SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): December 29, 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 23
<PAGE>
JOHN HANCOCK PROPERTIES LIMITED PARTNERSHIP
(A Massachusetts Limited Partnership)
ITEM 2 - Acquisition or Disposition of Assets
- ---------------------------------------------
Disposition of the Fisherman's Village Apartments
- -------------------------------------------------
On December 29, 1995, the Partnership sold its last remaining property, the
Fisherman's Village Apartments, for a net sales price of approximately
$9,377,000, after deductions for commissions and selling expenses incurred
in connection with the sale of the property. The sale of the property
resulted in a non-recurring gain of approximately $818,000, which
represents the difference between the net sales price and the property's
net book value of approximately $8,559,000. The Partnership received net
cash proceeds of approximately $1,183,000 from the sale of the property
(representing the excess of the net sales proceeds over the related
mortgage indebtedness on the property in the amount of approximately
$8,194,000, which indebtedness was then held by the Managing General
Partner.
Based upon the Managing General Partner's analysis of comparable sales
transactions and its review of the offers received during the property's
marketing period, the Managing General Partner accepted the offer from
United Dominion Realty Trust, Inc. (the "Buyer"). There is no relationship
between the Buyer and the Partnership or any associate, director or officer
of the Managing General Partner.
The sale was made pursuant to a Purchase and Sale Agreement dated December
6, 1995, which is included as Exhibit 1 of this report. In connection with
this sale, the Partnership retired the underlying mortgage on the property
in the amount of $8,193,774, which indebtedness was then held by the
Managing General Partner.
The sale of the Fisherman's Village Apartments resulted in the termination
of the Partnership's operations, and the Partnership will be dissolved in
accordance with the Amended Agreement of Limited Partnership of the
Partnership (the "Partnership Agreement").
ITEM 7 - Financial Statements
- -----------------------------
(A) Financial Statements
Pro Forma Balance Sheet at September 30, 1995 4
Pro Forma Statement of Operations for the Nine Months Ended
September 30, 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 United Dominion Realty Trust, Inc.
dated December 6, 1995 11
2
<PAGE>
JOHN HANCOCK PROPERTIES LIMITED PARTNERSHIP
(A Massachusetts Limited Partnership)
On December 29, 1995, the Partnership sold the Fisherman's Village
Apartments property to the Buyer for a gross sales price of $9,800,000.
The Pro Forma Balance Sheet reflects the financial position of the
Partnership as if the Fisherman's Village Apartments property had been sold
on September 30, 1995. The Pro Forma Statement of Operations for the nine
months ended September 30, 1995 reflects the continued operations of the
Partnership as if the Fisherman's Village 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 Fisherman's Village Apartments property had been
sold on December 31, 1993. In addition, the Partnership sold the
Northgreen Apartments property on June 1, 1995. The Pro Forma Statements
of Operations for the nine months ended September 30, 1995 and for the year
ended December 31, 1994, presented below, do not reflect any adjustments
relating to the operations of this property. For further information
regarding the sale of the Northgreen Apartments property, please refer to
the Partnership's Report on Form 8-K dated June 1, 1995.
