SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities and Exchange Act of 1934
Date of Report (Date of earliest event reported) June 19, 1996
Paine Webber Income Properties Three Limited Partnership
(Exact name of registrant as specified in its charter)
Delaware 0-10979 13-3038189
(State or other jurisdiction) (Commission (IRS Employer
of incorporation File Number) Identification No.)
265 Franklin Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (617) 439-8118
(Former name or address, if changed since last report)
<PAGE>
FORM 8-K
CURRENT REPORT
PAINE WEBBER INCOME PROPERTIES THREE LIMITED PARTNERSHIP
ITEM 2 - Disposition of Assets
Camelot Apartments, Fairfield, OH
Disposition Date - June 19, 1996
On June 19, 1996, the Partnership's joint venture investee which owned the
Camelot Apartments sold the operating investment property for $15,150,000. The
existing mortgage loan balances of $4,160,314, the existing ground lease balance
of $286,500 and closing costs of $393,804 were paid in conjunction with the
sale. In addition, net operating income of $109,970 through the date of sale was
credited to the buyer, and the venture paid property taxes owed through the date
of sale totalling $155,602. The venture also placed $120,000 in escrow for
unbilled operating expenses. The net proceeds from this sale totalled
approximately $9.9 million, of which the co-venture partners were entitled to
approximately $4 million under the terms of the joint venture agreement. Paine
Webber Income Properties Three Limited Partnership received net sale proceeds of
approximately $5.9 million.
Over the past several years, operations of the Camelot apartment complex have
reflected the generally improving conditions in the real estate markets for
multi-family residential properties across the country. Over the past twelve
months, average monthly rental rates at Camelot had increased by approximately
5.8% to a level of $461 per apartment unit. Management believed that with the
property performing favorably it was an appropriate time to market the property
for sale. The Partnership started formally marketing the Camelot Apartments for
sale in September 1995. After receiving significant interest from a number of
parties, the joint venture successfully consummated the transaction described
above. The Partnership's share of the net proceeds is expected to be distributed
to the Limited Partners as a Special Distribution paid concurrently with the
regular quarterly distribution on August 15, 1996.
ITEM 7 - Financial Statements and Exhibits
(a) Financial Statements: None
(b) Exhibits:
(1) Agreement of Purchase and Sale between Camelot Associates
(as Seller) and TGM Realty Corp. #5 (as Purchaser)
Dated: April 24, 1996
(2) Amendment To Agreement of Purchase and Sale, Dated May 24, 1996.
(3) Second Amendment to Agreement of Purchase and Sale,
Dated May 31, 1996
(4) Settlement Statement and Disbursement Schedule
<PAGE>
FORM 8-K
CURRENT REPORT
PAINE WEBBER INCOME PROPERTIES THREE LIMITED PARTNERSHIP
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
PAINE WEBBER INCOME PROPERTIES
THREE LIMITED PARTNERSHIP
(Registrant)
By: /s/Walter V. Arnold
Walter V. Arnold
Senior Vice President and
Chief Financial Officer
Date: July 5, 1996
<PAGE>
AGREEMENT OF PURCHASE
AND SALE
between
CAMELOT ASSOCIATES,
an Ohio limited partnership
as Seller,
and
TGM REALTY CORP. #5,
a Delaware corporation
as Purchaser
CAMELOT EAST APARTMENTS
Fairfield, Ohio
<PAGE>
ARTICLES:
TABLE OF CONTENTS
Page
ARTICLES:
I DEFINITIONS; RULES OF CONSTRUCTION................................... 1
1.1 Definitions.................................................... 1
1.2 Rules of Construction.......................................... 1
II PURCHASE AND SALE; PAYMENT OF PURCHASE PRICE......................... 2
2.1 Purchase and Sale.............................................. 2
2.2 Payment of Purchase Price...................................... 2
2.3 Study Period................................................... 2
(a) Term..................................................... 2
(b) Property Information..................................... 3
(c) Indemnity................................................ 3
(d) Damages.................................................. 3
(e) Tests.................................................... 3
(f) Repair not a Condition................................... 4
(g) AS IS.................................................... 4
(h) Title Examination........................................ 5
2.4 1031 Exchange.................................................. 6
III SELLER'S REPRESENTATIONS............................................. 7
3.1 Organization and Power......................................... 7
3.2 Authorization and Execution.................................... 7
3.3 Noncontravention............................................... 7
3.4 Compliance with Existing Laws.................................. 7
3.5 Status of Rent Roll and Leases................................. 7
3.6 Litigation..................................................... 8
3.7 Bankruptcy..................................................... 8
3.8 Brokerage Commission........................................... 8
3.9 Seller's Work.................................................. 8
3.10 Lease Commissions.............................................. 8
3.11 Operating Agreements........................................... 9
3.12 Tax Proceedings................................................ 9
3.13 FIRPTA......................................................... 9
3.14 Condemnation................................................... 9
3.15 Personal Property.............................................. 9
3.16 Hazardous Materials............................................ 10
IV PURCHASER'S REPRESENTATIONS, WARRANTIES AND COVENANTS................ 10
4.1 Organization and Power......................................... 10
4.2 Authorization and Execution.................................... 10
4.3 Noncontravention............................................... 10
4.4 Litigation..................................................... 11
4.5 Bankruptcy..................................................... 11
4.6 Brokerage Commission........................................... 11
V CONDITIONS AND ADDITIONAL COVENANTS.................................. 11
5.1 Seller's Deliveries............................................ 11
5.2 Representations................................................ 11
5.3 Condition of Improvements...................................... 12
5.4 Ground Lease................................................... 12
VI CLOSING.............................................................. 12
6.1 Closing........................................................ 12
6.2 Seller's Deliveries............................................ 12
6.3 Purchaser's Deliveries......................................... 14
6.4 Other Documentation............................................ 15
6.5 Possession of the Property..................................... 15
6.6 Closing Costs.................................................. 15
6.7 Income and Expense Allocations................................. 15
6.8 Lease Deposits and Fees........................................ 17
6.9 Owner's Title Insurance........................................ 18
VII CONDEMNATION; RISK OF LOSS........................................... 18
VIII TERMINATION RIGHTS................................................... 20
8.1 Termination by Purchaser....................................... 20
8.2 Termination by Seller.......................................... 20
IX ACKNOWLEDGMENTS OF PURCHASER......................................... 21
X MISCELLANEOUS PROVISIONS............................................. 21
10.1 Completeness; Modification..................................... 21
10.2 Assignments.................................................... 21
10.3 Successors and Assigns......................................... 21
10.4 Days........................................................... 21
10.5 Governing Law.................................................. 22
10.6 Counterparts................................................... 22
10.7 Severability................................................... 22
10.8 Costs.......................................................... 22
10.9 Notices........................................................ 22
10.10 Incorporation by Reference..................................... 24
10.11 Survival....................................................... 24
10.12 No Partnership................................................. 24
10.13 Time of Essence................................................ 24
10.14 Confidentiality................................................ 24
10.15 Successors and Assigns......................................... 24
10.16 No Third Party Beneficiaries................................... 24
10.17 Attorneys' Fees................................................ 25
10.18 Further Assurances............................................. 25
XI OPERATIONS PRIOR TO CLOSING.......................................... 25
XII ESCROW............................................................... 27
<PAGE>
List of Exhibits
Exhibit A...-.....Land Description
Exhibit B...-.....Operating Agreements
Exhibit C...-.....Property Information
Exhibit D...-.....Rent Roll
Exhibit E...-.....Tangible Personal Property
Exhibit F...-.....Limited Warranty Deed
Exhibit G...-.....Bill of Sale and Assignment
Exhibit H...-.....Post-Closing Adjustment Letter
Exhibit I...-.....Tenant Notice Letter
Exhibit J...-.....Certificate Regarding Representations
Exhibit K...-.....FIRPTA
<PAGE>
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT, dated as of the 24th day of April, 1996, between CAMELOT
ASSOCIATES, an Ohio limited partnership (the "Seller"), and TGM REALTY CORP. #5,
a Delaware corporation (the "Purchaser"), provides:
<PAGE>
I ARTICLE I
DEFINITIONS; RULES OF CONSTRUCTION
I.1...DefinitionsI1. Except where otherwise indicated, capitalized terms
used in this Agreement shall have the indicated meanings set forth on Schedule 1
attached hereto and made a part hereof.
I.2...Rules of ConstructionI2. The following rules shall apply to the
construction and interpretation of this Agreement:
......(a)...Singular words shall connote the plural number as well as the
singular and vice versa, and the masculine shall include the feminine and the
neuter.
......(b)...All references herein to particular articles, sections,
subsections, clauses, schedules or exhibits are references to articles,
sections, subsections, clauses, schedules or exhibits of this Agreement.
......(c)...The table of contents and headings contained herein are solely
for convenience of reference and shall not constitute a part of this Agreement
nor shall they affect its meaning, construction or effect.
......(d)...The Seller and the Purchaser and their respective counsel have
reviewed and revised (or requested revisions of) this Agreement, and therefore
any usual rules of construction requiring that ambiguities are to be resolved
against a particular party shall not be applicable in the construction and
interpretation of this Agreement or any exhibits hereto or amendments hereof.
II ARTICLE II
PURCHASE AND SALE;
PAYMENT OF PURCHASE PRICE
II.1..Purchase and SaleII1. The Seller agrees to sell and the Purchaser
agrees to acquire the Property for the Purchase Price and in accordance with
this Agreement. The Purchaser shall deliver the Earnest Money to the Escrow
Agent by federal wire transfer no later than the end of business on the Business
Day immediately after the day Purchaser receives by facsimile a fully executed
counterpart of this Agreement.
II.2..Payment of Purchase PriceII2. The Purchase Price shall be paid to
the Seller, or in whole or in part to Seller's designee (including without
limitation to a qualified intermediary pursuant to Section 2.4) in the following
manner:
......(a)...The Purchaser shall receive a credit against the balance of
the Purchase Price due at Closing in an amount equal to the Deposit.
......(b)...The Purchaser shall pay the balance of the Purchase Price, as
adjusted in the manner specified in Article VI, to the Escrow Agent for
disbursement to the Seller at Closing by making a wire transfer of immediately
available federal funds to the account of the Escrow Agent at a bank or trust
company located in the continental United States.
II.3..Study PeriodII3.
......(a)...Terma. The Purchaser shall have the right, until the end of
the Study Period, upon reasonable notice and at reasonable times, to enter upon
the Real Property (subject to the rights of tenants) and to perform, at the
Purchaser's expense and without interference or interruption of such tenancies,
such economic, engineering, topographic and marketing tests and studies as the
Purchaser may deem reasonably appropriate and a "Phase I" environmental study
(collectively, the "Tests"). If the results of the Tests warrant, in the
Purchaser's sole and absolute discretion, then the Purchaser may elect to
terminate this Agreement and shall so notify the Seller not later than the
expiration of the Study Period. If the Purchaser does not timely notify the
Seller of its election to terminate, the Purchaser shall be deemed to have
waived any right to terminate this Agreement under this Section 2.3.
