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PURCHASE AND SALE AGREEMENT
THIS AGREEMENT made and entered into as of the 22 day of October, 1998, by and
between JOHN HANCOCK REALTY EQUITY FUND - III LIMITED PARTNERSHIP, a
Massachusetts limited 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 T J SQUARED, LLC, having an office address at
5800 Mohican, Cincinnati, Ohio 45243 (hereinafter"Buyer");
WITNESSETH THAT:
WHEREAS, Seller desires to sell certain improved real property known as the
Stone Container Building 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"):
1.1.1 Certain land (the "Land") located at 5404 Duff Drive,
Cincinnati, Butler County, Ohio 45246 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;
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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 Assignable warranties and guaranties issued in connection
with the Improvements or the Personal Property which remain in effect as of
Closing; and
1.1.9 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.
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.
2. Purchase Price. The Property is to be sold to Buyer for the sum of Two
Million Seven Hundred Seventy-Five Thousand Dollars ($2,775,000) (the "Purchase
Price"), which Buyer shall pay to Seller on the Date of Closing by wiring
immediately available 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 Fifty Thousand Dollars ($50,000) 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 Title
Company 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 a time to be agreed
upon on the date that is no later than fifteen (15) days after the later to
occur of the following: (i) the Approval Date, if no Objection Notice or
Termination Notice has been given by Buyer, or (ii) the Objection Deadline, or
(iii) the date mutually agreeable by Buyer and Seller in which Seller is to cure
objections that cannot be cured by the Objection Deadline (the "Date of Closing"
or "Closing"), at an office of Chicago 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:
Chicago Title Insurance Company
Mr. Brian Mancz, Vice President
36 E. Seventh Street, Suite 1616
Cincinnati, Ohio 45202
Phone: (513) 721-1600
Fax: (513) 721-5362
Buyer's Review.
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4.1 Access.
4.1.1 Seller shall promptly upon the execution hereof make
available to Buyer at the Cincinnati, Ohio office of LaSalle Partners Management
Services, Inc. copies of the Contracts and the Leases, Seller's current owner's
title insurance policy, the last several tenant invoices, the most recent tax
bills, and the 1996, 1997 and 1998 operating expense history and all capital
expenditures. 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 Seller's books and records and tenant files relating to the
Property (other than any privileged, proprietary or confidential records).
Seller shall make available to Buyer at the Cincinnati, Ohio office of LaSalle
Partners Management Services, Inc. copies of 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
within four days of signing this Agreement. 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.
4.1.2 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.
4.1.3 Seller represents and warrants to Buyer that attached as
Exhibit 1.1.6 is a copy of the complete Lease with all amendments thereto, and
to the Seller's actual knowledge, there are no defaults currently existing on
the part of lessor or lessee under the Lease, and further, that there are no
other leases affecting the Property.
4.2 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").
4.3 Buyer's Right to Object or Terminate.
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4.3.1 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 the date that is thirty days
after both parties have signed this Agreement (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 and receive promptly a full refund of
the Deposit. 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.
4.3.2 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 by Buyer to Seller and Title Company, the
Title Company shall promptly 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.
4.4 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:
4.4.1 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;
4.4.2 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;
4.4.3 the lien of non-delinquent real and personal property taxes
and assessments;
4.4.4 rights of parties in possession not shown by the public
records;
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4.4.5 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;
4.4.6 easements or claims of easements, whether or not shown by
the public records;
4.4.7 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
4.4.8 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".
4.5 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, Seller shall be required at Closing to pay the termination fee.
5. Condition of Premises.
5.1 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).
5.2 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 reasonable 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.
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5.3 Seller represents and warrants to Buyer that Seller has received
no notice of any material defects in the Building or of any environmental
contamination of the Property that has not been disclosed in writing to Buyer
contemporaneous with the delivery of those items which Seller delivers to Buyer
pursuant to Section 5.1 herein. 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 Section 6.3 shall survive the
Closing or the termination of this Agreement for any reason.
6. Prior to Closing.
6.1 Until Closing, Seller or Seller's agents shall:
6.1.1 Insurance. maintain the types and amounts of insurance that
are in force on the date of execution hereof; and
6.1.2 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.
6.1.3 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.
7. Representations and Warranties.
7.1 Seller represents and warrants to Buyer as follows:
7.1.1 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.
7.1.2 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.
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7.2 Buyer represents and warrants to Seller as follows:
7.2.1 Buyer is a limited liability company duly organized,
validly existing, and in good standing under the laws of Ohio.
7.2.2 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.
7.3 The above-stated representations and warranties in Section 8.1
and 8.2 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 $50,000.00. 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 and
George Kovach, the two employees of Seller who are most familiar with the
Property and who have had the most contact with the management company.