3
<PAGE>
JOHN HANCOCK PROPERTIES LIMITED PARTNERSHIP
(A Massachusetts Limited Partnership)
PRO FORMA BALANCE SHEET
SEPTEMBER 30, 1995
(Unaudited)
<TABLE>
<CAPTION>
Pro Forma
Historical Adjustment for
Summary the Fisherman's Pro Forma
September 30, Village September 30,
1995 Apartments 1995
---- ---------- ----
<S> <C> <C> <C>
Assets:
Cash and cash equivalents $1,181,015 $1,025,614 $2,206,629
Restricted cash 341,703 (341,703) -
Note receivable, net of allowance - - -
Prepaid expenses and other assets 9,068 (4,506) 4,562
Investment in property:
Land 1,688,726 (1,688,726) -
Buildings and improvements 11,773,887 (11,773,887) -
----------- ----------- ----------
13,462,613 (13,462,613) -
Less: accumulated depreciation (4,810,132) 4,810,132 -
----------- ----------- ----------
8,652,481 (8,652,481) -
----------- ----------- ----------
Total assets $10,184,267 ($7,973,076) $2,211,191
=========== ========== ==========
Liabilities:
Accounts payable and accrued expenses $411,046 ($391,531) $19,515
Accounts payable to affiliates 21,988 - 21,988
Note payable to affiliate - - -
Long-term debt 8,693,775 (8,693,775) -
----------- ----------- ----------
Total liabilities 9,126,809 (9,085,306) 41,503
Partners' equity/(deficit):
General Partners' (669,340) 669,340 -
Limited Partners' 1,726,798 442,890 2,169,688
----------- ----------- ----------
Total partners' equity 1,057,458 1,112,230 2,169,688
----------- ----------- ----------
Total liabilities and partners' equity $10,184,267 ($7,973,076) $2,211,191
=========== ========== ==========
</TABLE>
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 NINE MONTHS ENDED SEPTEMBER 30, 1995
(Unaudited)
<TABLE>
<CAPTION>
Historical
Summary Pro Forma Pro Forma
For the Nine Adjustment for For the Nine
Months Ended the Fisherman's Months Ended
September 30, Village September 30,
1995 Apartments 1995
---- ---------- ----
<S> <C> <C> <C>
Income:
Rental income $1,855,365 ($1,244,327) $611,038
Interest income 73,748 - 73,748
Gain on sale of property 3,983,713 - 3,983,713
---------- ---------- ----------
Total income 5,912,826 (1,244,327) 4,668,499
Expenses:
Interest 688,244 (484,566) 203,678
Property operating expenses 882,260 (689,405) 192,855
Depreciation 380,064 (284,891) 95,173
General and administrative 96,693 - 96,693
---------- ---------- ----------
Total expenses 2,047,261 (1,458,862) 588,399
---------- ---------- ----------
Net income $3,865,565 $214,535 $4,080,100
========== ========== ==========
Allocation of net income:
General Partners' $38,656 $2,145 $40,801
Limited Partners' 3,826,909 212,390 4,039,299
---------- ---------- ----------
$3,865,565 $214,535 $4,080,100
========== ========== ==========
Net income per Limited Partnership
Unit outstanding $174.31 $9.68 $183.99
======= ===== ======
</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 Pro Forma
Summary Adjustment for Pro Forma
For the Year Ended the Fisherman's For the Year Ended
December 31, Village December 31,
1994 Apartments 1994
---- ---------- ----
(Audited) (Unaudited) (Unaudited)
<S> <C> <C> <C>
Income:
Rental income $3,190,235 ($1,749,203) $1,441,032
Interest income 30,141 - 30,141
---------- ---------- ----------
Total income 3,220,376 (1,749,203) 1,471,173
Expenses:
Interest 1,141,871 (653,193) 488,678
Property operating expenses 1,373,439 (837,553) 535,886
Depreciation 624,361 (391,811) 232,550
General and administrative 138,570 - 138,570
Recovery of uncollectible note
receivable (13,903) - (13,903)
---------- ---------- ----------
Total expenses 3,264,338 (1,882,557) 1,381,781
---------- ---------- ----------
Net income/(loss) ($43,962) $133,354 $89,392
========== ========== ==========
Allocation of net income/(loss):
General Partners' ($440) $1,334 $894
Limited Partners' (43,522) 132,020 88,498
---------- ---------- ----------
($43,962) $133,354 $89,392
========== ========== ==========
Net income/(loss) per Limited Partnership
Unit outstanding ($1.98) $6.01 $4.03
===== ===== =====
</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 - Fisherman's Village Apartments
- ---------------------------------------
On December 29, 1995, the Partnership sold its last remaining property, the
Fisherman's Village Apartments, for a net sales price of approximately
$9,377,000, after deductions for commissions and selling expenses incurred
in connection with the sale of the property. The sale of the property
resulted in a non-recurring gain of approximately $818,000, which
represents the difference between the net sales price and the property's
net book value of approximately $8,559,000. In connection with this sale,
the Partnership retired the underlying mortgage on the property in the
amount of $8,194,000, which indebtedness was then held by the Managing
General Partner. The Partnership received net cash proceeds of
approximately $1,183,000 from the sale of the property (representing the
excess of the net sales proceeds over the related mortgage indebtedness on
the property).