If the Purchaser makes any objection to the condition of the Property,
then, except as set forth in Section 2.3(h) hereof, the Seller shall have no
obligation to remove or cure any objection and the Purchaser's only remedy
hereunder shall be to terminate timely this Agreement and the Deposit shall be
returned to the Purchaser in accordance with Section 8.1.
......(b)...Property Informationb. The Purchaser acknowledges that it has
received the Property Information set forth on Exhibit C annexed hereto. During
the Study Period, the Seller shall cooperate with the Purchaser in its
inspection of the Property, including but not limited to, furnishing to the
Purchaser such information, materials and documents as the Purchaser may
reasonably request and making Seller's accountant, managing agent of the
Property and other key employees reasonably available to the Purchaser. If the
Purchaser, in the Purchaser's sole judgment, shall find such inspection to be
unsatisfactory for any reason whatsoever or for no reason, the Purchaser shall
have the right, at its option, to be exercised not later than the expiration of
the Study Period, to elect to terminate this Agreement, and, upon such election,
the Deposit shall be immediately refunded to the Purchaser, and thereupon the
parties hereto shall have no further liabilities one to the other except as set
forth in (c) immediately below.
......(c)...IndemnitycIndemnity. The Purchaser hereby assumes, and agrees
to defend, indemnify and save the Seller harmless from and against, any claim,
damage, liability, cost or expense (including reasonable attorneys' fees)
arising from acts or omissions of the Purchaser or from its agents',
contractors' or employees' conduct in any way pertaining to any entry upon, or
inspection of, the Property, including without limitation, the Tests, and
including without limitation any such claim, damage, liability, cost or expense
arising from any damage to or destruction of any property (including the
Property) and any personal injury to or death of any persons (including agents,
employees or contractors of the Purchaser). The Purchaser agrees to do no act
that would encumber title to the Property.
......(d)...DamagesdDamages. In addition to the indemnification provided
under the preceding subsection, any physical damage to the Property resulting
from the Purchaser's entry onto the Property (including from any Tests) shall be
repaired or corrected at the Purchaser's sole cost if the transaction
contemplated by this Agreement does not close. If such transaction does not
close, the Purchaser agrees to promptly restore the Property substantially to
the condition that existed immediately prior to such tests. All Tests and any
other inspections shall be done at the Purchaser's sole risk, cost and expense.
......(e)...Testse. It shall be a condition precedent to any Tests that
(1) the Purchaser notifies the Seller in advance, (2) the Purchaser is
accompanied by a representative of the Seller, who shall be made available to
the Purchaser after reasonable notice to the Seller of the proposed inspection,
and (3) such Test does not unreasonably interfere with the operation, management
or leasing of the Property or the tenants pursuant to the Leases. Other than the
"Phase I" inspection, no other environmental test or inspection of the Property
shall be undertaken without the Seller's prior consent. In the event Purchaser
terminates this Agreement pursuant to the terms of this Agreement, the Purchaser
shall deliver to the Seller copies of the results of all Tests performed by
third parties, including, but not limited to, environmental and engineering
reports, surveys, and pest reports.
......(f)...Repair not a Conditionf. The Seller shall not be required to
correct, remedy or cure any condition or characteristic of the Property,
including but not limited to any title, structural, environmental or similar
matter, that any of the Tests or other investigations may reveal as a condition
to settlement or other performance hereunder or otherwise.
......(g)...AS ISg. THE PURCHASER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS
SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE PROPERTY IS TO BE CONVEYED BY THE
SELLER TO THE PURCHASER "AS IS," "WITH ALL FAULTS," IN ITS CURRENT CONDITION.
THE PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS SPECIFICALLY
PROVIDED IN THIS AGREEMENT, NEITHER THE SELLER NOR ANY AGENT OR EMPLOYEE OF THE
SELLER (OR PURPORTED AGENT OR EMPLOYEE OF THE SELLER) HAS MADE (i) ANY
GUARANTEE, REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED (AND THE SELLER SHALL
NOT HAVE ANY LIABILITY WHATSOEVER) AS TO THE VALUE, USES, THE LEASES,
HABITABILITY, CONDITION, DESIGN, OPERATION, FINANCIAL CONDITION OR PROSPECTS, OR
FITNESS FOR PURPOSE OR USE OF THE PROPERTY (OR ANY PART THEREOF), OR (ii) OTHER
THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ANY OTHER GUARANTEE,
REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE
PROPERTY (OR ANY PART THEREOF). FURTHER, THE SELLER SHALL HAVE NO LIABILITY FOR
ANY LATENT, HIDDEN, OR PATENT DEFECT AS TO THE PROPERTY OR THE FAILURE OF THE
PROPERTY, OR ANY PART THEREOF, TO COMPLY WITH ANY APPLICABLE LAWS AND
REGULATIONS. IN PARTICULAR, THE PURCHASER ACKNOWLEDGES AND AGREES THAT EXCEPT AS
SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE PROPERTY INFORMATION PROVIDED UNDER
THIS AGREEMENT (AND ANY OTHER INFORMATION THE PURCHASER MAY HAVE OBTAINED
REGARDING ANY OF THE PROPERTY) IS DELIVERED TO THE PURCHASER AS A COURTESY,
WITHOUT REPRESENTATION OR WARRANTY AS TO ITS ACCURACY OR COMPLETENESS, AND NOT
AS AN INDUCEMENT TO ACQUIRE THE PROPERTY; THAT NOTHING CONTAINED IN SUCH
DELIVERIES SHALL CONSTITUTE OR BE DEEMED TO BE A GUARANTEE, REPRESENTATION OR
WARRANTY, EXPRESS OR IMPLIED, IN ANY REGARD AS TO THE PROPERTY; AND THAT EXCEPT
FOR REPRESENTATIONS MADE BY SELLER IN THIS AGREEMENT, THE PURCHASER IS RELYING
ONLY UPON ITS OWN INDEPENDENT ASSESSMENT OF THE PROPERTY AND ITS PROSPECTS IN
DETERMINING WHETHER TO ACQUIRE THE PROPERTY.
......(h)...Title Examinationh. During the Study Period, the Purchaser, at
its expense, shall cause an examination of title to the Property (the "Title
Commitment") to be made, and, prior to the expiration of the Study Period, shall
notify in writing (the "Disapproval Notice") the Seller of any objections
("Objections") to title shown by such examination that the Purchaser is
unwilling to accept. Within three days after such notification, the Seller shall
notify the Purchaser in writing whether the Seller elects, in its sole and
absolute discretion, to attempt to cure any or all such Objections. If the
Seller elects to attempt to cure any of such Objections, the Seller shall act
promptly to attempt to cure such Objections at its expense. If the Seller's
notice to Purchaser states that Seller is unable or unwilling to cure any of
such Objections by Closing, the Purchaser shall elect, within three (3) days
after Purchaser's receipt of Seller's notice, to either (1) waive such
Objections Seller was unwilling or unable to cure and proceed to Closing without
any abatement in the Purchase Price or (2) terminate this Agreement under
Section 8.1.
......All title matters which are set forth in the Title Commitment prior
to the expiration of the Study Period and that are: (1) not objected to by the
Purchaser as provided above or (2) objected to by the Purchaser, Seller is
unwilling or unable to cure, and Purchaser fails to waive such objections, as
provided above, shall be deemed "Permitted Title Exceptions." If Purchaser shall
fail to examine title or timely notify the Seller of any such title objections
as set forth in this subsection (h), all title exceptions in the Title
Commitment shall be deemed Permitted Title Exceptions.
......In the event that at Closing there are any post-Study Period
additional exceptions to title of which the Title Company has not provided
Purchaser written notice prior to the expiration of the Study Period, then
Purchaser shall have the right to elect to terminate this Agreement prior to
Closing and upon such election, the Deposit shall be immediately refunded to
Purchaser, and thereupon, the parties hereto shall have no further obligations
one to the other under this Agreement. Notwithstanding anything in this
subsection 2.3(h) to the contrary, Seller shall be obligated to cause to be
removed from record at Seller's sole cost and expense, all exceptions which are
not Permitted Title Exceptions, and (i) which are caused by, result from or
arise out of a default by Seller of any of its obligations under this Agreement,
including, but not limited to Seller's failure to pay real estate taxes or
terminate the Ground Lease, and (ii) any lien, charge or encumbrance on the
Property which secures a debt, including, but not limited to a mortgage or other
security interest affecting the Property, a mechanic's lien, a materialman's
lien or Seller's confession of any judgment which creates a lien against the
Property. If Seller fails to remove any exception set forth in (i) or (ii)
immediately above at Closing, Purchaser, may elect (at or prior to the Closing)
to consummate the transaction provided for herein subject to any such exception
as may exist as of the Closing with a credit against the balance of the Purchase
Price payable at the Closing equal to (y) the sum necessary to remove such
exception which can be satisfied by a liquidated amount, and (z) the reasonably
estimated reduction in the fair market value of the Property resulting from such
exception which cannot be satisfied by the payment of a liquidated amount. If
Purchaser does not so elect prior to Closing, this Agreement shall terminate and
the Earnest Money shall be promptly returned to Purchaser, and thereupon, this
Agreement shall be terminated and the parties hereto shall be relieved of all
further obligations and liability under this Agreement.
II.4..1031 ExchangeII4. The Purchaser, at the request of the Seller, as
provided in this Section 2.4, agrees to cooperate with the Seller so that the
Seller may dispose of the Property in a transaction intended to qualify in whole
or in part as a tax-deferred exchange pursuant to Section 1031 of the Internal
Revenue Code of 1986, as amended ("Code"). In order to implement such exchange,
the Seller, may upon written notice to the Purchaser assign its rights, but not
its obligations, under this Agreement to a third party designated by the Seller
to act as a qualified intermediary (as such phrase is defined in applicable
Internal Revenue Service regulations). If the Seller so assigns its rights to
the qualified intermediary and notifies the Purchaser of such assignment, then
Purchaser agrees to pay a portion of the Purchase Price designated by Seller to
Seller's designee. In no event, however, shall the Purchaser be required to
incur any additional expense or liability (including without limitation any tax
liability) as a result of such cooperation, exchange or assignment or as a
result of the Seller's acquisition of any other property or properties (the
"Exchange Property") nor shall the Purchaser have any liability if the Seller's
disposition of the Property and/or acquisition of the Exchange Property fails to
qualify under Code Section 1031 for any reason. In no event shall the Purchaser
be required to take title to or convey any real or personal property other than
the Property or to execute or to authorize any other person to execute on behalf
of the Purchaser any agreement providing for said acquisition or conveyance. In
connection with any cooperation by the Purchaser relating to the Seller's
tax-deferred exchange, the Purchaser shall not be required to execute any note
or other instrument providing for personal or other liability or to assume or
undertake any indebtedness whatsoever or to acquire or take title to any real or
personal property encumbered by or subject to any indebtedness whatsoever except
as set forth in the other provisions of this Agreement with respect to the
Property. The Seller shall indemnify the Purchaser from and against any expense,
cost or liability, other than any professional fees incurred by the Purchaser,
which the Purchaser is not obligated to incur, assume or pay pursuant to this
paragraph, which indemnity obligation of the Seller to the Purchaser shall
survive the Closing. This paragraph shall not be construed as permitting the
Seller to assign or be discharged from any of its obligations under this
Agreement. The Closing shall not be delayed because of any delay in the closing
of the Exchange Property. In the event of any such delay, the conveyance of the
Property to the Purchaser shall proceed to close in accordance with the other
terms and provisions of this Agreement, and in such event the terms and
provisions of this paragraph shall be of no further force or effect, except that
the Seller shall continue to indemnify the Purchaser as aforesaid with respect
to actions previously taken by the Seller and/or the Purchaser in order to
attempt to implement a Code 1031 tax-deferred exchange.
