SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): June 1, 1995
JOHN HANCOCK PROPERTIES LIMITED PARTNERSHIP
-------------------------------------------
(Exact Name of Registrant as Specified in its Charter)
Massachusetts 0-13473 04-2830750
------------- ------- ----------
(State of (Commission (IRS Employer
Organization) File No.) Identification No.)
200 Berkeley Street
Boston, MA 02117 (800) 722-5457
----------------- --------------
(Address of principal executive (Registrant's telephone
offices, including zip code) number, including area
code)
Not Applicable
--------------
(Former name or former address, if changed since last report)
Page 1 of 27
<PAGE>
JOHN HANCOCK PROPERTIES LIMITED PARTNERSHIP
(A Massachusetts Limited Partnership)
ITEM 2 - Acquisition or Disposition of Assets
- ---------------------------------------------
Disposal of the Northgreen Apartments
- -------------------------------------
Since early 1992, new apartment construction has declined in Eugene,
Oregon and absorption of vacant units has continued. In consideration
of this gradual improvement in real estate market conditions in
Eugene, Oregon, and the Northgreen Apartments property's stabilized
occupancy rate and improved income and cash flow performance, the
Northgreen Apartments, a 222-unit garden apartment complex, was listed
for sale during the second quarter of 1994. Based upon the Managing
General Partner's analysis of comparable sales transactions and a
review of the offers received during the property's marketing period,
the Partnership selected the offer from Northgreen Partners (the
"Buyer") as the most favorable with respect to current and projected
market conditions. Two previous offers had been selected and Purchase
and Sale Agreements were executed, one on September 6, 1994 and the
other on November 4, 1994. However, each of these prospective buyers
exercised its right to terminate the Purchase and Sale Agreement and
terminate the proposed transaction prior to the scheduled date of
sale. Accordingly, the Managing General Partner resumed its efforts
to locate another buyer for the property and selected the Buyer's
offer and entered into a Purchase and Sale Agreement. There is no
relationship between the Buyer and the Partnership or any associate,
director or officer of the Managing General Partner.
Pursuant to a Purchase and Sale Agreement dated March 13, 1995, the
Partnership sold the Northgreen Apartments to the Buyer on June 1,
1995 for a gross sales price of $9,200,000. In connection with this
sale the Buyer assumed the related mortgage indebtedness, which
amounted to $4,603,711 at the time of sale.
ITEM 7 - Financial Statements
- -----------------------------
(A) Financial Statements
Pro Forma Balance Sheet at March 31, 1995 3
Pro Forma Statement of Operations for the Three Months
Ended March 31, 1995 5
Pro Forma Statement of Operations for the Year Ended
December 31, 1994 6
Notes to Pro Forma Financial Statements 7
(B) Exhibits
1. Purchase and Sale Agreement between John Hancock
Properties Limited Partnership and Northgreen Partners
dated March 13, 1995 10
2. Loan Assignment and Assumption Agreement between
Great West Life & Annuity Insurance Company, John
Hancock Properties Limited Partnership and Northgreen
Partners dated May 9, 1995 21
2
<PAGE>
JOHN HANCOCK PROPERTIES LIMITED PARTNERSHIP
(A Massachusetts Limited Partnership)
On June 1, 1995, the Partnership sold the Northgreen Apartments
property to the Buyer for a gross sales price of $9,200,000. In
connection with this sale, the Buyer assumed the related mortgage
indebtedness on the property in the amount of $4,603,711. The Pro
Forma Balance Sheet reflects the financial position of the Partnership
as if the Northgreen Apartments property had been sold on March 31,
1995. The Pro Forma Statement of Operations for the three months
ended March 31, 1995 reflects the continued operations of the
Partnership as if the Northgreen Apartments property had been sold on
December 31, 1994. In addition, the Pro Forma Statement of Operations
for the year ended December 31, 1994 reflects the continued operations
of the Partnership as if the Northgreen Apartments property had been
sold on December 31, 1993.
JOHN HANCOCK PROPERTIES LIMITED PARTNERSHIP
(A Massachusetts Limited Partnership)
PRO FORMA BALANCE SHEET
MARCH 31, 1995
(Unaudited)
<TABLE>
<CAPTION>
Pro Forma
Historical Adjustment for
Summary the Northgreen Pro Forma
March 31, 1995 Apartments March 31, 1995
-------------- ---------- --------------
<S> <C> <C> <C>
Assets:
Cash and cash equivalents $607,802 $4,307,165 $4,914,967
Restricted cash 448,026 (107,973) 340,053
Note receivable, net of allowance - - -
Prepaid expenses and other assets 59,799 (47,898) 11,901
Investment in property:
Land 2,588,726 (900,000) 1,688,726
Buildings and improvements 18,205,348 (6,431,461) 11,773,887
---------- ---------- -----------
20,794,074 (7,331,461) 13,462,613
Less: accumulated depreciation (6,975,047) 2,353,765 (4,621,282)
---------- ---------- -----------
13,819,027 (4,977,696) 8,841,331
---------- ---------- -----------
Total assets $14,934,654 ($826,402) $14,108,252
=========== ========= ===========
</TABLE>
Continued on Next Page
3
<PAGE>
JOHN HANCOCK PROPERTIES LIMITED PARTNERSHIP
(A Massachusetts Limited Partnership)
PRO FORMA BALANCE SHEET (Continued)
MARCH 31, 1995
(Unaudited)
<TABLE>
<CAPTION>
Pro Forma
Historical Adjustment for
Summary the Northgreen Pro Forma
March 31, 1995 Apartments March 31, 1995
-------------- ---------- --------------
<S> <C> <C> <C>
Liabilities:
Accounts payable and accrued expenses $373,171 ($54,072) $319,099
Accounts payable to affiliates 169,813 - 169,813
Note payable to affiliate 1,000,000 - 1,000,000
Long-term debt 13,367,069 (4,614,490) 8,752,579
---------- ---------- -----------
Total liabilities 14,910,053 (4,668,562) 10,241,491
Partners' equity/(deficit):
General Partners' (708,209) 38,422 (669,787)
Limited Partners' 732,810 3,803,738 4,536,548
---------- ---------- -----------
Total partners' equity 24,601 3,842,160 3,866,761
---------- ---------- -----------
Total liabilities and
partners' equity $14,934,654 ($826,402) $14,108,252
=========== ========= ===========
See Notes to Pro Forma Financial Statements
4
<PAGE>
JOHN HANCOCK PROPERTIES LIMITED PARTNERSHIP
(A Massachusetts Limited Partnership)
PRO FORMA STATEMENT OF OPERATIONS
FOR THE THREE MONTHS ENDED MARCH 31, 1995
(Unaudited)
</TABLE>
<TABLE>
<CAPTION>
Historical
Summary Pro Forma Pro Forma
For the Three Adjustment for For the Three
Months Ended the Northgreen Months Ended
March 31, 1995 Apartments March 31, 1995
-------------- ---------- --------------
<S> <C> <C> <C>
Income:
Rental income $764,448 ($369,606) $394,842
Interest income 8,674 - 8,674
---------- ---------- -----------
Total income 773,122 (369,606) 403,516
Expenses:
Interest 284,546 (101,239) 183,307
Property operating expenses 319,474 (104,484) 214,990
Depreciation 153,365 (57,324) 96,041
General and administrative 37,049 - 37,049
---------- ---------- -----------
Total expenses 794,434 (263,047) 531,387
---------- ---------- -----------
Net loss ($21,312) ($106,559) ($127,871)
---------- ---------- -----------
