<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC
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)
February 28, 1997
American Real Estate Investment Corporation
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(Exact name of registrant as specified in its charter)
Maryland 1-12514 84-1246585
- ----------------------------------------------------------------------------
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
1670 Broadway, Suite 3350, Denver, Colorado 80202
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(Address of principal executive offices)
Registrant's telephone number, including area code: 303-869-4700
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- --------------------------------------------------------------------------------
(Former name or former address, if changed since last report)
<PAGE>
Item 2. Acquisition or Disposition of Assets.
------------------------------------
On February 28, 1997, pursuant to an agreement dated January 15, 1997,
American Real Estate Investment Corporation (the "Company"), through a limited
partnership of which a wholly owned subsidiary is the general partner and the
Company's operating partnership is the sole limited partner, sold the 450 unit
apartment complex known as the Timberleaf Apartments, which was constructed in
1972 and is located at 9913 East First Avenue in Aurora, Colorado. The gross
selling price for the property was $9,115,000. The property was sold to
Timberleaf Apartments, LLC, an unaffiliated entity.
Item 7. Financial Statements and Exhibits.
---------------------------------
(a) Financial statement of businesses acquired.
Not applicable
(b) Pro forma financial information.
Pro Forma Balance Sheet as of December 31, 1996 (unaudited)
Pro Forma Statement of Operations for the year ended December
31, 1996 (unaudited)
(c) Exhibits.
10(o) Contract for Purchase and Sale of Timberleaf Apartment
Complex dated as of January 15, 1997
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
undersigned hereunto duly authorized.
American Real Estate
Investment Corporation
By: ____________________________
Rick A. Burger, Treasurer
Dated: March 3, 1997
Enclosures
<PAGE>
AMERICAN REAL ESTATE INVESTMENT CORPORATION
PRO FORMA BALANCE SHEET
AS OF DECEMBER 31, 1996
(In Thousands)
(Unaudited)
The pro forma balance sheet is presented as if the disposition of Timberleaf
apartments ("Timberleaf") had occurred on December 31, 1996. The sale of
International Apartments was reflected in the Company's historical consolidated
balance sheet as of December 31, 1996. The pro forma balance sheet should be
read in conjunction with the financial statements filed by the Company with the
Securities and Exchange Commission, including the Company's Form 10-KSB for the
year ended December 31, 1996.
This unaudited pro forma balance sheet is not necessarily indicative of what the
actual financial position would have been at December 31, 1996, nor does it
purport to represent the future financial position of the Company.
<TABLE>
<CAPTION>
American
Real Estate
Investment Pro Forma
Corporation Adjustments Pro Forma
----------- ------------------ ----------
(A)
<S> <C> <C> <C>
ASSETS
- ------
Real estate, net $ 43,555 $ (8,580) (B) $ 34,975
Other assets 2,668 2,238 (B) (C) 4,906
----------- ---------- ----------
Total assets $ 46,223 $ (6,342) $ 39,881
=========== ========== ==========
LIABILITIES AND SHAREHOLDERS' EQUITY
- ------------------------------------
Liabilities:
Mortgage notes payable $ 33,027 $ (6,372) (B) $ 26,655
Other notes payable 4,212 0 4,212
Other liabilities 1,230 (220) (B) 1,010
Total liabilities 38,469 (6,592) 31,877
----------- ---------- ----------
Minority interest 3,125 166 (C) 3,291
Shareholders' equity:
Preferred stock 0 0 0
Common stock 1 0 1
Additional paid-in capital 5,374 0 5,374
Cumulative net income 1,874 84 (C) 1,958
Cumulative dividends (2,620) 0 (2,620)
----------- ---------- ----------
Total shareholders' equity 4,629 84 4,713
----------- ---------- ----------
Total liabilities
and shareholders' equity $ 46,223 $ (6,342) $ 39,881
=========== ========== =========
- -------------------------------
</TABLE>
(A) Reflects the historical consolidat ed balance sheet of American
Real Estate Investment Corporatio n as of December 31, 1996.
(B) Represents adjustmen ts for the assets and liabilities of
Timberleaf.
(C) Reflects the gain on sale and net cash proceeds from the sale
of Timberleaf.
<PAGE>
AMERICAN REAL ESTATE INVESTMENT CORPORATION
PRO FORMA STATEMENT OF OPERATIONS
YEAR ENDED DECEMBER 31, 1996
(IN THOUSANDS)
(UNAUDITED)
These pro forma Statements of Operations are presented as if the disposition of
Timberleaf apartments ("Timberleaf") and International apartments ("Internation
al") had occurred on December 31, 1995 and the Company qualified as a REIT
distributed all of its taxable income and, therefore, incurred no tax expense
during the period. These statements should be read in conjunction with the
financial statements filed by the Company with the Securities and Exchange
Commission, including the Company's Form 10-KSB for the year ended December 31,
1996.
These unaudited pro forma Statements of Operations are not necessarily
indicative of what the actual results of operations of the Company would have
been assuming the aforementio ned events had been completed as of December 31,
1995, nor does it purport to represent the results of operations for future
periods.
