<PAGE> 1
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): January 7, 1999
JOHN HANCOCK REALTY INCOME FUND LIMITED PARTNERSHIP
------------------------------------------------------
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Massachusetts 0-15680 04-2921566
- ------------- ------- ----------
(STATE OF (COMMISSION (IRS EMPLOYER
ORGANIZATION) FILE NO.) IDENTIFICATION NO.)
200 Clarendon Street
Boston, MA 02116 (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> 2
JOHN HANCOCK REALTY INCOME FUND LIMITED PARTNERSHIP
(A Massachusetts Limited Partnership)
ITEM 2 - Acquisition or Disposition of Assets
- ---------------------------------------------
Disposition of the Carnegie Center
- ----------------------------------
During July 1998 the General Partner listed the Carnegie Center for sale because
of the current status of the property, the projected future capital requirements
necessary for the property to maintain its competitive position within the
market and the current conditions in the Cincinnati real estate market,
On January 7, 1999 for a net sales price of approximately $4,090,000 to a
non-affiliated buyer 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 $362,000, which represents the
difference between the net sales price and the property's carrying value of
approximately $3,728,000.
Based upon the General Partner's analysis of comparable sales transactions and
its review of the offers received during the property's marketing period, the
General Partner accepted the offer from Kiesland Partnership IX (the "Buyer") as
the most favorable. There is no relationship between the Buyer and the
Partnership or any associate, director or officer of the General Partner.
The sale was made pursuant to a Purchase and Sale Agreement dated September 30,
1998, which is included as Exhibit 1 of this report.
ITEM 7 - Financial Statements
- -----------------------------
(A) Financial Statements
Pro Forma Balance Sheet at September 30, 1998.........................3
Pro Forma Statement of Operations for the Nine Months
Ended September 30, 1998...........................................4
Pro Forma Statement of Operations for the Year Ended
December 31, 1997..................................................5
Notes to Pro Forma Financial Statements...............................6
(B) Exhibits
1. Purchase and Sale Agreement (excluding exhibits) between
John Hancock Realty Income Fund Limited Partnership and
Kiesland Partnersip IX dated ......................................9
2
<PAGE> 3
JOHN HANCOCK REALTY INCOME FUND LIMITED PARTNERSHIP
(A Massachusetts Limited Partnership)
On January 7, 1999, the Partnership sold the Carnegie Center property (the
"Property") to the Buyer for a net sales price of approximately $4,090,000. The
Pro Forma Balance Sheet reflects the financial position of the Partnership as if
the Property had been sold on September 30, 1998. The Pro Forma Statement of
Operations for the nine months ended September 30, 1998 reflects the continued
operations of the Partnership as if the Property had been sold on December 31,
1997. In addition, the Pro Forma Statement of Operations for the year ended
December 31, 1997 reflects the continued operations of the Partnership as if the
Property had been sold on December 31, 1996.
JOHN HANCOCK REALTY INCOME FUND LIMITED PARTNERSHIP
(A Massachusetts Limited Partnership)
PRO FORMA BALANCE SHEET
September 30, 1998
(Unaudited)
<TABLE>
<CAPTION>
Historical Pro Forma
Summary Adjustment for Pro Forma
September 30, the Carnegie September 30,
1998 Center 1998
---- ------ ----
<S> <C> <C> <C>
Cash and cash equivalents $ 2,290,075 $ 4,023,262 $ 6,313,337
Restricted cash 59,400 (26,520) 32,880
Other assets 254,921 - 254,921
Property held for sale 18,780,091 (3,728,036) 15,052,055
------------ ----------- ------------
Total assets $ 21,384,487 $ 268,706 $ 21,653,193
============ =========== ============
Liabilities:
Accounts payable and accrued expenses $ 428,458 $ (93,258) $ 335,200
Accounts payable to affiliates 214,969 - 214,969
------------ ----------- ------------
Total liabilities 643,427 (93,258) 550,169
Partners' equity/(deficit):
General Partner (250,795) 3,620 (247,175)
Limited Partners 20,991,855 358,344 21,350,199
------------ ----------- ------------
Total partners' equity 20,741,060 361,964 21,103,024
------------ ----------- ------------
Total liabilities and partners' equity $ 21,384,487 $ 268,706 $ 21,653,193
============ =========== ============
</TABLE>
See Notes to Pro Forma Financial Statements
3
<PAGE> 4
JOHN HANCOCK REALTY INCOME FUND LIMITED PARTNERSHIP
(A Massachusetts Limited Partnership)
PRO FORMA STATEMENT OF OPERATIONS
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1998
(Unaudited)
<TABLE>
<CAPTION>