The historical financial statements are adjusted to show the effects
resulting from the sale of the Fisherman's Village Apartments property on
the Partnership's operations, assets and liabilities. The Pro Forma
Balance Sheet at September 30, 1995 reflects the financial position of the
Partnership as if the Fisherman's Village Apartments property had been sold
on September 30, 1995. The Pro Forma Statement of Operations for the nine
months ended September 30, 1995 reflects the continued operations of the
Partnership as if the Fisherman's Village 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 Fisherman's Village Apartments property had been
sold on December 31, 1993.
Note 2 - Distributions and Allocations
- --------------------------------------
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.
7
<PAGE>
JOHN HANCOCK PROPERTIES LIMITED PARTNERSHIP
(A Massachusetts Limited Partnership)
Notes to Pro Forma Financial Statements (Continued)
(Unaudited)
Note 2 - Distributions and Allocations (continued)
- --------------------------------------
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. 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.
Upon the occurrence of a Sale or Refinancing, as defined in the Partnership
Agreement, of a Partnership property, the Managing General Partner will
first apply the proceeds to the payment of all debts and liabilities of the
Partnership then due and then fund any reserves for contingent liabilities
which it deems to be appropriate.
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.
8
<PAGE>
JOHN HANCOCK PROPERTIES LIMITED PARTNERSHIP
(A Massachusetts Limited Partnership)
Notes to Pro Forma Financial Statements (Continued)
(Unaudited)
Note 2 - Distributions and Allocations (continued)
- --------------------------------------
In connection with the sale of the last of the Partnership's properties,
and therefore the termination of the operations of the Partnership, the
Partnership Agreement provides that 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, as defined in the Partnership Agreement, 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 the sale of the last of the Partnership's properties 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.
9
<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 17th day of
January, 1996.
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)
PURCHASE AND SALE AGREEMENT
---------------------------
THIS AGREEMENT made and entered into as of the 6TH day of December, 1995
(the "Execution Date"), by and between JOHN HANCOCK PROPERTIES, LIMITED
PARTNERSHIP, a Massachusetts limited partnership, having its principal
place of business c/o The Real Estate Investment Group, John Hancock Place,
P.O. Box 111, Boston, Massachusetts 02117 (hereinafter "Seller"), and
UNITED DOMINION REALTY TRUST, INC., a Virginia corporation, having an
office address at 10 South Sixth Street, Suite 203, Richmond, Virginia
23219-3802 (hereinafter "Buyer");
WITNESSETH THAT:
WHEREAS, Seller is the owner of the premises known as Fisherman's
Village Apartments, an apartment complex containing 280 units located at
5800 Dolphin Drive, Orlando, Florida, together with all improvements
thereon and appurtenances thereto belonging, and all tangible and
intangible personal property owned by Seller and used in the rental,
operation and maintenance of the Premises ("the Premises"), more
particularly described on Exhibit A attached hereto and made a part hereof;
and
WHEREAS, Seller desires to sell and Buyer desires to purchase the
Premises and, as applicable, deliver 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 Eight Hundred Thousand and No/100 dollars
($9,800,000.00) ("the Purchase Price"), which Buyer shall pay to Seller
on the Date of Closing (hereinafter defined) (with a credit for the
Deposit) 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.
2. DEPOSIT. Buyer shall deposit with the Title Company (as
hereinafter defined) the sum of $100,000.00 by official bank cashier's
check simultaneously with the execution of this Agreement as a good
faith deposit (hereinafter, said deposit and such interest as is earned
thereon shall be referred to as "the Deposit"), which Deposit shall be
disposed of in the manner herein provided. If Buyer and Seller perform
all of their respective obligations under this Agreement, the Deposit
shall either be applied against the Purchase Price or returned to Buyer
as provided in Section 5 hereof. If Seller shall be unable to deliver
title and possession, as hereinafter provided, or if Buyer shall fail
to perform any of its obligations hereunder, the Deposit shall be
disposed of in the manner provided in Section 17 hereof.
<PAGE>
3. DEED. Conditioned upon performance by Buyer hereunder, Seller
shall execute and deliver to Buyer a special warranty deed, in form and
substance satisfactory to Buyer and in compliance with local law and
practice, conveying marketable title to the Premises subject to the
encumbrances set forth on Exhibit C hereto and the following:.
