of the period
preceding Closing) and all exceptions noted in EXHIBIT 6.2.1
attached hereto; and
6.2.2 Such exceptions and matters as the Title Company shall be willing
to omit as exceptions to coverage; and
6.2.3 All Commercial Leases and any other occupancy, residency, lease,
tenancy and similar agreements entered into in the ordinary course
of business; and
6.2.4 All Property Contracts and any other existing contracts created in
the ordinary course of business by Seller, which are not identified
for termination by Purchaser during the Feasibility Period; and
6.2.5 Non-delinquent real estate and property taxes to the extent not
due and payable; and
6.2.6 Defects and exceptions which do not materially and adversely
affect the condition of title to the Property and its use as of
the Effective Date; and
6.2.7 This subsection is intentionally left blank.
6.2.8 This subsection is intentionally left blank.
6.3 Unpaid liens for taxes, charges, and assessments shall not be objections
to title, but the amount thereof plus interest and penalties thereon shall
be deducted from the Purchase Price to be paid for the applicable Property
hereunder and allowed to Purchaser, subject to the provisions for
apportionment of taxes and charges contained herein. Provided said amounts
do not exceed the total cash amount being paid into escrow.
6.4 Unpaid franchise or business corporation taxes of any corporations in the
chain of title shall not be an objection to title, provided that the Title
Insurer agrees to insure against collection out of the Property or
otherwise against Purchaser or its affiliates, and provided further that
the Title Insurer agrees to omit such taxes as exceptions to coverage with
respect to any lender's mortgagee insurance policy.
6.5 If on the Closing Date there shall be conditional bills of sale or Uniform
Commercial Code financing statements filed with respect to any tenant's
property, such financing statements shall not be deemed to be an objection
to title.
6.6 If on the Closing Date, the state of title is other than in accordance
with the requirements set forth in this Purchase Contract or if any
condition to be fulfilled by Seller shall not be satisfied, Purchaser
shall provide Seller with written Notice thereof at such time, or such
title objection or unfulfilled condition shall be deemed waived by
Purchaser in which case Purchaser and Seller shall proceed to consummate
the Closing on the Closing Date. If Purchaser timely gives Seller such
Notice, Seller at its sole option and within Seven (7) calendar days
following receipt of such Notice may elect in writing to cure such
objection or unfulfilled condition for up to Ninety (90) calendar days
after date of Seller's notice. Should Seller be able to cure such title
objection or condition, or should Seller be able to cause title insurance
company to insure over same by the Closing Date or any postponed Closing
Date, or should Purchaser waive such objection or condition within such
period for cure, then the Closing shall take place on or before thirty
(30) calendar days after Notice of such cure or waiver.
6.7 If during the period of cure Seller is unable or unwilling, in its sole
discretion or opinion, to eliminate such title objection or cause a title
insurance company to insure over such matter or satisfy such unfulfilled
condition, Seller shall give Purchaser written Notice thereof, and if
Purchaser does not waive such objection by written Notice delivered to
Seller and the title company issuing the Preliminary Title Report on or
before Seven (7) calendar days following the date Seller gives such
Notice, then this Purchase Contract shall automatically terminate, in
which event Purchaser shall release and quitclaim all of Purchaser's right
and interest in such Property to Seller, and the parties hereto shall have
no further obligations to each other.
6.8 Seller covenants that it will not voluntarily create or cause any lien or
encumbrance (other than Commercial Leases and Property Contracts in the
ordinary course of business) to attach to the Property between the date of
this Purchase Contract and the Closing Date; any such monetary lien or
encumbrance so attaching by voluntary act of Seller shall be discharged by
the Seller at or prior to Closing on the Closing Date or any postponed
Closing Date. Except as expressly provided above, Seller shall not be
required to undertake efforts to remove any other lien, encumbrance,
security interest, exception, objection or other matter, to make any
expenditure of money or institute litigation or any other judicial or
administrative proceeding and Seller may elect not to discharge the same.
Seller may enter into new Commercial Leases and new Property Contracts in
the ordinary course of business during the Feasibility Period. Seller may
terminate or agree to terminate Commercial Leases and Property Contracts
in the ordinary course of business during the Feasibility Period. Unless
this Purchase And Sale Contract is terminated as provided herein, then
upon the expiration of the Feasibility Period, Seller shall not, without
the consent of Purchaser, (which consent will not be unreasonably
withheld) enter into any new Commercial Leases or Property Contracts
affecting the Property, or terminate or agree to terminate any Commercial
Leases. For purposes of this Section 6.8 Purchaser's failure to respond in
writing to Seller's written request for consent within five (5) business
days shall be deemed consent on the part of the Purchaser. All new leases
or contracts entered into in accordance with the provisions of this
Section 6.8 shall be deemed "Commercial Leases" and "Property Contracts"
respectively as defined herein.
6.9 Anything to the contrary notwithstanding, Purchaser shall not have any
right to terminate this Purchase Contract or object to any lien,
encumbrance, exception or other matter that is a Permitted Exception, that
has been waived or deemed to have been waived by Purchaser.
6.10 After the Feasibility Period, Purchaser shall not have any right to
terminate this Purchase Contract or object to any lien, encumbrance,
exception or other matter that is a Permitted Exception or that has been
waived or deemed to have been waived by Purchaser.