Historical
Summary Pro Forma Pro Forma
For the Nine Adjustment for For the Nine
Months Ended the Stone Months Ended
September 30, Container September 30,
1998 Building 1998
---- -------- ----
<S> <C> <C> <C>
Income:
Rental income $ 1,908,452 $(372,241) $ 1,536,211
Interest income 72,475 - 72,475
----------- --------- -----------
Total income 1,908,927 (372,241) 1,608,686
Expenses:
Depreciation 372,850 (83,141) 289,709
General and administrative 349,854 - 349,854
Property operating expenses 251,488 (87,502) 163,986
Amortization of deferred expenses 64,380 (19,467) 44,913
Management fee 48,285 - 48,285
----------- --------- -----------
Total expenses 1,086,587 (190,110) 896,747
----------- --------- -----------
Net income $ 894,070 $(182,131) $ 711,939
=========== ========= ===========
Allocation of net income:
General Partner $ 8,941 $ (1,821) $ 7,120
John Hancock Limited Partner (16,927) - (16,927)
Investors 902,056 (180,310) 721,746
----------- --------- -----------
$ 894,070 $(182,131) $ 711,939
=========== ========= ===========
Net income per Unit $ 9.84 $ (1.97) $ 7.87
=========== ========= ===========
</TABLE>
See Notes to Pro Forma Financial Statements
4
<PAGE> 5
JOHN HANCOCK REALTY INCOME FUND LIMITED PARTNERSHIP
(A Massachusetts Limited Partnership)
PRO FORMA STATEMENT OF OPERATIONS
FOR THE YEAR ENDED DECEMBER 31, 1997
<TABLE>
<CAPTION>
Historical Pro Forma
Summary Adjustment for Pro Forma
For the Year Ended the Stone For the Year Ended
December 31, Container December 31,
1997 Building 1997
---- -------- ----
(Audited) (Unaudited) (Unaudited)
<S> <C> <C> <C>
Income:
Rental income $ 2,861,166 $ (473,627) $ 2,387,539
Interest income 107,469 - 107,469
Loss on Sale of property (5,321) - (5,321)
----------- ----------- -----------
Total income 2,963,314 (473,627) 2,489,687
Expenses:
Depreciation 667,869 (166,282) 501,587
General and administrative 384,727 - 384,727
Property operating expenses 396,136 (74,378) 321,758
Management fee 75,176 - 75,176
Property write-down 668,520 - 668,520
Amortization of deferred expenses 134,503 (19,467) 115,036
----------- ----------- -----------
Total expenses 2,326,931 (260,127) 2,066,804
----------- ----------- -----------
Net income $ 636,383 $ 213,500 $ 422,883
=========== =========== ===========
Allocation of net income:
General Partner $ 6,364 $ (2,135) $ 4,229
John Hancock Limited Partner (141,179) - (141,179)
Investors 771,198 (211,365) 559,833
----------- ----------- -----------
$ 636,383 $ (213,500) $ 422,883
=========== =========== ===========
Net income per Unit $ 8.41 $ (2.30) $ (6.11)
=========== =========== ===========
</TABLE>
See Notes to Pro Forma Financial Statements
5
<PAGE> 6
JOHN HANCOCK REALTY INCOME FUND LIMITED PARTNERSHIP
(A Massachusetts Limited Partnership)
Notes to Pro Forma Financial Statements
(Unaudited)
NOTE 1 - CARNEGIE CENTER
On January 8, 1999, the Partnership sold the Carnegie Center property (the
"Property") to the Buyer for a net sales price of approximately $4,090,000,
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 $362,000 which represents the difference
between the net sales price and the property's carrying value of approximately
$3,728,000.
The historical financial statements are adjusted to show the effects of the sale
of the Property on the Partnership's operations, assets and liabilities. The Pro
Forma Balance Sheet at September 30, 1998 reflects the financial position of the
Partnership as if the Property had been sold on September 30, 1998. The Pro
Forma Statement of Operations for the nine months ended September 30, 1998
reflects the continued operations of the Partnership as if the Property had been
sold on December 31, 1997. In addition, the Pro Forma Statement of Operations
for the year ended December 31, 1997 reflects the continued operations of the
Partnership as if the Property had been sold on December 31, 1996.
NOTE 2 - DISTRIBUTIONS AND ALLOCATIONS
Distributable Cash from Operations (defined in the Partnership Agreement) is
distributed 5% to the General Partner and the remaining 95% in the following
order of priority: first, to the Investors until they receive a 7%
non-cumulative, non-compounded annual cash return on their Invested Capital
(defined in the Partnership Agreement); second, to the John Hancock Limited
Partner until it receives a 7% non-cumulative, non-compounded annual cash return
on its Invested Capital; and third, to the Investors and the John Hancock
Limited Partner in proportion to their respective Capital Contributions (defined
in the Partnership Agreement). However, any Distributable Cash from Operations
which is available as a result of a reduction in working capital reserves funded
by Capital Contributions of the Investors will be distributed 100% to the
Investors.