(a) All matters acceptable to Buyer in its sole discretion
exercised pursuant to Section 5 hereof;
(b) Rights of tenants in possession as tenants only, as set forth
in Exhibit B; and
(c) 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 Purchase
Price shall be paid and the deed shall be delivered (the "Date of
Closing" or the "Closing"), no later than the earlier to occur of: (1)
five business days from the expiration of the Review Period (defined
hereinafter); or (2) five business days from the date Buyer waives any
right to further objections and terminates the Review Period . The
Closing shall occur at the offices of a title insurance company
designated by Buyer and acceptable to Seller ("the Title Company"), at
10 o'clock A.M., Boston time, unless otherwise agreed upon in writing.
Buyer may advance the Date of Closing at any time by giving seven (7)
business days advance written notice to Seller of an earlier Date of
Closing. In no event shall the Closing occur later than January 18,
1996.
5. BUYER'S REVIEW. Buyer shall have until noon, Boston time, on the
thirtieth (30th) day following the Execution Date ("the Review Period")
(a) to obtain and review a commitment for title insurance and a survey;
(b) to make or have made such reasonable destructive and non-
destructive inspections (including, without limitation, taking samples,
drilling wells, and conducting any additional engineering tests,
asbestos sampling, or environmental 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 and the compliance thereof with all environmental laws,
rules and regulations; and (c) to review all of Seller's records,
contracts, and leases relating to the Premises, with the exception of
Seller's proprietary information. At Buyer's election, the Review
Period may be terminated prior to the thirtieth (30th) day following
the Execution Date. Seller hereby grants to Buyer a license to enter
any and all of the Premises, subject to the rights of tenants (provided
that Seller shall make reasonable efforts to allow Buyer to enter
occupied units at Buyer's request, including by exercising its rights,
if any, as landlord to enter units pursuant to leases), for the purpose
of making such inspections, such license to be exercised reasonably so
as not to interfere with Seller's operation of the Premises and to
expire upon the Date of Closing or upon termination of this Agreement.
All such inspections shall be conducted and reviewed at Buyer's sole
cost and expense, except as otherwise expressly provided herein. If
Buyer has any objection to any of the matters set out in (a), (b), or
(c) of this section 5, it shall notify Seller in writing of such
2
<PAGE>
objection on or before the end of the Review Period ("Notice of
Objection"), or if Buyer determines, on or before the end of the Review
Period, in its sole discretion, for any reason or for no reason, not to
proceed to the Closing, it may notify Seller in writing, before the end
of the Review Period, that it is terminating this Agreement ("Notice of
Termination"), in which case the Deposit shall be refunded to Buyer,
and thereafter neither party shall have any further obligation to the
other by virtue of this Agreement. Any matters not objected to in
writing as herein provided shall be deemed waived. Upon the expiration
of the Review Period without objection, as provided herein, or upon
Seller's cure of Buyer's objections, as provided in the following
paragraph, or upon Buyer's actual or deemed notification to Seller that
Buyer will proceed notwithstanding Seller's failure to cure Buyer's
objections, as provided in the following paragraph, the Deposit will
become nonrefundable, except in the case of Seller's default hereunder.
If Buyer delivers to Seller Notice of Objection and Seller is
unwilling or unable to correct to Buyer's satisfaction all defects to
which Buyer has objected in the Notice of Objection within five (5)
business days after receipt of Buyer's Notice of Objection ,Seller
shall, at any time before the end of said five (5) day period, so
notify Buyer, provided that if Seller fails to give such notice, Seller
shall be deemed to have notified Buyer on the fifth (5th) day after
receipt of Buyer's objection that Seller is unwilling or unable to cure
all defects to which Buyer has objected. Buyer shall, within five (5)
business days after Seller has given or is deemed to have given said
notice, notify Seller that it shall either (i) waive said defect(s) and
proceed to closing, as set out in section 4 hereof, or (ii) terminate
this Agreement, provided that if Buyer fails to give such notice, Buyer
shall be deemed to have notified Seller that it shall waive all defects
and proceed to closing; and upon receipt of Notice of Termination the
Deposit shall be promptly refunded to Buyer and this Agreement shall
become null and void, and neither party shall be liable to the other
for damages or otherwise, except as otherwise expressly provided
herein.
6. CONDITION OF PREMISES. 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, except the warranties of title contained in the
Deed. Except as otherwise expressly set forth in this Agreement,
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, 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.