<TABLE>
<CAPTION>
<C>
American
Real Estate
Investment Pro Forma
Corporation Adjustment s Pro Forma
---------------- ------------------ -------------------
(A)
<S> <C> <C>
Revenues from rental properties $ 10,240 $ (2,958) (B) $ 7,282
Rental property expenses:
Repairs and maintenance 708 (231) (B) 477
Property taxes 417 (84) (B) 333
Property management fees 353 (99) (B) 254
Utilities 1,034 (488) (B) 546
Payroll 893 (334) (B) 559
Other property operations 1,005 (428) (B) 577
General & administrative 515 0 515
Depreciation and amortization 1,306 (364) (B) 942
---------------- ------------------ -------------------
Total operating expenses 6,231 (2,028) 4,203
---------------- ------------------ -------------------
Financing expenses 3,897 (751) (C) 3,146
Minority interest 1,364 (1,364) (D) 0
Equity in earnings from
investment in partnership 570 0 570
---------------- ------------------ -------------------
Income (loss) before gain
on sale of property (682) 1,185 503
Gain on sale of property 1,786 (1,786) (D) 0
---------------- ------------------ -------------------
Net income $ 1,104 $ (601) $ 503
================ ================== ===================
Primary earnings
(loss) per share (E) $ 1.00 $ (0.55) $ 0.45
================ ================== ===================
Fully diluted earnings (loss)
per share (E) $ 1.00 $ (0.74) $ 0.26
================ ================== ===================
</TABLE>
<PAGE>
AMERICAN REAL ESTATE INVESTMENT CORPORATION
PRO FORMA STATEMENT OF OPERATIONS
YEAR ENDED DECEMBER 31, 1996
(IN THOUSANDS)
(UNAUDITED)
- ------------------------
(A) Represents historical consolidated operating statement amounts
for the year ended December 31, 1996 for American Real Estate
Investment Corporation.
(B) Represents revenues and operating expenses, including depreciation
and amortization, for the year ended December 31, 1996 relating to
Timberleaf and International.
(C) Represents interest expense for the year ended December 31, 1996
relating to the first mortgage indebtedness for Timberleaf, along
with the International's allocable share of the Company's line of
credit and bank loan partially secured by International.
(D) Represents the adjustments required resulting from eliminating the
gain on sale of property resulting from the sale of International.
The minority interest allocation was adjusted accordingly, in
accordance with the allocation provisions specified in the
operating partnership's partnership agreement.
(E) Pro forma amount represents the earnings per share obtained by
incorporati ng the net income effect of all pro forma adjustments
for Timberleaf and International, and the corresponding
adjustmen t in the number of fully diluted shares outstanding at
December 31, 1996.
<PAGE>
Exhibit 10
CONTRACT FOR PURCHASE AND SALE OF TIMBERLEAF APARTMENT COMPLEX
This Contract for Purchase and Sale of Timberleaf Apartment Complex
("Contract") dated as of January 15, 1997, is between American Timberleaf
Partners, L.P., a Delaware limited partnership (the "Seller"), and Wiener West
Group, Inc., a Colorado corporation, (the "Purchaser").
RECITALS
A. The Seller is the owner of the tract of land and the improvements
thereon located in Arapahoe County, Colorado, more particularly described on
EXHIBIT A attached as a part of this Contract (the "Land").
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B. The Land has been improved by the construction of apartment buildings
and certain amenities including fixtures, parking areas, landscaping and other
improvements located upon the Land (the "Improvements").
C. The Seller owns certain furniture, fixtures, furnishings, machinery,
equipment, and other personal property located on or about the Land and
Improvements and used in connection therewith, which personal property is more
particularly set forth in the list attached hereby as EXHIBIT B (the "Personal
---------
Property").
D. The Purchaser desires to purchase from the Seller the Land,
Improvements, and Personal Property, together with all appurtenances, rights,
easements, rights of way, privileges, licenses, appurtenances, tenements and
hereditaments incident thereto (all collectively called the "Property"), and the
Seller desires to sell and convey the Property to the Purchaser.
E. In order to effect the intent of the parties as described in these
Recitals, the parties have entered into this Contract and agree as set forth
below. This Contract is entered into pursuant to that certain letter of intent
between the parties dated January 7, 1997.
AGREEMENT
NOW, THEREFORE, in consideration of the covenants and agreements set forth
below and other good and valuable consideration, the receipt and sufficiency of
which are hereby mutually acknowledged, the parties hereto agree as follows:
ARTICLE 1
PROPERTY TO BE SOLD
1.1 LAND, IMPROVEMENTS, AND PERSONAL PROPERTY. The Purchaser agrees to
buy, and the Seller agrees to sell and convey to the Purchaser, the Property
pursuant to the terms and conditions set forth in this Contract.
