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Total pages: 8
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K/A
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) April 30, 1996
--------------
BOETTCHER PENSION INVESTORS, LTD.
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(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
COLORADO 0-13219 84-0948497
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
77 West Wacker Drive Chicago, Illinois 60601
- ----------------------------------------------------------------------------------------------
(Address of principal (Zip code)
executive office)
</TABLE>
Registrant's telephone number, including area code (312) 574-6000
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N/A
- --------------------------------------------------------------------------
(Former name or former address, if changed since last report)
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Item 2. Acquisition or Disposition of Assets
On April 30, 1996, Boettcher Pension Investors, Ltd. (the "Partnership")
entered into a contract, which subsequently closed on May 8, 1996, to sell the
land, related improvements and personal property of the retail center known as
Lindsay-Main Shopping Center ( Lindsay ) located at 116 North Lindsay, in Mesa,
Arizona. The purchaser, GOV, Inc., is not affiliated with the Partnership, its
Managing General Partner or any affiliate, director, officer or associate of
the foregoing, and the sales price was determined by arm's length negotiations.
Lindsay consists of a 1-building shopping center containing approximately
37,000 square feet of net rentable area on approximately 4.213 acres of land
and one vacant, undeveloped parcel of land consisting of approximately .934
acres. At the time of sale, Lindsay was approximately 38% leased and occupied.
The net proceeds to the Partnership, before proration of operating income and
expenses related to the property, were as follows:
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Sales price $1,000,000
Less Costs of Sale-
Sales Commissions (60,000)
Estimated title, legal fees, and other (30,000)
Security Deposit Liability (9,905)
Holdback for tenant improvements in progress (50,000)
----------
Net Proceeds $ 850,095
==========
The net proceeds will be utilized as follows:
Partial repayment of amounts owed to Managing
General Partner $ 88,000
Distribution to Limited Partners ($71/unit) 760,907
Addition to Partnership cash reserves 1,188
----------
Net Proceeds from Sale $ 850,095
==========
</TABLE>
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Item 7. Financial Statements and Exhibits
(a) Financial Statements--Not applicable.
(b) Pro Forma financial information--See pages 4 through 7 filed as part
of this report.
(c) Exhibit
10.21 Purchase and Sale Agreement for the sale of Lindsay-Main Plaza.
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BOETTCHER PENSION INVESTORS, LTD.
(A Limited Partnership)
Pro Forma Balance Sheet
January 31, 1996
(Unaudited)
<TABLE>
<CAPTION>
Pro Forma Adjustments
---------------------
Sale of Lindsay-Main
Historical and Application Pro Forma
January 31, 1996 of Proceeds January 31, 1996
---------------- ----------- ----------------
Assets
------
<S> <C> <C> <C>
Real estate investments:
Properties held for sale at cost, net $7,495,180 (959,415) 6,535,765
Less accumulated depreciation (572,975) 134,797 (438,178)
----------- ---------- ----------
6,922,205 (824,618) 6,097,587
Cash and cash equivalents, at cost
which approximates market value 513,550 1,188 514,738
Deferred leasing costs, net 93,531 (32,664) 60,867
Accounts receivable, and other assets 141,366 (37,622) 103,744
---------- ---------- ----------
Total Assets $7,670,652 (893,716) 6,776,936
========== ========== ==========
Liabilities and Partners' Capital
- ---------------------------------
Mortgage payable $5,821,554 - 5,821,554
Accounts payable and accrued liabilities 28,907 (945) 27,962
Payable to managing general partner 88,330 (88,000) 330
Property taxes payable 17,449 (11,526) 5,923
Accrued interest payable 46,087 - 46,087
Other Liabilities 39,315 (2,496) 36,819
---------- ---------- ----------
Total Liabilities 6,041,642 (102,967) 5,938,675
Partners' capital
General partners (35,653) (298) (35,951)
Limited partners 1,664,663 (790,451) 874,212
---------- ---------- ----------
Total Partners' capital (deficit) 1,629,010 (790,749) 838,261
---------- ---------- ----------
Total Liabilities & Partners' Capital $7,670,652 (893,716) 6,776,936
========== ========== ==========
</TABLE>
See accompanying notes to proforma financial statements.
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BOETTCHER PENSION INVESTORS LTD.
(A Limited Partnership)
Pro Forma Statement of Operations
For the Three Months Ended January 31, 1996
(Unaudited)
<TABLE>
<CAPTION>
Pro Forma Adjustments
---------------------
Sale of Lindsay-Main
Historical and Application Pro Forma
January 31, 1996 of Proceeds January 31, 1996
---------------- ----------- ----------------
<S> <C> <C> <C>
Revenue
Rental income $251,874 (20,387) 231,487
Tenant reimbursements for common
area charges, insurance and taxes 49,719 (8,779) 40,940
Interest income 7,279 - 7,279
-------- -------------- ----------
308,872 (29,166) 279,706
-------- ----------- ---------
Expenses:
Interest, including amortization of debt
discount and debt issuance costs 138,410 - 138,410
Depreciation & Amortization 49,364 (4,864) 44,500
Property taxes 23,589 (5,538) 18,051
Fees and reimbursements to managing
general partner 5,724 - 5,724
Other management fees 13,549 (2,250) 11,299
Repairs and maintenance 15,208 (2,779) 12,429
Utilities 9,683 (3,112) 6,571
Other administrative 49,872 (2,348) 47,524
-------- ------------- ----------
305,399 (20,891) 284,508
-------- ------------ ---------
Net earnings (loss) $ 3,473 (8,275) (4,802)
======== ============ ==========
Net earnings (loss) per limited partnership unit
using the weighted average number of limited
partnership units outstanding of 10,717: $ 0.32 (0.77) (0.45)
======== ============ ==========
</TABLE>
See accompanying notes to proforma financial statements.
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BOETTCHER PENSION INVESTORS LTD.
(A Limited Partnership)
Pro Forma Statement of Operations
For the Fiscal Year Ended October 31, 1995
(Unaudited)
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<CAPTION>
Pro Forma Adjustments
---------------------
Sale of Lindsay-Main
Historical and Application Pro Forma
October 31, 1995 of Proceeds October 31, 1995
---------------- ----------- ----------------
<S> <C> <C> <C>
Revenue:
Rental income $1,238,182 (84,220) 1,153,962
Tenant reimbursements for common
area charges, insurance and taxes 261,054 (30,394) 230,660
Interest income 20,016 (264) 19,752
---------- ------------- ------------
1,519,252 (114,878) 1,404,374
---------- ------------- -----------
Expenses:
Interest, including amortization of debt
discount and debt issuance costs 557,948 - 557,948
Depreciation & Amortization 277,677 (17,087) 260,590
Property taxes 123,361 (20,476) 102,885
Fees and reimbursements to managing
general partner 29,840 - 29,840
Other management fees 61,756 (9,000) 52,756
Repairs and maintenance 90,898 (16,653) 74,245
Utilities 44,514 (11,839) 32,675
Other administrative 63,971 (6,851) 57,120
------------ ----------- ------------
1,249,965 (81,906) 1,168,059
------------ ---------- ------------
Net earnings (loss) from operations 269,287 (32,972) 236,315
Gain on sale of real estate investment 684,856 - 684,856
----------- ---------- ---------
Net earnings (loss) $ 954,143 (32,972) 921,171
========= =========== =========
Net earnings (loss) per limited partnership unit
using the weighted average number of
limited partnership units outstanding
of 10,717: $ 89.03 (3.08) 85.95
========== ============ ==========
</TABLE>
See accompanying notes to proforma financial statements.