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
3
<PAGE>
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. This release shall survive the
Closing or the termination of this Agreement for any reason. This
release shall not apply to those matters set forth in Section 7A
hereof, to breaches of representations and warranties in Section 6A
hereof, or to action brought by third parties in which Buyer seeks to
make Seller liable as a third-party defendant or cross-defendant.
Seller shall deliver possession 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 its obligations to deliver the
Purchase Price and to make the other deliveries and execute the other
documents at the Closing provided for in this Agreement, and all the
terms and conditions of this Agreement have been complied with. Seller
until the Date of Closing 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, commit waste,
or remove any material property therefrom, except in the ordinary
course of business.
6A. COVENANTS, REPRESENTATIONS, AND WARRANTIES. (a) Seller
covenants, represents and warrants to Buyer as follows:
(1) Seller shall make available to Buyer all of Seller's files and
records for the Premises, and shall direct its on-site managers to make
available to Buyer all of their files, which files Seller represents
and warrants to be all of the information concerning the Premises in
the possession or control of Seller, all with the exception of Seller's
internal financial records. Seller has informed Buyer that Seller
retains unrelated third parties as on-site managers for the Premises,
and that Seller maintains no employees at any of the Premises.
(2) Seller is a duly formed and validly existing entity with all
requisite powers and all governmental authorizations to conduct its
business and to enter into and perform its obligations hereunder. This
Agreement has been duly authorized (subject to section 23 hereof),
executed, and delivered by all necessary action on the part of Seller,
constitutes the valid and binding agreement of Seller, and is
enforceable in accordance with its terms.
4
<PAGE>
(3) The execution and delivery of and the performance by Seller of
its obligations hereunder do not and will not contravene or constitute
a default under any provisions of applicable law or regulation or any
agreement, judgment, injunction, order, decree, or other instrument
binding upon Seller or result in the creation of any lien or other
encumbrance on any asset of Seller.
(4) The files and records produced by Seller pursuant to section
6A(1) hereof, including the environmental reports described in section
9 hereof, include all notices or information which Seller has received
regarding the environmental condition of any of the Premises.
(b) Buyer represents and warrants to Seller as follows:
(1) Buyer is a corporation duly incorporated, validly existing, and
in good standing under the laws of the Commonwealth of Virginia, and is
(or will be prior to the Date of Closing) duly qualified to transact
business in the jurisdiction in which the premises is located. Upon
approval by Buyer's investment committee (as set forth in section 23
hereof), this Agreement will be duly authorized by all necessary
corporate action on the part of Buyer. This Agreement duly executed and
delivered by Buyer constitutes the valid and binding agreement of Buyer
and is enforceable in accordance with this terms.
(2) The execution and delivery of and the performance by Buyer of its
obligations hereunder do not and will not contravene, or constitute a
default under any provisions of applicable law or regulation or any
agreement, judgment, injunction, order, decree, or other instrument
binding upon Buyer or result in the creation of any lien or other
encumbrance on any asset of Buyer.
(c) The representations and warranties in this Agreement shall
survive the Date of Closing for a period of six months.
7. ADJUSTMENTS AND PRORATIONS. All taxes (except income 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 assumed by Buyer, 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 (except
insurance premiums) shall be prorated to the Date of Closing. For
tenants whose rents are delinquent as of the Date of Closing, rents
received after Closing shall be applied first to the month in which
received, next to months including and after the Date of Closing (with
a prorated payment to Seller for the month including the Date of
Closing), and next to months preceding the Date of Closing (with
payment to Seller). If the amount of taxes, assessments, or rents 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
assessment 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
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assessments or notice of assessments made after the date of execution
hereof for any public improvement, provided Buyer takes tittle
hereunder, unless any assessments are in arrears, in which event they
shall be prorated. With respect to security and all other tenant
deposits, if any, made by tenants on the Premises, Buyer shall receive
credit therefor in the proration of rents. Any deposits on utilities
paid by Seller shall be returned to Seller by the applicable utility
provider. The foregoing provisions of this section shall not apply to
any taxes, assessments, or other payments which are directly payable by
tenants under their leases or reimbursable by such tenants to the owner
of the Premises, as landlord, under their leases. On the Date of
Closing, Seller shall deliver to Buyer all inventories of supplies on
hand at the Premises owned by Seller, if any, at no additional cost to
Buyer. All post-closing obligations in this paragraph (including
without limitation obligations to reprorate, to refund payments of
delinquent rent, and to refund shares of abatements) shall survive the
Date of Closing for a period of three months, except all post closing
obligations relating to tax bills shall survive for a period of three
(3) months from Buyer's receipt of the tax bill.