Cash from Sales or Refinancings, as defined in the Partnership Agreement, is
first used to pay all debts and liabilities of the Partnership then due and is
then used to fund any reserves for contingent liabilities. Cash from Sales or
Refinancings is then distributed as follows: first, to the Limited Partners
until they receive an amount equal to their Invested Capital with the
distribution being made between the Investors and the John Hancock Limited
Partner in proportion to their respective Capital Contributions; second, to the
Investors until they have received, after giving effect all previous
distributions of Distributable Cash from Operations and any previous
distributions of Cash from Sales or Financings after the return of their
Invested Capital, their Cumulative Return on Investment, as defined in the
Partnership Agreement; third, to the John Hancock Limited Partner until it has
received, after giving effect all previous distributions of Distributable Cash
from Operations and any previous distributions of Cash from Sales or Financings
after the return of their Invested Capital, their Cumulative Return on
Investment, its Cumulative Return on Investment; fourth, to the General Partner
to pay any Subordinated Disposition Fees, as defined in the Partnership
Agreement; and fifth, 99% to the Limited Partners and 1% to the General Partner,
with the distribution being made between the Investors and the John Hancock
Limited Partner in proportion to their respective Capital Contributions.
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.
6
<PAGE> 7
JOHN HANCOCK REALTY INCOME FUND LIMITED PARTNERSHIP
(A Massachusetts Limited Partnership)
Notes to Pro Forma Financial Statements (continued)
(Unaudited)
NOTE 2 - DISTRIBUTIONS AND ALLOCATIONS (CONTINUED)
Profits for tax purposes from the normal operations of the Partnership for each
fiscal year are allocated to the Partners in the same amounts as Distributable
Cash from Operations for that year. If such profits are less than Distributable
Cash from Operations for any year, they are allocated in proportion to the
amounts of Distributable Cash from Operations for that year. If such profits are
greater than Distributable Cash from Operations for any year, they are allocated
5% to the General Partner and 95% to the John Hancock Limited Partner and the
Investors, with the allocation made between the John Hancock Limited Partner and
the Investors in proportion to their respective Capital Contributions. Losses
for tax purposes from the normal operations of the Partnership are allocated 1%
to the General Partner and 99% to the John Hancock Limited Partner and the
Investors, with the allocation made between the John Hancock Limited Partner and
the Investors in proportion to their respective Capital Contributions. However,
all tax aspects of the Partnership's payment of the sales commissions from the
Capital Contributions made by the John Hancock Limited Partner are allocated 1%
to the General Partner and 99% to the John Hancock Limited Partner, and not to
the Investors. Depreciation deductions are allocated 1% to the General Partner
and 99% to the Investors, and not to the John Hancock Limited Partner.
Profits and Losses from Sales or Refinancings are generally 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.
7
<PAGE> 8
JOHN HANCOCK REALTY INCOME FUND 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 3rd day of February, 1999.
John Hancock Realty Income Fund Limited
Partnership
By: John Hancock Realty Equities, Inc.,
General Partner
By: /s/ William M. Fitzgerald
--------------------------------
William M. Fitzgerald, President
By: /s/ Richard E. Frank
--------------------------------
Richard E. Frank, Treasurer
(Chief Accounting Officer)
8
<PAGE> 1
PURCHASE AND SALE AGREEMENT
---------------------------
THIS AGREEMENT made and entered into as of the 30th day of September, 1999, by
and between JOHN HANCOCK REALTY EQUITY FUND LIMITED PARTNERSHIP, a Massachusetts
partnership, having its principal address c/o The Real Estate Investment Group,
John Hancock Place, P.O. Box 111, Boston, Massachusetts 02117 (hereinafter
"Seller"), and Kiesland Partnership IX, having an office address at
______________________________________ (hereinafter "Buyer");
WITNESSETH THAT:
WHEREAS, Seller desires to sell certain improved real property known as
CARNEGIE CENTER in CINCINNATI, OHIO, along with certain related personal and
intangible property; and
WHEREAS, Buyer desires to purchase such real, personal, and intangible
property 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. THE PROPERTY.
1.1 DESCRIPTION: Subject to the terms and conditions of this
Agreement, and for the consideration herein set forth, Seller agrees to sell and
transfer, and Buyer agrees to purchase and acquire, all of Seller's right,
title, and interest in and to the following (collectively, the "Property"): at
located AT THE NORTHWEST CORNER OF CRESCENTVILLE ROAD AND CIRCLE FREEWAY DRIVE,
and more specifically described in EXHIBIT 1.1.1 attached hereto;
1.1.2 The building(s), parking areas, improvements, and fixtures
now situated on the Land (the "Improvements");
1.1.3 All furniture, personal property, machinery, apparatus, and
equipment currently used in the operation, repair, and maintenance of the Land
and the Improvements and situated thereon, excluding, however, tangible personal
property and fixtures of the Improvements which are owned by tenants or which
may be removed by tenants under the terms of their leases (collectively, the
"Personal Property"). The Personal Property to be conveyed is subject to
depletions, replacements, and additions in the ordinary course of Seller's
business;
1.1.4 All easements, hereditaments, and appurtenances belonging
to or inuring to the benefit of Seller and pertaining to the Land, if any;
1.1.5 Any street or road abutting the Land to the center line
thereof (to the extent owned by Seller);
1.1.6 The leases or occupancy agreements, including those in
effect on the date of this Agreement which are identified on the Schedule of
Leases attached hereto as EXHIBIT 1.1.6, and any new leases entered into
pursuant to, including all amendments thereto, which as of the Closing (or Date
of Closing, as hereinafter defined) affect all or any portion of the Land or the
Improvements (collectively, the "Leases"), and any security deposits actually
held by Seller with respect to any such Leases;
1.1.7 All service, maintenance, supply, or other contracts
relating to the operation of the Property, including those in effect as of the
date hereof which are listed on EXHIBIT 1.1.7 hereto and any new contracts
entered into pursuant to Section 7.2 (together, the "Contracts"), subject to
Section 5.5 hereof;
1.1.8 The name "CARNEGIE CENTER" if available ;
1.1.9 Assignable warranties and guaranties issued in connection
with the Improvements or the Personal Property which remain in effect as of
Closing; and
1.1.10 All transferable consents, authorizations, variances or
waivers, licenses, permits, and approvals from any governmental or
quasi-governmental agency, department, board, commission, bureau, or other
entity or instrumentality solely in respect of the Land or the Improvements
which remain valid or in effect as of Closing.