6.11 If Purchaser desires to obtain a survey of the Property ("Survey"),
Purchaser shall obtain such Survey at Purchaser's sole cost and expense,
and shall cause such Survey to be promptly delivered to Seller within the
Feasibility Period. If the Survey is the basis on which Purchaser notifies
Seller of an objection under this Purchase And Sale Contract, said Survey
must meet the following minimum standards: The Survey (i) shall be
prepared in accordance with and shall comply with the minimum requirements
of the ALTA; (ii) shall be in a form, and shall be certified as of a date
satisfactory to Title Insurer to enable Title Insurer to delete standard
survey exceptions from the title insurance policy to be issued pursuant to
the Title Commitments, except for any Permitted Exceptions; (iii) shall
specifically show all improvements, recorded easements to the extent
locatable, set back lines, and such other matters shown as exceptions by
the Title Commitments; (iv) shall specifically show the right of way for
all adjacent public streets; (v) shall specifically disclose whether (and,
if so, what part of) any of the Property is in an area designated as
requiring flood insurance under applicable federal laws regulating
lenders; (vi) shall contain a perimeter legal description of the Property
which may be used in the special warranty deed; (vii) shall be certified
to Purchaser, Purchaser's lender, Seller and Title Insurer as being true
and correct; and (viii) shall certify that the legal description set forth
therein describes the same, and comprises all of, the real estate
comprising the Property to be purchased by Purchaser pursuant to the terms
of this Purchase Contract. In the event the perimeter legal description of
the Property contained in the Survey differs from that contained in the
deed or deeds by which Seller took title to the Property, the description
to be used in the General Warranty Deed delivered by Seller to Purchaser
must be agreed upon by the parties and insured by the title insurance
company.
6.11.1Should such Survey disclose conditions that give rise to a title
exception other than a Permitted Exception, Purchaser shall have the
right to object thereto within the Feasibility Period in accordance
with the procedures set forth in ARTICLE 5 above.
6.11.2If Purchaser elects to obtain the Survey, Purchaser agrees to make
payment in full of all costs of obtaining the Survey required by
this Purchase Contract on or before Closing or termination of this
Purchase Contract.
ARTICLE 7
CLOSING
7.1 Dates, Places Of Closing, Prorations, and Delinquent Rent.
7.1.1 The Closing shall take place on or before thirty (30) days following
the termination of the Feasibility Period in the offices of the
Title Company, in the jurisdiction of the Land at Fidelity National
Title Insurance Co., 700 Louisiana, Suite 2600, Houston, Texas 77002
or at such other place as the parties shall mutually agree upon at a
time mutually agreed upon on the Closing Date. If requested by
Seller, Purchaser shall agree to conduct closing through a
pre-closing, an escrow or other arrangement reasonably requested by
Seller, whereby the Seller and its attorneys need not be physically
present at the Closing and may deliver documents by overnight air
courier or other means.
7.1.2 The Closing Date may be extended without penalty at the option of
Seller to a date not later than Ninety (90) Days following the
Closing Date specified above to satisfy a condition to be satisfied
by Seller, or such later date as is mutually acceptable to Seller
and Buyer.
7.1.3.All normal and customarily proratable items, including, without
limitation, Rents (as defined below), operating expenses, real
property taxes, personal property taxes and other operating expenses
and fees shall be prorated as of the Closing Date, Seller being
charged and credited for all of same attributable to the period up
to the Closing Date (and credited for any amounts paid by Seller
attributable to the period on or after the Closing Date) and
Purchaser being responsible for, and credited or charged, as the
case may be, for all of same attributable to the period on and after
the Closing Date. All unapplied deposits under Tenant leases, if
any, shall be transferred by Seller to Purchaser at the Closing.
Purchaser shall assume at Closing the obligation to pay any accrued
but unpaid tenant improvement allowances and leasing commissions,
together with any payments due parties to other agreements affecting
the Property which survive Closing. Any real estate ad valorem or
similar taxes for the Property, or any installment of assessments
payable in installments which installment is payable in the year of
Closing, shall be prorated to the date of Closing, based upon actual
days involved. The proration of real property taxes or installments
of assessments shall be based upon the assessed valuation and tax
rate figures for the year in which the Closing occurs to the extent
the same are available; provided, that in the event that actual
figures (whether for the assessed value of the Property or for the
tax rate) for the year of Closing are not available at the Closing
Date, the proration shall be made using figures from the preceding
year. The proration shall be final and unadjustable except as
provided in the following paragraph. For purposes of this Section
7.1.3. and Section 7.1.4. and 7.1.5. the terms "Rent" and "Rents"
shall include, without limitation, base rents, additional rents,
tenants' proportionate share of operating expenses, percentage rents
and common area maintenance charges. The provisions of this Section
7.1.3. shall apply during the Proration Period (as defined below).
7.1.4.If any of the items subject to proration hereunder cannot be
prorated at the Closing because the information necessary to compute
such proration is unavailable, or if any errors or omissions in
computing prorations at the Closing are discovered subsequent to the
Closing, then such item shall be reapportioned and such errors and
omissions corrected as soon as practicable after the Closing Date
and the proper party reimbursed, which obligation shall survive the
Closing for a period (the "Proration Period") from the Closing Date
until one (1) year after the Closing Date. Neither party hereto
shall have the right to require a recomputation of a Closing
proration or a correction of an error or omission in a Closing
proration unless within the Proration Period one of the parties
hereto (i) has obtained the previously unavailable information or
has discovered the error or omission, and (ii) has given Notice
thereof to the other party together with a copy of its good faith
recomputation of the proration and copies of all substantiating
information used in such recomputation. The failure of a party to
obtain any previously unavailable information or discover an error
or omission with respect to an item subject to proration hereunder
and to give Notice thereof as provided above within the Proration
Period shall be deemed a waiver of its right to cause a
recomputation or a correction of an error or omission with respect
to such item after the Closing Date. Any Rents that have accrued,
but have not yet been paid shall be prorated in accordance with
estimates based upon the prior years' information (or reasonable
estimates of Seller if no such prior years' information is
available), and shall be subsequently readjusted and reapportioned
upon receipt. Purchaser shall pay Seller for Rents that have
accrued, but are not yet due and payable, at Closing.