III ARTICLE III
SELLER'S REPRESENTATIONS
The Seller hereby makes the following representations to the Purchaser,
which shall be true and correct as of the date hereof, and as of the Closing:
III.1.Organization and PowerIII1. The Seller is a limited partnership duly
formed and validly existing under the laws of the State of Ohio and has all
partnership powers and authority to enter into and perform its obligations
hereunder and under any document or instrument required to be executed and
delivered on behalf of the Seller hereunder.
III.2.Authorization and ExecutionIII2. This Agreement has been duly
authorized by all necessary partnership action on the part of the Seller and has
been duly executed and delivered by the Seller. No other party has any right to
purchase the Property, or any part thereof.
III.3.NoncontraventionIII3. The execution and delivery of, and the
performance by the Seller of its obligations under, this Agreement do not and
will not contravene, or constitute a default under the Seller's organizational
documents or any agreement, judgment, injunction, order, decree or other
instrument binding upon the Seller, or result in the creation of any lien or
other encumbrance on any asset of the Seller.
III.4.Compliance with Existing LawsIII4. To the Seller's Knowledge, there
is no alleged violation of any provision of any applicable building, zoning,
subdivision, environmental or other governmental ordinance, resolution, statute,
rule, order or regulation, including but not limited to those of environmental
agencies.
III.5.Status of Rent Roll and LeasesIII5. To the Seller's Knowledge:
......(a)...Each of the Leases is assignable by the Seller.
......(b)...Except as is otherwise indicated on the Rent Roll, the Seller
has not received notice alleging a default by the Seller under the applicable
Lease and no written notice alleging default has been sent to any such tenant by
the Seller.
......(c)...Except as assigned as collateral to the Seller's existing
mortgagee, which shall be of no force or effect as of the Closing, the Seller
has the sole right to collect the rent under the Leases.
......(d)...The Rent Roll is accurate as of its date.
......(e)...Except as is otherwise indicated on the Rent Roll, no payment
of rent more than 30 days in advance of the due date therefor has been made by a
tenant under any Lease.
III.6.LitigationIII6. There is no action, suit or proceeding pending or
known to be threatened in writing against or affecting the Seller or any general
partner of the Seller in any court, before any arbitrator or before or by any
Governmental Body that (a) in any manner raises any question affecting the
validity or enforceability of this Agreement or any other agreement or
instrument to which the Seller is a party or by which it is bound and that is or
is to be used in connection with, or is contemplated by, this Agreement, or (b)
could materially adversely affect the ability of the Seller to perform its
obligations hereunder or under any document to be delivered pursuant hereto.
III.7.BankruptcyIII7. No Act of Bankruptcy has occurred with respect to
the Seller or any general partner thereof.
III.8.Brokerage CommissionIII8. Except with respect to the Broker, the
Seller represents and warrants to the Purchaser that the Seller has not engaged
the services of, nor has the Seller done or will it do anything that will cause
it or the Purchaser to become liable to, any real estate agent, broker, finder
or any other person or entity for any brokerage or finder's fee, commission or
other amount with respect to the transactions described herein. The Seller
indemnifies the Purchaser for all loss, cost, claims and expense (including
reasonable attorneys' fees) arising on account of any breach by the Seller of
the foregoing representation and warranty. Such indemnification shall survive
settlement hereunder or the termination hereof, as the case may be.
III.9.Seller's WorkIII9. All work performed or materials furnished up to
Closing for which Seller has been provided invoices and which are or may become
a lien against the Property, including but not limited to all of Seller's work
or other obligations as landlord to be performed pursuant to Leases, will be
performed in all material respects and paid for before the Closing.
III.10......Lease CommissionsIII10. All existing lease commissions
incurred by Seller, including commissions with respect to renewals or extensions
or other existing rental agreements affecting the Property, will be paid in full
on or before the Closing. There are no lease commissions which are or may become
payable subsequent to the Closing Date by Seller with respect to any Leases as a
result of an exercised option by a tenant at the Property with respect to any
renewal term or for an other reason whatsoever. There is no exclusive or
continuing brokerage agreements as to the Property or any of the space at the
Property.
III.11......Operating AgreementsIII11. To the Seller's Knowledge, all of
the Operating Agreements which affect the property are set forth on Exhibit B
annexed hereto. To the Seller's Knowledge, each of the Operating Agreements
referred to on Exhibit B annexed hereto and as delivered to Purchaser pursuant
to the provisions of Section 2.3(b) hereof are valid and in full force and
effect, and, to the best of Seller's Knowledge, no party thereto is in default
thereunder. Each of the Operating Agreements referred to on Exhibit B annexed
hereto is terminable upon not more than thirty (30) days prior notice.
III.12......Tax ProceedingsIII12. To the Seller's knowledge, there are no
real estate tax protests or proceedings affecting the Property.
III.13......FIRPTA.III13 Seller is not a "foreign person" as such term is
defined in Section 1445(f)(3) of the Code. In the event that Seller is a
"foreign person", or in the event that Seller fails or refuses to deliver the
"FIRPTA Certificate" (as such term is defined in Schedule 1 hereof), or in the
event that Purchaser receives notice from any "transferor's agent" or
"transferee's agent" (as such terms are defined in Section 1445(d) of the Code)
or Purchaser has actual knowledge that, such certificate is false, Purchaser
shall deduct and withhold from the Purchase Price, a tax equal to 10% thereof,
as required by Section 1445 of the Code. In the event of any such withholding,
the Closing hereunder shall not be otherwise affected, Purchaser shall remit
such amount to and file the required form with the Internal Revenue Service, and
Seller, in the event of any claimed over-withholding, (i) shall be limited
solely to an action against the Internal Revenue Service for a refund, and (ii)
hereby waives any right of action against Purchaser on account of such
withholding.
III.14......CondemnationIII14. To Seller's Knowledge, Seller has not
received any notice of any pending or threatened condemnation or similar
proceeding or pending public improvements in or adjoining the Property which
will in any manner affect the Property.
III.15......Personal PropertyIII15. The schedule of Tangible Personal
Property annexed hereto as Exhibit E contains a correct and complete list of
Tangible Personal Property owned by Seller and located at or used in connection
with the operation of the Property. All Tangible Personal Property is, and as of
the Closing will be owned by Seller free from encumbrances or liens.
III.16......Hazardous Materials.III16 To Seller's Knowledge, the Property
does not contain any hazardous materials other than as set forth in the reports
delivered by Seller to Purchaser pursuant to the provisions of Section 2.3(b)
hereof.
IV ARTICLE IV
PURCHASER'S REPRESENTATIONS, WARRANTIES AND COVENANTS
The Purchaser hereby makes the following representations to the Seller,
which shall be true and correct as of the date hereof, and as of the Closing:
IV.1..Organization and PowerIV1. The Purchaser is a corporation duly
formed, validly existing and in good standing under the laws of the State of
Delaware, and has all powers and all governmental licenses, authorizations,
consents and approvals to carry on its business as now conducted. Purchaser has
the power and authority to enter into this Agreement, and provided that the
Purchaser does not elect to terminate this Agreement for any reason permitted
under the terms of this Agreement, the Purchaser will have the right and
authority to consummate the purchase of the Property from the Seller as
contemplated by this Agreement and carry out the Purchaser's obligations under
this Agreement, and all requisite action necessary to authorize the Purchaser to
carry out the Purchaser's obligations hereunder shall have then been taken. The
Seller acknowledges that the consent of the Public Employees Retirement System
of Ohio is required for the Purchaser to consummate the Closing of the sale and
purchase of the Property as contemplated by this Agreement, and the Purchaser
represents that, unless Purchaser terminates this Agreement prior to the
expiration of the Study Period, such consent shall be obtained by Purchaser, and
such consent shall not be a condition to Closing after the expiration of the
Study Period.
IV.2..Authorization and ExecutionIV2. This Agreement has been duly
authorized by all necessary action on the part of the Purchaser, has been duly
executed and delivered by the Purchaser, constitutes the valid and binding
agreement of the Purchaser and, subject to the provisions of Section 4.1 hereof,
is enforceable against the Purchaser in accordance with its terms.
IV.3..NoncontraventionIV3. The execution and delivery of and the
performance by the Purchaser of its obligations hereunder do not and will not
contravene, or constitute a default under, any provisions of the Purchaser's
organizational documents or any agreement, judgment, injunction, order, decree
or other instrument binding upon the Purchaser or result in the creation of any
lien or other encumbrance on any asset of the Purchaser.
IV.4..LitigationIV4. There is no action, suit or proceeding, pending or
known to be threatened in writing, against or affecting the Purchaser in any
court or before any arbitrator or before any Governmental Body which (a) in any
manner raises any question affecting the validity or enforceability of this
Agreement or any other agreement or instrument to which the Purchaser is a party
or by which it is bound and that is to be used in connection with, or is
contemplated by, this Agreement, or (b) could adversely affect the ability of
the Purchaser to perform its obligations hereunder, or under any document to be
delivered pursuant hereto.
IV.5..BankruptcyIV5. No Act of Bankruptcy has occurred with respect to the
Purchaser.
IV.6..Brokerage CommissionIV6. The Purchaser represents and warrants to
the Seller that the Purchaser has not engaged the services of, nor has the
Purchaser done or will it do anything that will cause it or the Seller to become
liable to, any real estate agent, broker, finder or any other person or entity
for any brokerage or finder's fee, commission or other amount with respect to
the transactions described herein, other than the Broker. The Purchaser
indemnifies the Seller for all loss, cost, claims and expense (including
reasonable attorneys' fees) arising on account of any breach by the Purchaser of
the foregoing representation and warranty. Such indemnification shall survive
settlement hereunder or the termination hereof, as the case may be.
V ARTICLE V
CONDITIONS AND ADDITIONAL COVENANTS
The Purchaser's obligations hereunder are subject to the satisfaction of
the following conditions precedent:
V.1...Seller's DeliveriesV1. The Purchaser, on or before the date of
Closing, shall have received all of the documents and other information required
under Section 6.2.
V.2...RepresentationsV2. All of the Seller's representations made in this
Agreement shall be true and correct in all material respects as of the Closing
Date as if then made, and the Seller shall have executed and delivered to the
Purchaser at Closing a certificate to the foregoing effect in the form annexed
hereto as Exhibit J.
V.3...Condition of ImprovementsV3. Subject to Article VII hereof, the
Improvements and the Tangible Personal Property shall be in substantially the
same condition and working order as obtained as of the earlier to occur of the
(i) expiration of the Study Period, and (ii) last day of the Purchaser's
inspection of the Property, normal wear and tear and the effects of the
Purchaser's acts and the Tests excepted.