<PAGE> 2
1.2 AGREEMENT TO CONVEY. Seller agrees to convey, and Buyer agrees to
accept, on the Date of Closing: (a) title to the Land and the Improvements in
the condition described in Section 6.1, and subject to the Permitted Exceptions
(as hereinafter defined); and (b) title to the Personal Property, by Bill of
Sale (as hereinafter defined), without warranty as to the title or the condition
of such personalty.
<PAGE> 3
2. PURCHASE PRICE. The Property is to be sold to Buyer for the sum of FOUR
MILLION THREE HUNDRED THOUSAND dollars ($4,300,000) (the "Purchase Price"),
which Buyer shall pay to Seller on the Date of Closing by wiring immediately
available Federal funds to such bank account as may be designated by Seller.
3. DEPOSIT. Buyer shall deposit with the Title Company (as hereinafter
defined) the sum of $100,000 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
Closing occurs in accordance with this Agreement, the Deposit shall either be
applied against the Purchase Price or returned by Seller to Buyer on the Date of
Closing, as hereinafter provided. If this Agreement is terminated, or if either
party fails to perform any of its agreements hereunder, the Deposit shall be
disposed of in the manner hereinafter provided.
4. CLOSING. Subject to the provisions of this Agreement, the Closing
Documents (as hereinafter defined) shall be delivered at 10 o'clock A.M.,
E.S.T., on DECEMBER 16, 1998, 1998 (the "Date of Closing" or "Closing"), at an
office of First American Title Insurance Company (the "Title Company"), unless
otherwise agreed upon in writing. Contact for all title insurance requirements
should be made through the following office:
First American Title Insurance Company
National Accounts Division
One Financial Center, 15th Floor
Boston, MA 02111
Attention: Michael J. Desmond, Vice President
Telephone: (800) 225-1546 or (617) 772-9250
Fax: (617) 345-5444 or (617) 772-9284
5. BUYER'S REVIEW.
5.1 ACCESS.
5.1 Seller shall promptly upon the execution hereof make
available to Buyer copies of the Contracts and the Leases. Seller agrees to
allow Buyer or Buyer's agents or representatives reasonable access to the
Property (during business hours) for purposes of any non-intrusive physical or
environmental inspection of the Property and review and copying of the
Contracts, the Leases, Seller's books and records relating to the Property
(other than any privileged, proprietary or confidential records), soil reports,
environmental studies and reports, surveys, building and systems plans, income
and expense statements, and other matters necessary in the reasonable discretion
of Buyer to evaluate and analyze the feasibility of the Property for Buyer's
intended use thereof. Buyer shall not conduct or authorize any physically
intrusive testing of, on, or under the Property without first obtaining Seller's
written consent as to the timing and scope of work to be performed, such consent
not to be unreasonably withheld.
5.1.2 Except as otherwise expressly set forth herein, Seller
makes no representations or warranties as to the truth, accuracy, or
completeness of any materials, data, or other information, including without
limitation the contents of Seller's or its property manager's books and records,
marketing materials prepared by Seller or the Broker (as hereinafter defined),
the Leases, the Contracts, rent rolls or income and expense statements, supplied
to Buyer in connection with Buyer's inspection of the Property. It is the
parties' express understanding and agreement that all such materials are
provided by Seller solely for Buyer's convenience in making its own examination
and determination prior to the Approval Date (as hereinafter defined) as to
whether it wishes to purchase the Property, and, in making such examination and
determination, Buyer shall rely exclusively on its own independent investigation
and evaluation of the Property and not on any materials supplied by Seller.
5.2 TITLE AND SURVEY. Buyer or Seller shall obtain a commitment by the
Title Company to issue an owner's policy of title insurance insuring the Land
and the Improvements (the "Title Commitment"), and a survey of the Land prepared
by a professional land surveyor licensed in the state in which the Property is
located (the "Survey").