7.1.5.If on the Closing Date any Tenant is in arrears in any Rent payment
under any Tenant lease (the "Delinquent Rent"), any Delinquent Rent
received by Purchaser and Seller from such Tenant after the Closing
shall be applied to amounts due and payable by such Tenant during
the following periods in the following order of priority: (i) first,
to the period of time before the Closing Date, and (ii) second, to
the period of time after the Closing Date. If Delinquent Rent or any
portion thereof received by Seller or Purchaser after the Closing
are due and payable to the other party by reason of this allocation,
the appropriate sum, less a proportionate share of any reasonable
attorneys' fees and costs and expenses expended in connection with
the collection thereof, shall be promptly paid to the other party.
After the Closing, Seller shall continue to have the right, but not
the obligation, in its own name, to demand payment of and to collect
Delinquent Rent owed to Seller by any Tenant, which right shall
include, without limitation, the right to continue or commence legal
actions or proceedings against any Tenant (provided, that Seller
shall not commence any legal actions or proceedings against any
Tenant which continues as a Tenant at the Property after Closing
without the prior consent of Purchaser, which will not be
unreasonably withheld or delayed), and the delivery of the
Assignment as defined in Section 7.2.1.3 shall not constitute a
waiver by Seller of such right. Purchaser agrees to cooperate with
Seller at no cost or liability to Purchaser in connection with all
efforts by Seller to collect such Delinquent Rent and to take all
steps, whether before or after the Closing Date, as may be necessary
to carry out the intention of the foregoing, including, without
limitation, the delivery to Seller, upon demand, of any relevant
books and records (including, without limitation, rent statements,
receipted bills and copies of tenant checks used in payment of such
rent), the execution of any and all consents or other documents, and
the undertaking of any act reasonably necessary for the collection
of such Delinquent Rent by Seller; provided, however, that
Purchaser's obligation to cooperate with Seller pursuant to this
sentence shall not obligate Purchaser to terminate any Tenant lease
with an existing Tenant or evict any existing Tenant from the
Property. The provisions of this Section 7.1.5. shall apply during
the Proration Period.
7.1.6.Seller and Purchaser shall each pay one-half of the Escrow Agent's
fee. Purchaser shall pay all costs associated with recording the
general warranty deed at Closing, including, but not limited to,
recording fees, but with the exception that Seller and Purchaser
shall each pay one-half of the documentary transfer tax, if any.
With respect to the payment of other closing expenses not otherwise
addressed by this Purchase Contract, Purchaser and Seller shall each
pay their own respective closing expenses.
7.2 Items To Be Delivered Prior To Or At Closing.
7.2.1 Seller. At Closing, Seller shall deliver to Purchaser, each of
the following items, as applicable:
7.2.1.1 General warranty or equivalent deed in the form attached as
EXHIBIT 7.2.1.1 to Purchaser. The acceptance of the deed at
Closing, shall be deemed to be full performance of, and
discharge of, every agreement and obligation on Seller's
part to be performed under this Purchase Contract, except
for those that this Purchase Contract specifically provides
shall survive Closing.
7.2.1.2 A Bill of Sale without recourse or warranty except as
provided in this Purchase And Sale Contract in the form
attached as EXHIBIT 7.2.1.2 covering all Property
Contracts, Commercial Leases, Permits (other than Excluded
Permits) and Fixtures and Tangible Personal Property
required to be transferred to Purchaser with respect to
such Property. Purchaser shall countersign the same so as
to effect an assumption by Purchaser, including, without
limitation, of Seller's obligations thereunder.
7.2.1.3 An Assignment (to the extent assignable and in force and
effect) without recourse or warranty except as provided in
this Purchase And Sale Contract in the form attached as
EXHIBIT 7.2.1.3 of all of Seller's right, title and
interest in and to the Miscellaneous Property Assets,
subject to any required consents. Purchaser shall
countersign the same so as to effect an assumption by
Purchaser, including, without limitation, of Seller's
obligations thereunder.
7.2.1.4 A closing statement executed by Seller.
7.2.1.5 A vendor's affidavit or at Seller's option an indemnity, as
applicable, in the customary form reasonably acceptable to
Seller to enable Title Insurer to delete the standard
exceptions (other than matters constituting any Permitted
Exceptions to the title insurance policy set forth in this
Purchase Contract and matters which are to be completed or
performed post-Closing) to be issued pursuant to the Title
Commitment; provided that such affidavit does not subject
Seller to any greater liability, or impose any additional
obligations, other than as set forth in this Purchase
Contract; and
7.2.1.6 A certification of Seller's non-foreign status pursuant to
Section 1445 of the Internal Revenue Code of 1986, as
amended, in the form attached as EXHIBIT 7.2.1.6.
7.2.1.7 This subsection is intentionally left blank.
7.2.1.8 Any documentation required of Seller by Escrow Agent or
Title Company in order to complete the sale of the property
pursuant to the terms of the within Purchase And Sale
Contract.
7.2.1.9 This subsection intentionally left blank.
7.2.1.10 Except for the items expressly listed above to be delivered
at Closing, delivery of any other required items shall be
deemed made by Seller to Purchaser, if Seller leaves such
documents at the Property in their customary place of
storage or in the custody of Purchaser's representatives.
7.2.2 Purchaser. At Closing, Purchaser shall deliver to Seller the
following items with respect to each Property being conveyed or
transferred by merger at such Closing:
7.2.2.1 The full Purchase Price as required by ARTICLE 3 hereof
plus or minus the adjustments or prorations required by
this Purchase Contract. If at Closing there are any liens
or encumbrances on the Property , Seller shall use the
Purchase Price for the Property to satisfy the same, and
Seller shall deliver to Purchaser, or to Purchaser's
designee, on such Closing instruments in recordable form
sufficient to satisfy such liens and encumbrances of record
(or, as to any mortgages or deeds of trust, appropriate
payoff letters, acceptable to the Title Insurer), together
with the cost of recording or filing such instruments. The
existence of any such liens or encumbrances shall not be
deemed objections to title if Seller shall comply with the
foregoing requirements.