V.4...Ground LeaseV4. The Seller shall have caused the Ground Lease to be
terminated and shall have obtained fee simple title to the Real Property.
VI ARTICLE VI
CLOSING
VI.1..ClosingVI1. Closing shall be held at the offices of Bachner, Tally,
Polevoy & Misher LLP, 380 Madison Avenue, New York, New York 10017, on the date
which is 14 days after the end of the Study Period, commencing at 10:00 a.m.
local time, or at such other place as the parties may mutually agree. The
Property shall be conveyed to the Purchaser at Closing, subject only to
Permitted Title Exceptions.
VI.2..Seller's DeliveriesVI2.
......(a)...At Closing, the Seller shall deliver to Purchaser all of the
following instruments, each of which shall have been duly executed and, where
applicable, acknowledged on behalf of the Seller and shall be dated as of the
date of Closing:
(1) The Deed.
(2) The Bill of Sale and Assignment.
(3) Such customary affidavits as to mechanics' liens and
parties in possession and other facts within the knowledge of Seller as
may be reasonably (and without expense to the Seller) required by the
Title Company to issue the Owner's Title Policy.
(4) The FIRPTA Certificate in the form annexed hereto as
Exhibit K.
(5) A Post-Closing Adjustment Letter in the form of Exhibit H
annexed hereto.
(6) A letter to each tenant of the Seller at the Property in
the form of Exhibit I annexed hereto, which letter shall be delivered to
the tenants by the Purchaser (the "Tenant Notice Letters").
(7) A rent roll for the Property in the form of the Rent Roll
annexed hereto as Exhibit D, certified by Seller to be true and correct as
of the Closing Date.
(8) A certificate from the Seller that no proceedings
initiated by the Seller for the reduction of real or personal property
taxes is on-going as of the Closing Date.
(9) A Closing Statement to be prepared and agreed upon by
the Seller and the Purchaser.
(10) A telephone transfer form.
......(11)..The certificate required by Section 5.2.
(12) All documentation necessary to transfer title to the Ford
pickup truck described on Exhibit E annexed hereto.
(13) A letter from Corson & Associates, Inc., releasing
Purchaser and its assignee, hereunder from all claims for brokerage
commissions in connection with the transaction which is the subject of
this Agreement in form and substance reasonably satisfactory to Purchaser
and Seller.
(14) Any other document reasonably requested by the
Purchaser or required hereby.
(b)...With respect to each of the following, at Closing the Seller
shall deliver or cause to be delivered to the Purchaser by leaving same at the
managing agent's office at the Property, the following:
(1) All originals of the Leases, Operating Agreements,
licenses and permits for the Property (or, if originals are not available,
true and complete copies thereof certified by the Seller) in the Seller's
possession or control.
(2) True and complete copies of all warranties, if any, of
manufacturers, suppliers and installers possessed by the Seller and
relating to the Improvements and the Personal Property, or any part
thereof, in the Seller's possession or control.
(3) Appropriate corporate resolutions of Third Income
Properties, Inc. and Chelsea Moore Corporation, certified by an officer of
such corporations evidencing authorization of (i) the execution on behalf
of the Seller of this Agreement and the documents to be executed and
delivered by the Seller prior to, at or otherwise in connection with
Closing, and (ii) the performance by the Seller of its obligations
hereunder and under such documents.
(4) All keys and combinations in the Seller's possession or
control, if any, to all locks at the Property.
(5) All plans, specifications, mechanical, electrical and
plumbing layouts, operating manuals, purchase orders (except as to items
not yet invoiced or paid, which orders shall be retained by Seller),
brochures, marketing materials, advertisements, tenant lease files, and
other files and records in the possession of the Seller and its managing
agent and utilized in connection with the operation and maintenance of the
Land and Improvements except for Seller's bank records and general ledger
which Seller shall retain. After the Closing for a period of one year or
such additional time period as required by Purchaser's auditors, taxing or
other authorities, Purchaser shall provide access, to Seller and Seller's
auditors at reasonable times upon reasonable notice, to all retained files
and records for audit, tax and similar purposes.
VI.3 Purchaser's DeliveriesVI3. (a) At Closing, the Purchaser shall
pay or deliver to the Seller the following:
(1) The portion of the Purchase Price described in
Section 2.2(b).
(2) A unanimous consent of the board of directors of the
Purchaser authorizing (i) the execution on behalf of the Purchaser of this
Agreement and the documents to be executed and delivered by the Purchaser
at Closing and (ii) the performance by the Purchaser of its obligations
hereunder and under such documents.
(3) The Bill of Sale and Assignment.
......(4)...The Post-Closing Adjustment Letter.
......(5)...The Tenant Notice Letter.
(6) Any other document or instrument reasonably requested by
the Seller or required hereby.
VI.4 Other DocumentationVI4. At the Closing, the Seller and the Purchaser
shall cause to be delivered to the Escrow Agent such other instruments and
documents necessary to complete the Closing of the transaction which is the
subject of this Agreement.
VI.5 Possession of the Property.VI5 Possession of the Property, in
accordance with this Agreement, shall be delivered to the Purchaser concurrent
with Closing.
VI.6 Closing CostsVI6. At the Closing, the Purchaser shall pay the premium
for the Owner's Title Policy and any survey ordered by the Purchaser. At the
Closing, the Seller shall pay all transfer taxes, stamp taxes, deed taxes or
similar impositions payable in connection with the transaction which is the
subject of this Agreement. The Seller shall pay all expenses charged by the
Escrow Agent for sending wire transfers with respect to sums to be paid by the
Seller pursuant to this Agreement and/or at the request of the Seller, and the
Purchaser shall pay all expenses charged by the Escrow Agent for sending wire
transfers with respect to sums to be paid by the Purchaser pursuant to this
Agreement and/or at the request of the Purchaser. All other escrow and closing
costs shall be allocated to and paid by Seller and Purchaser in accordance with
the manner in which such costs are customarily borne by such parties in sales of
similar property in the county in which the Property is located. Except as is
otherwise provided in Article VIII, each party hereto shall pay its own
expenses, including without limitation its legal fees, accounting fees and the
fees of other professionals.
VI.7 Income and Expense AllocationsVI7.
(a)...At Closing, all income and expenses with respect to the
Property, and applicable to the period of time before and after Closing, shall
be allocated between the Seller and the Purchaser as of the close of business on
the day immediately preceding the Closing (the "Proration Date"). Such
adjustments shall be shown on the settlement statements (with such supporting
documentation as the parties hereto may reasonably require being attached as
exhibits to the settlement statements) and shall increase or decrease (as the
case may be) the amount payable by the Purchaser pursuant to Section 2.2(b). The
following items of income and expense shall be allocated at Closing on the
following basis and in the following manner:
(1) Rents, as and when collected. If as of the Proration Date
there are rents owed by tenant(s) for the month in which the Closing
occurs, then the first monies received from said tenant(s) shall be
received on account of or in payment of such past due rents and (i) if the
Purchaser receives said past due rents, the Seller's aforesaid share
thereof shall be promptly remitted by the Purchaser to the Seller, and
(ii) if the Seller receives such past due rents, the Purchaser's aforesaid
share thereof shall be promptly remitted by the Seller to the Purchaser.
With respect to any arrearages for periods prior to the month in which the
Closing occurs, the Purchaser shall promptly pay such arrearages to the
Seller as and when collected from the monies received from such tenant,
provided such tenant is otherwise current in its rent. Notwithstanding the
preceding sentence, with respect to such arrearages for months prior to
the Closing, payment of the arrearage for up to one (1) month's rent for
not more than ten (10) tenants, shall be promptly paid to the Seller upon
receipt of rent from such tenants by Purchaser. With respect to rents for
any period subsequent to the month in which the Closing occurs that may be
received by the Seller, the Seller shall promptly remit such rents to the
Purchaser.
(2) Real estate and personal property taxes, if any. If the
Closing shall occur before the tax rate or assessment is fixed for the
fiscal year in which the Closing occurs, then the apportionment of such
real estate and personal property taxes at the Closing shall be based on
the tax rate and assessment in effect on the Proration Date. Except as
otherwise set forth in the immediately preceding sentence, if after the
Closing, real estate taxes are payable with respect to any period prior to
the Closing, then the Seller shall be obligated to pay such taxes.
(3) Incinerator Fee, determined on the same basis and in the
same manner as real estate and personal property taxes.
(4) Tax and utility company deposits, if any, and if
assignable and assigned.
(5) Water and sewer charges on the basis of the most recent
bills available, but if there are water meters on the Property, the
Seller, to the extent the same is obtainable, shall furnish a reading
effective as of the Proration Date, or if not so obtainable, to a date not
more than thirty (30) days prior to the Proration Date, and the unfixed
meter charges based thereon for the intervening period shall be
apportioned on the basis of such last reading. Upon the taking of a
subsequent actual reading, such apportionment shall be readjusted and the
Seller or the Purchaser, as the case may be, will promptly deliver to the
other the amount determined to be so due upon such readjustment. If the
Seller is unable to furnish such prior reading, any reading subsequent to
the Closing will be apportioned on a per diem basis from the date of such
reading immediately prior thereto and the Seller shall pay the
proportionate charges due up to the date of Closing.
(6) Amounts paid or payable in respect of any Operating
Agreements assigned to the Purchaser pursuant to the Bill of Sale and
Assignment, including but not limited to, any up-front "bonus" payments
made in consideration of entering into any Operating Agreement (which
up-front "bonus" payments, if any, shall be prorated based upon the
unexpired term of the Operating Agreement).
(7) Electricity, gas and steam, if any, prorated based upon
the most current bills.
(8) Fuel, if any, based on a fuel company letter showing
measurement no more than two (2) days prior to Closing and valued at
current prices.
(9) If, at Closing, the Property or any part thereof shall
have been affected by an assessment or assessments (other than real estate
taxes adjusted pursuant to Section 6.7(a)(2) hereto or any water or sewer
assessments adjusted pursuant to Section 6.7(a)(5) hereto) which are or
may become payable in installments, then for purposes of this Agreement,
all unpaid installments which are to become due and payable and to be
liens upon the Property shall be paid and discharged by the Seller at or
after Closing.
(10) Except as set forth in this Agreement, the customs of the
county in which the Property is located shall govern prorations.
(b)...The parties hereto shall endeavor to prepare a draft schedule
of prorations no less than three (3) days prior to Closing.
(c)...The provisions of this Section shall survive the Closing for a
period of three (3) months.
VI.8 Lease Deposits and FeesVI8. At Proration Date, the Seller shall
transfer to the Purchaser (a) all security and other deposits and refundable
fees with respect to the Leases and all interest required by law or by the
Leases to be accrued or paid thereon, and (b) all of the Seller's right, title
and interest in and to such deposits and fees owed by tenants under the Leases
but not paid to the Seller.
VI.9 Owner's Title InsuranceVI9. It shall be a condition to Purchaser's
obligation to close that good and marketable fee simple title to the Real
Property, subject only to Permitted Title Exceptions, shall be insurable as such
by the Title Company at or below its regularly scheduled rates.