<PAGE> 4
5.3 BUYER'S RIGHT TO OBJECT OR TERMINATE.
5.3.1 BUYER'S RIGHT TO OBJECT. Buyer shall have the right, in its
sole discretion, on or before 5:00 p.m. E.S.T. on NOVEMBER 9, 1998 (the
"Approval Date") to make written objection to any matter regarding the Property
("Objection Notice"), which notice must specify the reason such matter(s) are
not satisfactory and the curative steps necessary to remove the basis for
Buyer's disapproval. The parties shall then have until the later of ten (10)
business days after the date of the Objection Notice and the Approval Date
(whichever is later, the "Objection Deadline") to make such arrangements or take
such steps as they shall mutually agree to satisfy Buyer's objection(s);
provided, however, that Seller shall have no obligation whatsoever to expend or
agree to expend any funds, to undertake or agree to undertake any obligations,
or otherwise to attempt to cure or agree to attempt to cure any objections, and
Seller shall not be deemed to have any obligation to attempt to cure any such
matters unless Seller expressly undertakes such an obligation by a written
notice to or written agreement with Buyer given or entered into on or prior to
the Objection Deadline and which recites that it is in response to an Objection
Notice. Buyer's sole right with respect to any objections contained in an
Objection Notice given in a timely manner shall be to elect on or before the
Objection Deadline to terminate this Agreement pursuant to Section 5.3.2 hereof.
All possible objections regarding title, the Survey, or other matters regarding
the Property not included in an Objection Notice given by Buyer to Seller on or
before the Approval Date, or with respect to which a timely Objection Notice is
given but Seller fails to expressly agree to attempt to cure as provided above,
shall be deemed to be approved by Buyer as "Permitted Exceptions" as provided in
Section 5.4 hereof.
5.3.2 BUYER'S RIGHT TO TERMINATE. In the alternative, Buyer shall
have the right, in its sole discretion, on or before the Approval Date (if the
Objection Notice has not been given) or the Objection Deadline (if the Objection
Notice has been given), to terminate its obligation to purchase the Property by
giving Seller written notice of termination (the "Termination Notice"). If the
Termination Notice is timely given, Seller shall direct the Title Company
promptly to return the Deposit to Buyer and neither party shall have any further
obligations or liability hereunder except as expressly set forth in this
Agreement, including without limitation Sections 6.2 and 24 hereof. In the event
that Buyer does not tender to Seller the Objection Notice or the Termination
Notice prior to the Approval Date or the Objection Deadline, as applicable: (a)
the Deposit shall be non-refundable; and (b) Buyer shall have no further rights
to the Deposit, and no further right to terminate this Agreement, except
pursuant to Sections 9.1, 13, or 18.1.
5.4 PERMITTED EXCEPTIONS. If this Agreement is not terminated, Buyer
shall be deemed to have approved and to have agreed to purchase the Property
subject to the following:
5.4.1 all possible title objections, survey objections, and any
defects in or to title to the Property or other matters affecting or relating to
the title to, or the survey of, or the condition of the Property existing as of
the Approval Date and not included in an Objection Notice given by Buyer and/or
which Buyer has otherwise approved or is deemed to have approved pursuant to
Section 5.3.1 hereof;
5.4.2 all existing Leases, and all Contracts and Leases which
Buyer has approved or is deemed to have approved, or which Seller is permitted
to enter into, pursuant to Sections 5.5, 7.2, and 7.3 hereof;
5.4.3 the lien of non-delinquent real and personal property taxes
and assessments;
5.4.4 rights of parties in possession not shown by the public
records;
5.4.5 discrepancies, conflicts in boundary lines, shortages in
area, encroachments, and any state of facts which an inspection of the Property
would disclose and which are not shown by the public records;
5.4.6 easements or claims of easements, whether or not shown by
the public records;
5.4.7 any service, installation, connection, maintenance or
construction charges due after Closing, and, subject to the proration provisions
hereof, charges for sewer, water, electricity, telephone, cable television or
gas; and
5.4.8 unrecorded leaseholds, rights of vendors and holders of
security interests on personal property installed upon the Property by tenants,
and rights of tenants to remove trade fixtures at the expiration of the term of
the Leases.
All of the foregoing are referred to herein collectively as the "Permitted
Exceptions".
<PAGE> 5
5.5 CONTRACTS. On or before the Approval Date, Buyer shall notify
Seller in writing as to which of the Contracts Buyer --------- elects to assume
at Closing. Seller shall notify the vendors under those Contract(s) which Buyer
has not agreed to assume that, provided that Closing occurs hereunder, such
Contracts shall terminate, effective as of the Date of Closing; provided however
if any such non-assumed Contract does not permit Seller to terminate same within
thirty (30) days or requires that Seller pay a fee to terminate same prior to
Closing, Buyer shall be required at Closing to assume all obligations thereunder
until the effective date of the termination and to assume the obligation to pay,
or to reimburse Seller for the payment of, the termination fee.
6. CONDITION OF PREMISES.
6.1 Buyer and Seller agree that Buyer is acquiring the Property in its
"AS IS" condition, WITH ALL FAULTS, IF ANY, AND WITHOUT ANY WARRANTY, EXPRESS OR
IMPLIED. Except as otherwise expressly set forth herein, 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 Property, its fitness for any particular purpose, or its 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 Property in "as is" condition.