<PAGE>
ARTICLE 2
PURCHASE PRICE
2.1 PAYMENT OF PURCHASE PRICE. The purchase price for the Property shall
be Nine Million Two Hundred Thousand Dollars ($9,200,000.00). The purchase
price for the Property shall be paid as follows:
(a) By payment of Two Million Eight Hundred Forty Thousand Dollars
($2,840,000.00) in cash or cash equivalent at Closing, which amount shall be (i)
reduced by the Earnest Money Deposit provided for in Paragraph 12.1 below, (ii)
adjusted to reflect any difference between the loan assumption amount set forth
in paragraph 2.1(b) below and the actual principal balance of the loan
assumption as of the Closing Date, and (iii) subject to the prorations provided
for in Article 7 below; and
(b) By the Purchaser assuming and agreeing to pay an existing loan in
the approximate amount of Six Million Three Hundred Sixty Thousand Dollars
($6,360,000.00), presently payable on the following terms: the promissory note
to be assumed (the "Note") is collateralized by the Property and bears interest
at nine percent (9%) per annum. The Note requires monthly principal and interest
payments of $52,300.47 through March, 2004, a balloon payment of approximately
$5,822,000 due April 1, 2004, and a prepayment penalty provision. Purchaser
shall, on or before January 24, 1997, complete its application to the lender
including the provision of all supporting documents, for qualification for the
loan assumption and Purchaser shall diligently and in good faith pursue
obtaining the lender's approval. Purchaser agrees to pay any and all loan
transfer and assumption fees and costs and any expenses related thereto. Seller
shall be fully released from any and all liability on such loan and Seller's
release from liability shall be evidenced by an appropriate letter from the
lender. Seller's receipt of such a letter, in form and substance satisfactory to
Seller in its sole and absolute discretion, shall be a condition precedent to
Seller's obligation to close. Purchaser's approved assumption of the Note and
First Deed of Trust without modification of its material terms (other than the
obligation to pay assumption fees and costs) shall be an additional condition
precedent to Purchaser's obligations hereunder.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
The Seller hereby represents, warrants, and covenants that, as of the date
hereof and as of the Closing, to the best of its knowledge:
3.1 AUTHORITY OF SELLER. The Seller is a limited partnership organized
under the laws of the State of Delaware, in good standing and qualified to do
business in the State of Colorado, and has the right, power, and authority to
enter into this Contract and to sell the Property in accordance with the terms
and conditions of this Contract.
3.2 REPAIRS AND MAINTENANCE PRIOR TO CLOSING. Subject to Article 8 hereof
<PAGE>
concerning condemnation and risk of loss, prior to Closing the Seller shall
maintain the Property substantially in its present condition, reasonable wear
and tear excepted.
3.3 EXISTING FINANCING. The Property is subject to a First Deed of Trust
(the "First Deed of Trust") held by Eichler Fayne & Associates securing the
repayment of an indebtedness (hereinafter referred to as the "First Deed of
Trust Debt") in the original principal amount of Six Million Five Hundred
Thousand Dollars ($6,500,000.00), and calling for repayment in consecutive,
equal, monthly installments of principal and interest in the amount of Fifty Two
Thousand Three Hundred Dollars and Forty Seven Cents ($52,300.47) each until
April 1, 2004. The First Deed of Trust is not in default, nor has any event
occurred which, with the lapse of time or the giving of notice, would become a
default thereunder, nor has the holder of the First Deed of Trust asserted any
claim of default by the Seller thereunder, nor has the holder of the First Deed
of Trust permitted any moratorium or other postponement or forgiveness of
principal or interest payable thereunder.
3.4 TENANT LEASES. The Property is subject to those tenancies and leases
(sometimes collectively referred to as "Leases") listed on the rent roll
attached hereto as EXHIBIT C and current as of the date thereof. The rent roll
---------
has been compiled and maintained by the independent property management company
engaged by Seller to manage the Property. All leases listed on EXHIBIT C,
---------
including all modifications thereto, are available for inspection by the
Purchaser, upon reasonable notice to Seller.
3.5 STATUS OF TENANT LEASES. To the best of Seller's knowledge, except as
otherwise indicated on EXHIBIT C, all of the Leases are in good standing, valid
---------
and in full force and effect. The Seller has the sole right to collect the rents
under the Leases, and neither that right nor any of the Leases have been
assigned, pledged, hypothecated or otherwise encumbered by the Seller except as
additional collateral for the First Deed of Trust (which collateral security is
conditional in nature, and the holder of the First Deed of Trust has not
asserted or exercised any right to collect the rents). Seller shall not enter
into any new rental agreements with any of the tenants listed on EXHIBIT C, nor
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rent any unit to new tenants, except as provided in Article 9 below.
3.6 MANAGEMENT AGREEMENTS AND SERVICE CONTRACTS. The Seller has furnished
or made available to the Purchaser copies or originals of each real estate
management, maintenance, security and service contract, and all other agreements
in force with respect to the Property, known to the Seller.
3.7 INSURANCE. The Seller has in full force insurance policies covering
the Improvements for loss or damage, liability, and loss of rents. Copies of
the insurance binders have been or will be provided to Purchaser.
3.8 CONDEMNATION PROCEEDINGS. The Seller knows of no condemnation or
eminent domain proceedings pending or contemplated against the Property or any
part thereof.
3.9 EMPLOYEES. Seller has made or will make available to Purchaser a list
of all persons presently employed by the Seller in connection with the operation
and maintenance of the Property. There are no labor disputes or disputes
between Seller and its employees pending or, to the best of the Seller's
knowledge, contemplated, which would affect the operation or maintenance of the
Property. The Seller is not a party to any union or other collective
<PAGE>
bargaining contract relating to the Property.
3.10 MANUFACTURERS WARRANTIES. Seller has made or will make available to
purchaser all warranties of manufacturers, suppliers and/or installers relating
to the Property, or any part thereof, known to Seller.