Allocation of net loss:
General Partners' ($213) ($1,066) ($1,279)
Limited Partners' (21,099) (105,493) (126,592)
---------- ---------- -----------
($21,312) ($106,559) ($127,871)
========== ========= ===========
Net loss per Limited Partnership
Unit outstanding ($0.96) ($4.81) ($5.77)
========== ========= ===========
</TABLE>
See Notes to Pro Forma Financial Statements
5
<PAGE>
JOHN HANCOCK PROPERTIES LIMITED PARTNERSHIP
(A Massachusetts Limited Partnership)
PRO FORMA STATEMENT OF OPERATIONS
FOR THE YEAR ENDED DECEMBER 31, 1994
<TABLE>
<CAPTION>
Historical
Summary Pro Forma Pro Forma
For the Adjustment for For the
Year Ended the Northgreen Year Ended
December 31, 1994 Apartments December 31, 1994
----------------- ---------- -----------------
(Audited) (Unaudited) (Unaudited)
<S> <C> <C> <C>
Income:
Rental income $3,190,235 ($1,440,582) $1,749,653
Interest income 30,141 - 30,141
---------- ---------- -----------
Total income 3,220,376 (1,440,582) 1,779,794
Expenses:
Interest 1,141,871 (408,262) 733,609
Property operating expenses 1,373,439 (535,886) 837,553
Depreciation 624,361 (232,550) 391,811
General and administrative 138,570 - 138,570
Provision for/(recovery of)
uncollectible note receivable (13,903) - (13,903)
---------- ---------- -----------
Total expenses 3,264,338 (1,176,698) 2,087,640
---------- ---------- -----------
Net loss ($43,962) ($263,884) ($307,846)
Allocation of net loss:
General Partners' ($440) ($2,639) ($3,079)
Limited Partners' (43,522) (261,245) (304,767)
---------- ---------- -----------
($43,962) ($263,884) ($307,846)
========== ========= ===========
Net loss per Limited Partnership
Unit outstanding ($1.98) ($11.90) ($13.88)
========== ========= ===========
</TABLE>
See Notes to Pro Forma Financial Statements
6
<PAGE>
JOHN HANCOCK PROPERTIES LIMITED PARTNERSHIP
(A Massachusetts Limited Partnership)
Notes to Pro Forma Financial Statements
(Unaudited)
Note 1 - Northgreen Apartments
- ------------------------------
On May 31, 1995 the Partnership sold the Northgreen Apartments
property for a net sales price of approximately $8,900,000, after
deductions for sales commissions and other expenses incurred in
connection with the sale of the property. The sale of the property
resulted in a non-recurring gain of approximately $3,960,000, which
represents the difference between the net sales price and the
property's net book value of approximately $4,940,000. The
Partnership received net cash proceeds of approximately $4,300,000
from the sale of the property (representing the excess of the net
sales proceeds over the related mortgage indebtedness on the property,
which indebtedness was assumed by the Buyer).
The historical financial statements are adjusted to show the effects
resulting from the sale of the Northgreen Apartments property on the
Partnership's operations, assets and liabilities. The Pro Forma
Balance Sheet at March 31, 1995 reflects the financial position of the
Partnership as if the Northgreen Apartments property had been sold on
March 31, 1995. The Pro Forma Statement of Operations for the three
months ended March 31, 1995 reflects the continued operations of the
Partnership as if the Northgreen Apartments property had been sold on
December 31, 1994. In addition, the Pro Forma Statement of Operations
for the year ended December 31, 1994 reflects the continued operations
of the Partnership as if the Northgreen Apartments property had been
sold on December 31, 1993.
Note 2 - Allocation of Profits or Losses
- ----------------------------------------
Profits from the normal operations of the Partnership for each fiscal
year, or portion thereof, are allocated between the Limited Partners
and the General Partners in the same proportion as Distributable Cash
from Operations, as defined in the Partnership Agreement, provided
that (i) in no event shall the General Partners be allocated less
than 1% of any such profits from normal operations, and (ii) if there
is any fiscal year which produces no Distributable Cash from
Operations but which produces profits for tax purposes from normal
operations, such profits are allocated 90% to the Limited Partners and
10% to the General Partners.
Losses from the normal operations of the Partnership for each fiscal
year or portion thereof are allocated 99% to the Limited Partners and
1% to the General Partners, except any such profits or losses which
were based upon the Partnership's operations prior to the initial
closing under the Partnership's offering of Units were allocated 99%
to the General Partners and 1% to the initial Limited Partner.
Distributable Cash from Operations is distributed 90% to the Limited
Partners and 10% to the General Partners; provided, however, that in
each fiscal year the General Partners will defer their receipt of any
Distributable Cash from Operations to the extent necessary to provide
the Limited Partners a non-cumulative return in such year equal to 4%
of their Invested Capital, as defined in the Partnership Agreement.
All distributions of Distributable Cash from Operations deferred by
the General Partners accrue and are payable to them, to the extent
possible, out of subsequent years' Distributable Cash from Operations
remaining after the receipt by the Limited Partners of the aforesaid
4% return, or out of cash from sales and refinancings, as specified
below.
7
<PAGE>
JOHN HANCOCK PROPERTIES LIMITED PARTNERSHIP
(A Massachusetts Limited Partnership)
Notes to Pro Forma Financial Statements
(Unaudited)
Note 2 - Allocation of Profits or Losses (continued)
- ----------------------------------------------------
Cash from Sales or Refinancings, as defined in the Partnership
Agreement, are distributed to the Limited Partners until the Limited
Partners have received, first, a return of their total Invested
Capital, and, second, such additional amount as may be necessary,
after giving effect to all previous distributions of Distributable
Cash from Operations and of Cash from Sales or Refinancings to the
extent required to satisfy any deficiency in the Cumulative Return on
Investment, as defined in the Partnership Agreement, to produce in the
aggregate a Cumulative Return on Investment of 7% per annum for all
fiscal quarters commencing on or after January 1, 1986, and ending
prior to the date of such distribution. The General Partners are then
entitled to receive an amount of Cash from Sales or Refinancings equal
to any portion of the General Partners' share of Distributable Cash
from Operations which was previously deferred in order to permit the
payment to the Limited Partners of a non-cumulative return in each
year equal to 4% of their Invested Capital. Any Cash from Sales or
Refinancings remaining after the Limited Partners have received a
return of their total Invested Capital plus the Cumulative Return on
Investment of 7% per annum for all fiscal quarters commencing on or
after January 1, 1986, and ended prior to the date of such
distribution, and after the General Partners have received an amount
of such cash equal to any such deferred payment of Distributable Cash
from Operations, will be distributed 85% to the Limited Partners and
15% to the General Partners.