7.2.2.2 A closing statement executed by Purchaser.
7.2.2.3 A countersigned counterpart of the Bill of Sale in
the form attached as EXHIBIT 7.2.1.2.
7.2.2.4 A countersigned counterpart of the Assignment in the
form attached as EXHIBIT 7.2.1.3.
7.2.2.5 This subsection is intentionally left blank.
7.2.2.6 Any documentation required of Purchaser by Escrow Agent or
Title Company in order to complete the sale of the Property
pursuant to the terms of the within Purchase And Sale
Contract.
7.2.2.7 Executed Environmental Indemnity Agreement and such other
documents required by Indemnitee to be provided by Seller
in sub-paragraph 7.2.1.9 above.
7.2.2.8 Such other instruments, documents or certificates as are
required to be delivered by Purchaser to Seller in
accordance with any of the other provisions of this
Purchase Contract.
ARTICLE 8
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER
8.1 Representations And Warranties Of Seller.
8.1.1 For the purpose of inducing Purchaser to enter into this Purchase
Contract and to consummate the sale and purchase of the Property in
accordance herewith, Seller represents and warrants to Purchaser the
following as of the Effective Date and as of the Closing Date:
8.1.1.1 Seller identified in the Recitals is lawfully and duly
organized, and in good standing under the laws of the state
of its formation set forth in the initial paragraph of this
Purchase Contract and in the state where the property is
located if required by local law; and has or at Closing
shall have the power and authority to sell and convey the
Property and to execute the documents to be executed by
Seller and prior to Closing will have taken as applicable,
all corporate, partnership, limited liability company or
equivalent entity actions required for the execution and
delivery of this Purchase Contract, and the consummation of
the transactions contemplated by this Purchase Contract.
The compliance with or fulfillment of the terms and
conditions hereof will not conflict with, or result in a
breach of, the terms, conditions or provisions of, or
constitute a default under, any Purchase Contract to which
Seller is a party or by which Seller or any Subsidiary
Owner is otherwise bound. Seller has not made any other
Purchase Contract for the sale of, or given any other
person the right to purchase, all or any part of any of the
Property applicable to the foregoing representation;
8.1.1.2 Seller owns insurable, fee title to the Property, including
all real property contained therein required to be sold to
Purchaser, subject only to the Permitted Exceptions;
8.1.1.3 There are no adverse or other parties in possession of the
Property, except for occupants, guests and tenants under
the Commercial Leases or otherwise as set forth in EXHIBIT
8.1.1.3;
8.1.1.4 The joinder of no person or entity other than Seller is
necessary to convey the Property, fully and completely to
Purchaser at Closing, or to fulfill Seller's obligations
and Seller has all necessary right and authority to convey
and assign to Purchaser all contract rights and warranties
required to be conveyed and assigned to Purchaser
hereunder;
8.1.1.5 Purchaser has no duty to collect withholding taxes
for Seller pursuant to the Foreign Investors Real
Property Tax Act of 1980, as amended;
8.1.1.6 To Seller's knowledge, there are no actions, proceedings,
litigation or governmental investigations or condemnation
actions either pending or threatened against the Property,
as applicable, or against Seller, so as to prevent Seller
from conveying Title to the Property to Purchaser;
8.1.1.7 No claims for labor performed, materials furnished or
services rendered in connection with constructing,
improving or repairing any of the Property remain unpaid
beyond the date for which payment was due and in respect of
which liens may or could be filed against any of the
Property.
8.1.2 Except for the representations and warranties expressly set forth
above in Subsection 8.1.1, the Property is expressly purchased and
sold "AS IS," "WHERE IS," and "WITH ALL FAULTS." The Purchase Price
and the terms and conditions set forth herein are the result of
arm's-length bargaining between entities familiar with transactions
of this kind, and said price, terms and conditions reflect the fact
that Purchaser shall have the benefit of, and is relying upon, no
information provided by Seller and no statements, representations or
warranties, express or implied, made by or enforceable directly
against Seller, including, without limitation, any relating to the
value of the Property, the physical or environmental condition of
the Property, the state, federal, county or local law, ordinance,
order, permit or suitability, compliance or lack of compliance of
the Property with any regulation, or any other attribute or matter
of or relating to the Property (other than any covenants of title
contained in the deeds conveying the Property and the
representations set forth above). Purchaser represents and warrants
that as of the date hereof and as of the Closing Date, it has and
shall have reviewed and conducted such independent analyses,
studies, reports, investigations and inspections as it deems
appropriate in connection with the Property. If Seller provides or
has provided any documents, opinions or work product of consultants,
surveyors, architects, engineers, title companies, governmental
authorities or any other person or entity with respect to the
Property, Purchaser and Seller agree that Seller has done so or
shall do so only for the convenience of both parties, Purchaser
shall not rely thereon and the reliance by Purchaser upon any such
documents, opinions or work product shall not create or give rise to
any liability of or against Seller, any Subsidiary Owner, Seller's
partners or affiliates or any of their respective partners,
officers, directors, participants, employees, contractors,
attorneys, consultants, representatives, agents, successors, assigns
or predecessors-in-interest. Purchaser shall rely only upon any
title insurance obtained by Purchaser with respect to title to the
Property. Purchaser acknowledges and agrees that no representation
has been made and no responsibility is assumed by Seller with
respect to current and future applicable zoning or building code
requirements or the compliance of the Property with any other laws,
rules, ordinances or regulations, the financial earning capacity or
expense history of the Property, the continuation of contracts,
continued occupancy levels of the Property, or any part thereof, or
the continued occupancy by tenants of any Commercial Leases or,
without limiting any of the foregoing, occupancy at Closing. Prior
to Closing, Seller shall have the right, but not the obligation, to
enforce its rights against any and all Property occupants, guests or
tenants. Purchaser agrees that the departure or removal, prior to
Closing, of any of such guests, occupants or tenants shall not be
the basis for, nor shall it give rise to, any claim on the part of
Purchaser, nor shall it affect the obligations of Purchaser under
this Purchase Contract in any manner whatsoever; and Purchaser shall
close title and accept delivery of the deed with or without such
tenants in possession and without any allowance or reduction in the
Purchase Price under this Purchase Contract. Purchaser hereby
releases Seller from any and all claims and liabilities relating to
the foregoing matters, except as provided in Section 8.1.3 below.