3.11 NO DEFAULTS. To the best of Sellers' knowledge, neither the
execution of this Contract nor the consummation of the transactions contemplated
hereby will: (i) conflict with, or result in a breach of, any of the material
terms, conditions or provisions of, or constitute a material default under, any
agreement or instrument to which the Seller is a party; (ii) violate any
restriction to which the Seller is subject; (iii) constitute a violation of any
applicable code, resolution, law, statute, regulation, ordinance, rule,
judgment, decree or order; or (iv) give anyone the right to cancel any contract
or lease pertaining to the Property.
3.12 EVENTS PRIOR TO CLOSING AND OTHER INFORMATION. The Seller will not
take or cause to be taken any action, or fail to perform any obligation, which
would cause any of the foregoing representations or warranties to be untrue as
of the Closing. The Seller shall immediately notify the Purchaser, in writing,
of any event or condition known to Seller which occurs prior to Closing
hereunder, which causes a material change in the facts relating to, or the truth
of, any of the above representations or warranties.
3.13 COMPLIANCE WITH LAWS. To the best of Seller's knowledge, Seller's
operation of the Property has substantially complied in all material respects
with any laws and regulations affecting the Property.
The Purchaser hereby represents and warrants to Seller as of the date
hereof and as of the Closing on the Closing date that:
3.14 DUE ORGANIZATION GOOD STANDING AND POWER. The Purchaser is a
corporation duly incorporated, validly existing, and in good standing under the
laws of the State of Colorado. The Purchaser has full right, power, and
authority to enter into this agreement and perform its obligations hereunder.
3.15 AUTHORIZATION AND VALIDITY OF DOCUMENTS. The execution, delivery,
and performance by the Purchaser of this agreement and the documents and
transactions contemplated hereby have been duly and validly authorized by the
Purchaser. This agreement has been duly executed, acknowledged, sealed, and
delivered by the Purchaser and is a legal, valid, and binding obligation of the
Purchaser enforceable against the Purchaser in accordance with its terms.
3.16 BACKUP PURCHASER. Purchaser hereby acknowledges that the Seller has
a third party (the "Backup Buyer") that is interested in purchasing the
Property. The Backup Buyer is currently performing certain due diligence with
respect to the Property and Purchaser acknowledges that Seller will be providing
information regarding Property to the Backup Buyer but that Seller will make its
best efforts not to allow the additional due diligence investigation of the
Backup Buyer to interfere with the due diligence investigation of the Purchaser.
Seller shall use its best efforts to prevent the due diligence investigation of
the Backup Buyer from interfering with Purchaser's due diligence and other
efforts to finalize the transactions
<PAGE>
contemplated hereby.
ARTICLE 4
TITLE, INSPECTIONS AND CLOSING DATE
4.1 TITLE INSURANCE. The Seller shall, at the Seller's expense, within
the Due Diligence Period, obtain and deliver to Purchaser a commitment (the
"Title Commitment") from a title insurance company of the Seller's choice which
is licensed to do business in the State of Colorado to issue an owner's title
insurance policy on Standard ALTA Policy Form B 1992, and to delete the standard
printed exceptions appearing in such form. Copies of all recorded documents
referred to in the commitment shall also be delivered to Purchaser by Seller.
If the title commitment shows exceptions to title which are in addition to those
listed on EXHIBIT D and have a material adverse effect upon the marketability of
---------
the title to the Property, the Purchaser shall give the Seller notice thereof
within the Due Diligence Period and, unless the Seller gives the Purchaser
written notice within such Due Diligence Period that the Seller will cause the
title defects to be cured at or prior to Closing, the Purchaser may, within the
Due Diligence Period and at its election: (i) terminate this Contract, in which
event the Earnest Money Deposit referred to in Article 12 below and all interest
earned thereon shall be promptly returned to the Purchaser, or (ii) waive all
those title defects not shown on EXHIBIT D which Seller will not cause to be
---------
cured and proceed with Closing hereunder as if the additional title defects did
not exist.
4.2 SURVEY. The Seller shall, at its expense, obtain and deliver to the
Purchaser, within the Due Diligence Period, the most recent survey of the
Property in Seller's possession prepared by a licensed surveyor registered in
the State of Colorado selected by the Seller.
4.3 INSPECTION OF BOOKS AND RECORDS. Following the date of this Contract,
the Purchaser shall have access at reasonable times during ordinary business
hours to all documents, agreements and other information in the possession of
the Seller, or any employee, agent or independent contractor of the Seller,
pertaining to the ownership, use, rental or operations of the Property,
including, but not limited to: financial records, tax returns, tax assessments,
bills, leases, most current rent roll, detailed operating statements for the
last two (2) calendar years (or from inception of ownership through year end
1996), year-to-date operating statements, approved management company budgets
for 1996, property tax bills or statements for 1995 and 1996, environmental
studies for the property, copy of current title commitments, including a legal
description, and one copy of all documents listed as exceptions to the title
report, if in Seller's possession, current insurance binders, summary of all
capital improvements completed from inception of ownership, personal property
inventory, copies of all leases (to be reviewed on property), personnel list,
litigation for or against property, insurance claims, current rent roll, copies
of licenses in Seller's possession, and copies of service contracts. Purchaser
shall have the right, at its expense, to make copies of any such documents.