Cash from the Sale of the last of the Partnership's properties is
distributed in the same manner as Cash from Sales or Refinancings,
except that before any other distribution is made to the Partners,
each Partner shall first receive from such cash, an amount equal to
the then positive balance, if any, in such Partner's capital account
after crediting or charging to such account the profits or losses for
tax purposes from such sale. To the extent, if any, that a Partner is
entitled to receive a distribution of cash based upon a positive
balance in its capital account prior to such distribution, such
distribution will be credited against the amount of such cash the
Partner would have been entitled to receive based upon the manner of
distribution of Cash from Sales or Refinancings, as specified in the
previous paragraph.
Profits from Sales or Refinancings are generally allocated in the same
manner as cash from the related transaction. Losses from Sales or
Refinancings are allocated 99% to the Limited Partners and 1% to the
General Partners. In connection with the sale of the last of the
Partnership's properties, and therefore the dissolution of the
Partnership, profits will be allocated to any Partners having a
deficit balance in their capital account in an amount equal to the
deficit balance. Any remaining profits will be allocated in the same
order as cash from the sale would be distributed.
8
<PAGE>
JOHN HANCOCK PROPERTIES LIMITED PARTNERSHIP
(A Massachusetts Limited Partnership)
SIGNATURES
----------
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this Report on Form 8-K to be signed on
its behalf by the undersigned, hereunto duly authorized, on the 15th
day of June, 1995.
John Hancock Properties Limited Partnership
By: John Hancock Realty Equities, Inc.,
Managing General Partner
By: WILLIAM M. FITZGERALD
--------------------------------
William M. Fitzgerald, President
By: RICHARD E. FRANK
--------------------------------
Richard E. Frank, Treasurer
(Chief Accounting Officer)
Marked to Show Changes:Tuesday, March 07, 1995
PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT ("Agreement") is made and
entered into as of the 13th day of March 1995 by and between JOHN
HANCOCK PROPERTIES LIMITED PARTNERSHIP, a Massachusetts limited
partnership, having its principal address c/o Real Estate Investment
Group, 200 Berkeley Street, 19th Floor, Boston, Massachusetts 02117
("Seller"), and NORTHGREEN PARTNERS, an Oregon general partnership,
whose general partners are E. Danell Giustina, E. Nicholas Giustina,
Gregory Lee Giustina, Gennifer Giustina and Thomas Anthony Giustina
with an address at P.O. Box 529, Eugene, Oregon 97440-0529
(collectively "Buyer");
WITNESSETH THAT:
WHEREAS, Seller is the owner of the premises known as the
Northgreen Apartments, located at 1800 Cal Young Road, Eugene, Oregon,
and more particularly described on Exhibit A1 attached hereto and made
a part hereof and containing the improvements, building and other
personal property, if any, described on Exhibit A2 attached hereto and
made a part hereof (the "Premises"); and
WHEREAS, Buyer desires to purchase the Premises and acquire
possession thereof in accordance with the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter set forth the parties hereto mutually agree as follows:
1. Purchase Price. The Premises are to be sold to Buyer for
the sum of NINE MILLION TWO HUNDRED THOUSAND AND NO/100
($9,200,000.00) ("the Purchase Price"), which Buyer shall deliver as
follows:
(a) Seller shall assign without recourse and Buyer shall
assume the existing first mortgage loan held by Great-West Life
& Annuity Insurance Company f/k/a The Great-West Life Assurance
Company (the "Lender"), encumbering the Premises (the "Existing
Financing"); and
(b) Buyer shall pay the amount obtained by subtracting the
outstanding principal balance of the Existing Financing on the
Date of Closing (as defined below) from the Purchase Price,
which amount shall be paid by official bank cashier's check,
or, at Seller's request, by wiring immediately available
Federal funds to such bank account as may be designated by
Seller (the "Cash Component").
The Existing Financing is evidenced by a Note Secured By Deed of
Trust dated September 12, 1988 in the original principal amount of
$5,000,000.00 ("Note") and is secured inter alia by (a) a Trust Deed
dated September 12, 1988 ("DOT") and (b) an Absolute Assignment of
Leases dated September 12, 1988 ("Assignment"). Copies of the Note,
DOT and Assignment are attached as Schedule 1. For information only
and not for purposes of reliance, Seller estimates that the
outstanding principal balance of the Existing Financing as of February
1, 1995 is approximately $4,628,106.
<PAGE>
2. Deposit. Buyer shall deliver to First American Title
Insurance Company of Oregon, Commercial Division, 200 S.W. Market
Street, Suite 250, Portland, Oregon or such other company as Buyer and
Seller may agree to in writing (the "Title Company") $100,000.00 by
official bank cashier's check simultaneously with the execution of
this Agreement as a good faith deposit, which funds shall be deposited
in an interest bearing FDIC insured account (such deposit and such
interest as is earned thereon shall be referred to as "the Deposit"),
and which Deposit shall be disposed of in the manner herein provided.
Promptly after expiration of the Review Period (as defined
below), Buyer shall deposit an additional $100,000 by official bank
cashier's check which funds together with the interest thereon shall
be added to and deemed a part of the "Deposit." The term "Deposit" as
used herein shall mean such amount as is then being held by the Title
Company pursuant to this Section 2. If Buyer performs all of its
obligations under this Agreement, the Deposit shall be applied against
the Purchase Price. If Seller shall be unable to deliver title and
possession or Seller defaults in its obligation to sell the Premises
to Buyer pursuant to the provisions of this Agreement, as hereinafter
provided, or if Buyer shall fail to perform any of its agreements
hereunder, the Deposit shall be disposed of in the manner hereinafter
provided.
3. Deed. Conditioned upon performance by Buyer hereunder,
Seller shall execute and deliver to Buyer a deed conveying title to
the Premises in which Seller warrants title against others claiming
by, through or under Seller subject to the following:
(a) All private and public rights in highways and rights-of-way;
(b) All building and zoning laws, ordinances, and State and
Federal regulations;
(c) All Permitted Exceptions (as defined below);
(d) Rights of tenants in possession as tenants only; and
(e) Real estate taxes and all installments of special assessments
or levies not yet due and payable on the Date of Closing.
4. Closing. Subject to the provisions of this Agreement, the
deed shall be delivered at 9:00 o'clock A.M., Pacific time, on May 30,
1995 ("the Date of Closing"), at the offices of the Title Company,
unless otherwise agreed upon in writing. The Buyer and Seller may
agree in writing to accelerate the Date of Closing.