VII ARTICLE VII
CONDEMNATION; RISK OF LOSS
VII.1 The risk of loss or damage to the Property by fire or other casualty
until Closing shall be borne by the Seller and after Closing shall become borne
by the Purchaser. In the event that damage, loss or destruction of the Property
or any part thereof, by fire or other casualty, occurs prior to the Closing, the
Seller shall promptly notify the Purchaser of such damage, loss or destruction.
VII.2 If the Property is damaged by fire or other casualty, and the
damage, loss or destruction shall cost less than $400,000 to repair, as mutually
agreed upon by the Seller and the Purchaser, the Purchaser shall close the
transaction which is the subject of this Agreement with a credit against the
Purchase Price in an amount equal to the cost of repairing such damage as
mutually agreed upon by the Seller and the Purchaser; provided, however, the
Purchaser shall have the right to elect to terminate this Agreement if, as a
result of such damage by fire or other casualty, the Property may not, as a
matter of applicable law, be rebuilt substantially to the condition as it
currently exists, and if the Purchaser so elects, the Deposit shall be promptly
returned to the Purchaser, and thereupon this Agreement shall be terminated and
the parties hereto shall be relieved of all further obligations and liability
under this Agreement.
VII.3 If the Property is damaged by fire or other casualty and the damage,
loss or destruction shall cost $400,000 or more to repair, as mutually agreed
upon by the Seller and the Purchaser, then the Seller shall, promptly after the
Purchaser's request therefor, deliver to the Purchaser a copy of each of the
applicable insurance policies covering such fire or other casualty, and the
Purchaser shall, at its option, elect one of the following:
7.3.1. To elect to terminate this Agreement, in which event, the
Deposit shall be promptly returned to the Purchaser, and thereupon, this
Agreement shall be terminated, and the parties hereto shall be relieved of
all further obligations and liability under this Agreement; or
7.3.2. To proceed with the Closing and receive (i) a credit against
the cash balance of the Purchase Price payable at Closing to the extent of
payments received by or on behalf of the Seller prior to the Closing under
any applicable hazard or other insurance policy or policies in effect with
respect to the Property, (ii) an assignment of the Seller's rights to any
payments which may be payable subsequent to the Closing under any
applicable hazard or other insurance policy or policies in effect with
respect to the Property, (iii) an assignment of the Seller's rights to
payments with respect to rents due subsequent to the Closing under any
rental insurance policy or policies with respect to the Property, and (iv)
a credit against the balance of the Purchase Price payable at the Closing
in an amount equal to the aggregate amount of the deductibles with respect
to all such hazard insurance policies; or
7.3.3. To close the transaction which is the subject of this
Agreement and receive a credit against the Purchase Price in an amount
equal to $400,000.
If the Purchaser elects to exercise the option set forth in Section 7.3.2
hereof, then pending the Closing, the Purchaser, and not the Seller, shall alone
have the right to (i) adjust, compromise and settle with the insurance
company(s) with respect to the insurance policies, and (ii) settle, compromise
and contest such award or proposed award relating to the Property, and the
Seller agrees to cooperate with the Purchaser with respect to the collection of
any payments or awards or rights to payments or awards so assigned to the
Purchaser.
VII.4 If, prior to Closing, any governmental authority or other entity
having condemnation authority shall institute an eminent domain proceeding or
take any steps preliminary thereto (including the giving of any direct or
indirect notice of intent to institute such proceedings) with regard to the Land
or Improvements, and the same is not dismissed beyond appeal on or before ten
(10) days prior to the date set forth in this Agreement for the closing, then
the Seller shall promptly notify the Purchaser thereof and the Purchaser shall
be entitled to terminate this Agreement in which event, the provisions of
Section 7.3.1 hereof shall be applicable.
VII.5 If the Property is damaged by fire or other casualty prior to the
Closing, the damage is in excess of $25,000 in the reasonable estimation of
Seller and Purchaser, and the Purchaser is not notified by the Seller of such
damage prior to the Closing, then to the extent that, subsequent to the Closing,
the Purchaser notifies the Seller of such damage, the Seller shall, to the
extent of the loss of value to the Improvements as a result thereof, (y)
promptly deliver to the Purchaser a sum equal to the payments theretofore
received by or on behalf of the Seller under any applicable insurance policy,
and (z) assign to the Purchaser, the Seller's rights to any payments which may
be payable under any applicable insurance policy and cooperate with the
Purchaser in connection with any dealings between the Purchaser and any
applicable insurance company in connection therewith. The provisions of this
Section shall survive the Closing.
VIII ARTICLE VIII
TERMINATION RIGHTS
VIII.1......Termination by PurchaserVIII1. If any condition to the
Purchaser's obligations to close this transaction set forth herein cannot be or
is not satisfied prior to Closing, or upon the occurrence of any other event
that would entitle the Purchaser to terminate this Agreement and its obligations
hereunder, the Purchaser, at its option, may elect either (a) to terminate this
Agreement, in which event the Deposit shall be promptly returned and all other
rights and obligations of the Seller and the Purchaser hereunder shall terminate
immediately, or (b) to waive its right to terminate and, instead, to proceed to
Closing. Notwithstanding any termination hereof, the Seller shall nevertheless
remain liable under Section 3.8 and Section 10.8, which shall survive and remain
in full force and effect. If the Purchaser terminates this Agreement as a
consequence of a breach of a covenant or a misrepresentation by the Seller, the
Purchaser shall elect either (1) to sue for specific performance of this
Agreement or (2) to promptly receive back the Deposit and sue for actual damages
not to exceed an amount equal to the Deposit. In no event, however, shall the
Seller be liable to the Purchaser for any punitive, speculative or other damages
under, or as to, this Agreement and the Purchaser waives any right to claim, or
commence an action for, any such damages.
VIII.2......Termination by SellerVIII2. If the Closing does not occur as a
result of the Purchaser's default in performing any of its obligations under
this Agreement (including its obligation to purchase the Property), the Seller's
sole remedy for such default shall be to terminate this Agreement and retain the
Deposit. The Seller and the Purchaser agree that, in the event of such a
default, the damages that the Seller would sustain as a result thereof would be
difficult if not impossible to ascertain. Therefore, the Seller and the
Purchaser agree that the Seller shall retain the Deposit as full and complete
liquidated damages and as the Seller's sole remedy. Notwithstanding any such
termination, the Purchaser's obligations under Section 2.3(c), Section 2.3(d),
Section 4.6 and Section 10.8 shall survive and remain in full force and effect.
IX ARTICLE IX
ACKNOWLEDGMENTS OF PURCHASER
In entering into this Agreement, Purchaser has not been induced by and has
not relied upon any representations, warranties or statements, whether express
or implied, made by the Seller or any agent, employee or other representative of
the Seller or by any broker or any other person representing or purporting to
represent the Seller, which are not expressly set forth herein.
X ARTICLE X
MISCELLANEOUS PROVISIONS
X.1 Completeness; ModificationX1. This Agreement constitutes the entire
agreement between the parties hereto with respect to the transactions
contemplated hereby and supersedes all prior and contemporaneous discussions,
understandings, agreements and negotiations between the parties hereto. This
Agreement may be modified only by a written instrument duly executed by the
parties hereto.
X.2 AssignmentsX2. The Purchaser may not assign its rights hereunder
without the consent of the Seller, which consent the Seller may withhold or
condition in its sole and absolute discretion. Notwithstanding the foregoing,
the Purchaser shall have the right to assign this Agreement to an entity which
is wholly owned by the Purchaser or to any other entity which is wholly owned by
the Public Employees Retirement System of Ohio. In the event of any such
assignment, the Seller and the Purchaser each agree to execute documents in
mutually satisfactory form and substance, that all surviving representations and
warranties of the Seller hereunder shall be deemed to run in favor of, and be
enforceable by said assignee as if it were the Purchaser hereunder and that all
surviving representations and warranties of the Purchaser hereunder, if any,
shall be assumed by Purchaser's assignee and deemed to run in favor of and be
enforceable by the Seller. The provisions of this Section shall survive the
Closing.
X.3 Successors and AssignsX3. This Agreement shall bind and inure to the
benefit of the parties hereto and their respective permitted successors and
assigns.
X.4 DaysX4. If any action is required to be performed, or if any notice,
consent or other communication is given, on a day that is a Saturday or Sunday
or a legal holiday in the jurisdiction in which the action is required to be
performed or in which is located the intended recipient of such notice, consent
or other communication, (all other days, a "Business Day"), such performance
shall be deemed to be required, and such notice, consent or other communication
shall be deemed to be given, on the first Business Day following such Saturday,
Sunday or legal holiday. Unless otherwise specified herein, all references
herein to a "day" or "days" shall refer to calendar days and not Business Days.
X.5 Governing LawX5. This Agreement and all documents referred to herein
shall be governed by and construed and interpreted in accordance with the laws
of the State of Ohio.
X.6 CounterpartsX6. To facilitate execution, this Agreement may be
executed in as many counterparts as may be required. It shall not be necessary
that the signature on behalf of both parties hereto appear on each counterpart
hereof so long as each party signs at least one counterpart. All counterparts
hereof shall collectively constitute a single agreement.
X.7 SeverabilityX7. If any term, covenant or condition of this Agreement
shall to any extent be invalid or unenforceable, the remainder of this
Agreement, shall not be affected thereby, and each term, covenant or condition
of this Agreement shall be valid and enforceable to the fullest extent permitted
by law.
X.8 CostsX8. Regardless of whether Closing occurs hereunder, and except as
otherwise expressly provided herein, each party hereto shall be responsible for
its own costs in connection with this Agreement and the transactions
contemplated hereby, including without limitation fees of attorneys, engineers
and accountants.
X.9 NoticesX9. All notices, requests, demands and other communications
hereunder shall be in writing signed by the party giving the same or by its
attorneys and shall be delivered by hand, sent prepaid by Federal Express (or a
comparable overnight delivery service), transmitted by facsimile or sent by the
United States mail, certified, postage prepaid, return receipt requested, at the
addresses and with such copies as designated below. Any notice, request, demand
or other communication delivered or sent in the manner aforesaid shall be deemed
given or made (as the case may be) when delivered as specified herein.
For the Seller:...c/o PaineWebber Properties
............265 Franklin Street - 16th Floor
............Boston, MA 02110
............Attn: Mr. Richard S. Coomber
............Fax: (617) 345-8752
with a copy to:...Chelsea Moore Company
............2300 Carew Tower
............441 Vine Street
............Cincinnati, OH 45202-2913
............Attn: Mr. Alfred A. Moore
............Fax: (513) 381-0775
and a copy to:....Hunton & Williams
............Riverfront Plaza, East Tower
............951 East Byrd Street
............Richmond, VA 23219
............Attn: Thomas S. Cantone, Esq.
............Fax: (804) 788-8218
For the
Purchaser:........TGM Realty Corp. #5
............c/o TGM Associates L.P.
............650 Fifth Avenue, 28th Floor
............New York, NY 10019
............Attn: Mr. Thomas Gochberg
............Fax: (212) 399-6310
with a copy to:...Bachner, Tally, Polevoy & Misher LLP
............380 Madison Avenue
............New York, NY 10017-2590
............Attn: Alan E. Linder, Esq.