4.4 INSPECTION OF THE PROPERTY. During the period ending at 5:00 p.m. MDT
on the earlier of that day that is thirty (30) days from the execution hereof by
Purchaser or February 17, 1997 (the "Due Diligence Period"), the Purchaser shall
have the right, at its expense, during ordinary business hours, to have an
engineer or other independent inspector of its choice inspect
<PAGE>
the Property, provided the Purchaser gives the Seller reasonable notice of any
inspection and provided further that the inspection of the interior of any
apartment unit is permitted by the terms of the lease to such apartment unit or
is consented to by the occupant thereof. Any disturbance to the Property caused
by the inspection shall be promptly remedied or repaired at the expense of the
Purchaser. The Purchaser agrees to indemnify and hold Seller harmless of and
from any and all liability, costs, and expenses (including reasonable counsel
fees of the Seller), arising out of or with respect to such inspections. The
Purchaser shall have the right, upon giving the Seller notice thereof within the
Due Diligence Period, to terminate this Contract in which event the Earnest
Money Deposit referred to in Article 12 below and all interest earned thereon
shall be promptly returned to the Purchaser. After the Due Diligence Period has
ended, the Earnest Money Deposit shall be non-refundable.
4.5 CLOSING. The purchase and sale contemplated by this Contract shall be
consummated at settlement (the "Closing"), which shall take place on February
28, 1997, or such earlier date as may be mutually agreed upon by the Seller and
the Purchaser (the "Closing Date"). The Closing shall take place at the offices
of the title company issuing the commitment referred to in paragraph 4.1 above
in the City and County of Denver.
ARTICLE 5
SELLER'S DELIVERIES AND CONDITIONS
PRECEDENT TO PURCHASER'S OBLIGATIONS
In addition to other conditions precedent set forth elsewhere in this
Contract, the Seller shall deliver to the Purchaser at the Closing all of the
following, the delivery of which shall be a condition to Purchaser's obligation
to consummate the purchase of the Property and all being considered as occurring
simultaneously.
5.1 SPECIAL WARRANTY DEED. A special warranty deed which shall convey
title to the Land and Improvements, subject to the lien of the First Deed of
Trust and those title exceptions waived by the Purchaser pursuant to paragraph
4.1 and set forth as EXHIBIT D.
---------
5.2 BILL OF SALE. A bill of sale duly executed by the Seller and
transferring, assigning and conveying to the Purchaser: (i) good and marketable
title to all the Personal Property subject, however, to the existing liens
securing the First Deed of Trust (ii) all rights of the Seller as lessee under
any leases of the Personal Property; and (iii) all warranties and guarantees
pertaining to the Personal Property.
5.3 Assignment of Leases in a form acceptable to Purchaser and set forth
in EXHIBIT F.
---------
5.4 POSSESSION OF RECORDS. Seller shall deliver possession of the
originals of all Leases (including Lease guaranties, if any), service contracts
and originals or copies of all plans, reports, and approvals, if any, as
required herein to Purchaser on the Closing Date.
5.5 TENANT SECURITY DEPOSITS. An assignment to Purchaser of all accounts
<PAGE>
representing tenant security deposits, including all accrued interest thereon
required by law or other agreement to be paid thereon.
5.6 MISCELLANEOUS. Such other instruments (including a joint notice from
the Seller and the Purchaser to the tenants of the Property informing them of
the conveyance of the Property to the Purchaser and of the transfer of tenants'
security deposits to Purchaser) as may reasonably be required to consummate the
transactions contemplated by this Contract. Seller shall cause the Title
Insurance Policy to be delivered to Purchaser on or as soon as practicable after
closing at its expense.
5.7 POSSESSION. Possession of the Property shall be delivered to the
Purchaser at Closing, subject to the Leases shown on EXHIBIT C and such
---------
replacements thereof and new leases as are entered into in conformity with the
provisions of Article 9 below concerning operations prior to Closing.
ARTICLE 6
PURCHASER'S DELIVERIES AND CONDITIONS
PRECEDENT TO SELLER'S OBLIGATIONS
At the Closing and contemporaneously with the Seller's compliance with the
provisions of Article 5, Purchaser shall deliver to Seller at the Closing all of
the following, the delivery of which shall be a condition to Seller's obligation
to consummate the sale of the Property. Any one or more of the conditions
precedent to Seller's obligations hereunder, whether set forth in this Article 6
or elsewhere, may be waived by Seller in its absolute discretion.
6.1 CASH PORTION OF PURCHASE PRICE. Pay to Seller the cash portion of the
purchase price, adjusted as set forth in Paragraph 2.1(a).
6.2 ASSUMPTIONS. Execute and deliver to Seller an assumption by Purchaser
of (i) the First Deed of Trust, and (ii) all obligations of the Seller as lessor
under the Leases, to be performed from and after the date of Closing. The
Purchaser shall also execute and deliver to the Seller a certificate of the
Purchaser representing and warranting to the Seller that from and after the date
of Closing, the Purchaser will comply with the provisions of C.R.S. (S) 38-12-
101 et seq. with respect to the security deposits assigned to the Purchaser.