8.1.3 Seller and Purchaser agree that those representations contained in
Section 8.1 shall survive Closing for a period of One (1) year (that
is, any proceeding based on the breach of a representation contained
in Section 8.1 that survives Closing must be commenced within One
(1) year subsequent to the date of such representation). In the
event that Seller breaches any representation contained in Section
8.1 and Purchaser had knowledge of such breach, Purchaser shall be
deemed to have waived any right of recovery and Seller shall not
have any liability in connection therewith.
8.1.4 Any statement contained in the representations and warranties of
this Section 8.1 and made to the "knowledge" of Seller shall mean
ONLY the actual knowledge of Seller based upon the information
communicated to Seller by Stefanie Hall, a representative of the
management company managing the Property as of the Effective Date,
in a certification addressed to Seller and dated as of the Effective
Date; and otherwise any reference to the "knowledge" of Seller shall
not be deemed to imply any duty of investigation or inquiry by
Seller and shall not be construed to include the knowledge of any
member, partner, officer, director, agent, employee or
representative of Seller or any affiliate of Seller, imputed to
Seller or constructively attributed to Seller.
8.2 Representations And Warranties Of Purchaser
8.2.1 For the purpose of inducing Seller to enter into this Purchase
Contract and to consummate the sale and purchase of the Property in
accordance herewith, Purchaser represents and warrants to Seller the
following as of the Effective Date and as of the Closing Date:
8.2.2 With respect to Purchaser and its business, Purchaser represents and
warrants, in particular, that:
8.2.2.1 Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of Ohio.
8.2.2.2 Purchaser, acting through any of its or their duly
empowered and authorized officers or members, has all
necessary power and authority to own and use its properties
and to transact the business in which it is engaged, and
has full power and authority to enter into this Purchase
Contract, to execute and deliver the documents and
instruments required of Purchaser herein, and to perform
its obligations hereunder; and no consent of any of
Purchaser's officers or members is required to so empower
or authorize Purchaser.
8.2.2.3 No pending or, to the knowledge of Purchaser, threatened
litigation exists which if determined adversely would
restrain the consummation of the transactions contemplated
by this Purchase Contract or would declare illegal, invalid
or non-binding any of Purchaser's obligations or covenants
to Seller.
8.2.2.4 Purchaser is duly authorized to execute and deliver, acting
through its duly empowered and authorized officers and
members, respectively, and perform this Purchase Contract
and all documents and instruments and transactions
contemplated hereby or incidental hereto, and such
execution, delivery and performance by Purchaser does not
(i) violate any of the provisions of their respective
certificates of incorporation or bylaws, (ii) violate any
provision of any law, governmental rule or regulation
currently in effect, (iii) violate any judgment, decree,
writ, injunction, award, determination or order currently
in effect that names or is specifically directed at
Purchaser or its property, and (iv) require the consent,
approval, order or authorization of, or any filing with or
notice to, any court or other governmental authority.
8.2.2.5 The joinder of no person or entity other than Purchaser is
necessary to consummate the transactions to be performed by
Purchaser and Purchaser has all necessary right and
authority to perform such acts as are required and
contemplated by this Purchase Contract.
8.2.3 Purchaser has not dealt with any broker, finder or any other person,
in connection with the purchase of or the negotiation of the
purchase of the Property that might give rise to any claim for
commission against Seller or lien or claim against the Property.
Purchaser will indemnify Seller against any such person making any
claim for commission with respect to this transaction claiming said
commissions by or through acts of Purchaser.
ARTICLE 9
CONDITIONS PRECEDENT TO CLOSING
9.1 Purchaser's obligation to close under this Purchase Contract, shall be
subject to and conditioned upon the fulfillment of each and all of the
following conditions precedent:
9.1.1 All of the documents required to be delivered by Seller to Purchaser
at Closing pursuant to the terms and conditions hereof shall have
been delivered and shall be in form and substance reasonably
satisfactory to Purchaser;
9.1.2 Each of the representations and warranties of Seller contained
herein shall be true in all material respects as of the Closing
Date;
9.1.3 Seller shall have complied with, fulfilled and performed in all
material respects each of the covenants, terms and conditions to be
complied with, fulfilled or performed by Seller hereunder;
9.1.4 This subsection intentionally left blank.
9.1.5 Notwithstanding anything to the contrary, there are no other
conditions on Purchaser's obligation to Close except as expressly
set forth in this Purchase Contract.
9.2 Without limiting any of the rights of Seller elsewhere provided for in
this Purchase Contract, Seller's obligation to close with respect to
conveyance of a particular Property under this Purchase Contract shall be
subject to and conditioned upon the fulfillment of each and all of the
following conditions precedent:
9.2.1 Purchaser's representations and warranties set forth in this
Purchase Contract shall have been true and correct in all material
respects when made, and shall be true and correct in all material
respects on the Closing Date and as of the Effective Date as though
such representations and warranties were made at and as of such date
and time.
9.2.2 Purchaser shall have fully performed and complied with all
covenants, conditions, and other obligations in this Purchase
Contract to be performed or complied with by it at or prior to
Closing including, without limitation, payment in full of the
Purchase Price.
9.2.3 There shall not be pending or, to the knowledge of either Purchaser
or Seller, any litigation or threatened litigation which, if
determined adversely, would restrain the consummation of any of the
transactions contemplated by this Purchase Contract or declare
illegal, invalid or nonbinding any of the covenants or obligations
of the Purchaser.