On the Date of Closing, Seller shall execute in favor of Buyer an
assignment of leases, tenancies, and security and other tenant
deposits. The assignment shall have attached thereto as an exhibit (and
certified as accurate, as of the Date of Closing) a list of all tenants
at the Premises, showing apartment number, beginning lease date, lease
ending date, monthly rent, whether rent is current, and the amount of
any security deposit made. Buyer shall thereupon assume, take over,
and perform all leases and tenancies affecting the Premises, and Buyer
shall execute an acceptance of assignment with respect to such leases,
tenancies, security and other deposits. Buyer and Seller, or Seller's
property manager, shall execute, for delivery to tenants, a form of
notice of assignment.
On or before the last day of the Review Period, Buyer may designate
in writing to Seller maintenance and service contracts (which term
shall include laundry leases) to be terminated, and Seller shall
terminate all such contracts so designated, at no cost to Buyer, as of
the Date of Closing, and Buyer shall not assume such contracts. On the
Date of Closing, Seller shall execute in favor of Buyer assignments of
all maintenance and service contracts that have not been so designated
by Buyer for termination, and Buyer shall thereupon assume, take over,
and perform all such maintenance and service contracts, and Buyer shall
execute acceptance of assignment with respect to such maintenance and
service contracts.
On the Date of Closing, Seller shall execute in favor of Buyer an
assignment of maintenance and service contracts that have not been
designated by Buyer for termination, and Buyer shall thereupon assume,
take over, and perform all maintenance and service contracts affecting
the Premises that have not been designated by Buyer for termination,
and Buyer shall execute an acceptance of assignment with respect to
such maintenance and service contracts.
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The assignments of leases and the assignments of maintenance and
service contracts shall provide that Seller shall indemnify Buyer with
regard to the owner's obligations and actions arising prior to the Date
of Closing and Buyer shall indemnify Seller with regard to the owner's
obligations and actions arising from and after the Date of Closing.
7A. INDEMNITIES. (a) Buyer agrees that it will (using reputable and
qualified counsel) indemnify, defend, protect and hold Seller harmless
from and against all actions, claims, penalties, damages, and expense,
including without limitation reasonable attorneys' fees, based upon or
arising out of (i)(A) all matters relating to the operation of the
Premises from and after the Date of Closing, and (B) any claim for
personal injury or property damage based on any event occurring on or
about the Premises from and after the Date of Closing, this
subparagraph (a)(i) to survive the Date of Closing indefinitely, and
(ii) the inaccuracy, breach, or default of any representation,
warranty, covenant, or agreement that is made by Buyer in this
Agreement, this subparagraph (a)(ii) to survive the Date of Closing for
six months.
(b) Seller agrees that it will (using reputable and qualified
counsel) indemnify, defend, protect and hold Buyer harmless from and
against all actions, claims, penalties, damages, and expense, including
without limitation reasonable attorneys' fees, based upon or arising
out of (i)(A) all matters relating to the operation of the Premises
before the Date of Closing, (B) any claim for personal injury or
property damage based on any event occurring on or about the Premises
before the Date of Closing, and (C) all matters arising out of any
maintenance and service contracts that are designated by Buyer for
termination pursuant to Section 7, third paragraph, hereof, this
subparagraph (b)(i) to survive the Date of Closing indefinitely, and
(ii) the inaccuracy, breach, or default of any representation,
warranty, covenant, or agreement that is made by Seller in this
Agreement, this subparagraph (b)(ii) to survive the Date of Closing for
six months.