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BOETTCHER PENSION INVESTORS LTD.
(A Limited Partnership)
NOTES TO PRO FORMA FINANCIAL INFORMATION
(Unaudited)
Note 1 - Basis of Presentation
The Pro Forma Balance Sheet at January 31, 1996 is based on
the historical Balance Sheet for the Partnership presented on Form
10-Q at January 31, 1996. In general, the Pro Forma adjustments
represent the elimination of all liabilities related to Lindsay-Main
Plaza ("Lindsay"), and the net effect of the sale transaction and
utilization of net proceeds on the limited partners' capital account
is as follows:
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Distribution to limited partners $(760,907)
Estimated loss on sale (29,544)
---------
Net decrease in limited partners' capital $(790,451)
=========
</TABLE>
The Pro Forma Statements of Operations for the three months
ended January 31, 1996 and for the year ended October 31, 1995 are
based on the historical Statements of Operations for the Partnership
presented on Form 10-Q and 10-K for the three months ended January 31,
1996 and the year ended October 31, 1995, respectively. In general,
the Pro Forma adjustments represent the elimination of Lindsay's
historical operations for the three months ended January 31, 1996
and for the year ended October 31, 1995.
7
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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 PENSION INVESTORS LTD.
--------------------------------
By: Boettcher Properties, Ltd.
General Partner
By: BPL Holdings, Inc.
General Partner
Dated: May 16, 1996 By: /s/ Thomas M. Mansheim
----------------------
Treasurer; Principal Financial
and Accounting Officer of the
Partnership
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Exhibit 10.21
PURCHASE AND SALE AGREEMENT
---------------------------
between
BOETTCHER PENSION INVESTORS LTD.,
as Seller,
and GOV, INC.,
as Buyer
Lindsay-Main Plaza
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PURCHASE AND SALE AGREEMENT
BOETTCHER PENSION INVESTORS LTD., as Seller
GOV, INC., as Buyer
Contents
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Page
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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 Representations................... 3
2.1.3 Title Policy.................................. 3
2.1.4 Satisfaction or Waiver of Contingencies....... 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 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 Leases/Contracts.............................. 5
4.1.6 Section 1445 Affidavit........................ 5
4.1.7 Settlement Statement.......................... 5
4.2 Further Documents..................................... 5
4.3 Failure to Deliver.................................... 5
ARTICLE 5 - INVESTIGATION OF PROPERTY................................... 6
5.1 Initial Delivery of Documents.......................... 6
5.1.1 Title Commitment.............................. 6
5.1.2 Leases........................................ 6
5.1.3 Rent Roll..................................... 6
5.1.4 Contracts..................................... 6
</TABLE>
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5.1.5 Income and Operating Statements................ 6
5.1.6 Other Documents................................ 6
5.2 Inspection of Property and Condition of Title......... 7
5.2.1 Inspection Period............................. 7
5.2.2 Termination................................... 7
5.2.3 Review of Title Report........................ 8
5.3 "As Is" Purchase...................................... 8
5.3.1 Opportunity to Inspect........................ 8
5.3.2 No Implied Representations.................... 9
5.3.3 Waiver and Release............................ 10
5.3.4 Survival...................................... 10
ARTICLE 6 - THE CLOSING................................................. 10
6.1 Date of Closing....................................... 10
6.2 Manner of Closing; Title Policy....................... 10
ARTICLE 7 - PRORATIONS, FEES AND COSTS.................................. 11
7.1 Prorations............................................ 11
7.1.1 Property Taxes................................ 11
7.1.2 Income........................................ 11
7.1.3 Deposits...................................... 11
7.1.4 Insurance Premiums............................ 11
7.1.5 Other Expenses of Property.................... 12
7.1.6 Miscellaneous................................. 12
7.2 Date of Proration..................................... 12
7.3 Buyer's Closing Costs................................. 12
7.4 Seller's Closing Costs................................ 12
ARTICLE 8 - DISTRIBUTION OF FUNDS AND DOCUMENTS......................... 12
8.1 Liens and Encumbrances................................ 12
8.2 Recorded Documents.................................... 12
8.3 Nonrecorded Documents................................. 13
8.4 Cash Disbursements.................................... 13
8.5 Copies of Documents................................... 13
ARTICLE 9 - RETURN OF DOCUMENTS AND FUNDS UPON TERMINATION.............. 13
9.1 Return of Seller's Documents.......................... 13
9.2 Return of Buyer's Documents........................... 13
9.3 No Effect on Rights of Parties........................ 13
ARTICLE 10 - DEFAULT.................................................... 13
10.1 Seller's Remedies..................................... 13
10.2 Buyer's Remedies...................................... 14
ARTICLE 11 - REPRESENTATIONS AND WARRANTIES............................. 14
11.1 Seller's Representations and Warranties............... 14
11.1.1 Authority.................................... 14
11.1.2 Binding Obligations; Violations.............. 14
11.1.3 Survival; Seller's Knowledge................. 14
11.2 Buyer's Representations and Warranties................ 15
11.2.1 Authority.................................... 15
11.2.2 Consents; Binding Obligations; Violations.... 15
11.2.3 Survival..................................... 15
</TABLE>
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<TABLE>
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<S> <C> <C>
ARTICLE 12 - BROKER'S COMMISSION......................................... 15
ARTICLE 13 - SELLER'S COVENANTS.......................................... 16
13.1 Leases................................................ 16
13.2 Contracts............................................. 16
13.3 Personal Property..................................... 16
13.4 Management and Operation of Property.................. 16
13.5 Insurance............................................. 16
13.6 Ongoing Tenant Improvements........................... 16
ARTICLE 14 - CASUALTY.................................................... 17
ARTICLE 15 - CONDEMNATION................................................ 17
15.1 Notice................................................ 17
15.2 Termination........................................... 17
ARTICLE 16 - ASSIGNMENT.................................................. 18
ARTICLE 17 - NOTICES..................................................... 18
ARTICLE 18 - TRANSFER OF POSSESSION...................................... 19
ARTICLE 19 - GENERAL PROVISIONS.......................................... 19
19.1 Definitions........................................... 19
19.1.1 Cash........................................... 19
19.1.2 Party.......................................... 19
19.2 Gender; Number........................................ 20
19.3 Captions.............................................. 20
19.4 Dates................................................. 20
19.5 Exhibits.............................................. 20
19.6 Entire Agreement...................................... 20
19.7 Ambiguities........................................... 20
19.8 Modification.......................................... 20
19.9 Attorneys' Fees....................................... 20
19.10 Governing Law........................................ 20
19.11 Time of Essence...................................... 21
19.12 Severability......................................... 21
19.13 Successors and Assigns............................... 21
19.14 Counterparts......................................... 21
</TABLE>
EXHIBITS
--------
Exhibit A - Real Property Description
Exhibit B - Assignment and Assumption of Leases
Exhibit C - Assignment of Contracts
Exhibit D - Bill of Sale and Assignment
Exhibit E - Seller's Wiring Instructions
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement"), dated as of March ,
1996, is made by and between BOETTCHER PENSION INVESTORS LTD., a Colorado
limited partnership ("Seller"), and GOV, INC., a Delaware corporation ("Buyer").