9.2.4 This subsection is intentionally left blank.
ARTICLE 10
BROKERAGE
10.1 Seller represents and warrants to the Purchaser that other than Pinnacle
Realty("Broker"), it has not dealt with or utilized the services of any
other real estate broker, sales person or finder in connection with this
Purchase Contract, and Seller agrees to indemnify the Purchaser from and
against all claims for brokerage commissions and finder's fees arising
from or attributable to the acts or omissions of the indemnifying party.
10.2 Seller agrees to pay Broker a commission according to the terms of a
separate agreement. Broker shall not be deemed a party or third party
beneficiary of this Purchase Contract.
10.3 Broker assumes no responsibility for the condition of the Property or
representation for the performance of this Purchase Contract by the Seller
or Purchaser.
ARTICLE 11
POSSESSION
11.1 Possession of the Property subject to the Permitted Exceptions shall be
delivered to Purchaser at the Closing, subject to Purchaser's right of
entry for inspection as set forth in ARTICLE 5.
ARTICLE 12
DEFAULTS AND REMEDIES
12.1 In the Event Purchaser terminates this Purchase Contract following the
Feasibility Period for any reason other than Seller's inability to convey
title as required by this Purchase Contract, or defaults hereunder prior
to the Closing Date and consummation of the Closing does not occur by
reason of such termination or default by Purchaser, Seller and Purchaser
agree that it would be impractical and extremely difficult to estimate the
damages which Seller may suffer. Therefore, Seller and Purchaser hereby
agree that, except for the Purchaser's obligations to Seller under Section
5.3, the reasonable estimate of the total net detriment that Seller would
suffer in the event that Purchaser terminates this Purchase Contract or
defaults hereunder prior to the Closing Date is and shall be, as Seller's
sole remedy (whether at law or in equity), the right to receive from the
Escrow Agent and retain the full amount of the Deposit. The payment and
performance of the above as liquidated damages are not intended as a
forfeiture or penalty within the meaning of applicable law and are
intended to settle all issues and questions about the amount of damages
suffered by Seller in the applicable event, except only for damages under
Section 5.3 above, irrespective of the time when the inquiry about such
damages may take place. Upon any such failure by Purchaser hereunder, this
Purchase Contract shall be terminated, and neither party shall have any
further rights or obligations hereunder, each to the other, except for the
Purchaser's obligations to Seller under Section 5.3 above, and the right
of Seller to collect such liquidated damages to the extent not theretofore
paid by Purchaser.
12.2 Provided that Purchaser has not terminated this Purchase Contract and is
not otherwise in default hereunder, if the Closing does not occur as a
result of Seller's default hereunder, Purchaser's sole remedy shall be to
elect to terminate this Purchase Contract and receive reimbursement of the
Deposit (or so much thereof as has been received by Escrow Agent) or to
seek specific performance of this Purchase Contract.
ARTICLE 13
RISK OF LOSS OR CASUALTY
13.1 The risk of loss or damage to the Property by fire or other casualty until
the deed of conveyance is recorded is assumed by the Seller, provided that
the Seller's responsibility shall be only to the extent of any recovery
from insurance now carried on the Property. Upon assignment to Purchaser
of any insurance proceeds in respect of fire or other casualty occurring
between the date of ratification of this contract and the time of
settlement, Purchaser shall have no right to terminate this Purchase
Contract on account thereof, but Seller shall assign to Purchaser its
interest in and to any insurance policies and proceeds thereof payable as
a result of such damage or destruction. Seller shall not, in any event, be
obligated to effect any repair, replacement, and/or restoration, but may
do so at its option in which case Seller may apply the insurance proceeds
to the costs of restoration.
ARTICLE 14
RATIFICATION
14.1 This Purchase Contract shall be null and void unless fully ratified by
Purchaser and Seller on or before [OFFER DEADLINE DATE].
ARTICLE 15
EMINENT DOMAIN
15.1 In the event that at the time of Closing all or any part of the Property
is (or has previously been) acquired, or is about to be acquired, by
authority of any governmental agency in purchase in lieu thereof (or in
the event that at such time there is any notice of any such acquisition by
any such governmental agency), Purchaser shall have the right, at
Purchaser's option, to terminate this Purchase Contract by giving written
Notice within Fifteen (15) days of the occurrence of such event and
recover the Deposit hereunder, or to settle in accordance with the terms
of this Purchase Contract for the full Purchase Price and receive the full
benefit or any condemnation award. It is expressly agreed between the
parties hereto that this paragraph shall in no way apply to customary
dedications for public purposes which may be necessary for the development
of the Property.
ARTICLE 16
MISCELLANEOUS
16.1 Exhibits And Schedules
All Exhibits and Schedules annexed hereto are a part of this
Purchase Contract for all purposes.
16.2 Assignability
This Purchase Contract is assignable with the prior written approval
of the non-assigning party. Any assignment by Purchaser shall only
be to an affiliate or subsidiary under the control or management of
Purchaser, but Purchaser will remain liable for its obligations and
its performance of the terms and conditions of this Purchase
Contract.
16.3 Binding Effect
This Purchase Contract shall be binding upon and inure to the
benefit of Seller and Purchaser, and their respective successors,
heirs and permitted assigns.
16.4 Captions
The captions, headings and arrangements used in this Purchase
Contract are for convenience only and do not in any way affect,
limit, amplify or modify the terms and provisions hereof.
16.5 Number And Gender Of Words
Whenever herein the singular number is used, the same shall include
the plural where appropriate, and words of any gender shall include
each other gender where appropriate.