ARTICLE 7
PRORATED ITEMS AND ADJUSTMENTS
In connection with the transactions contemplated by this Contract, the
Seller and the Purchaser shall share equally the cost of any local transfer
taxes and Closing fees; Purchaser shall pay all documentary fees; Purchaser
shall pay for recordation of the deed and any instruments relating to the loan
assumption and any other of its loans. Seller shall pay the filing
<PAGE>
fee for recording any existing encumbrances to be released at Closing. The
Purchaser and Seller shall each pay their own legal fees. At the Closing the
following adjustments and prorations shall be computed as of the date of Closing
and the cash portions of the purchase price shall be adjusted to reflect such
prorations:
7.1 RENT. All rentals collected by Seller up to the date of Closing,
which are allocable to the period from and after Closing, shall be paid by the
Seller to the Purchaser. That portion of any past due rentals payable to the
Seller at or prior to Closing which are allocable to the period prior to Closing
shall be remitted to the Seller by the Purchaser as and if collected by
Purchaser. Payments received by the Purchaser shall be applied first to current
rent due and then to past due rent starting with the most recent delinquency.
The Purchaser shall use reasonable diligence to collect past due rents.
7.2 REAL PROPERTY TAXES. Real property taxes for the year of Closing,
based on the most recent levy and most recent assessment, assessments and all
other public or governmental charges against the Land and Improvements which are
or may be payable on an annual basis (including special assessments, liens or
encumbrances for sewer, water, drainage, or other public improvements completed
or commenced on or prior to the date of this Contract or subsequent thereto) to
the extent the same are not payable by tenants pursuant to tax escalation
clauses in their Leases, shall be adjusted and apportioned as of the date of
Closing and assumed and paid thereafter by the Purchaser, whether assessments
have been levied or not as of the date of Closing.
7.3 PERSONAL PROPERTY TAXES. Personal property taxes attributable to the
Personal Property for the fiscal year in which the date of Closing occurs shall
be apportioned between the parties as of the date of Closing.
7.4 SERVICE CONTRACTS AND UTILITIES. All prepayments made or payments due
under any continuing Service Contracts affecting the property, including water,
sewer, electric, gas and utility bills, parking, garbage removal, and
maintenance agreements shall be adjusted and apportioned as of the Closing and
thereafter assumed by the Purchaser.
7.5 SALES TAXES. Any sales tax relating to the Personal Property and
fixtures shall be paid by Purchaser. Any further sales or use tax that may
accrue because of this transaction shall also be paid by Purchaser.
7.6 MISCELLANEOUS. All other charges and fees customarily prorated and
adjusted in similar transactions shall be prorated at Closing and thereafter
assumed by the Purchaser. In the event that accurate prorations and other
adjustments cannot be made at Closing because current bills or statements are
not obtainable (as, for example, utility bills), the parties shall prorate on
the best available information, subject to adjustment upon receipt of the final
bill or statement.
ARTICLE 8
CONDEMNATION AND RISK OF LOSS
8.1 CONDEMNATION. In the event of condemnation or receipt of notice of
<PAGE>
condemnation or taking of the Property or any portion thereof by governmental
authority prior to the date of Closing, then, provided that the estimated value
of the portion of the Property which is the subject thereof is in excess of Five
Hundred Thousand Dollars ($500,000.00), the Purchaser, at its option, shall have
the right to terminate this Contract, and the Earnest Money Deposit and interest
thereon shall thereupon be refunded to the Purchaser, at which time all parties
shall thereupon be relieved of all rights and responsibilities in this Contract,
at law and in equity. If the estimated value is less than Five Hundred Thousand
Dollars ($500,000.00), or if the Purchaser does not elect to terminate this
Contract, then Closing hereunder shall be consummated as herein provided,
without reduction of the Purchase Price, but all condemnation awards or payments
shall be paid or assigned to the Purchaser at Closing. In no event shall Seller
be under any duty to Purchaser to restore the Property following a condemnation.
8.2 RISK OF LOSS. If prior to Closing the Property is damaged by fire,
other casualty, act of God or other event, then, provided the reasonably
estimated cost of the repair of the damages is in excess of Five Hundred
Thousand Dollars ($500,000.00) the Purchaser, at its option, shall have the
right to terminate this contract, and the Earnest Money Deposit and interest
thereon shall thereupon be refunded to Purchaser, at which time all parties
shall be relieved of all rights and responsibilities in the Contract, at law and
in equity. If the estimated cost of the repair of the damage is less than Five
Hundred Thousand Dollars ($500,000.00), or if the Purchaser does not elect to
terminate, as aforesaid, then Closing hereunder shall be consummated as herein
provided, without reduction of the Purchase Price, and, unless the damage shall
have been repaired by the Seller prior to the Closing, all insurance proceeds
payable as a result of such damage or casualty, if any, shall be paid or
assigned to the Purchaser.
ARTICLE 9
OPERATIONS PRIOR TO CLOSING
9.1 MAINTENANCE. Subject to the provisions of Article 8 concerning
repairs and replacements in the event of condemnation or casualty, until Closing
the Seller, at its expense, shall maintain the Property substantially in its
present condition, subject to normal wear and tear.