............(212) 682-5729
For the
Escrow Agent:.....Chicago Title Insurance Company
............1211 Avenue of the Americas
............New York, NY 10036
............Attn: Asher Fried
............Fax: (212) 840-9424
Any party hereto may change its address or designate different or other persons
or entities to receive copies by notifying the other party in a manner described
in this Section at least three days prior to the date such change or designation
is to become effective.
X.10 Incorporation by ReferenceX10. All of the exhibits attached hereto
are by this reference incorporated herein and made a part hereof.
X.11 SurvivalX11. Except as specified in the following sentence, none of
the representations, warranties, covenants and agreements of the Seller and the
Purchaser made in, or pursuant to, this Agreement shall survive Closing and each
shall merge into the Deed or any other document or instrument executed and
delivered in connection herewith. The preceding sentence notwithstanding, the
provisions of Section 2.3(c), Section 2.3(d), Section 3.8, Section 4.6 and
Section 10.8 shall survive the Closing and remain in full force and effect.
X.12 No PartnershipX12. This Agreement does not and shall not be construed
to create a partnership, joint venture or any other relationship between the
parties hereto except the relationship of seller and purchaser specifically
established hereby.
X.13 Time of EssenceX13. Time is of the essence with respect to every
provision hereof.
X.14 ConfidentialityX14. The Purchaser hereby agrees that it shall use all
commercially reasonable efforts to ensure that all information related to or
obtained about the Property by Purchaser and its officers, employees, agents and
contractors pursuant to this Agreement is kept confidential prior to Closing;
provided, however, that Purchaser may reveal such information to prospective
tenants, title companies, lenders, engineers, accountants, attorneys, brokers
and the like and shall request that such information be kept confidential. Prior
to the Closing the Purchaser shall not issue any press release or other
information or give any publicity of any kind to the general public, related to
or concerning this Agreement, the purposes thereof and/or the Property, without
the prior written consent of the Seller. Any violation of this provision shall
constitute a material breach of this Agreement.
X.15 Successors and AssignsX15. This Agreement shall be binding on, and
the benefits hereof shall inure to, the successors and assigns of the parties
hereto.
X.16 No Third Party BeneficiariesX16. The provisions of this Agreement are
for the sole benefit of the parties to this Agreement and their successors and
assigns and shall not give rise to any rights by or on behalf of anyone other
than such parties.
X.17 Attorneys' Fees.X17 In the event that any litigation arises under
this Agreement,the prevailing party (which term shall mean the party which
obtains substantially all of the relief sought by such party) shall be entitled
to recover, as a part of its judgment, reasonable attorneys' fees.
X.18 Further Assurances.X18 The Seller will, whenever and as often as it
shall be reasonably requested so to do by the Purchaser, and the Purchaser will,
whenever and as often as it shall be reasonably requested so to do by the
Seller, execute, acknowledge and deliver, or cause to be executed, acknowledged
and delivered, any and all conveyances, assignments, correction instruments and
all other instruments and documents as may be reasonably necessary in order to
complete the transaction which is the subject of this Agreement and to carry out
the intent and purposes of this Agreement. All such instruments and documents
shall be satisfactory to the respective attorneys for Purchaser and Seller. The
provisions of this Section shall survive the Closing.
XI ARTICLE XI
OPERATIONS PRIOR TO CLOSING
XI.1 The Seller agrees that between the date hereof and the Closing, the
Seller shall:
11.1.1 Continue to operate the Property in substantially the
same manner as heretofore operated.
11.1.2 Perform regular maintenance and replacements in accordance
with commercially reasonable standards and perform repairs or replacements
to any broken, defective or disfunctioning portions of the Property as the
relevant condition occurs.
11.1.3 Place any apartments now vacant or becoming vacant before the
end of the Study Period, into rentable condition ready for occupancy
(which condition shall mean painting and replacing carpet where and as
appropriate).
11.1.4 Not enter into any new Lease, nor amend, modify or terminate
any existing Lease without having obtained the prior written consent of
the Purchaser in each such instance, provided, however, that the Seller
may (i) enter into new Leases and renew existing Leases for terms of not
less than six (6) months and not more than thirteen (13) months upon
market rents and upon commercially reasonable terms (as heretofore done)
or (ii) terminate a Lease due to a tenant's default thereunder without
Purchaser's consent.
11.1.5 Not grant or transfer or permit the grant or transfer of any
interest in the Property including any air and development rights unless
required to do so under applicable law.
11.1.6 Not apply any tenant's security to the discharge of such
tenant's obligations unless such tenant has vacated such tenant's demised
premises.
11.1.7 Promptly advise the Purchaser of any litigation or
governmental proceeding affecting the Property to which the Seller
becomes a party.
11.1.8 Not permit any alteration, modification or additions to the
Property, except in the nature of ordinary maintenance and repair and
except where required by an applicable governmental authority.
11.1.9 Not create (or agree to create) any exception to or covenant,
restriction, easement or other lien on or affecting the Property.
11.1.10 Terminate, effective immediately prior to the Closing, all
employees employed at or in connection with the Property, without cost or
expense to the Purchaser, including but not limited to the Seller's
managing agent.
11.1.11 Not enter into any new Operating Agreement, nor amend,
modify or terminate any existing Operating Agreement, unless in the
ordinary course of business, and such new Operating Agreement is
terminable upon not more than sixty (60) days notice without penalty.
11.1.12 Pay all rent due pursuant to (i) that certain Sign Agreement
between The Firestone Tire & Rubber Company and Chelsea Moore Company
dated September 15, 1978 (the "Sign Lease"), and (ii) the Ground Lease,
otherwise comply with each of the terms of the Sign Lease and the Ground
Lease, and not voluntarily terminate the Sign Lease or the Ground Lease
(except as otherwise set forth herein).
11.1.13 Afford the Purchaser and its representatives access to the
Property and to the Seller's books, records and files relating to the
Property, at reasonable times, including but not limited to the date of
the Closing.
11.1.14 Pay, in the normal course of business, and, in any event,
prior to Closing, sums due for work, materials or services furnished or
otherwise incurred in the ownership and operation of the Property up to
the Closing.
11.1.15 Effective as of the Closing, terminate any litigation
brought by the Seller against any tenant which is on-going as of such
date, and not commence any action against any tenant after the closing for
past due rents or otherwise.
11.2 As a condition precedent to the Purchaser's obligations at Closing,
the Seller shall have duly performed in all material respects, all covenants and
other obligations to be performed by it under this Article XI.
XII ARTICLE XII
ESCROW
XII.1 The parties hereto have mutually requested that the Escrow Agent act
as escrow agent for the purpose of holding the Deposit in accordance with the
terms of this Agreement. The Deposit shall be held by the Escrow Agent until the
earlier of (y) the Closing, or (z) such time as the Seller or the Purchaser may
be entitled to the Deposit in accordance with this Agreement, at which time the
Escrow Agent shall remit the Deposit to the party entitled thereto in accordance
with this Agreement.
XII.2 The Deposit shall be deposited by the Escrow Agent in an interest
bearing account with Citibank, N.A.
XII.3 The Deposit shall be released or delivered to the party entitled
thereto pursuant to this Agreement with reasonable promptness after the Escrow
Agent shall have received notice:
(a) from the Seller and the Purchaser authorizing release of the
Deposit, or
(b) of the occurrence of either of the following events:
(i) the Closing, at which time the Deposit shall be paid to the
Seller and applied to the Purchase Price;
(ii) the receipt by the Escrow Agent of a written notice from
either the Seller or the Purchaser stating that an event
has occurred under this Agreement entitling the party
delivering such notice to the Deposit, whereupon the Escrow
Agent shall deliver written notice (the "Default Notice")
thereof to the other party and, unless such other party
shall have delivered a written notice of objection to the
Escrow Agent within ten (10) days following receipt by such
other party of the Default Notice, the Escrow Agent shall
deliver the Deposit to the party initially requesting the
Deposit.
XII.4 (a) The Escrow Agent is to be considered as a depository only, shall
not be deemed to be a party to any document other than this Agreement, and shall
not be responsible or liable in any manner whatsoever for the sufficiency,
manner of execution, or validity of any written instruction, certificates or any
other documents received by it, nor as to the identity, authority or rights of
any persons executing the same. The Escrow Agent shall be entitled to rely at
all times on instructions given by the Seller and/or the Purchaser, as the case
may be and as required hereunder, without any necessity of verifying the
authority therefor. Notices given by Alan E. Linder, Esq. of Bachner, Tally,
Polevoy & Misher LLP, as counsel to and on behalf of the Purchaser, shall be
deemed given by the Purchaser.
(b) It is further understood by the Seller and the Purchaser that
if, as a result of any disagreement between them or adverse demands and claims
being made by any of them upon the Escrow Agent, or if the Escrow Agent
otherwise shall become involved in litigation with respect to this Agreement,
the Escrow Agent may deposit the Deposit with a court of competent jurisdiction
and/or in accordance with the order of a court of competent jurisdiction and in
any such event, the Seller and the Purchaser agree that they, jointly and
severally, are and shall be liable to the Escrow Agent and shall reimburse the
Escrow Agent on demand for all costs, expenses and reasonable counsel fees it
shall incur or be compelled to pay by reason of any such litigation. The Seller
and the Purchaser agree between themselves that each shall be responsible to
advance one-half of all amounts due the Escrow Agent hereunder, provided that
any such advance by the Seller or the Purchaser as a result of any dispute or
litigation between them shall be without prejudice to their right to recover
such amount as damages from the breaching party.
(c) In taking or omitting to take any action whatsoever hereunder,
the Escrow Agent shall be protected in relying upon any notice, paper, or other
document believed by it to be genuine, or upon evidence deemed by it to be
sufficient any act performed or omitted to be performed by thereunder in the
absence of negligence or bad faith. The Escrow Agent may consult with counsel in
connection with its duties hereunder and shall be fully protected in any act
taken, suffered or permitted by it in good faith and without negligence in
accordance with the advice of such counsel. The Escrow Agent shall not at any
time be held liable for actions taken or omitted to be taken in good faith and
without negligence. The Seller and the Purchaser agree to save and hold the
Escrow Agent harmless and indemnify the Escrow Agent from any loss and from any
claims or demands arising out of its actions hereunder other than any claims or
demands arising from the Escrow Agent's negligence.
XII.5 Upon the satisfaction of the mutual obligations of the parties
hereunder, the Escrow Agent shall record all appropriate instruments delivered
to it at the Closing.
XII.6 The Escrow Agent hereby agrees to serve as the "real estate
reporting person" (as such term is defined in Section 6045(e) of the Code). This
Agreement shall constitute a designation agreement, the name and address of the
transferor and transferee of the transaction contemplated hereby as well as the
name and address of the Escrow Agent appear in Section 10.9 hereof, and the
Seller, the Purchaser and the Escrow Agent agree to retain a copy of this
Agreement for a period of four (4) years following the end of the calendar year
in which the Closing occurs. The provisions of this Section shall survive the
Closing.
XII.7 The Escrow Agent shall not charge any title search fees or escrow
fees in connection with its duties as escrow agent in connection with this
transaction.