RECITALS
This Agreement is entered into with reference to the following facts:
A. Seller is the owner of fee title to that certain retail shopping
center known as Lindsay-Main Plaza, located at 116 North Lindsay Road, Mesa,
Maricopa County, Arizona.
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 easements, rights-of-way and other appurtenances appertaining to or
otherwise benefiting or used in connection with such land 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,
fixtures, and landscaping 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 and 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
or agreements, 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 Personal Property, to the extent that they
are assignable (the "Contracts");
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(6) All right, title and interest of Seller in and to any unexpired
warranties and guaranties, 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, if any, in and to the use of the name "Lindsay-Main Plaza," 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 ONE MILLION AND NO/100's DOLLARS
($1,000,000.00) in "Cash," (as defined in Section 19.1.1 below), subject to
prorations and adjustments provided for herein, and payable as set forth in
Article 3 below.
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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 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 Representation. The accuracy in all material
respects of each representation and warranty of Seller in Section 11.1 below.
2.1.3 Title Policy. Delivery at the "Closing" (as defined in Section
6.1 below) of the "Title Policy" (as defined in Section 6.2 below) or an
unconditional commitment by the "Title Company" (as defined in Section 5.1.1
below) to issue the Title Policy as soon as reasonably practicable after the
Closing.
2.1.4 Satisfaction or Waiver of Contingencies. The contingencies set
forth in Article 5 below shall have been satisfied or waived by Buyer;
provided, that if Buyer does not terminate this Agreement pursuant to such
Article 5, the contingencies set forth in such Article shall be deemed to have
been waived by Buyer.
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 11.2.
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. Not later than one (1) business day following Buyer's
execution of this Agreement, Buyer shall deliver to First American Title Agency
("Closing Agent") the sum of FIFTY THOUSAND AND NO/100's DOLLARS ($50,000.00),
in Cash. Closing Agent shall deposit such amount in a federally insured,
interest-bearing account (which account, together with all interest earned
thereon, is referred to herein as the "Deposit"). The Deposit shall be applied
to the Purchase Price of the Property, subject to the terms and conditions of
this Agreement. In the event that Buyer defaults hereunder, the Deposit shall
be retained by Seller
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as liquidated damages pursuant to the terms of Article 10 below. In the event
of the failure of a condition precedent to Buyer's obligations pursuant to
Section 2.1 above, 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 NINE HUNDRED FIFTY THOUSAND AND
NO/100's DOLLARS ($950,000.00), 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 to Buyer all of its right, title and interest in and to
those Contracts Buyer has elected prior to the expiration of the Inspection
Deadline to assume (the "Assumed Contracts").
3.2.4 Cash - Prorations. Buyer's share, if any, of prorations,
fees and costs, as described in Article 7 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 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 7.
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 performance hereunder, and the failure of Buyer to make
any
4
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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. At or before the Closing,
Seller shall 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 on Closing Agent's standard
form (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 below).
4.1.2 Bill of Sale and Assignment. A bill of sale and assignment
in the form of Exhibit D 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 Leases/Contracts. Originals or legible copies of the
Leases, and any written Assumed Contracts, and all keys to the Improvements in
Seller's possession.
4.1.6 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.
4.1.7 Settlement Statement. A settlement statement signed by
Seller reflecting the Purchase Price, Seller's share of the prorations, costs
and fees described in Article 7 and the net proceeds due to Seller.
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.
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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 five (5) business days
following the execution of this Agreement by Seller, deliver or make available
to Buyer) the following items (collectively referred to herein as "Seller's
Deliveries"), to the extent the same are in Seller's possession as of the date
of this Agreement. Buyer agrees that Seller's Deliveries, except the title
commitment described in Section 5.1.1, are confidential and shall not be
distributed or disclosed by Buyer to any person or entity not associated with
Buyer. The obligation to maintain the confidentiality of such items shall
survive any termination of this Agreement.
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 Closing Agent, in its capacity as agent for First
American Title Insurance Company (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 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 or addenda thereto.
5.1.3 Rent Roll. A rent roll of the Property, certified by
Seller as true and accurate, to Seller's knowledge, as of a date no earlier
than February 1, 1996.
5.1.4 Contracts. A list or copies of any Contracts which may be
assigned to Buyer.
5.1.5 Income and Operating Statements. Monthly and annual income
and operating statements for fiscal years 1994, 1995 and 1996 to date.
5.1.6 Other Documents. Originals or legible copies of any
environmental reports or assessments, surveys, termite reports, soils reports
or studies or other non-proprietary information or documentation relating to
the ownership or operation of the Property.
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5.2 Inspection of Property and Condition of Title.
5.2.1 Inspection Period. Buyer shall have until 5:00 p.m.
M.S.T. on April 30, 1996 (the "Inspection Deadline"), to (i) review the
contents of Seller's Deliveries, (ii) investigate the Property and all matters
relevant to its acquisition, development, usage, operation and marketability,
and (iii) conduct a physical inspection 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, all at Buyer's sole cost and expense. Buyer shall not conduct or
allow any physically intrusive 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, (a) Buyer or Buyer's agents will carry
not less than 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, (b)
Buyer will not materially and adversely interfere with the activity of tenants
or any persons occupying or providing service at the Property, (c) Buyer will
not reveal, prior to Closing, nor will Buyer permit any of Buyer's agents to
reveal, to any third party not approved by Seller, the results of its
inspections or other tests, and (d) Buyer will not cause any physical damage to
the Property from the inspections or tests conducted by or on behalf of Buyer
(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. Buyer further agrees that any
costs and expenses incurred by Buyer in satisfaction of the foregoing
obligations shall not be limited by the provisions of Section 10.1 below.