9.2 OPERATIONS. Until Closing the Seller, at its expense, shall operate
the Property in substantially the same manner as the Property is being operated
on the date of this Contract. The Seller shall use reasonable efforts to
maintain the goodwill of existing tenants and suppliers and to relet any
apartment unit on the Property which becomes vacant prior to Closing, provided
the reletting is to an unrelated third party pursuant to a bona fide lease, and
is at a rent comparable to that being charged for similar units in the Property.
Seller's contract with the management company for the operation of the Property
shall be terminated as of Closing and Seller shall indemnify Purchaser for any
liability to such management company.
9.3 THE FIRST DEED OF TRUST. Until Closing the Seller will perform all of
its obligations under the First Deed of Trust and will make all periodic
payments required thereunder.
9.4 OTHER ACTS. Until Closing the Seller shall not undertake or omit to
undertake any
<PAGE>
other act which would have a material adverse effect on the Property or the
operations thereof as presently conducted.
ARTICLE 10
FURTHER ASSURANCES
10.1 CONTINUING ACCESS. After Closing, the Seller shall execute and
deliver to the Purchaser any additional documents and instruments which
Purchaser may reasonably determine are necessary to further assure to the
Purchaser the consummation of the purchase and sale contemplated herein, without
additional expense to the Seller. From and after Closing each party shall
afford to the other reasonable access to any information in its possession
concerning the operations of the Property (including the right to copy the same
at the expense of the party desiring the copy) for purposes of any tax
examination or audit or other similar purpose.
10.2 SECTION 1031 EXCHANGE. Purchaser agrees to use its best efforts to
cooperate with and assist Seller in realizing its opportunity to complete a
potential Section 1031 exchange transaction. Purchaser need only so cooperate
with any such exchange so long as it incurs no additional liability as a result
thereof, any such exchange in no way hinders or delays the timely performance of
this contract, and any such exchange does not in anyway otherwise modify the
provisions contained herein.
ARTICLE 11
REAL ESTATE COMMISSION
11.1 REAL ESTATE COMMISSION. There is no broker involved in this
transaction.
ARTICLE 12
EARNEST MONEY DEFAULT
12.1 EARNEST MONEY DEPOSIT; PAYMENT TO SELLER AT CLOSING. Upon execution
of this Contract, the Purchaser shall pay to the title company as escrow agent
(the "Escrow Agent") Two Hundred Fifty Thousand Dollars ($250,000.00) in the
form of certified funds payable to the Escrow Agent (the "Earnest Money
Deposit"). At Closing, the Earnest Money Deposit, including all interest earned
thereon, shall be paid by the Escrow Agent to the Seller and applied to the
payment of the cash portion of the purchase price. If Closing does not occur,
the Earnest Money Deposit, including all interest earned thereon, shall be paid
over in accordance with the terms of this Contract. The Escrow Agent shall
deposit the Earnest Money Deposit in an interest-bearing account in a federally
insured bank or savings and loan association. The Escrow Agent shall be
reimbursed equally by the parties hereto for all expenses.
<PAGE>
12.2 PURCHASER'S DEFAULT; LIQUIDATED DAMAGES. The Purchaser and the
Seller each acknowledge that it would be difficult to ascertain the actual
damages which would be suffered by the Seller if the Purchaser defaults in
consummating the purchase and sale contemplated by this Contract. Accordingly,
if all conditions precedent to the Purchaser's obligation to consummate the
transactions contemplated by this Contract have been satisfied or waived, but
the Purchaser fails, refuses or is unable to consummate the purchase and sale
contemplated by this Contract, then the Seller's sole remedy shall be to give
the Escrow Agent and the Purchaser written notice of the Purchaser's default, in
which event the Escrow Agent shall pay the Earnest Money Deposit, together with
interest earned thereon, to the Seller. Upon payment of the Earnest Money
Deposit, including the interest earned thereon, to the Seller, neither party to
this Contract shall have any further liability to the other and this Contract
shall be and become null and void and of no further force and effect, either at
law or in equity.
12.3 SELLER'S DEFAULT. If all conditions and other events precedent to
the Seller's obligations to consummate the transactions contemplated by this
Contract have been satisfied or waived, but the Seller fails, refuses or is
unable to consummate the purchase and sale contemplated by this Contract, then
the Purchaser may at its election either (a) have the right to give the Escrow
Agent written notice of the Seller's default, in which event the Escrow Agent
shall pay the Earnest Money Deposit, together with interest earned thereon, to
the Purchaser or (b) pursue specific performance.
12.4 RIGHTS OF ESCROW AGENT. In the event of any dispute as to who is
entitled to receive the Earnest Money Deposit and interest earned thereon, the
Escrow Agent shall have the right to retain the funds and disburse them in
accordance with the final order of a court of competent jurisdiction, or to
deposit the Earnest Money Deposit and interest thereon with the court, pending a
final decision of the controversy. The parties hereto further agree that the
Escrow Agent shall not be liable for failure of the depository.
ARTICLE 13
MISCELLANEOUS PROVISIONS
13.1 COMPLETENESS. The Contract, documents, and agreements entered into
pursuant thereto constitute the entire agreement between the parties with
respect to the transactions contemplated herein, and supersede all prior
discussions, understandings or agreements between the parties.
13.2 BINDING EFFECT. This Contract shall be binding upon and inure to the
benefit of the parties hereto, and their respective successors and assigns.