5. Buyer's Review. Buyer shall have until 5 o'clock P.M.,
Boston time, on April 27, 1995 ("the Review Period") (a) to obtain and
review a commitment for title insurance (the "Title") and a survey
(the "Survey"); (b) to make or have made such reasonable non-
destructive inspections, studies and tests as it desires of the
Premises, including, without limitation, the interior, exterior, and
structure of all improvements, and the condition of soils and
subsurfaces (the "Inspections"); and (c) to review Seller's financial
records, contracts, leases and other materials relating to the
Premises (the "Review"). All such items shall be obtained and
reviewed at Buyer's sole cost and expense, except that the Seller
shall pay the cost of obtaining an owner's title insurance policy for
Buyer (the "Basic Policy"), and Buyer shall pay the cost of obtaining
any other affirmative coverage or excluding any exceptions on such
policy ("Additional Title Coverage").
2
<PAGE>
To facilitate the Review and the Inspections, Buyer may review
and copy at its own expense the following information and materials at
the offices of Seller's management company, Bennett Management
Company, 915 Oak Street, Suite 200, Eugene, Oregon 97440 (the
"Management Company"), at reasonable times and upon reasonable prior
notice, to the extent that such information or materials are in the
files at such office, but nothing shall require the Seller to produce
any such information or materials to the extent that such files do not
contain such information or materials:
(1) all leases, agreements, contracts (including, but not
limited to, maintenance agreements), permits, documents,
surveys, books and records relating to the Premises;
(2) any real and personal property tax bills, and any
proceedings for the reduction of real estate taxes and
assessments;
(3) all engineering and environmental reports, licenses,
permits, certificates, other governmental notices, approvals
or authorizations relating to the Premises, any inspection,
drainage, geological, mechanical, structural, roof, plumbing
and electrical reports prepared by engineers and appraisal
reports;
(4) any other notices (including, but not limited to, any
notices of any toxic or hazardous waste violations from any
applicable governmental authority, and any notices from
homeowners' or other interested groups) of claims, lawsuits
and proceedings affecting the Premises;
(5) any outstanding insurance claims or claims by or against
contractors; and
(6) records of payment or performance with regard to all
agreements, licenses, permits or other instruments to be
assigned or transferred to Buyer pursuant to this Agreement
or otherwise affecting the Premises;
(7) any existing title policy with respect to the Premises;
and
Within ten (10) days of the signing of this Agreement, Seller
shall cause the Management Company to produce a current rent roll
("Rent Roll") and the income and expense statements for the Premises
for the previous twenty-four (24) months, which the Management Company
will certify is materially accurate as of the date of such
certification, to the best of their knowledge. Such certification
will survive for a period of six (6) months after the Date of Closing;
provided, however, that such certification shall not be a guaranty,
warranty, representation or projection that the state of facts set
forth in the Rent Roll or such statements will continue to be true,
only that such certification was materially accurate as of the date
thereof.
If Buyer has any objection or objections to any of the matters
revealed in the Title, Survey, Inspections, Review or any other matter
in its sole judgment("Buyer's Objections"), it shall notify Seller in
writing of the Buyer's Objections on or before the end of the Review
Period and notify Seller of Buyer's desire to terminate this
Agreement, whereupon this Agreement shall terminate without any
recourse to the parties hereto and the Deposit shall be returned to
Buyer. Any matters revealed in the Title, Survey, Inspections, Review
or any other matters not submitted to Seller in writing on or before
the expiration of the Review Period as Buyer's Objections shall be
deemed waived and shall become "Permitted Exceptions".
3
<PAGE>
6. Condition of Premises. (i) Buyer and Seller agree that
Buyer is acquiring the Premises and any related personal property in
their "AS IS" condition, WITH ALL FAULTS, IF ANY, AND WITHOUT ANY
WARRANTY, EXPRESS OR IMPLIED, and (ii) neither Seller nor any agents,
representatives, or employees of Seller have made any representations
or warranties, direct or indirect, oral or written, express or
implied, to Buyer or any agents, representatives, or employees of
Buyer with respect to the condition of the Premises or personal
property, leases or occupancy agreements or tenancies at the Premises,
their fitness for any particular purpose, or their compliance with any
laws, and Buyer is not aware of and does not rely upon any such
representation to any other party. Buyer acknowledges that the
Purchase Price might be higher if Buyer were not acquiring the
Premises and personal property in "AS IS" condition. Buyer
acknowledges that it either has had or will have before the expiration
of the Review Period the opportunity to make such inspections (or have
such inspections made by consultants) as it desires of the Premises
and personal property and all factors relevant to their use,
including, without limitation, the interior, exterior, and structure
of all improvements, and the condition of soils and subsurfaces
(particularly with respect to the presence or absence of hazardous
substances).
After its inspections are completed, Buyer shall restore the
Premises and personal property to their condition prior to Buyer's
inspections. Buyer agrees to indemnify Seller for all claims or
damages arising out of Buyer's inspections, including, without
limitation, claims for personal injury or property damage, and
including all costs and attorneys' fees. The obligations in this
paragraph shall survive the Closing or the termination of this
Agreement for any reason, including without limitation pursuant to
section 5, 10, or 17 hereof.
Buyer hereby releases Seller and its agents, representatives, and
employees from any and all claims, demands, and causes of action,
past, present, and future, that Buyer may have relating to (i) the
condition of the Premises and the personal property at any time,
before or after the Date of Closing, including, without limitation,
the presence of any hazardous substance, or (ii) any other matter
pertaining to the Premises or the personal property except for
Seller's fraudulent misrepresentations or willful misconduct. This
release shall survive the Closing or the termination of this Agreement
for any reason.
Seller shall deliver possession of the Premises to Buyer, subject
to the matters set forth in section 3 hereof, not later than the Date
of Closing, provided that Buyer has complied with all the terms and
conditions of this Agreement. Until the Date of Closing, Seller shall
maintain, repair (subject to section 10 hereof), manage, and operate
the Premises in a businesslike manner in accordance with Seller's
prior practices; shall comply with its contractual obligations as
owner of the Premises; shall maintain the types and amounts of
insurance that are in force on the date of execution hereof; and shall
not dissipate the Premises or remove any material property therefrom,
except in the ordinary course of business.
7. Adjustments and Prorations. All taxes, including, without
limitation, real estate taxes and personal property taxes, collected
rents, charges for utilities, including water, sewer, and fuel oil,
and for utility services, maintenance services, maintenance and
service contracts, all operating costs and expenses, and all other
income, costs, and charges of every kind which in any manner relate to
the operation of the Premises (but not including insurance premiums)
shall be prorated to the day before the Date of Closing, except that
if Seller does not receive the Purchase Price (by receipt of wired
funds or by receipt in hand of an official bank cashier's check) by
4:00 o'clock p.m., Boston time, on the Date of Closing, all prorations
shall be made as of the following business day.