5.2.2 Termination. If, on or before the expiration of the
Inspection Deadline, 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) Buyer shall return
all of Seller's Deliveries,
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including any copies or written summaries thereof, to Seller and shall deliver
to Seller copies of any other reports, summaries or analyses of the Property
generated by or on behalf of Buyer in connection with its investigation of the
Property, (iii) Buyer shall pay any escrow termination fees charged by Closing
Agent, (iv) the Deposit shall be returned to Buyer, (v) Closing Agent shall
return all other items then held by Closing Agent to the party who delivered
the same, and (vi) both parties shall be relieved from any further liability
hereunder, other than Buyer's indemnity obligations under Section 5.2.1 of this
Agreement. If Buyer does not terminate this Agreement as described in the
preceding sentence, then this Agreement shall remain in full force and effect
in accordance with its terms.
5.2.3 Review of Title Report. Without limiting the generality
of Section 5.2.1 above with respect to Buyer's investigation of the Property,
Buyer shall have until the expiration of the Inspection Deadline to review the
condition of title to the Real Property as shown on the Title Commitment. In
the event that prior to the expiration of the Inspection Deadline Buyer objects
in writing to any matter involving title to the Real Property, including,
without limitation, any exception to title disclosed on the Title Commitment (a
"Title Defect"), Seller shall have the right, but not the obligation, to
attempt to cure such Title Defect not later than thirty (30) days prior to the
Closing. Such cure may be effected by deletion of the Title Defect from the
Title Policy, by appropriate endorsements insuring over such Title Defect, or
by such other cure as may be reasonably satisfactory to Buyer. Seller shall
notify Buyer in writing not later than five (5) business days following the
expiration of the Inspection Deadline of Seller's election to attempt to cure
such Title Defect. In the event that (i) Seller elects not to cure the Title
Defect as provided herein, or (ii) Seller fails or is unable to cure such Title
Defect within the time period specified herein, and cure of such Title Defect
is not waived by Buyer, then this Agreement shall terminate in accordance with
the provisions of Section 5.2.2 above. Buyer's failure to notify Seller of
Buyer's objection to any Title Defect shall constitute approval of the Title
Commitment in accordance with the foregoing.
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 prior to the Inspection Deadline 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
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Materials" (as defined below); and (iii) if Buyer does not terminate this
Agreement pursuant to Section 5.2 above, 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 handling of Hazardous Materials, as
now or may hereafter be in effect.
5.3.2 No Implied Representations. Buyer acknowledges and
agrees that Seller acquired title to the Property pursuant to a foreclosure
action, and consequently Seller has little or no actual knowledge regarding the
operational history, physical condition or any other aspect of the Property.
Consequently, Buyer further acknowledges and agrees that, except for Seller's
express representations and warranties set forth in Section 11.1 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
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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; (ii)
any liabilities, damages or injury arising from, connected with or otherwise
caused by statements, opinions or information obtained from any of such persons
with respect to the Property; and (iii) any and all liability to Buyer
attributable to the presence, discovery or removal of any Hazardous Materials
in, at or under the Property, except for any continuing liability Seller may
have after Closing with respect to matters occurring during Seller's period of
ownership of the Property.
5.3.4 Survival. The provisions of this Section 5.3 shall survive
Closing or any earlier termination of this Agreement.
ARTICLE 6 -- THE CLOSING
6.1 Date of Closing. The closing of the transaction contemplated by
this Agreement (the "Closing") shall take place at the offices of the Closing
Agent, on the fifteenth (15th) day following the Inspection Deadline or, by
mutual agreement of the parties, on an earlier date (the "Closing Date").
6.2 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").
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ARTICLE 7 -- PRORATIONS, FEES AND COSTS
7.1 Prorations. Closing Agent will prorate and adjust between the
parties, in cash at Closing, the following:
7.1.1 Property Taxes. All real property and personal property
taxes (except special assessments) shall be prorated as of the Closing Date.
Seller shall be solely responsible for payment of any special assessments
payable in installments due on or as of the Closing Date, and Buyer shall be
solely responsible for special assessments payable in installments due after
the Closing Date. 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 a final allocation of such taxes as between Buyer and
Seller. If either such real estate or such personal property taxes are payable
directly to the taxing authority by any tenant under and pursuant to the terms
of any Lease, then the foregoing provisions shall be inapplicable with respect
thereto, and there shall be no proration of such taxes between Seller and Buyer.
7.1.2 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 Date and thereafter. Seller shall
receive all income accruing prior to the Closing Date. Delinquent rent due from
tenants under the Leases for any period prior to Closing Date shall not be
prorated and shall be deemed forfeited by Seller as of the Closing Date. If any
tenant is required to pay percentage rent and such percentage rent is collected
after the Closing, then Buyer shall promptly pay to Seller out of such
percentage rent the portion thereof which is due and payable by such tenant
with respect to the period prior to the Closing (whether or not the percentage
rent first became due and payable after the Closing).
7.1.3 Deposits. Seller shall retain all non-refundable deposits
paid by tenants under the Leases. Buyer shall be entitled to a credit at
Closing equal to the total amount of refundable deposits held by Seller as of
the Closing Date, as shown on the rent roll delivered by Seller pursuant to
Section 4.1.9 of this Agreement.
7.1.4 Insurance Premiums. Buyer shall obtain its own insurance as
of the Closing Date, and Seller shall cancel its existing insurance policies as
of the Closing Date, such that insurance premiums shall not be prorated between
the parties.
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7.1.5 Other Expenses of Property. In general, all expenses
relating to the operation of the Property accruing prior to the Closing Date
shall be paid by Seller, and all such expenses accruing on or after the Closing
Date 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., M.S.T., on the Closing
Date (except with respect to those accounts maintained in the names of the
tenants under the Leases).
7.1.6 Miscellaneous. The parties' obligations under this Section
7.1 with respect to prorations shall survive the Closing for a period of twelve
(12) months. All of the prorations respecting the Property, except as otherwise
provided herein, shall be made in accordance with customary practice in
Maricopa County, Arizona.
7.2 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 wired to Seller by 1:00 p.m., M.S.T., on the Closing
Date. If said amount due Seller is not so wired to the Seller by such hour 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 said amount
due to Seller at a rate equal to ten percent (10%) per annum, to compensate
Seller for the loss of interest for such date.
7.3 Buyer's Closing Costs. Buyer will pay (i) all sales and use
taxes, (ii) one-half of Closing Agent's closing fee, (iii) the cost of extended
coverage or any other endorsements to the Title Policy, (iv) usual buyer's
document drafting and recording charges, (v) Buyer's attorneys' fees, and (vi)
all costs and expenses incurred by Buyer in performing its due diligence.
7.4 Seller's Closing Costs. Seller will pay (i) one-half of the
Closing Agent's closing fee, (ii) the Title Company's premium for the Title
Policy (but excluding the additional cost of obtaining extended coverage or any
other endorsements thereto), (iii) usual seller's document drafting and
recording charges, and (iv) Seller's attorneys' fees.
ARTICLE 8 -- DISTRIBUTION OF FUNDS AND DOCUMENTS
8.1 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.