13.3 SURVIVAL. Article 3, paragraph 7.1, Article 11 and this paragraph
13.3 shall survive the Closing.
13.4 WAIVER. Failure by the Purchaser or the Seller to insist upon or
enforce any of their respective rights hereunder shall not constitute a waiver
thereof, except as provided for herein.
<PAGE>
13.5 GOVERNING LAW. This Contract shall be construed, interpreted and
enforced in accordance with the laws of the State of Colorado, without regard to
principles of conflict of laws.
13.6 ARTICLE HEADINGS. The Article and paragraph headings as herein used
are for convenience or reference only and shall not be deemed to vary the
content of this Contract or the covenants, agreements, representations and
warranties herein set forth or limit the provisions or scope of any Article or
paragraph.
13.7 COUNTERPARTS. To facilitate execution, this Contract may be executed
in as many counterparts as may be required and it shall not be necessary that
the signature of, or on behalf of, each party, or that the signatures of the
persons required to bind any party, appear on more than one counterpart. All
counterparts shall collectively constitute a single agreement.
13.8 NOTICES. All notices, requests, consents and other communications
hereunder shall be in writing and shall be delivered (a) personally on a
business day during business hours or (b) mailed by first class, registered or
certified mail, return receipt requested, postage prepaid or (c) by facsimile
transmission or (d) by prepaid overnight courier service, return receipt
requested:
(a) If to the Purchaser, to
Wiener West Group, Inc
Attention: Eric R. Wiener, President
888 South Oneida
Denver, CO 80224
(303) 331-0392
(303) 399-6119 (FAX)
(303) 447-2207 (FAX)
or to such other address as may have been furnished by the Purchaser to the
Seller in writing, with a copy to
Jon Zall, Esq.
Thompson & Zall LLC
Galleria Office Towers
720 South Colorado Blvd., Suite 1200S
Denver, CO 80222
(303) 691-9700
(303) 691-9701 (FAX)
(b) If to the Seller, to
American Timberleaf Partners, L.P.
Attention: Evan H. Zucker
1670 Broadway, Suite 3350
Denver, CO 80202
(303) 869-4700
(303) 869-4602 FAX
<PAGE>
or to such other address as may have been furnished by the Seller to the
Purchaser in writing, with a copy to
Edward D. White, Esq.
Dufford & Brown, P.C.
1700 Broadway, Suite 1700
Denver, CO 80290-1701
(303) 861-8013
(303) 832-3804
and
(c) If to Escrow Agent, to
Bev Saunders
North American Title Company
44 Cook Street, Suite 300
Denver, CO 80206
(303) 333-8184
(303) 331-0882
or to such other address as may have been furnished by the Escrow Agent in
writing to the Purchaser and the Seller.
Any notice, request, consent or other communication shall be deemed
received when it is personally delivered or on the third business day after it
is deposited in the United States mails, as the case may be.
13.9 ASSIGNMENT. The Purchaser shall not have the right to assign this
Contract to another person or entity without the prior written consent of the
Seller; provided, however, that no such prior written consent will be required
in the event that Purchaser so assigns this Contract to an entity formed in
which the Purchaser has managerial responsibility and the other owning entity
consists of Purchaser's shareholders or entities formed for their benefit.
13.10 TIME OF THE ESSENCE. Time shall be of the essence with respect to
this Contract.
13.11 SPECIAL DISTRICTS. Special Taxing Districts may be subject to
general obligation indebtedness that is paid by revenues produced from annual
tax levies on the taxable property within such districts. Property owners in
such districts may be placed at risk for increased mill levies and excessive tax
burdens to support the servicing of such debt where circumstances arise
resulting in the inability of such a district to discharge such indebtedness
without such an increase in mill levies. Purchaser is aware of and understands
the debt financing requirements of the authorized general obligation
indebtedness of such districts, existing mill levies of such district servicing
such indebtedness, and the potential for an increase in such mill levies.
13.12 ATTORNEYS FEES. The prevailing party in any dispute relating to the
enforceability of this Agreement shall be entitled to an award of reasonable
attorneys fees and costs.
13.13 INDEMNIFICATION. Each party hereby agrees to indemnify the other
party and
<PAGE>
hold it harmless from and against any and all liabilities, costs and damages
including reasonable attorneys fees resulting from claims made by third parties
against the indemnified party arising out of the acts or omissions of the
indemnifying party with respect to the Property.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
and affixed their seals as of the day and year first above written.
SELLER: AMERICAN TIMBERLEAF PARTNERS, L.P.
By: American Timberleaf Corp.
Its: General Partner
By:________________________________
Its:_______________________________
PURCHASER: WIENER WEST GROUP, INC.
_____________________________________________
Eric R. Wiener, President
The Escrow Agent has joined in the execution of this Contract to
acknowledge its appointment as Escrow Agent and hereby agrees to perform the
duties imposed upon the Escrow Agent by this Contract.
ESCROW AGENT: NORTH AMERICAN TITLE COMPANY
_____________________________________________
Bev Saunders
List of Attached Exhibits
- -------------------------
"A" Land Description
"B" Personal Property List
"C" Rent Roll
"D" Liens or Encumbrances
"E" Special Warranty Deed Bill of Sale
"F" Assignment of Leases