16.6 Notices
All Notices, demands, requests and other communications required
pursuant to the provisions of this Purchase Contract ("Notice")
shall be in writing and shall be deemed to have been properly given
or served for all purposes (i) if sent by Federal Express or the
nationally recognized overnight carrier for next business day
delivery, on the first business day following deposit of such Notice
with such carrier, or (ii) if personally delivered, on the actual
date of delivery or (iii) if sent by certified mail, return receipt
requested postage prepaid and received by the Fifth (5th) business
day following the date of mailing addressed as follows:
If to Seller: If to Purchaser:
HCW Pension Real Estate Fund,
LP The Cadle Company
c/o AIMCO 100 North Center Street
1873 South Bellaire Street Newton Falls, Ohio 44444
Suite 1700 Attn: Daniel C. Cadle,
Denver, CO 80222 President
Attn: Tim Works Phone:330-872-0918, Ext. 3101
Harry Alcock, Fax: 330-872-5367
Martha Carlin
Phone:303-691-4357
Fax: 303-504-4889
and
with a copy to:
David Marquette
Argent Real Estate
1401 Brickell Avenue, Suite 520
Miami, Florida 33131
Phone: 305-371-9299
FAX: 305-371-6898
Alan H. Weinberg, Esq.
WELTMAN, WEINBERG & REIS
CO., L.P.A.
323 W.Lakeside Avenue/Suite 200
Cleveland, OH 44113-1099
Phone: 215-363-4001, Ext. 201
Fax: 216-363-6913
Any of the parties may designate a change of address by Notice in
writing to the other parties. Whenever in this Purchase Contract the
giving of Notice by mail or otherwise is required, the giving of
such Notice may be waived in writing by the person or persons
entitled to receive such Notice.
16.7 Governing Law And Venue
The laws of the State of Missouri shall govern the validity,
construction, enforcement, and interpretation of this Purchase
Contract, unless otherwise specified herein except for the conflict
of laws provisions thereof. All claims, disputes and other matters
in question arising out of or relating to this Purchase Contract, or
the breach thereof, shall be decided by proceedings instituted and
litigated in the United States District Court for the Western
District of Missouri and the parties hereto expressly consent to the
venue and jurisdiction of such court.
16.8 Entirety And Amendments
This Purchase Contract embodies the entire Purchase Contract between
the parties and supersedes all prior Purchase Contracts and
understandings, if any, relating to the Property, and may be amended
or supplemented only by an instrument in writing executed by the
party against whom enforcement is sought.
16.9 Severability
If any of the provisions of this Purchase Contract is held to be
illegal, invalid, or unenforceable under present or future laws,
such provision shall be fully severable. The Purchase Contract shall
be construed and enforced as if such illegal, invalid, or
unenforceable provision had never comprised a part of this Purchase
Contract; and the remaining provisions of this Purchase Contract
shall remain in full force and effect and shall not be affected by
the illegal, invalid, or unenforceable provision or by its severance
from this Purchase Contract. In lieu of such illegal, invalid, or
unenforceable provision, there shall be added automatically as a
part of this Purchase Contract a provision as similar in terms to
such illegal, invalid, or unenforceable provision as may be possible
to make such provision legal, valid, and enforceable.
16.10 Multiple Counterparts
This Purchase Contract may be executed in a number of identical
counterparts. If so executed, each of such counterparts shall be
deemed an original for all purposes and all such counterparts shall,
collectively, constitute one Purchase Contract. In making proof of
this Purchase Contract, it shall not be necessary to produce or
account for more than one of such counterparts.
16.11 Further Acts
In addition to the acts and deeds recited herein and contemplated
and performed, executed and/or delivered by Seller and Purchaser,
Seller and Purchaser agree to perform, execute and/or deliver or
cause to be performed, executed and/or delivered any and all such
further acts, deeds and assurances as may be necessary to consummate
the transactions contemplated hereby.
16.12 Construction
No provision of this Purchase Contract shall be construed in favor
of, or against, any particular party by reason of any presumption
with respect to the drafting of this Purchase Contract; both
parties, being represented by counsel, have fully participated in
the negotiation of this instrument.
16.13 Confidentiality
Purchaser shall not disclose the terms and conditions contained in
this Purchase Contract, and shall keep the same confidential,
provided that Purchaser may disclose the terms and conditions of
this Purchase Contract (i) as required by law, (ii) to consummate
the terms of this Purchase Contract, or any financing relating
thereto, or (iii) to Purchaser's or Seller's lenders, attorneys and
accountants. Any information provided by Seller to Purchaser under
the terms of this Purchase Contract is for informational purposes
only. In providing such information to Purchaser, Seller makes no
representation or warranty, express, written, oral, statutory or
implied, and all such representations and warranties are hereby
expressly excluded. Purchaser shall not in any way be entitled to
rely upon the accuracy of such information. Such information is also
confidential and Purchaser shall be prohibited from making such
information public to any other person or entity other than its
agents and legal representatives, without Seller's prior written
authorization, which may be granted or denied in Seller's sole
discretion.
16.14 Time Of The Essence
It is expressly agreed by the parties hereto that time is of the
essence with respect to this Purchase Contract.
16.15 Cumulative Remedies And Waiver
Except as otherwise provided herein, no remedy herein conferred or
reserved is intended to be exclusive of any other available remedy
or remedies, but each and every such remedy shall be cumulative and
shall be in addition to every other remedy given under this Purchase
Contract or now or hereafter existing at law or in equity. No delay
or omission to exercise any right or power accruing upon any
default, omission or failure of performance hereunder shall impair
any right or power or shall be construed to be a waiver thereof, but
any such right and power may be exercised from time to time and as
often as may be deemed expedient. No waiver, amendment, release or
modification of this Purchase Contract shall be established by
conduct, custom or course of dealing.
16.16 Litigation Expenses
In the event either party hereto commences litigation against the
other to enforce its rights hereunder, the prevailing party in such
litigation shall be entitled to recover from the other party its
reasonable attorneys' fees and expenses incidental to such
litigation.
16.17 Time Periods
Should the last day of a time period fall on a weekend or legal
holiday, the next Business Day thereafter shall be considered the
end of the time period.