8.2 Recorded Documents. Closing Agent will cause the County Recorder
or Maricopa County, Arizona, to mail the Deed and
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any other conveyance documents which are herein expressed to be, or by general
usage are, recorded, after recordation, to Buyer.
8.3 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.
8.4 Cash Disbursements. Closing Agent will, at 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, in accordance with the wiring instructions
attached as Exhibit E hereto, and (ii) to Buyer, or order, any excess funds
theretofore delivered to Closing Agent by Buyer.
8.5 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 9 -- RETURN OF DOCUMENTS AND FUNDS UPON TERMINATION
9.1 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
the Seller's Deliveries and all other documents and materials, if any, relating
to the Property previously delivered to Buyer by Seller. Closing Agent shall
deliver to Seller all documents and materials delivered by Seller and then in
Closing Agent's possession.
9.2 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, previously delivered by Buyer and then
in Closing Agent's possession.
9.3 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 10 -- DEFAULT
10.1 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 TO
Initials ESTIMATE THE DAMAGE AND HARM WHICH SELLER WOULD SUFFER IN THE
EVENT BUYER DEFAULTS HEREUNDER AND
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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
Seller's THE ACQUISITION HEREUNDER IS THE SUM OF $50,000.00, SELLER SHALL
Initials THEREFORE BE ENTITLED TO BUYER'S DEPOSIT OF $50,000.00, PLUS ANY
INTEREST THEREON, DELIVERED TO CLOSING AGENT IN ACCORDANCE WITH
DW 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.
10.2 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 11 - REPRESENTATIONS AND WARRANTIES
11.1 Seller's Representations and Warranties. Seller represents and
warrants to Buyer that, as of the date of this Agreement:
11.1.1 Authority. Seller is 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
to consummate the transaction contemplated hereby.
11.1.2 Binding Obligations; Violations. 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.
11.1.3 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
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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.
11.2 Buyer's Representations and Warranties. Buyer represents and
warrants to Seller that, as of the Closing:
11.2.1 Authority. Buyer is a corporation, duly organized and
existing in good standing under the laws of the State of Arizona. 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 entering into this Agreement and the instruments
referenced herein and the consummation of the transaction referenced herein and
the consummation of the transaction contemplated hereby.
11.2.2 Consents; Bonding 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 judgment, 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.
11.2.3 Survival. The foregoing representations and warranties
shall terminate as of the earlier to occur of (a) the termination of this
Agreement, or (b) 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 12 - 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 The Omni Group ("Seller's Broker") and any
commission due by Seller's Broker to Tom Jackson & Associates Inc., in its
capacity as cooperating broker. Seller agrees to pay all commissions owed
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to Seller's Broker in connection with this transaction. 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. The
foregoing indemnity obligation shall survive the Closing for a period of one
(1) year from the Closing Date.
ARTICLE 13 - SELLER'S COVENANTS
Seller covenants for the benefit of and agrees with Buyer that, pending
closing, Seller shall:
13.1 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.
13.2 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.
13.3 Personal Property. Except in the ordinary course of Seller's
business, not remove any Personal Property except to make repairs and
replacements.
13.4 Management and Operation of Property. Manage and operate the
Property in substantially the same manner as the Property has previously been
managed and operated by Seller.
13.5 Insurance. Maintain in full force and effect all insurance
policies covering the Property as of the date of this Agreement.
13.6 Ongoing Tenant Improvements. Seller shall diligently prosecute
to complete those tenant improvements (the "Marc Center Improvements")
contemplated by the Lease between Seller and Marc Center for the portion of the
Property identified as Unit 6A. In the event that the Marc Center Improvements
have not been completed prior to Closing, Seller shall direct Closing Agent to
retain in an interest-bearing escrow account an amount equal to Seller's good
faith estimate of the funds necessary to complete the Marc Center Improvements
(the "Tenant Improvement Retention"). Upon delivery to Closing Agent of lien
waivers signed by each materialman or contractor supplying labor or materials
in connection with the Marc Center Improvements, Closing Agent is authorized
and directed to release the Tenant Improvement Retention, together with all
interest accrued thereon, to Seller.
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ARTICLE 14 - 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 is less than $100,000, then
Seller shall repair such damage as promptly as is reasonably possible in a
manner that meets or exceeds the original plans and specifications for the
damaged portion of the Property. If the cost of repairing such damage as so
estimated exceeds $100,000, then Buyer may elect to terminate this Agreement,
or, if Buyer does not elect to terminate this Agreement, then Seller shall (at
Seller's option) either repair such damage as promptly as is reasonably possible
or pay to Buyer all insurance proceeds payable for such damage plus the amount
of any deductible under Seller's insurance policy. Upon any termination pursuant
to this Article 14, the Deposit shall be returned to Buyer, and both parties
shall be relieved of any further liability under this Agreement except for those
indemnity obligations which, pursuant to the terms of this Agreement, survive
the termination of this Agreement.
ARTICLE 15 - CONDEMNATION
15.1 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 or any portion of the Property, Seller will notify Buyer
promptly thereof.
15.2 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 Seller 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 Deposit to Buyer and
both parties shall be relieved of any future liability under this Agreement
except for those indemnity obligations which, pursuant to the terms of this
Agreement, shall survive the termination of this Agreement. 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
17
<PAGE> 22
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 16 - ASSIGNMENT
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; and (3) provide Seller
with a copy of the proposed assignment.
ARTICLE 17 - 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 telecopy to the telecopy number set forth below:
If to Seller, to:
Boettcher Pension Investors Ltd.
c/o Everen Securities, Inc.
77 West Wacker Drive
Chicago, Illinois 60601
Attention: Mr. Kelly J. Stradinger
Telecopy: (312) 574-8903
with a copy at the same time to:
Otten, Johnson, Robinson, Neff
& Ragonetti, P.C.
950 17th Street, Suite 1600
18
<PAGE> 23
Denver, Colorado 80202
Attention: Marguerite L. Sadler, Esq.
Telecopy: (303) 825-6525
If to Buyer, to:
GOV, Inc.
34184-B Pacific Coast Highway
Suite 134
Dana Point, California 92629
Attention: Mr. Richard Geisel
Telecopy: ________________
with a copy at the same time to:
Mr. Kevin Olson
4342 N. Civic Center Plaza
Scottsdale, Arizona 85251
Telecopy: (602) 949-0848
If to Closing Agent, to:
First American Title Agency
2525 East Camelback Road, Suite 250
Phoenix, Arizona 85016
Attention: Ms. Pam Swoboda
Telecopy: (602) 957-4385
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 18 - TRANSFER OF POSSESSION
Possession of the Property shall be transferred to Buyer at Closing,
subject to the Permitted Exceptions.
ARTICLE 19 - GENERAL PROVISIONS
19.1 Definitions. Unless the context otherwise indicates, whenever
used in this Agreement:
19.1.1 Cash. The word "Cash" means (i) United States
currency, or (ii) an amount in United States currency credited by wire transfer
or by other means providing immediately available funds.