4
<PAGE>
If the amount of said taxes or assessments is not known on the
Date of Closing, they shall be apportioned on the basis of the amounts
for the preceding year, with a reapportionment as soon as the new
amounts can be ascertained. If such taxes and assessments shall
thereafter be reduced by abatement, the amount of such abatement, less
the reasonable cost of obtaining the same, shall be apportioned
between the parties, provided that neither party shall be obligated to
institute or prosecute proceedings for an abatement unless otherwise
agreed. Buyer shall be responsible for the payment of any assessments
or notice of assessments made after the Date of Closing for any public
improvement, provided Buyer takes title hereunder. Any deposits on
utilities paid by Seller shall be returned to Seller. At Buyer's
option, any existing proceeding for abatement shall be assigned to
Buyer on the Date of Closing.
Any rents or other amounts which are delinquent as of the Date of
Closing shall not be adjusted or prorated at the Date of Closing, but
Buyer shall make a reasonable attempt to collect such amounts for the
benefit of Seller after the Date of Closing; provided, however, that
nothing contained herein shall be construed to require Buyer to
institute any lawsuit or other proceeding to collect such delinquent
amounts. In this connection, the first monies collected by Buyer from
tenants or other persons on delinquent rents or other amounts shall be
applied to the current rents or obligations of such person and be
retained by Buyer. Buyer need not attempt to collect any amount which
is more than ninety (90) days past due and may refer the same to
Seller for disposition or, at the request of Seller, Buyer shall
assign the same to Seller.
On the Date of Closing, Seller shall execute in favor of Buyer an
assignment of all leases and occupancy agreements at the Premises,
including without limitation those listed on the Rent Roll and in
effect on the Date of Closing, and Buyer shall thereupon assume, take
over and perform all such obligations under such leases and occupancy
agreements. Buyer shall execute such agreement accepting such
assignment and assuming such obligations.
On the Date of Closing, Seller shall execute in favor of Buyer an
assignment of maintenance and service contracts, if any, that Buyer
elects to assume in its sole discretion and Buyer shall thereupon
assume, take over, and perform all such maintenance and service
contracts affecting the Premises that it elects to assume, including,
without limitation, those listed on Exhibit B attached hereto and made
a part hereof, and Buyer shall execute an acceptance of assignment
with respect to such maintenance and service contracts. If Buyer
fails to assume any contract within ten (10) says after the expiration
of the Review Period, then such contracts shall be deemed refused.
Buyer shall elect to assume a contract by notifying Seller in writing
of such election in accordance herewith.
On the Date of Closing, Seller shall deliver to Buyer all keys in
its possession for the Premises.
8. Bill of Sale. On the Date of Closing, Seller shall deliver
to Buyer a bill of sale, assigning and transferring to Buyer all of
the right, title, and interest of Seller in and to all tangible
personal property, with a list thereof attached thereto, owned by
Seller and located upon the Premises.
5
<PAGE>
9. Costs. Seller shall pay the cost of the (i) premium for the
Basic Policy, (ii) one half (1/2) of the Title Company's escrow fee
and other administrative charges, (iii) the recording fee for the Deed
to the Premises, and (iv) its own attorneys' fees. Buyer shall pay
(a) the cost of Additional Title Coverage, (b) one half (1/2) of the
Title Company's escrow fee and other administrative charges, (c)
recording fees for any lien or assignment documents for the Existing
Financing, (d) the costs of assuming the Existing Financing; and (e)
its own attorneys' fees.
10. Casualty or Condemnation. In the event that prior to the
Date of Closing either the improvements on the Premises are damaged or
destroyed, in whole or in part, by fire or other cause, or any portion
of the Premises becomes the subject of a condemnation proceeding by a
public or quasi-public authority having the power of eminent domain,
then either:
(a) the parties shall proceed with the transaction contemplated
herein, in which event Buyer shall be entitled to receive any
insurance proceeds and condemnation awards; or
(b) in the event such damage, destruction, or condemnation
involves, in the reasonable estimation of the parties hereto, a
loss in an amount in excess of one hundred thousand dollars
($100,000), or loss of all or a material portion of access to or
parking at the Premises, Buyer, at its option, may terminate this
Agreement by notice to the other within ten (10) days of Buyer's
receipt of Seller's notice of such damage or proceeding, in which
case the Deposit shall be refunded, and thereafter neither party
shall have any further obligation or liability to the other by
virtue of this Agreement, except as otherwise expressly provided
herein.
11. Insurance. Seller shall not be obligated to assign to
Buyer any fire, hazard, or liability insurance policies which it holds
respecting the Premises, and Seller shall have the right to any and
all refunds or rebates resulting from the termination of such
policies, except as otherwise expressly provided herein.
12. Broker's Commission. Buyer and Seller hereby warrant and
represent to each other that neither has dealt with a broker or finder
in connection with this transaction except CB Commercial Real Estate
Group, Inc. ("CB") and Western Properties (collectively, the
"Brokers"), which Brokers shall be entitled to a commission from
Seller upon the sale of the Premises in accordance with Schedule A of
a certain Exclusive Sales Listing Agreement dated May 17, 1994 between
Seller and CB (which commission shall be shared equally between the
Brokers), but only if, as and when the full Purchase Price is
delivered to the Seller and the deed is recorded. Any party hereto
that breaches the foregoing representation and warranty hereby agrees
to indemnify and hold the other party harmless from and against any
and all claims for brokerage or finder's fees or other similar
commissions or compensation made by any and all other brokers or
finders claiming to have dealt with the breaching party in connection
with this Agreement or the consummation of the transaction
contemplated hereby. The obligations in this section shall survive
the Closing or the termination of this Agreement for any reason,
including without limitation pursuant to section 5, 10, or 17 hereof.
13. Seller's Performance. The acceptance of the said deed and
bill of sale by Buyer shall be deemed to be a full performance and
satisfaction of every agreement and obligation of Seller herein
contained and expressed, except such as are, by the terms hereof, to
be performed after the delivery of said instruments and except for
matters expressly provided to survive the closing.
6
<PAGE>
14. Recording Prohibited. This Agreement shall not be recorded
in any office or place of public record. If Buyer shall record this
Agreement or cause or permit the same to be recorded, Seller may, at
its option, elect to treat such act as a default by Buyer under this
Agreement.
15. Closing Documents. Each party shall deliver to the other
party or the title insurance company such duly executed and
acknowledged or verified certificates, affidavits, and other usual
closing documents respecting the power and authority to perform the
obligations hereunder, as to the due authorization thereof by the
appropriate corporate, partnership, or other representatives acting
for it, and as to the absence of amounts owed that could give rise to
a mechanics lien, as counsel for the other party or the title
insurance company may reasonably request.
16. Non-Foreign Certificate. On the Date of Closing, Seller
shall deliver to Buyer a certification that Seller is not a non-
resident alien (a foreign corporation, partnership, trust, or estate)
as defined in the Internal Revenue Code and Treasury Regulations
promulgated thereunder.