8. Conditions Precedent.
8.1 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.
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8.2 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. In such event, Buyer is to be reimbursed
by Seller promptly for documented out-of-pocket expenses incurred by Buyer in
inspecting and analyzing the Property on account of the termination of this
Agreement because Seller did not receive approval from Seller's internal
committees, not to exceed $25,000.
9. Adjustments and Prorations.
9.1 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 2:00 p.m., 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 o hand at the Property owned by
Seller, if any, at no additional cost to Buyer.
9.2 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.
10. Closing Documents.
10.1 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"):
10.1.1 Deed. a special warranty deed conveying marketable title
to the Land and the Improvements subject to the Permitted Exceptions;
10.1.2 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;
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10.1.3 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;
10.1.4 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;
10.1.5 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);
10.1.6 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;
10.1.7 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, and
10.1.8 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.
10.2 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"):
10.2.1 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
10.2.2 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.
10.3 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.
10.4 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".
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11. 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, 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 the real estate transfer taxes, personal property
sales taxes, the Seller's 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.
12. 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 or Buyer, 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 to Buyer, 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.
13. 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.
14. 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 West Shell Commercial ("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.
15. 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.
16. 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.
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17. Remedies.
17.1 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
plus Buyer's documented out-of-pocket costs and expenses not to exceed $50,000,
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) secure any permit,
approval, or consent with respect to the Property or Seller's conveyance, or
(iii) 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
or Buyer have any personal liability in connection with this Agreement or
transaction.
17.2 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.
17.3 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.
17.4 In any action to enforce the provisions of this Agreement, the
prevailing party shall be entitled to an award of its reasonable attorneys' fees
and costs.
18. Assignment. This Agreement may not be assigned by Buyer without the
express written consent of Seller, which consent Seller may in its sole
discretion withhold, except that Buyer may, without Seller's consent, assign
this Agreement to a limited partnership of which Buyer (or a principal of Buyer)
or any parent or any wholly owned subsidiary of Buyer 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.
19. Waiver. No waiver of any breach of any agreement or provision
contained herein shall be deemed a waiver of any preceding or succeeding breach
of any other agreement or provision herein contained. No extension of time for
the performance of any obligation or act shall be deemed an extension of time
for the performance of any other obligation or act.
20. Time. It is agreed that time is of the essence of this Agreement.
21. Governing Law. This Agreement shall be construed under the laws of the
state in which the Property is located.
22. Notices. All notices required or permitted to be given hereunder shall
be in writing and sent by overnight delivery service (such as Federal Express),
in which case notice shall be deemed given on the day after the date sent, or by
personal delivery, in which case notice shall be deemed given on the date
received, or by certified mail, in which case notice shall be deemed given three
(3) days after the date sent, or by fax (with copy by overnight delivery
service), in which case notice shall be deemed given on the date sent, to the
appropriate address indicated below or at such other place or places as either
Buyer or Seller may, from time to time, respectively, designate in a written
notice given to the other in the manner described above.
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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) 572-9235
To Buyer: T J Squared, LLC
5800 Mohican Lane
Thomas M. Powers
Cincinnati, Ohio 45243
Fax No.: (513) 369-1371
Telephone No.: (513) 369-1341
With Copy To: Gerald F. O'Connell, Jr.
1900 Fifth Third Center
511 Walnut Street
Cincinnati, Ohio 45202
Fax No.: (513) 651-3836
Work Telephone No.: (513) 629-2808
23. Confidentiality. (a) 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.
(b) Seller shall not disclose the financial and economic terms and
conditions of this 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 Buyer; provided that, following the Closing,
Buyer's approval shall not be unreasonably withheld or delayed. Seller shall not
disclose the names of members in T J Squared, LLC without the prior written
consent of the individual member which is sought to be disclosed. The
obligations in Section 24 shall survive the Closing or termination of this
Agreement for any reason.
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(c) West Shell Commercial Oncor, the Seller's Broker, is signing this
Agreement at the end solely with respect to the following Agreement: Broker
shall not disclose the names of the members of T J Squared, LLC to the media, or
in response to requests from the media, and shall offer no press releases or
other dissemination of information to the media without the prior written
approval of Buyer and the person which is the subject of such disclosure
request.
24. 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.
25. 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: BROKER: (SIGNING SOLELY PER SECTION 24)
JOHN HANCOCK REALTY EQUITY WEST SHELL COMMERCIAL
FUND - III LIMITED PARTNERSHIP
By: JOHN HANCOCK REALTY By: ______________________________
EQUITIES INC., its general
partner Title: ______________________________
By: ___________________
Title: ___________________
Date: _______________, 1998
BUYER:
T J SQUARED, LLC
By: ____________________________
Thomas M. Powers
Title: Managing Member
Date: _______________, 1998
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