19.1.2 Party. The word "party" or "parties" means Buyer
and/or Seller, as the context may require.
19.2 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.
19
<PAGE> 24
19.3 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.
19.4 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
Inspection Deadline 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.
19.5 Exhibits. All exhibits referred to herein and attached hereto
are a part hereof.
19.6 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.
19.7 Ambiguities. This Agreement, including the exhibits hereto, has
been negotiated at arms-length by the parties, and the parties agree that for
the purpose of construing this Agreement, including the exhibits hereto,
neither party shall be deemed responsible for the authorship thereof.
19.8 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.
19.9 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.
19.10 Governing Law. This Agreement shall be construed and enforced
in accordance with the laws of the State of Arizona.
19.11 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
<PAGE> 25
19.12 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.
19.13 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.
19.14 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.
IN WITNESS WHEREOF, this Agreement has been executed as of the date(s)
set forth below.
SELLER:
BOETTCHER PENSION INVESTORS LTD.,
a Colorado limited partnership
By: BOETTCHER AFFILIATED INVESTORS
L.P., General Partner
By: BOETTCHER PROPERTIES, LTD.,
General Partner
By: BPL HOLDINGS, INC.,
General Partner
Date: March 27, 1996 By: /s/ Daniel D. Williams
----------------- ------------------------
Name: Daniel D. Williams
------------------------
Title: Vice President
------------------------
BUYER:
GOV, INC.,
a Delaware corporation
Date: March 27, 1996 By: /s/ Richard Geisel
----------------- ----------------------------------
Name: Richard Geisel
----------------------------------
Title: Vice President
----------------------------------
21
<PAGE> 26
CONSENT OF CLOSING AGENT
The undersigned Closing Agent hereby agrees to (i) accept the foregoing
Agreement, (ii) be Closing Agent under said Agreement, and (iii) be bound by
said Agreement in the performance of its duties as Closing Agent.
FIRST AMERICAN TITLE AGENCY
Date: _____________________ By: _____________________________
Name: ___________________________
Title: __________________________
22
<PAGE> 27
EXHIBIT A
LEGAL DESCRIPTION
PARCEL A
A portion of the Southeast quarter of the Northeast quarter of Section 19,
Township 1 North, Range 6 East of the Gila and Salt River Base and Meridian,
Maricopa County, Arizona, described as follows:
COMMENCING at the Northeast corner of said Southeast quarter;
thence South 00 degrees 08 minutes 51 seconds East, a distance of 213.94 feet
along the East line of said Southeast quarter;
thence South 89 degrees 51 minutes 09 seconds West, a distance of 55.00 feet to
the TRUE POINT OF BEGINNING, said point also being on the West right-of-way
of Lindsay Avenue;
thence South 00 degrees 08 minutes 51 seconds East, parallel to and 55 feet
West of the East line of said Section 19, a distance of 414.54 feet;
thence South 89 degrees 21 minutes 09 seconds West, a distance of 319.00 feet;
thence North 00 degrees 08 minutes 51 seconds West, a distance of 465.57 feet,
to a point on the South right-of-way line of East Second Street;
thence along said South right-of-way line North 89 degrees 25 minutes 50
seconds East a distance of 58.52 feet, to the beginning of a curve concave
Southwesterly and having a radius of 375.00 feet;
thence along said curve, through a central angle of 17 degrees 43 minutes 49
seconds a distance of 116.04 feet, to the beginning of a curve, concave
Northeasterly and having a radius of 425.00 feet;
thence along said curve through a central angle of 17 degrees 43 minutes 49
seconds a distance of 131.52 feet to the end thereof;
thence North 89 degrees 25 minutes 50 seconds East a distance of 3.97 feet, to
the beginning of a curve concave Southwesterly and having a radius of 12.50
feet;
thence along said curve through a central angle of 90 degrees 25 minutes 19
seconds, a distance of 19.73 feet, to the POINT OF BEGINNING.
continued . . .
A-1
<PAGE> 28
PARCEL B
PARCEL NO. 1:
A portion of the Southeast quarter of the Northeast quarter of Section 19,
Township 1 North, Range 6 East of the Gila and Salt River Base and Meridian,
Maricopa County, Arizona, being more particularly described as follows:
COMMENCING at the Northeast corner of said Southeast quarter of the Northeast
quarter of Section 19;
thence South 89 degrees 25 minutes 06 seconds West, 45.00 feet along the North
line of said Southeast quarter of the Northeast quarter to the TRUE POINT OF
BEGINNING of this description;
thence South 00 degrees 05 minutes 20 seconds West, 497.50 feet along a line
being parallel to the East line of said Southeast quarter of the Northeast
quarter;
thence South 89 degrees 25 minutes 06 seconds West, 335.00 feet;
thence North 00 degrees 05 minutes 20 seconds East, 497.50 feet along the West
line of the East 380 feet of said Southeast quarter of the Northeast quarter;
thence North 89 degrees 25 minutes 06 seconds East, 335.00 feet along the North
line of said Southeast quarter of the Northeast quarter to the TRUE POINT OF
BEGINNING.
PARCEL NO. 2:
A portion of the Southeast quarter of the Northeast quarter of Section 19,
Township 1 North, Range 6 East of the Gila and Salt River Base and Meridian,
Maricopa County, Arizona, being more particularly described as follows:
COMMENCING at the Northeast quarter of said Southeast quarter of the Northeast
quarter of Section 19;
thence South 89 degrees 25 minutes 06 seconds West, 45.00 feet along the North
line of said Southeast quarter of the Northeast quarter;
thence South 00 degrees 05 minutes 20 seconds West, 497.50 feet along a line
being parallel to the East line of said Southeast quarter of the Northeast
quarter to the TRUE POINT OF BEGINNING of this description;
continued . . .
A-2
<PAGE> 29
thence continuing South 00 degrees 05 minutes 20 seconds West, 130.50 feet
along a line being parallel to the East line of said Southeast quarter of the
Northeast quarter;
thence South 89 degrees 25 minutes 06 seconds West, 335.00 feet along the South
line of the North 628 feet of said Southeast quarter of the Northeast quarter;
thence North 00 degrees 05 minutes 20 seconds East, 130.50 feet along the West
line of the East 380 feet of said Southeast quarter of the Northeast quarter;
thence North 89 degrees 25 minutes 06 seconds East, 335.00 feet to the TRUE
POINT OF BEGINNING.