Buyer acknowledges that it either has had or will have before the Date of
Closing the opportunity to make such inspections (or have such inspections made
by consultants) as it desires of the Property and all factors relevant to its
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).
6.2 After its inspections are completed, Buyer shall restore the
Property to its 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 Section 6.2
shall survive the Closing or the termination of this Agreement for any reason,
including without limitation pursuant to Sections 5.3.2, 9.1, or 13 hereof.
6.3 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 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 Property. This release shall survive the Closing or the termination of this
Agreement for any reason.
7. PRIOR TO CLOSING.
7.1 Until Closing, Seller or Seller's agents shall:
7.1.1 INSURANCE. maintain the types and amounts of insurance that
are in force on the date of execution hereof; and
7.1.2 OPERATION. operate and maintain the Property substantially
in accordance with Seller's past practices with
respect to the operation of the Property, and deliver the Property to Buyer at
Closing in its present condition, normal wear and tear excepted, subject to
Section 13 hereof.
7.2 NEW CONTRACTS. Between the Approval Date and the Date of
Closing, Seller will enter into only those Contracts which Seller believes are
necessary to carry out its obligations under Section 7.1.2 and which shall be
cancelable on not more than thirty (30) days' written notice. If Seller enters
into any such Contract, it shall promptly provide written notice thereof to
Buyer and unless Buyer, within seven (7) days thereafter, notifies Seller in
writing of Buyer's intention to assume such Contract, it shall be treated as a
non-assumed Contract under Section 5.5 hereof.
8. REPRESENTATIONS AND WARRANTIES.
8.1 Seller represents and warrants to Buyer as follows:
8.1.1 Seller is an insurance company, duly organized, validly
existing, and in good standing under the laws of the Commonwealth of
Massachusetts and the state in which the Property is located.
<PAGE> 6
8.1.2 Subject to Section 9.2 hereof, Seller has all requisite
power and authority to execute and deliver this Agreement and to carry out its
obligations hereunder and the transactions contemplated hereby. This Agreement
has been, and the documents contemplated hereby will be, duly executed and
delivered by Seller and constitute Seller's legal, valid, and binding obligation
enforceable against Seller in accordance with its terms. The consummation by
Seller of the sale of the Property is not in violation of or in conflict with,
nor does it constitute a default under any term or provision of, the
organizational documents of Seller, or any of the terms of any agreement or
instrument to which Seller is a party, or by which Seller is bound, or any
provision of any applicable law, ordinance, rule, or regulation of any
governmental authority or any provision of any applicable order, judgment, or
decree of any court, arbitrator, or governmental authority.
8.2 Buyer represents and warrants to Seller as follows:
8.2.1 Buyer is a limited partnership, duly organized, validly
existing, and in good standing under the laws of the Commonwealth of
Massachusetts and the state in which the Property is located.
8.2.2 Buyer has all requisite power and authority to execute and
deliver this Agreement and to carry out its obligations hereunder and the
transactions contemplated hereby. This Agreement has been, and the documents
contemplated hereby will be, duly executed and delivered by Buyer and constitute
its legal, valid, and binding obligation enforceable against it in accordance
with its terms, and the consummation and performance by Buyer of the
transactions contemplated herein will not result in a violation of or be in
conflict with or constitute a default under any term or provision of the
organizational documents of Buyer, or any of the terms of provisions of any
agreement or instrument to which it is a party, or by which it is bound, or of
any term of any applicable law, ordinance, rule or regulation of any
governmental authority or of any term of any applicable order, judgment, or
decree of any court, arbitrator, or governmental authority.
8.3 The above-stated representations and warranties will survive the
Closing for a period of twelve (12) months, before the expiration of which the
party claiming a breach must have filed an action in a court of competent
jurisdiction, and any representation and warranty not specified in such action
shall expire. Any such claim shall be limited to actual damages (specifically
including reasonable attorneys' fees and expenses and court costs) suffered by
the claiming party (specifically excluding consequential, punitive, or other
damages), and in no event shall the aggregate of such damages exceed
$100,000.00. Buyer acknowledges that Seller has maintained no employees at the
Property and that the Property has during Seller's ownership thereof always been
managed by a third-party manager, and that Seller has relied upon such manager
for knowledge and notice. The words "to the best of Seller's knowledge" in
Section 8.1 mean to the actual knowledge of ROBERT S. EMSLIE, the employee of
Seller who is most familiar with the Property and who has had the most contact
with the management company.