17. Remedies. If Seller defaults under this Agreement, Buyer's
sole remedy, at law or in equity, shall be the return of the Deposit
to Buyer (except as provided in Section 23 in which case Buyer shall
be entitled to reimbursement of certain costs in accordance with
Section 23 in addition to the return of the Deposit).
In no event shall any partner, officer, director, employee,
agent, or representative of Seller have any personal liability in
connection with this Agreement or transaction.
If Buyer defaults under this Agreement, the sole remedy of Seller
shall be to retain the Deposit, which sum the parties fix and settle
as liquidated damages for such default of Buyer. Nothing in this
paragraph shall limit the express provisions of this Agreement
obligating Buyer to indemnify Seller or to restore the Premises,
including without limitation Sections 6 and 12 hereof.
18. Assignment. This Agreement may not be assigned by Buyer
without the express written consent of Seller. Seller shall have the
power to declare this Agreement null and void and retain the deposit
if this Agreement shall be assigned by Buyer in violation hereof.
19. Waiver. No waiver of any breach of any agreement or
provision contained herein shall be deemed a waiver of any preceding
or succeeding breach of any other agreement or provision herein
contained. No extension of time for the performance of any obligation
or act shall be deemed an extension of time for the performance of any
other obligation or act.
20. Time. Time is of the essence of this Agreement.
21. Governing Law; Venue. This Agreement shall be governed by
and construed under the laws of the State of Oregon.
7
<PAGE>
22. Notices. All notices required or permitted to be given
hereunder shall be in writing and sent by (a) certified mail, return
receipt requested, in which case notice shall be deemed given three
(3) days after the date sent, (b) overnight delivery service (such as
Federal Express), in which case notice shall be deemed given on the
day after the date sent, or (c) personal delivery, in which case
notice shall be deemed given on the date received, or (d) telecopier,
if confirmed immediately by a copy mailed by United States certified
mail, return receipt requested, in which case notice shall be deemed
given on the date telecopied, to the appropriate address indicated
below or at such other place or places as either Buyer or Seller may,
from time to time, respectively, designate in a written notice given
to the other in the manner described above.
To Seller: c/o Real Estate Investment Group
200 Berkeley Street, 19th Floor
Boston, MA 02117
Re: File No. LP-80204
Attention: Scott E. Morrow
Assistant Vice President
Telecopy No.: (617) 572-3860
With Copy To: John Hancock Mutual Life Insurance Company
Law Department (T-50)
John Hancock Place, P.O. Box 111
Boston, MA 02117
Re: File No. LP-80204
Attention: Nathaniel I. Margolis
Assistant Counsel
Telecopy No.: (617) 572-9268
To Buyer: Northgreen Partners
c/o E. Danell Giustina
P.O. Box 529
Eugene, Oregon 97440-2050
Telecopy No.: (503) 485-2050
With Copy To: Rohn M. Roberts, Esquire
Arnold, Gallagher, Saydack,
Percell & Roberts, P. C.
101 East Broadway, Suite 220
Eugene, Oregon 97401
Telecopy No.: (503) 484-0536
8
<PAGE>
23. Seller's Internal Approvals. Seller's obligations
hereunder are contingent upon Seller's obtaining the approval of its
internal committees for the sale of the Premises to the Buyer within
10 business days after the expiration of the Review Period (the "Vote
Date). If Seller fails to notify Buyer of such approval on or before
the Vote Date, such approval shall be deemed not to have been granted;
this Agreement shall then terminate with no recourse to the parties
hereto and the Deposit shall be returned to the Buyer.
Notwithstanding the foregoing, in the event that this Agreement
terminates as a result of such approval not being granted or for a
default of Seller, then Seller shall reimburse Buyer for the
reasonable, actual costs incurred by Buyer to third parties in
obtaining, conducting and reviewing the Title, Survey, Review and
Inspections but in no event shall Seller be obligated to reimburse
Buyer for more than the aggregate amount of $10,000 and Seller shall
have no such reimbursement obligation if this Agreement terminates
because Lender fails to approve the Assumption (as defined iin section
26 below).
24. Escrow Provisions.
(a) At such time as the Title Company receives written notice
from either Buyer or Seller or both setting forth the identity of
the party to whom the Deposit is to be delivered and further
setting forth the specific paragraph of this Agreement pursuant to
which such deliveries are being requested, the Title Company shall
so deliver the Deposit; provided, however, that if such notice is
given by either Buyer or Seller, but not by both, the Title
Company shall (i) promptly notify the other that the Title Company
has received a request for delivery, and (ii) withhold delivery
for a period of seven (7) calendar days after such other party's
receipt of such notice. If the Title Company receives within said
seven (7) day period a written notice countermanding the earlier
notice of delivery, then the Title Company shall withhold such
delivery until Buyer and Seller agree upon a delivery of the
Deposit. Buyer and Seller agree to send to the other a duplicate
copy of any written notice sent to the Title Company requesting
delivery or countermanding a request for delivery.
(b) In the event of a dispute between Buyer and Seller
sufficient in the sole discretion of the Title Company to justify
its doing so or in the event the Title Company has not delivered
the Deposit on or before the Date of Closing and unless the Title
Company receives notice from both Buyer and Seller that the Date
of Closing has been postponed, the Title Company shall be entitled
to tender into the registry or custody of any court of competent
jurisdicition the Deposit together with such other legal pleading
as it may deem appropriate, and thereupon shall be discharged from
all duties and liabilities under this Agreement. In performing
any of its duties hereunder, the Title Company shall not incur any
liability to anyone for damages, losses and expenses except for
willful default or breach of trust; and it shall, accordingly, not
incur any liability with respect to (i) any action taken or
omitted in good faith upon advice of its legal counsel, or (ii)
any action taken or omitted in reliance upon the instrument,
including written notice or instruction provided for in this
Agreement not only as to the due execution and effectiveness of
its provisions, but also to the truth and accuracy of any
information contained therein which the Title Company shall in
good faith believe to be genuine and to have been signed and
presented by a proper person or persons in conformance with the
provisions of this Agreement.
25. Entire Agreement. This instrument, executed in duplicate,
sets forth the entire agreement between the parties and may not be
canceled, modified, or amended except by a written instrument executed
by both Seller and Buyer.
9
<PAGE>
26. Assumption of Existing Financing. The obligations of Buyer
and Seller hereunder are contingent upon Lender approving Buyer's
assumption of the Existing Financing (the "Assumption") on or before
the Date of Closing upon the terms contained in the documents
evidencing and securing the Existing Financing. In connection with
the Assumption, Buyer shall pay any assumption or transfer fee charged
by the Lender in connection with the Assumption.