EXCEPTING THEREFROM a portion of the Southeast quarter of the Northeast quarter
of Section 19, Township 1 North, Range 6 East of the Gila and Salt River Base
and Meridian, Maricopa County, Arizona, described as follows:
COMMENCING at the Northeast corner of said Southeast quarter;
thence South 00 degrees 08 minutes 51 seconds East, along the East line of said
Southeast quarter a distance of 213.94 feet;
thence South 89 degrees 54 minutes 09 seconds West, a distance of 55.00 feet
to the POINT OF BEGINNING, said point also being on the West right-of-way line
of Lindsay Avenue, and the beginning of a curve, concave Southwesterly and
having a radius of 12.50 feet;
thence along said curve through a central angle of 90 degrees 25 minutes 19
seconds, a distance of 19.72 feet to the end thereof;
thence South 89 degrees 25 minutes 50 seconds West, a distance of 3.97 feet, to
the beginning of a curve concave Northeasterly and having a radius of 425.00
feet;
thence along said curve, through a central angle of 17 degrees 43 minutes 49
seconds, a distance of 131.52 feet to the beginning of a curve concave
Southwesterly and having a radius of 375.00 feet;
thence along said curve, through a central angle of 17 degrees 43 minutes 49
seconds a distance of 116.04 feet;
thence South 89 degrees 25 minutes 50 seconds West, a distance of 58.52 feet;
thence North 00 degrees 08 minutes 51 seconds West, a distance of 50.00 feet;
Continued . . .
A-3
<PAGE> 30
thence North 89 degrees 25 minutes 50 seconds East, a distance of 58.15
feet to the beginning of a curve concave Southwesterly and having a radius of
425.00 feet;
thence along said curve through a central angle of 17 degrees 43 minutes 49
seconds, a distance of 131.52 feet to the beginning of a curve concave
Northeasterly and having a radius of 375.00 feet;
thence along said curve, through a central angle of 17 degrees 43 minutes 49
seconds, a distance of 116.04 feet, to the end thereof;
thence North 89 degrees 25 minutes 50 seconds East, a distance of 4.53 feet, to
the beginning of a curve concave Westerly and having a radius of 12.50 feet;
thence along said curve, through a central angle of 89 degrees 34 minutes 41
seconds, a distance of 19.54 feet to a point on the West right-of-way line of
Lindsay Avenue;
thence along said West right-of-way line South 00 degrees 08 minutes 51 seconds
East, a distance of 75.00 feet, to the POINT OF BEGINNING.
AND EXCEPTING THEREFROM a portion of the Southeast quarter of the Northeast
quarter of Section 19, Township 1 North, Range 6 East of the Gila and Salt
River Base and Meridian, Maricopa County, Arizona, described as follows:
COMMENCING at the Northeast corner of said Southeast quarter;
thence South 00 degrees 08 minutes 51 seconds East, a distance of 213.94 feet
along the East line of said Southeast quarter;
thence South 89 degrees 51 minutes 09 seconds West, a distance of 55.00 feet to
the TRUE POINT OF BEGINNING, said point also being on the West right-of-way of
Lindsay Avenue;
thence South 00 degrees 08 minutes 51 seconds East, parallel to and 55 feet
West of the East line of said Section 19, a distance of 414.54 feet;
thence South 89 degrees 21 minutes 09 seconds West, a distance of 319.00 feet;
thence North 00 degrees 08 minutes 51 seconds West, a distance of 465.57 feet,
to a point on the South right-of-way line of East Second Street;
Continued . . . .
A-4
<PAGE> 31
thence along said South right-of-way line North 89 degrees 25 minutes 50
seconds East a distance of 58.52 feet, to the beginning of a curve concave
Southwesterly and having a radius of 375.00 feet;
thence along said curve, through a central angle of 17 degrees 43 minutes 49
seconds a distance of 116.04 feet, to the beginning of a curve, concave
Northeasterly and having a radius of 425.00 feet;
thence along said curve through a central angle of 17 degrees 43 minutes 49
seconds a distance of 131.52 feet to the end thereof;
thence North 89 degrees 25 minutes 50 seconds East a distance of 3.97 feet, to
the beginning of a curve concave Southwesterly and having a radius of
12.50 feet;
thence along said curve through a central angle of 90 degrees 25 minutes 19
seconds, a distance of 19.73 feet, to the POINT OF BEGINNING.
A-5
<PAGE> 32
EXHIBIT B
ASSIGNMENT AND ASSUMPTION OF LEASES
THIS ASSIGNMENT AND ASSUMPTION OF LEASES (this "Agreement") is made and
entered into this _____ day of _______________, 1996, between BOETTCHER PENSION
INVESTORS 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 the rent roll attached hereto and made
a part hereof (the "Rent Roll") relating to the real property located at 116
North Lindsay Road, Mesa, Arizona, commonly known as ("Lindsay-Main Plaza").
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.
Assignor represents to Assignee that to the best of Seller's knowledge
the Rent Roll contains a complete and accurate schedule of all refundable
security and/or damage deposits that have been paid by tenants under the Leases
(the "Deposits"). Assignee acknowledges that Assignor has transferred the
Deposits to Assignee and, without limiting the foregoing, Assignee agrees to
hold Assignor harmless from any failure by Assignee to deal with any such
Deposits in compliance with law and with the terms of the Leases to which they
pertain.
B-2
<PAGE> 33
This Assignment shall bind and inure to Assignor and Assignee and their
respective successors and assigns.
ASSIGNOR:
BOETTCHER PENSION INVESTORS LTD.,
a Colorado limited partnership
By: Boettcher Affiliated Investors L.P.,
its Managing General Partner
By: Boettcher Properties, Ltd.,
its Managing General Partner
By: BPL HOLDINGS, INC.,
its Managing General Partner
By: ________________________
Name: ______________________
Title: _____________________
ASSIGNEE:
__________________________________________,
a _________________________________________
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
B-3
<PAGE> 34
Schedule 1
Rent Roll
B-4
<PAGE> 35
EXHIBIT C
ASSIGNMENT AND ASSUMPTION OF CONTRACTS
THIS ASSIGNMENT AND ASSUMPTION OF CONTRACTS (this "Agreement") is made
and entered into as of , 1996, by and between BOETTCHER PENSION
INVESTORS 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 certain real property,
buildings, improvements and personal property located at 116 North Lindsay
road, Mesa, Arizona, and commonly known as "Lindsay-Main Plaza" (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 all contracts, agreements and commitments for the repair, maintenance,
service and supply of the Property (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.
C-5
<PAGE> 36
3. This Assignment shall bind and inure to Assignor and Assignee and
their respective successors and assigns.
Executed as of the date set forth above.
ASSIGNOR:
BOETTCHER PENSION INVESTORS LTD.,
a Colorado limited partnership
By: Boettcher Affiliated Investors L.P.,
its Managing General Partner
By: Boettcher Properties, Ltd.,
its Managing General Partner
By: BPL HOLDINGS, INC.,
its Managing General
Partner
By: _____________________
Name: __________________
Title: _________________
ASSIGNEE:
________________________________________,
a _____________________________________
By: ___________________________________
Name: _________________________________
Title: ________________________________
C-6
<PAGE> 37
EXHIBIT D
BILL OF SALE AND ASSIGNMENT
This Bill of Sale dated as of _________________, 1996, is made
by BOETTCHER PENSION INVESTORS LTD., a Colorado limited partnership ("Seller"),
for the benefit of ___________________________, a ______________________,
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 all right, title
and interest of Seller in and to the following:
(a) Any site plans, surveys, soil and substratum studies, architectural
drawings, plans and specifications, engineering, electrical and
mechanical plans and studies, floor plans, landscape plans,
appraisals, feasibility studies, and other plans and studies, if
any and in Seller's possession that relate to the real property
described on Schedule 1 attached hereto (the "Real Property"), to
the extent that they are assignable, without representation or
warranty of any kind whatsoever as to the assignability of such
items or any matter contained therein.