16.18 Exchange
At Seller's sole cost and expense, Seller may structure the sale of
the Property to Purchaser as a Like Kind Exchange under Internal
Revenue Code Section 1031 whereby Seller will acquire certain
property (the "Like Kind Exchange Property") in conjunction with the
sale of the Property (the "Like Kind Exchange"). Purchaser shall
cooperate fully and promptly with Seller's conduct of the Like Kind
Exchange, provided that all costs and expenses generated in
connection with the Like Kind Exchange shall be borne solely by
Seller, and Purchaser shall not be required to take title to or
contract for the purchase of any other property. If Seller uses a
qualified intermediary to effectuate the exchange, any assignment of
the rights or obligations of Seller hereunder shall not relieve,
release or absolve Seller of its obligations to Purchaser. In no
event shall the Closing Date be delayed by the Like Kind Exchange.
Seller shall indemnify and hold harmless Purchaser from and against
any and all liability arising from and out of the Like Kind
Exchange.
NOW THEREFORE, the parties hereto have executed this Purchase Contract as of the
date first set forth above.
Seller: HCW PENSION REAL ESTATE FUND, LP, A
Massachusetts limited partnership
By: HCW General Partner, Ltd., a
Texas limited partnership
Its: General Partner
By: IH, Inc., a Delaware
corporation
Its: Managing General Partner
By:___________________________
Title:_________________________
Purchaser: The Cadle Company, an Ohio corporation
By:
Printed:
Title:
STATE OF ____________________ )
)
COUNTY OF __________________ )
Before me ______________________________ on this day personally
appeared _________________________________ known to me to be the person whose
name is subscribed to the foregoing instrument, and known to me to be the
__________________ of IH, INC., a Delaware corporation as Managing General
Partner of HCW GENERAL PARTNER, LTD., a Texas limited partnership as General
Partner of HCW PENSION REAL ESTATE FUND, LP, a Massachusetts limited partnership
, and acknowledged to me that he executed said instrument for the purposes and
consideration therein expressed, and as the act of said corporation.
Given under my hand and seal of office this ____ day of
_______________, 1999.
-----------------------------------
Notary Public
My Commission
expires:_______________
STATE OF ____________________ )
)
COUNTY OF __________________ )
Before me ______________________________ on this day personally
appeared _________________________________ known to me to be the person whose
name is subscribed to the foregoing instrument, and known to me to be the
__________________ of THE CADLE COMPANY, an Ohio corporation, and acknowledged
to me that he executed said instrument for the purposes and consideration
therein expressed, and as the act of said corporation.
Given under my hand and seal of office this ____ day of
_______________, 1999.
-----------------------------------
Notary Public
My Commission expires: ________________
<PAGE>
Exhibit 10.3
ADDENDUM TO PURCHASE AND SALE CONTRACT
This Addendum To Purchase And Sale Contract (hereinafter referred to as
"Addendum") is entered into as of this _____ day of November, 1999, by and
between HCW PENSION REAL ESTATE FUND, LP, a Massachusetts Limited Partnership,
and THE CADLE COMPANY, an Ohio Corporation. This Addendum shall supplement and
modify the terms and conditions of a certain Purchase And Sale Contract dated
August 18, 1999, which was made and entered into by and between HCW PENSION REAL
ESTATE FUND, LP and THE CADLE COMPANY.
For and in consideration of mutual covenants and agreements herein set
forth, HCW PENSION REAL ESTATE FUND, LP and THE CADLE COMPANY agree as follows:
The deposit amount set forth in Section 3.111 of the Purchase And Sale
Contract is amended to Forty-One Thousand Two Hundred Fifty Dollars
($41,250.00). Purchaser is to pay the Escrow Agent the additional amount of
Sixteen Thousand Two Hundred Fifty Dollars ($16,250.00) in order to bring the
deposit up to the required amount. The additional amount is to be paid on or
before December 3, 1999.
THE CADLE COMPANY has completed its due diligence as provided in Article 5
and hereby waives its right to raise any objection based on the provisions of
Sections 5.1 and 5.2 of the Purchase And Sale Contract or based on all other
conditions with respect to the property or the seller's obligations under the
Purchase And Sale Contract except for those enumerated in Subsections 9.1.1
through 9.1.4.
The terms as set forth in this Addendum shall control over the terms of
the Purchase And Sale Contract and any previous Addendum.
Seller: HCW PENSION REAL ESTATE FUND, LP, A
Massachusetts limited partnership
By: HCW General Partner, Ltd., a
Texas limited partnership
Its: General Partner
By: IH, Inc., a Delaware
corporation
Its: Managing General Partner
By:___________________________
Title:_________________________
Purchaser: The Cadle Company, an Ohio corporation
By:
Printed:
Title:
STATE OF ____________________ )
)
COUNTY OF __________________ )
Before me ______________________________ on this day personally
appeared _________________________________ known to me to be the person whose
name is subscribed to the foregoing instrument, and known to me to be the
__________________ of IH, INC., a Delaware corporation as Managing General
Partner of HCW GENERAL PARTNER, LTD., a Texas limited partnership as General
Partner of HCW PENSION REAL ESTATE FUND, LP, a Massachusetts limited partnership
, and acknowledged to me that he executed said instrument for the purposes and
consideration therein expressed, and as the act of said corporation.
Given under my hand and seal of office this ____ day of
_______________, 1999.
-----------------------------------
Notary Public
My Commission
expires:_______________
STATE OF ____________________ )
)
COUNTY OF __________________ )
Before me ______________________________ on this day personally
appeared _________________________________ known to me to be the person whose
name is subscribed to the foregoing instrument, and known to me to be the
__________________ of THE CADLE COMPANY, an Ohio corporation, and acknowledged
to me that he executed said instrument for the purposes and consideration
therein expressed, and as the act of said corporation.
Given under my hand and seal of office this ____ day of
_______________, 1999.
-----------------------------------
Notary Public
My Commission expires: ________________