Within fourteen (14) days of the signing of this Agreement, Buyer
shall contact Lender and shall thereafter use diligent efforts to
supply all information and complete all documentation reasonably
requested by Lender to complete the Assumption. Seller shall
cooperate with Buyer's efforts in satisfying Lender and shall use
diligent efforts when requested to supply all information and complete
all documentation reasonably requested by Lender to complete the
Assumption. If the Lender cannot complete all of the requirements for
the Assumption on or before the Date of Closing, then Date of Closing
shall be extended to a business day as soon thereafter as practicable
after completion of such requirements but in no event after July 31,
1995. If Lender rejects or disapproves the Assumption, then this
Agreement shall terminate, the Deposit shall be returned to Buyer and
neither party shall have any further recourse hereunder.
IN WITNESS WHEREOF, the parties hereto have caused these presents
to be executed the day and year first above written.
SELLER:
JOHN HANCOCK PROPERTIES LIMITED
PARTNERSHIP
By: John Hancock Realty Equities, Inc.,
a Massachusetts corporation,
its general partner
By: SCOTT E. MORROW
------------------------
Scott E. Morrow,
its Assistant Vice President
<PAGE>
BUYER:
NORTHGREEN PARTNERS,
an Oregon general patnership
By:
Name:
Title:
May 9, 1995
John Hancock Properties Limited
Partnership
C/O John Hancock Realty
Equities, Inc.
200 Berkeley St.
Boston, MA 02117
Attention: Scott E. Morrow, Assistant Vice President
Northgreen Partners
388 Pearl Street
P.O. Box 529
Eugene, OR 97440-2050
Attention: E. Danell Giustina, Managing Partner
Re: John Hancock Properties Limited Partnership, a Massachusetts
limited partnership (the "Borrower")
Northgreen Partners, an Oregon general partnership (the "New
Borrower")
Great-West Life & Annuity Insurance Company, a Colorado
corporation (the "Lender")
Northgreen Apartments
1800 Cal Young Road
Eugene, OR (the "Property")
Loan No. OR 70235 (the "Loan")
Assumption of Loan
Gentlemen:
This letter agreement amends and supersedes in its entirety that
certain letter from the Lender dated April 11, 1995.
In response to your most recent request and provided that the terms,
conditions and other requirements set forth herein are fully complied
with, the Lender hereby consents to the transfer of the Property to,
and the assumption of the Loan by the New Borrower, as is more
particularly described hereinbelow. The specific terms, conditions and
other requirements to the Lender's consent are as follows:
<PAGE>
Loan No. OR 70235
May 9, 1995
Page 2
1. Loan Documents. The documents which evidence, secure and
otherwise relate to the Loan include, without limitation, the
following: (a) that certain Note Secured by Deed of Trust dated
September 12, 1988 executed by the Borrower payable to the Lender's
predecessor in interest, The Great-West Life Assurance Company, a
Canadian corporation ("Assurance"), in the original principal amount
of $5,000,000.00 (the "Note"); (b) that certain Trust Deed granted by
the Borrower for the benefit of Assurance dated September 12, 1988 and
recorded September 15, 1988 in the Lane County, Oregon records as
Reception No. 8838512 (the "Deed of Trust"); (c) that certain
Absolute Assignment of Leases from the Borrower to Assurance dated
September 12, 1988 and recorded September 15, 1988 in the Lane County
records as Reception No. 8838513 (the "Lease Assignment"); and (d)
that certain Environmental Warranty and Indemnification Agreement from
the Borrower to Assurance dated September 12, 1988 (the "Environmental
Agreement"). The foregoing documents and all other documents and
agreements evidencing, securing or otherwise relating to the Loan, as
any of them may be modified, shall hereinafter be collectively
referred to as the "Loan Documents."
The Deed of Trust was assigned by Assurance to the Lender pursuant to
that certain Assignment of Trust Deed by Beneficiary dated December
19, 1989 and recorded December 26, 1989 in the Lane County, Oregon
records as Reception No. 8958220. The Lease Assignment and the
Environmental Agreement were assigned by Assurance to the Lender
pursuant to that certain Assignment of Miscellaneous Documents dated
November 19, 1989 and recorded December 26, 1989 in the Lane County,
Oregon records as Reception No. 8958227.
2. No Defaults. No defaults shall have occurred which are then
continuing under the Loan as of the date of transfer of the Property
to the New Borrower.
3. Acknowledgment of Current Loan Balance. The Borrower hereby
acknowledges that the current outstanding balance of the Loan as of
April 17, 1995, when the May payment was received and applied, is
$4,603,711.10.
4. Transfer of Property; Assumption Fee. It is the Lender's
understanding that the Property shall be conveyed to and the Loan
shall be assumed by the New Borrower pursuant to the terms and
conditions of that certain fully executed Purchase and Sale Agreement
dated March 13, 1995 (the "Purchase Agreement"), a copy of which has
been provided to the Lender. The Purchase Agreement provides, among
other things, for a purchase price of $9,200,000.00 (comprised of
assumption of the Loan with the balance to be paid at Closing),
payment by the Borrower of the costs of assuming the Loan and a
closing date of May 30, 1995 (the "Closing").
Notwithstanding anything to the contrary set forth at paragraph 9 of
the Deed of Trust, the Lender hereby consents to the foregoing
described transfer of the Property to and assumption of the Loan by
the New Borrower subject to such transaction being concluded
substantially in accordance with the Purchase Agreement and payment to
the Lender of a non-refundable assumption fee in the amount of
$46,000.00 (the "Assumption Fee"), which shall be remitted at Closing,
and subject further to the New Borrower's execution of an assumption
agreement prepared by the Lender's local counsel as described
hereinbelow, and to the Lender's receipt and approval of the following
documents:
<PAGE>
Loan No. OR 70235
May 9, 1995
Page 3
(i) written evidence of the authority of the Borrower to
transfer the Property to the New Borrower, and the authority of the
officer signing on behalf of the Borrower's corporate general partner
to execute and deliver the documents necessary to effect such
transfer;
(ii) written evidence of the authority of the New Borrower to
purchase the Property and assume the Loan and designating which of its
partners shall have the authority to execute any and all documents in
connection therewith, and the authority of the general partner (if
less than all) signing on behalf of the New Borrower to execute and
deliver the documents necessary to effect the purchase of the Property
and assumption of the Loan;
(iii) certified copies of the New Borrower's Partnership Agreement
and any amendments thereto;
(iv) a fictitious or trade name affidavit, as applicable, for the
New Borrower;
(v) copies of any and all other documents regarding the Property
and/or the New Borrower, which are furnished or prepared in connection
with the due diligence with respect to the sale of the Property to and
assumption of the Loan by the New Borrower, including, without
limitation environmental assessment reports, surveys, engineers
reports, title commitments, etc.; and
(vi) a copy of the fully executed recorded Warranty Deed, Bill of
Sale, and Settlement Statements for the Borrower, as seller, and the
New Borrower, as purchaser, evidencing, among other things, the
purchase price of $9,200,000.00, as adjusted by prorations provided in
the Purchase Agreement.