<PAGE>
IN WITNESS WHEREOF, the Seller and the Purchaser have caused this
Agreement to be executed in their names by their respective duly authorized
representatives.
SELLER:
CAMELOT ASSOCIATES, an Ohio limited partnership
By: PaineWebber Income Properties Three Limited
Partnership, a Delaware limited partnership,
its general partner
By: Third Income Properties, Inc., a
Delaware corporation,
its managing general partner
By: /s/ Richard S. Coomber
Name: Richard S. Coomber
Title: Vice President
By: Chelsea Moore Corporation, an Ohio corporation,
its general partner
By: /s/ Alfred A. Moore
Name: Alfred A. Moore
Title: Chairman of the Board
PURCHASER:
TGM REALTY CORP. #5, a Delaware corporation
By: /s/ Thomas Gochberg
Name: Thomas Gochberg
Title: President
Consented and Agreed to:
ESCROW AGENT:
CHICAGO TITLE INSURANCE COMPANY
By: /s/ Asher Fried
<PAGE>
SCHEDULE 1
"Act of Bankruptcy" shall mean if a party hereto or any general partner
thereof shall (a) apply for or consent to the appointment of, or the taking of
possession by, a receiver, custodian, trustee or liquidator of itself or of all
or a substantial part of its property, (b) admit in writing its inability to pay
its debts as they become due, (c) make a general assignment for the benefit of
its creditors, (d) file a voluntary petition or commence a voluntary case or
proceeding under the Federal Bankruptcy Code (as now or hereafter in effect),
(e) be adjudicated a bankrupt or insolvent, (f) file a petition seeking to take
advantage of any other law relating to bankruptcy, insolvency, reorganization,
winding-up or composition or adjustment of debts, (g) fail to controvert in a
timely and appropriate manner, or acquiesce in writing to, any petition filed
against it in an involuntary case or proceeding under the Federal Bankruptcy
Code (as now or hereafter in effect), or (h) take any action for the purpose of
effecting any of the foregoing; or if a proceeding or case shall be commenced,
without the application or consent of a party hereto or any general partner
thereof, in any court of competent jurisdiction seeking (x) the liquidation,
reorganization, dissolution or winding-up, or the composition or readjustment of
debts, of such party or general partner, (y) the appointment of a receiver,
custodian, trustee or liquidator or such party or general partner or of all or
any substantial part of its assets, or (z) other similar relief under any law
relating to bankruptcy, insolvency, reorganization, winding-up or composition or
adjustment of debts, and (1) such proceeding or case shall continue undismissed,
or (2) an order (including an order for relief entered in an involuntary case
under the Federal Bankruptcy Code, as now or hereafter in effect), judgment or
decree approving or ordering any of the foregoing shall be entered and continue
unstayed and in effect, in either case for a period of 60 consecutive days.
"Bill of Sale and Assignment" shall mean that certain bill of sale
and assignment conveying title to the Tangible Personal Property, including but
not limited to the Tangible Personal Property listed on Exhibit E annexed
hereto, from the Seller to the Purchaser and assigning to the Purchaser all of
the Seller's right, title and interest in and to the Intangible Personal
Property in the form of Exhibit G annexed hereto.
"Broker" shall mean Corson & Associates, Inc.
"Closing" shall mean the closing of the purchase and sale of the
Property, which shall occur as specified in Section 6.1.
"Closing Date" shall mean the date upon which the Closing shall
occur.
"Deed" shall mean that certain limited warranty deed conveying title
to the Real Property in the form of Exhibit F annexed hereto, subject only to
Permitted Title Exceptions. In the event the legal description of the Land
contained in Exhibit A hereto differs from the legal description shown on the
Survey, the "Deed" shall mean, collectively, at Purchaser's election (i) the
aforesaid limited warranty deed conveying title to the Real Property in the form
of Exhibit F annexed hereto, subject only to Permitted Title Exceptions, and,
(ii) a quitclaim deed to be delivered by Seller containing the legal description
as set forth in the Survey.
"Deposit" shall mean collectively (i) the Earnest Money, and (ii)
all interest earned on the Earnest Money. The Earnest Money shall be invested by
the Escrow Agent in an interest bearing account with Citibank, N.A. and shall be
held and disbursed in strict accordance with the terms and provisions of this
Agreement.
"Earnest Money" shall mean $250,000.00.
"Escrow Agent" shall mean the Title Company.
"FIRPTA Certificate" shall mean the affidavit of the Seller under
Section 1445 of the Internal Revenue Code certifying that the Seller is not a
foreign corporation, foreign partnership, foreign trust, foreign estate or
foreign person (as those terms are defined in the Internal Revenue Code and the
Income Tax Regulations in the form of Exhibit K annexed hereto.
"Governmental Body" means any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign.
"Ground Lease" means the ground lease dated April 20, 1978, between
Irvin F. Westheimer, Charles I. Westheimer and Robert I. Westheimer, Trustees,
and the Seller, as amended by Assumption of Ground Lease, dated as of June 29,
1981, and as further amended to the date hereof, relating to a portion of the
Land.
"Improvements" shall mean all buildings, improvements, fixtures and
other items of real estate located on the Land.
"Intangible Personal Property" shall mean all the right, title and
interest of the Seller, if any (and only to the extent transferable by the
Seller without consent or the payment of any sum), in, to and under the right to
use the trade name "Camelot East Apartments" and all variations thereof, all of
the Leases, all Operating Agreements, and all of the Seller's warranties,
licenses, permits and approvals with respect to the construction, ownership,
operation, leasing, occupancy or maintenance of the Real Property.
"Land" shall mean those certain parcels of real estate lying and
being in the City of Fairfield, Butler County, Ohio, as more particularly
described on Exhibit A attached hereto, together with all easements, rights, and
privileges appurtenant thereto.
<PAGE>
"Leases" shall mean all of the leases, licenses and other occupancy
agreements covering space at the Real Property other than the Ground Lease
(which shall be terminated prior to or at the Closing), now or hereafter in
effect.
"Operating Agreements" shall mean all maintenance agreements,
service contracts and other agreements to which the Seller is or may hereafter
be a party, if any, in effect with respect to the construction, ownership,
operation, leasing, occupancy or maintenance of the Property.
"Owner's Title Policy" shall mean an ALTA owner's policy of title
insurance (form dated 10/17/92) issued to the Purchaser by the Title Company,
pursuant to which the Title Company insures the Purchaser's ownership of fee
simple title to the Real Property (including the marketability thereof) subject
only to Permitted Title Exceptions, with extended coverage, provided that the
exclusion from coverage for Seller's bankruptcy, insolvency and similar
creditors' rights laws shall be omitted from such policy, which policy shall (i)
be effective as of the time of the Seller's unconditional delivery of the Deed
to the Purchaser at the Closing, and (ii) insure the Purchaser in the full
amount of the Purchase Price.
"Permitted Title Exceptions" shall have the meaning set forth in
Section 2.3.
"Property" shall mean collectively the Real Property, the
Tangible Personal Property and the Intangible Personal Property.
"Property Information" shall mean that certain information in
Seller's possession relative to the Property and listed on Exhibit C.
"Purchase Price" shall mean $15,150,000.00, payable in the manner
described in Section 2.2.
"Real Property" shall mean the Land and the Improvements.
"Rent Roll" shall mean that certain rent roll, dated (Report Date)
April 24, 1996, attached as Exhibit D.
"Seller's Knowledge" shall mean the actual knowledge, without
inquiry, of Thomas Jochum, Director of Residential Property Management for the
Property.
"Study Period" shall mean the period commencing with the date
hereof and expiring on May 24, 1996 at 5:00 p.m. EDT.
"Tangible Personal Property" shall mean all personal property owned
by Seller and placed or installed on or about the Real Property now or prior to
the Closing as set forth on Exhibit E. The Tangible Personal Property shall not
include laundry equipment and other equipment or other personal property leased
pursuant to the Operating Agreements.
"Title Company" shall mean Chicago Title Insurance Company.
<PAGE>
Exhibit A
Land Description
Camelot East Apartments
PARCEL A
Situated in the County of Butler, State of Ohio and described as follows:
Entire Lots Four Thousand Seven Hundred Sixty (4,760), Four Thousand Seven
Hundred Sixty-one (4,761), Four Thousand Seven Hundred Sixty-two (4,762), Four
Thousand Seven Hundred Sixty-three (4,763), Four Thousand Seven Hundred
Sixty-four (4,764), Four Thousand Seven Hundred Sixty-five (4,765), as said lots
are known and designated on the List of Lots in the City of Fairfield, Butler
County, Ohio, saving and excepting therefrom that part of Lot Number Four
Thousand Seven Hundred Sixty-four (4,764); beginning in the southeasterly line
of Camelot Drive, a distance of 233.31 feet northeastwardly as measured along
the southeasterly line of Camelot Drive from its intersection with the south
line of said Section 28; thence South 45B-36'-58" East a distance of 31.58 feet
to the easterly line of said Lot #4764; thence North 36B-28'-43" East, along
said east line of distance of 244.15 feet to the easterly line of Camelot Drive;
thence southwestwardly, along the southeasterly line of Camelot Drive on a curve
deflecting to the west with a radius of 935 feet, a distance of 242.51 feet
(chord of said curve bears South 43B-54'-33" West a distance of 241.83 feet) to
the place of beginning.
(Containing 2,551 square feet in the parcel so excepted)
PARCEL B
Situated in the County of Butler, State of Ohio and described as follows:
Entire Lot Number Eight Thousand Five Hundred Forty-three (8,543), as the same
is known and designated on the List of Lots of the City of Fairfield, Butler
Count, Ohio, said lot 8,543 being a consolidation of part lot number Three
Hundred Eighty-one (381) and entire Lot Number Four Thousand Seven Hundred
Sixty-six (4,766), in the City of Fairfield, Butler County, Ohio.
<PAGE>
Exhibit B
Operating Agreements
Contractor Date of Contract Service
Community Green Lawn 9/14/95 Lawn Services
Services Inc.
Cincinnati Coin 5/5/95 Laundry
Laundry Company (two
separate contracts)
Cincinnati Bell Telephone Phone
Directory
Color Options, inc. 12/7/95 Advertising
UniFirst 5/19/95 Garment Rental
The Firestone 9/15/78 Sign Agreement
Tire & Rubber Company
<PAGE>
Exhibit C
Property Information
<PAGE>
1. Rent rolls of the Property dated April 1, 1996 and
March 25, 1996 and copies of original counterparts of all Leases.
2. Copies of all Operating Agreements, and insurance policies
applicable to the Property.
3. Information concerning maintenance costs of the Property for the
past three (3) years, or such lesser period as the Property may have been
owned by Seller.
4. A copy of tax bills and a break-down of utility costs for
the current year and preceding two (2) years.
5. If available, a report of a licensed pest control contractor
reporting as to evidence of the presence of wood destroying insects or
other infestation at the Property.
6. Copy of a December 7, 1990 ATEC environmental site
assessment.
7. A salary history for the past three (3) years, or such lesser
period as the Property may have been owned by Seller, of all of Seller's
or Seller's managing agent's employees employed at the Property.