9. CONDITIONS PRECEDENT.
9.1 REPRESENTATIONS AND WARRANTIES. Each party's obligation to close
hereunder shall be conditioned upon the truth in all material respects as of the
Date of Closing of the other party's representations and warranties set forth in
Section 8 hereof. If on the Date of Closing a representation and warranty is not
true, and such representation and warranty either was not true on the date of
this Agreement, or was true on the Date of this Agreement but has become untrue
as a result of a breach of this Agreement by the party making the representation
hereunder, the other party may either seek its remedy pursuant to Section 18
hereof, waive this condition and proceed to Closing, or terminate this Agreement
by notice to the representing party. If on the Date of Closing a representation
and warranty is not true, and such representation and warranty was true on the
date of this Agreement and has become untrue not as a result of a breach of this
Agreement by the representing party, the other party may either waive this
condition and proceed to Closing or terminate this Agreement by notice to the
representing party. Upon the representing party's receipt of notice of
termination pursuant to this Section 9.1, the Deposit shall be refunded and this
Agreement shall terminate, and neither party shall be liable to the other for
damages or otherwise except as otherwise expressly provided herein.
9.2 SELLER'S APPROVALS. Seller's obligation to close hereunder shall
be conditioned upon the approval of this transaction by Seller's internal
committees. If on or before the Approval Date Seller has not notified Buyer that
such approval has been granted, such approval shall be deemed not to have been
granted, and the Deposit shall be refunded and this Agreement shall terminate,
and neither party shall be liable to the other for damages or otherwise except
as otherwise expressly provided herein.
<PAGE> 7
10. ADJUSTMENTS AND PRORATIONS.
10.1 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 Property (but not including insurance premiums) shall be
prorated to 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 noon, E.S.T., on the Date of Closing, all prorations
shall be made as of the following business day. If the amount of said 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
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 execution hereof for any public improvement, provided Buyer
takes title hereunder. With respect to security deposits, if any, made by
tenants at the Property and actually received in hand by Seller, Buyer shall
receive credit therefor. Any deposits on utilities paid by Seller shall be
returned to Seller. The foregoing provisions of this Section 10.1 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
Property, as landlord, under their leases. On the Date of Closing, Seller shall
deliver to Buyer all inventories of supplies on hand at the Property owned by
Seller, if any, at no additional cost to Buyer.
10.2 POST-CLOSING COLLECTIONS. Buyer shall use its best efforts during
the twelve (12) month period immediately following the Closing to collect and
promptly remit to Seller rents or other amounts due Seller for the period prior
to Closing. Buyer shall apply all rents or other amounts received by Buyer,
first for the account of Buyer for amounts currently due to Buyer; second to
Seller for any and all amounts due Seller for periods prior to Closing; and the
balance to be retained by Buyer.
11. CLOSING DOCUMENTS.
11.1 SELLER'S DELIVERIES. Conditioned upon performance by Buyer
hereunder, Seller shall execute and deliver to Buyer at Closing the following
documents ("Seller's Closing Documents"):
11.1.1 DEED. a special warranty deed conveying marketable title
to the Land and the Improvements subject to the
Permitted Exceptions;
11.1.2 BILL OF SALE. a bill of sale, assigning and transferring
to Buyer all of the right, title, and interest of Seller in and to the Personal
Property;
11.1.3 ASSIGNMENT OF LEASES. (i) the Leases which are still in
effect as of Closing and (ii) a current listing of any tenant security deposits
and prepaid rents held by Seller with respect to the Property; and (iii) an
assignment of such Leases and security deposits, which will include an
indemnification by Seller of Buyer for all landlord obligations accruing prior
to the Date of Closing;
11.1.4 ASSIGNMENT OF CONTRACTS. (i) copies of all Contracts
relating to the Property which Buyer has elected to assume or which are not
terminable by Seller on or before the Date of Closing; and (ii) an assignment of
such Contracts, which will include an indemnification by Seller of Buyer for all
owner obligations accruing prior to the Date of Closing;
11.1.5 NON-FOREIGN CERTIFICATE. 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);
11.1.6 ASSIGNMENT OF WARRANTIES AND GUARANTIES. an assignment of
all transferable warranties and guaranties then in effect, if any, with respect
to the Improvements or any repairs or renovations to such Improvements and the
Personal Property being conveyed hereunder;
11.1.7 BOOKS AND RECORDS. all books and records held at the
Property by or for the account of Seller (other than any privileged, proprietary
or confidential records), including without limitation plans and specifications
and lease applications, as available and
<PAGE> 8
11.1.8 OWNER'S AFFIDAVIT. an owner's affidavit and such other
similar documents as are reasonably required from Seller pursuant to the Title
Commitment as a condition precedent to the issuance of an owner's title
insurance policy pursuant to the terms thereof.
11.2 BUYER'S DELIVERIES. Conditioned upon performance by Seller
hereunder, Buyer shall execute and deliver to Seller at Closing the following
documents ("Buyer's Closing Documents"):
<PAGE> 9
11.2.1 ASSUMPTION OF LEASES. an assumption of the Leases and
security deposits, which will include an indemnification by Buyer of Seller for
all landlord obligations accruing on or after the Date of Closing; and
11.2.2 ASSUMPTION OF SERVICE CONTRACTS. an assumption of the
Contracts which Buyer has elected to assume, which will include an
indemnification by Buyer of Seller for all owner obligations accruing on or
after the Date of Closing.