5. Assumption Agreement. Promptly after receipt of this fully
executed letter agreement an assumption agreement shall be prepared in
recordable form by the Lender's local counsel, Stoel, Rives, Boley,
Jones & Gray, whereby the New Borrower shall assume all payment and
performance obligations of the Borrower under the Loan Documents
without releasing the Borrower from liability thereunder for any
matters arising prior to Closing, subject, however, to the limited
recourse provisions of the Loan Documents (the "Assumption
Agreement"). The Assumption Agreement shall be executed on or before
the Closing and thereafter promptly recorded in the real estate
records of Lane County, Oregon.
6. Limitation on Lender's Consent. The foregoing consent on the
part of the Lender to the transfer of the Property to and assumption
of the Loan by the New Borrower is expressly limited to the particular
transaction described hereinabove and shall not be deemed, nor shall
it operate as a consent to any future or successive transfers or
assumptions.
7. Title Insurance; Endorsement. The Lender shall be furnished with
a copy of the title commitment and the owner's policy of title
insurance which are provided to the New Borrower with respect to the
Property. If the Lender's local counsel deems it necessary, the Loan
Policy of Title Insurance issued by Ticor Title Insurance Company of
California on September 15, 1988, Policy No. L033073, shall be
endorsed at the sole expense of the Borrower to reflect the vesting of
fee title in the New Borrower and the recordation of the Assumption
Agreement.
<PAGE>
Loan No. OR 70235
May 9, 1995
Page 4
8. Modifications in Writing. This letter agreement maybe modified
or amended only in writing signed by the parties hereto. No oral
modification or amendment to this letter agreement shall be effective.
9. Costs, Fees and Expenses. All costs, fees and expenses incurred
in connection with the transactions described herein, including,
without limitation, the fees and expenses of the Lender's local
counsel, title costs, and recording and filing fees, shall be paid
immediately when and as due by the Borrower and the New Borrower in
accordance with their agreement set forth at paragraph 9 of the
Purchase Agreement. Any failure to pay the foregoing costs, fees and
expenses when due shall constitute an event of default under the Loan,
whereupon the Lender shall be entitled to exercise all remedies
available to it at law, in equity and under the Loan Documents, as
they may be modified, including, without limitation, the right of the
Lender to add the amount of such defaulted costs, fees or expenses to
the indebtedness evidenced by the Note.
10. No Consents. The Borrower and the New Borrower hereby represent
to the Lender that no consent of any person or entity not a party
hereto is required, and they hereby agree to and do indemnify, defend
and hold harmless the Lender from and against any and all loss, damage
or liability whatsoever, including, without limitation, attorneys'
fees and costs, arising from any failure to obtain the consent of any
such person or entity which is not a party hereto.
11. Binding Effect. This letter agreement shall be binding upon the
parties hereto and shall inure to the benefit of the parties hereto
and the successors and assigns of the Lender.
12. No Release of Makers or Collateral. It is hereby expressly
agreed that execution of this letter agreement shall not effect a
release of any makers, guarantors or any other party to the Loan
Documents or any other undertakings in connection therewith, nor shall
this letter agreement effect a release of any collateral given at any
time to secure payment of the Loan.
13. Ratification. It is hereby expressly agreed that the Loan
Documents shall be and remain in full force and effect and are hereby
ratified and affirmed in their entirety, including, without
limitation, the Borrower's limited recourse liability for payment and
performance obligations under the Loan.
14. No Waiver of Lender's Rights. It is hereby acknowledged and
agreed that nothing contained herein shall be deemed or shall operate
to waive or affect in any way whatsoever the rights of the Lender to
enforce the Loan Documents and the Lender expressly reserves all
rights it may have to pursue any and all available remedies existing
at law, in equity or under the Loan Documents, subject, however, to
the limited recourse provisions of the Loan Documents. No course of
dealing or conduct shall be effective per se to amend, waive, release
or change the provisions in the Loan Documents.
<PAGE>
Loan No. OR 70235
May 9, 1995
Page 5
15. Counterparts. This letter agreement may be executed in one or
more counterparts, which, when taken together, shall constitute one
original agreement.
Please indicate your acceptance of the foregoing terms, conditions and
other requirements by signing in the space provided below on the
duplicate originals of this letter agreement enclosed herewith and
returning them to the attention of the undersigned on or before May
16, 1995. This letter agreement shall become a binding agreement upon
the Lender's receipt of the fully executed letter agreement.
Very truly yours,
LENDER:
GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY,
a Colorado corporation
By: RANDIE TAYNER
------------------------
Randie Tayner
Assistant Vice President
Mortgage Investments
By: R.H. OLESON
------------------------
R.H. Oleson
Vice President
Mortgage Investments
<PAGE>
Loan No. OR 70235
May 9, 1995
Page 6
Agreed to and accepted by the Borrower this 11th day of May, 1995.
The undersigned Borrower hereby represents and warrants that its
execution of this letter agreement and the performance of its
obligations hereunder have been duly authorized by the requisite
partnership and corporate acts and that performance of its obligations
hereunder shall not violate applicable provisions of any law, its
Limited Partnership Agreement or the Articles of Incorporation and
Bylaws of its corporate general partner, John Hancock Realty Equities,
Inc.
BORROWER:
JOHN HANCOCK PROPERTIES LIMITED PARTNERSHIP,
a Massachusetts limited partnership
(Seal)
By: John Hancock Realty Equities, Inc.,
a Delaware corporation, Attest:
its General Partner
By: SCOTT E. MORROW SANDRA L. SILBERT
------------------------ ------------------------
Scott E. Morrow Name: Sandra L. Silbert
Assistant Vice President Title: Secretary
Being the Sole General Partner of the Borrower
The undersigned New Borrower hereby represents and warrants that its
execution of this letter agreement and the performance of its
obligations hereunder have been duly authorized by the requisite
partnership acts and that performance of its obligations hereunder
shall not violate applicable provisions of any law or its Partnership
Agreement.
NEW BORROWER:
NORTHGREEN PARTNERS,
an Oregon general partnership
By: E. DANELL GIUSTINA MAY 12, 1995
----------------------- --------------------
E. Danell Giustina Date of Acceptance
Managing General Partner
<PAGE>
Loan No. OR 70235
May 9, 1995
Page 7
pc: J. Cahan, Assistant Counsel, Investments-Legal, 2T2
D. Vande Vrede, Associate Manager, Mortgage & Real Estate
Administration, 2T2
J. Ryan, Assistant Manager, Mortgage Administration, 2T2
V. Kenney, Legal Assistant, Investments-Legal, 2T2
S. Martens, Associate Manager, Mortgage Closing, 3T2
Thomas R. Nicolai, Esq., Stoel, Rives, Boley, Jones and Gray (via
facsimile (503) 220-2480)
Rohn M. Roberts, Esq., Arnold Gallagher Saydack Percell and
Roberts, P.C. (via facsimile (503) 484-0536)
Nathaniel I. Margolis, Esq., Assistant Counsel, John Hancock
Realty Equities, Inc.