8. FURTHER DELIVERIES AT CLOSING. (a) On the Date of Closing, Seller
shall deliver to Buyer the following further documents:
(1) bills of sale, assigning and transferring to Buyer all of the
right, title, and interest of Seller in and to all tangible personal
property, if any, owned by Seller and located upon the Premises;
(2) assignments of any termite bonds or warranties, if any, and of any
construction, personal property, or fixture or equipment warranties or
guaranties in effect at any of the Premises that are in the possession
or control of Seller, if any;
(3) such other items, such as current rent rolls and standard
mechanics' lien affidavits, as Buyer or the Title Company may
reasonably request;
(4) certificates recertifying to Buyer that the representations and
warranties set forth in Section 6A(a) hereof are true and correct as of
the Date of Closing; and
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(5) an affidavit stating Buyer's right to audit Seller's books and
records relating to the Premises, at Buyer's sole expense, at a time
reasonably convenient to Seller, but before March 31, 1996, if Buyer is
advised by its legal counsel to obtain an audit to submit to the
Securities and Exchange Commission or any other regulatory body.
9. COSTS. Buyer shall pay the costs of its survey, the costs of its
inspections and Buyer's attorneys' fees. Seller shall pay all real
estate transfer taxes, the cost of Buyer's title insurance premium for
a standard owner's policy , and the Broker's commission, but only if,
as, and when the transaction contemplated hereby is fully consummated
and the deed is recorded and the full consideration therefor has been
received by Seller. Seller shall provide to Buyer, at no cost to
Buyer, copies of the most current environmental reports that Seller has
received for the Premises; Buyer shall pay for any update of such
reports it desires.
10. CASUALTY OR CONDEMNATION. Until the Date of Closing, all risk of
any loss or damage to all or part of any of the Premises, including
eminent domain, shall be and remain of Seller. 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 or condemnation proceeds, or (b) in the event
such damage, destruction, or condemnation involves, in the reasonable
estimation of Seller, 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 the Premises, or a loss which would unreasonably interfere
with the use of any of the Premises as a residential apartment complex,
Buyer, at its option, may terminate this Agreement by notice to the
Seller 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.
12A. BROKER'S COMMISSION. Seller hereby warrants and represents to the
Buyer that it has dealt with no broker or finder in connection with
this transaction except Pizzuti Realty Inc. ("the Seller's Broker"),
whose commission shall be paid for by Seller. Seller hereby agrees to
indemnify and hold Buyer 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 Seller 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.
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12B. Buyer hereby warrants and represents to the Seller that it has
dealt with no broker or finder in connection with this transaction
except the Seller's Broker. Buyer hereby agrees to indemnify and hold
Seller 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 Buyer 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 reasons, 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 discharge 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 as to such provisions that
are to survive the Date of Closing.
14. RECORDING PROHIBITED. This Agreement shall not be recorded with
Orange County Records or in any other 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 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 and as to
the due authorization thereof by the appropriate corporate,
partnership, or other representatives acting for it, as counsel for the
other party or the Title 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. Except as set forth below, if Seller materially
defaults under this Agreement, Buyer's sole remedy, at law or in
equity, shall be one of either (a)(1) the return of the Deposit to
Buyer, and (2) the payment by Seller to Buyer of Buyer's actual third-
party costs, up to a maximum of $20,000.00, whereupon the obligations
of Seller under this Agreement shall terminate; or (b) the right to
obtain specific performance of Seller's obligation to convey the
Premises pursuant to this Agreement, provided that in no event shall
Seller be obliged to cure defects objected to by Buyer pursuant to
section 5 hereof. In no event shall any officer, director, employee,
agent, or representative of Seller have any personal liability in
connection with this Agreement or transaction. Notwithstanding the
foregoing, if this Agreement is terminated as a result of the failure
of Seller's internal committees to approve this sale, Seller shall
reimburse Buyer for Buyer's actual third-party costs incurred by Buyer
during the Review Period upon submission to Seller of paid invoices for
such costs, but in no event shall such reimbursement exceed more than
the aggregate amount of $20,000.00.
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Seller and Buyer agree that if Buyer materially defaults under this
Agreement, before or on the Date of Closing, the damages Seller would
sustain would be difficult if not impossible to ascertain; therefore
the parties agree that 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, which consent Seller may in its
sole discretion withhold, except that Buyer may, without Seller's
consent, assign this Agreement to a limited partnership of which Buyer
(or a principal of Buyer) or any parent or any wholly owned subsidiary
of Buyer are the sole general partners. No such assignment shall
operate to relieve Buyer from any obligation hereunder.
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. It is agreed that time is of the essence of this Agreement.