11.3 OTHER 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.
11.4 CLOSING DOCUMENTS. Seller's Closing Documents, Buyer's Closing
Documents and the documents to be delivered pursuant to Section 11.3 hereof
shall hereinafter be referred to as the "Closing Documents".
12. COSTS. Buyer shall pay all settlement expenses, except as set forth in
the following sentence, in connection with the transfer of the Property,
including, but not limited to, real estate transfer taxes, personal property
sales taxes, if any, recording fees, Buyer's attorneys' fees, the costs of
obtaining a binder or commitment from a title insurance company, the premium for
Buyer's title insurance policy, the cost of the Survey, and all other costs and
expenses incidental to or in connection with closing this transaction. Seller
shall pay only the attorneys' fees, if any, incurred by Seller in connection
with this transaction, 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.
13. CASUALTY OR CONDEMNATION. In the event that prior to the Date of
Closing either the Improvements are damaged or destroyed, in whole or in part,
by fire or other cause, or any portion of the Land or the Improvements 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 or condemnation awards, 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 ten per cent (10%) of the Purchase
Price, or loss of all or a material portion of access to the Property, either
party, 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.
14. INSURANCE. Seller shall not be obligated to assign to Buyer any fire,
hazard, or liability insurance policies which it holds respecting the Property,
and Seller shall have the right to any and all refunds or rebates resulting from
the termination of such policies.
15. BROKER'S COMMISSION. Buyer and Seller each hereby warrants and
represents to the other that it has dealt with no broker or finder in connection
with this transaction except _______________________ ("the Broker"), and that it
is not affiliated with the Broker in any way. Buyer and Seller each hereby
agrees to indemnify and hold the other 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 indemnifying 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 5.3.2, 9.1, or 13
hereof.
16. SELLER'S PERFORMANCE. The acceptance of Seller's Closing Documents 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.
17. RECORDING PROHIBITED. This Agreement shall not be recorded in any
Registry of Deeds or 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.
<PAGE> 10
18. REMEDIES.
18.1 If Seller defaults under this Agreement, Buyer's sole remedy, at
law or in equity, shall be one of either (a) the return of the Deposit to Buyer,
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
Property pursuant to this Agreement, provided that in no event shall Seller be
obliged to undertake any of the following: (i) change the condition of the
Property or restore the same after any fire or casualty; (ii) expend money or
post a bond to remove or insure over a title defect or encumbrance or to correct
any matter shown on a survey of the Property; (iii) secure any permit, approval,
or consent with respect to the Property or Seller's conveyance, or (iv) cure
defects objected to by Buyer pursuant to Section 5.3.1 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.
18.2 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.
18.3 Nothing in this Section 18 shall limit the express provisions of
this Agreement obligating one party hereto to indemnify the other or to restore
the Property, including without limitation Sections 6.2 and 24 hereof.
18.4 In any action to enforce the provisions of this Agreement, the
prevailing party shall be entitled to an award of its attorneys' fees and costs.
19. 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 is the sole general
partner, or to a limited liability company of which Buyer (or a principal of
Buyer) or any parent or any wholly owned subsidiary of Buyer is the sole
manager. No such assignment shall operate to relieve Buyer from any obligation
hereunder.
20. 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.
21. TIME. It is agreed that time is of the essence of this Agreement.
22. GOVERNING LAW. This Agreement shall be construed under the laws of the
state in which the Property is located.
23. 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
200 Clarendon Street
Boston, MA 02117
Attention: Robert S. Emslie
Fax No.: (617) 572-3860 or 3866
Telephone No.: (617) 572-5522
With Copy To: John Hancock Mutual Life Insurance Company
Law Department (T-50)
John Hancock Place
200 Clarendon Street
Boston, MA 02117
Attention: Roslyn Poznansky, Esq.
Fax No.: (617) 572-9268 or 9269
Telephone No.: (617) 572-____
<PAGE> 11
To Buyer: ________________________
________________________
________________________
Fax No.: _______________
Telephone No.: _______________
With Copy To: ________________________
________________________
________________________
Fax No.: _______________
Telephone No.: ______________
24. CONFIDENTIALITY. Buyer shall not disclose the financial and economic
terms and conditions of the transaction contemplated herein except as may be
necessary in the ordinary course of its 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; provided that, following the
Closing, Seller's approval shall not be unreasonably withheld or delayed. The
obligations in this Section 24 shall survive the Closing or termination of this
Agreement for any reason.
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.
26. COUNTERPARTS. This Agreement may be executed and delivered in any
number of counterparts, each of which so executed and delivered shall be deemed
to be an original and all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed
the day and year first above written.
SELLER:
JOHN HANCOCK REALTY INCOME FUND LIMITED PARTNERSHIP
BY: JOHN HANCOCK REALTY EQUITIES INC., its General Partner
BY: __________________________
Robert S. Emslie
Assistant Vice President
BUYER:
KIESLAND PARTNERSHIP IX
BY:________________________________
Donald M. Houpt, III
General Partner
EXHIBITS:
1.1.1 - Legal Description
1.1.6 - Schedule of Leases
1.1.7 - Schedule of Contracts