(b) Any unexpired warranties, guaranties and bonds, including, without
limitation, contractors' and manufacturers' warranties or
guaranties, belonging to Assignor in connection with the Real
Property, all buildings thereon and their construction, improvement
or equipment or any personal property located thereon or used in
connection therewith, but only to the extent such warranties,
guaranties and bonds can be lawfully assigned;
(c) Any governmental permits, licenses, certificates and
authorizations, including, without limitation, certificates of
occupancy, held by Assignor and related to the construction, use or
operation of the Real Property, all buildings thereon and their
construction, use, operation, improvement or equipment or any
personal property located thereon and used in connection therewith,
but only to the extent such permits, licenses, certificates and
authorizations can be lawfully assigned; and
D-1
<PAGE> 38
(d) The right to use the name "Lindsay-Main Plaza" in connection with
the ownership and operation of the Real Property.
Executed as of the date set forth above.
BOETTCHER PENSION INVESTORS LTD.,
a Colorado limited partnership
By: Boettcher Affiliated Investors
L.P., its Managing General
Partner
By: Boettcher Properties,
Ltd., its Managing General
Partner
By: BPL HOLDINGS, INC.,
its Managing General
Partner
By: __________________________
Name: _______________________
Title: ______________________
D-2
<PAGE> 39
Schedule 1
Real Property
D-3
<PAGE> 40
EXHIBIT E
SELLER'S WIRING INSTRUCTIONS
CitiBank of New York
ABA # 021 000 089
For the account of: Everen Clearing Corp.
Account No. 3889-7669
Reference: Boettcher Pension Investors Ltd.
#15657907
E-1
<PAGE> 41
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "Amendment")
is made and entered into effective as of the 30th day of April, 1996, by and
between BOETTCHER PENSION INVESTORS LTD., a Colorado limited partnership
("Seller"), and GOV, INC., a Delaware corporation ("Buyer").
Recitals
This Amendment is made with reference to the following facts:
A. Pursuant to a Purchase and Sale Agreement dated as of March 27,
1996 (the "Purchase Agreement"), Seller agreed to sell, and Buyer agreed to
purchase, certain improved real property located in Mesa, Arizona commonly
known as "Lindsay-Main Plaza," as more particularly described in the
Purchase Agreement.
B. Seller and Buyer now desire to amend the Purchase Agreement in
certain respects, as set forth herein.
Amendment
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, Seller and Buyer agree as follows:
1. Definitions. Any initially capitalized term not otherwise defined
herein shall have the same meaning in this Amendment as ascribed to such term
in the Purchase Agreement.
2. Acceptance of Inspections. Buyer hereby acknowledges receipt of
all of Seller's Deliveries to be provided to Buyer pursuant to Section 5.1 of
the Purchase Agreement, and hereby approves the results of Buyer's review of
Seller's Deliveries and its inspection of the Property. In furtherance of the
foregoing, Buyer hereby waives its rights pursuant to Article 5 of the Purchase
Agreement to terminate the Purchase Agreement as a result of Buyer's
dissatisfaction with the Property and Buyer's review and inspection thereof,
and hereby notifies Seller of Buyer's desire to proceed with the Closing of the
transactions contemplated by the Purchase Agreement.
3. Closing Date. Seller and Buyer hereby agree that notwithstanding
any provision contained in Section 6.1 of the Purchase Agreement to the
contrary, the Closing Date shall be May 7, 1996.
<PAGE> 42
4. Escrowed Funds for Mesa ARC Premises. Seller and Buyer hereby
acknowledge and agree that Mesa ARC Center, a tenant of the Property, was
incorrectly identified in the Purchase Agreement as "Marc Center," and that all
references in Section 13.6 of the Purchase Agreement to "Marc Center" shall be
deemed amended hereby to refer to "Mesa ARC Center." In addition to the Tenant
Improvement Retention to be retained by Closing Agent pursuant to such Section
13.6, Seller further directs Closing Agent to retain from the proceeds payable
to Seller at Closing the additional sum of $4,062.52 (the "Commission
Retention"), representing leasing commissions payable to Seller's Broker in
connection with the lease of premises at the Property to Mesa ARC Center. At
such time as Closing Agent is prepared to release the Tenant Improvement
Retention to Seller in accordance with the provisions of Section 13.6 of the
Purchase Agreement, Closing Agent is hereby authorized and directed to release
the Commission Retention to Seller's Broker.
5. No Further Amendment; Amendment Controlling. Except as expressly
amended and modified hereby, the Purchase Agreement remains unmodified and in
full force and effect as of the date hereof, and each of the provisions
thereof, as amended and modified by this Amendment, is hereby ratified,
confirmed and incorporated in full herein in all respects. In the event of any
inconsistency or conflict between any of the terms or provisions contained in
this Amendment and any term or provision contained in the Purchase Agreement,
the terms and provisions of this Amendment shall control for all purposes.
6. Counterparts; Facsimile Execution. This Amendment may be executed in
one or more identical counterparts, each of which shall be deemed an original,
and all of which when taken together shall constitute one and the same
instrument. This Amendment shall be deemed effective upon delivery of facsimile
signatures evidencing the execution hereof; provided, that originally executed
counterparts of this Amendment shall be delivered by the parties as soon as
reasonably practicable following the execution hereof.
7. Notice to Closing Agent. Upon the mutual execution and delivery of
this Amendment by the parties, a copy of this Amendment shall be delivered by
Seller to Closing Agent as notice of the amendments and modifications to the
Purchase Agreement effected hereby.
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<PAGE> 43
IN WITNESS WHEREOF, Seller and Buyer have executed this Amendment as of
the date first set forth above.
SELLER:
BOETTCHER PENSION INVESTORS LTD.,
a Colorado limited partnership
By: BOETTCHER AFFILIATED
INVESTORS L.P., General
Partner
By: BOETTCHER PROPERTIES, LTD.,
General Partner
By: BPL HOLDINGS, INC.,
General Partner
Date: May 3, 1996 By: /s/ Daniel D. Williams
------------------------- --------------------------
Name: Daniel D. Williams
------------------------
Title: Vice President
-----------------------
BUYER:
GOV, INC.,
a Delaware corporation
Date: May 3, 1996 By: /s/ Richard Geisel
------------------------- --------------------------
Name: Richard Geisel
------------------------
Title: Vice President
-----------------------
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