21. GOVERNING LAW. This Agreement shall be construed under the laws
of the state in which the Premises are located.
22. NOTICES. All notices required or permitted to be given hereunder
shall be in writing and sent by overnight delivery service (such as
Federal Express), in which case notice shall be deemed given on the day
after the date sent, or by personal delivery, in which case notice
shall be deemed given on the date received, or by certified mail, in
which case notice shall be deemed given three (3) days after the date
sent, or by fax (with copy by overnight delivery service), in which
case notice shall be deemed given on the date sent, 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 The Real Estate Investment Group
John Hancock Place
P.O. Box 111
Boston, MA 02117
Re: File No.
Attention: John Garrison
Fax No.: (617) 572-3860 or 3866
With Copy To: John Hancock Mutual Life Insurance Company
Law Department (T-50)
John Hancock Place, P. O. Box 111
Boston, MA 02117
Re: Matter No. 6407
Attention: Roslyn Poznansky
Fax No.: (617) 572-9268 or 9269
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To Buyer: Mr. Milton A. Scott, Jr.
United Dominion Realty Trust, Inc.
10 South Sixth Street
Richmond, Virginia 23219
Fax No.: (804) 643-1465
With Copy To: Barrie B. Bowers, Esq.
United Dominion Realty Trust, Inc.
10 South Sixth Street
Richmond, Virginia 23219
Fax No.:(804) 788-4607
23. APPROVALS. Each party acknowledges that the other's obligations
under this Agreement are conditioned upon the approval of this
transaction by that other party's internal committees. If on or before
December 15, 1995, each party does not notify the other in writing that
such approval has been granted, such approval shall be deemed denied,
and the Deposit shall be refunded to Buyer and this Agreement shall
terminate, and neither party shall be liable to the other for damages
or otherwise except as otherwise expressly provided herein.
24. CONFIDENTIALITY. Buyer shall not disclose the financial and
economic terms and conditions of the transaction contemplated herein
except as may be necessary in Buyer's ordinary course of business. All
press releases or other dissemination of information to the media, or
responses to requests from the media, for information relating to the
transaction contemplated herein shall be subject to the prior written
approval of Seller, which shall not be unreasonably withheld or
delayed. The obligations in this paragraph shall survive the
termination of this Agreement for any reason.
Seller shall not disclose the terms of this Agreement to any party.
All press releases or other dissemination of information to the media,
or responses to requests from the media, for information relating to
the transaction contemplated herein shall be subject to the prior
written approval of Buyer, which shall not be unreasonably withheld or
delayed. The obligations of this paragraph shall survive the Closing
or termination of this Agreement for any reason.
25. COUNTERPARTS. To facilitate execution, this Agreement may be
executed in two counterparts. It shall not be necessary that the
signatures on behalf of all parties appear on each counterpart hereof.
All counterparts hereof shall collectively constitute a single
agreement.
25A. LIKE-KIND EXCHANGE. Buyer reserves the right to assign its
rights under this Agreement (but without release of its obligations
hereunder) to a third party who may purchase and thereafter exchange
any or all of the Premises. In accordance with the provisions of
Section 1031 of the Internal Revenue Code of 1986. Such exchanges
shall be accomplished at no additional expense to Seller, and Buyer
agrees to indemnify Seller against any claims or liabilities resulting
solely from structuring the transaction as an exchange rather than a
direct purchase; this indemnification shall survive the Date of Closing
indefinitely.
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26. 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.
27. RADON. Radon is a naturally occurring radioactive gas that, when
it has accumulated in a building in sufficient quantities, may present
health risks to persons who are exposed to it over time. Levels of
radon that exceed federal and state guidelines have been found in
buildings in Florida. Additional information regarding radon and radon
testing may be obtained from the county public health unit. Nothing
contained herein shall constitute a waiver by Buyer of its right to
terminate this Agreement during the Review Period because of the
presence of radon gas on the Premises.
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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: Its managing general partner,
JOHN HANCOCK REALTY EQUITIES, INC.
BY: KEVIN McGUIRE
--------------------------------
Kevin McGuire,
-------------,
(name)
BUYER:
UNITED DOMINION REALTY TRUST, INC.
BY: RICHARD B. CHESS
--------------------------------
Richard B. Chess, Vice President
----------------, --------------
(name) (title)
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