8. The most recent survey of the Land and Improvements in
Seller's possession.
9. Seller's leasehold mortgagee's and fee mortgagee's title
insurance policy, each relating to different portions of the Land.
<PAGE>
Exhibit D
Rent Roll
[to be supplied by Seller]
<PAGE>
Exhibit E
Tangible Personal Property
CAMELOT EAST YARD EQUIPMENT INVENTORY: 1996
3 50 ft. Hoses 2 Nozzles 1 5 Gallon Gas Can 1 Picnic Table 4 Snow Shovels 2 Leaf
Rakes 2 Push Brooms 3 Shovels 1 Pitch Fork 2 Steele Rakes 2 Hedge Trimmers 2
Pruners 2 Posthole Diggers 1 Tree Saw 1 Sledge Hammer 2 Volleyball Nets 4 Tennis
Nets 2 Grills
3 Swing Sets With Slides
1 Billygoat Vacuum
CAMELOT EAST POOL EQUIPMENT INVENTORY:
Pool # 1:
4 Garbage Cans
1 Chlorine Pump
3 50 Gallon Chlorine Containers 1 Hayward Pool Filtration Pump 1 Pool Filter
System 1 Pool Rope 3 Pool Ladders 4 Metal Pool Tables 24 Wrought Iron Pool
Chairs 18 Pool Chairs 10 Pool Lounge Chairs 2 Umbrellas 1 Pool Skimmer With Pole
1 Volleyball Net 1 Shepards Hook 1 Doughnut 2 Volleyballs 1 Vacuum Head With
Pole 150 ft. Hose 6 Sand Ashtrays 6 Regular Ashtrays
POOL #2:
4 Garbage Cans
1 Chlorine Pump
1 160 Gallon Chlorine Container 1 50 Gallon Chlorine Container 1 Vacuum Pump 1
Hayward Pump 1 Sump Pump 1 Pool Rope 3 Pool Tables 13 Pool Chairs 16 Lounge
Chairs 3 Pool Ladders 1 Skimmer With Pole 1 Shephards Hook 1 Doughnut 3
Umbrellas 4 Ashtrays
CAMELOT EAST CLUBHOUSE INVENTORY LOG: 1996
FITNESS CENTER:
1 Spa With Pump And Filter 1 Lifecycle Bicycle Machine 1 Ski Machine 1 Incline
Bench 1 Curl Stand 1 Universal Machine 1 Trotter Treadmill 1 Free Standing Leg
Extension Life
CLUBHOUSE:
6 3 x 3 White Tables 24 Maroon Chairs 1 Big Screen TV 2 Round Wood Tables 13 Bar
Stools 3 Ceiling Fans 1 Hotpoint Range 1 Hotpoint Refrigerator 1 Hotpoint
Dishwasher
LEASING OFFICE:
2 White Desks 12 Maroon Chairs 2 White Round Tables 1 Wood Credenza 1 TRW Credit
Machine 1 File Cabinet 1 Answering Machine 2 Telephones 1 Long White Table 1
Plant Arrangement
CAMELOT EAST MAINTENANCE INVENTORY LOG: 1996
2 Motorola Walkie Talkie Radios
1 A/C Gauge
1 Vacuum Pump (a/c)
1 Bench Vice
1 Arc Welder
2 50 ft. Extension Cords
1 Keycutting Machine
1 Bench Grinder
1 Window Fan
2 Saw Horses
1 Table Saw
1 B-Tank Torch
1 Bosch Hammer Drill
1 Western Plow And Assembly 1 24 ft. Extension Ladder 2 12 ft. Ladders 1 Toilet
Auger 1 T Shut Off Handle For Mains 1 Sump Pump 2 6 ft. Step Ladders 1 Weather
Radio 2 Toro Snowblowers 1 3 1/2 hp Snowblower 1 Ford F250 1991 Pick Up Truck 1
Pin Box For Rekeying Keys 1 Phone 1 Desk 1 Chair 1 File Cabinet 1 Meyer Salt
Spreader For Truck 1 Carpet Kicker 1 Hand Snake 1 Heat Gun 1 Drill 1 Electric
Tester 2 Grills 1 Dry Wall Fan & Knife 2 2" Step Stools 1 Gas Can 1 Carpet Fan
1 CFC Recovery Freon D3000 Recovery Unit
3 Compressed Air Sprayers
1 Lynn Carbon Monoxide Analyzer
3 Freon Recovery Tanks. 2 For R22; 1 For R12
2 Space Heaters
1 Hotpoint Refrigerator
1 Hotpoint Stove
CAMELOT EAST MANAGEMENT OFFICE INVENTORY LOG: 1996
3 Wood Base Desks
3 Grey High Back Chairs
3 Calculators
3 Typewriters
1 Fax Machine
1 Computer
1 Printer
5 Metal File Cabinets
2 Wood Base Credenza File Cabinets
2 White Tables
5 Maroon Chairs
1 TV
1 VCR
4 White Conference Tables 6 Maroon Chairs 1 Copy Machine And Stand 1 Wood Base
Bookshelf 1 Cream Leather Couch 1 Cream Leather Love Seat 1 Cream Leather Chair
1 Cream End Table 2 Lamps 1 Ceiling Fan 2 Space Heaters 1 Refrigerator 2 Framed
Fish Pictures
<PAGE>
Exhibit F
Limited Warranty Deed
CAMELOT ASSOCIATES, an Ohio limited partnership, for valuable
consideration paid, grants with limited warranty covenants to TGM CAMELOT INC.,
a Delaware corporation whose tax-mailing address is c/o TGM Associates L.P., 650
Fifth Avenue, New York, New York 10019, the real property described on Schedule
A hereto.
Parcel No. _____________________
Subject only to taxes and assessments which are now or may hereafter
become liens on said premises and those conditions and restrictions and
easements set forth on Schedule B hereto.
Prior Instrument Reference: ____________________ of the Deed Records of
_________________ County, Ohio.
WITNESS its hand and corporate seal, effective as of this _____ day of
___________, 1996.
Signed and acknowledged CAMELOT ASSOCIATES,
in the presence of: an Ohio limited partnership
By: PaineWebber Income Properties
Print Name: Three Limited Partnership, a
Delaware limited partnership, its
Signed and acknowledged general partner
in the presence of:
By: Third Income Properties,
Inc., a Delaware corporation,
its managing general partner
Print Name:
By:
Signed and acknowledged
in the presence of:
By: Chelsea Moore Corporation, an
Ohio corporation, its general
Print Name: partner
Signed and acknowledged
in the presence of: By:
Print Name:
[Add Grantor's Acknowledgment]
This instrument was prepared by Hunton & Williams
<PAGE>
SCHEDULE A
LEGAL DESCRIPTION
Camelot East Apartments
PARCEL A
Situated in the County of Butler, State of Ohio and described as follows:
Entire Lots Four Thousand Seven Hundred Sixty (4,760), Four Thousand Seven
Hundred Sixty-one (4,761), Four Thousand Seven Hundred Sixty-two (4,762), Four
Thousand Seven Hundred Sixty-three (4,763), Four Thousand Seven Hundred
Sixty-four (4,764), Four Thousand Seven Hundred Sixty-five (4,765), as said lots
are known and designated on the List of Lots in the City of Fairfield, Butler
County, Ohio, saving and excepting therefrom that part of Lot Number Four
Thousand Seven Hundred Sixty-four (4,764); beginning in the southeasterly line
of Camelot Drive, a distance of 233.31 feet northeastwardly as measured along
the southeasterly line of Camelot Drive from its intersection with the south
line of said Section 28; thence South 45B-36'-58" East a distance of 31.58 feet
to the easterly line of said Lot #4764; thence North 36B-28'-43" East, along
said east line of distance of 244.15 feet to the easterly line of Camelot Drive;
thence southwestwardly, along the southeasterly line of Camelot Drive on a curve
deflecting to the west with a radius of 935 feet, a distance of 242.51 feet
(chord of said curve bears South 43B-54'-33" West a distance of 241.83 feet) to
the place of beginning.
(Containing 2,551 square feet in the parcel so excepted)
PARCEL B
Situated in the County of Butler, State of Ohio and described as follows:
Entire Lot Number Eight Thousand Five Hundred Forty-three (8,543), as the same
is known and designated on the List of Lots of the City of Fairfield, Butler
Count, Ohio, said lot 8,543 being a consolidation of part lot number Three
Hundred Eighty-one (381) and entire Lot Number Four Thousand Seven Hundred
Sixty-six (4,766), in the City of Fairfield, Butler County, Ohio.
<PAGE>
SCHEDULE B
[Permitted Title Exceptions]
<PAGE>
Exhibit G
Bill of Sale and Assignment
KNOW ALL MEN BY THESE PRESENTS that CAMELOT ASSOCIATES, having an office
at c/o PaineWebber Properties, 265 Franklin Street, 16th Floor, Boston,
Massachusetts 02110 ("Assignor"), in consideration of Ten ($10.00) Dollars and
other good and valuable consideration in hand paid by TGM CAMELOT INC., having
an office at c/o TGM Associates L.P., 650 Fifth Avenue, New York, N.Y. 10019
("Assignee"), the receipt and sufficiency whereof are hereby acknowledged,
hereby:
A. Assigns unto Assignee all of Assignor's right, title and interest
in and to the following:
(i) All leases and rental agreements (the "Leases") made and entered
into by any and all tenants with respect to those certain premises known as
Camelot East Apartments, Fairfield, Ohio (the "Premises"), including but not
limited to the Leases described on Schedule A annexed hereto;
(ii) All security deposits, paid or deposited by tenants in
respect of the Leases; and
(iii) That certain Sign Agreement between The Firestone Tire &
Rubber Company and Chelsea Moore Company dated September 15, 1978 (the "Sign
Lease").
TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns,
from and after the date hereof, subject to the terms, covenants, conditions and
provisions contained in the Leases and the Sign Lease.
Assignee hereby assumes, and hereby agrees to indemnify and hold Assignor
harmless from and against any and all loss, cost, expense (including reasonable
attorneys' fees), damage and liability incurred by Assignor as a result of
claims brought against Assignor with respect to, the performance of all of the
terms, covenants and conditions of the Sign Lease and the Leases set forth on
Schedule A annexed hereto on Assignor's part to be performed thereunder from and
after the date hereof, but Assignee shall have no obligation to assume, or
indemnify Assignor with respect to, the performance of (i) any Lease not set
forth on Schedule A herein assigned by Assignor to Assignee from and after the
date hereof, or (ii) any obligation of Assignor to pay for tenant improvement
work, cash work allowances, or leasing commissions pursuant to any Lease at the
Premises (and/or any extensions, modifications, renewals, or additions thereto,
or options exercised thereunder).
Assignor hereby agrees to indemnify and hold Assignee harmless from and
against any and all loss, cost, expense (including reasonable attorneys' fees),
damage and liability incurred by Assignee as a result of claims brought against
Assignee (i) with respect to leasing commissions pursuant to all Leases at the
Premises (and/or any extensions, modifications, renewals or additions thereto,
or options exercised thereunder), (ii) as Assignor's successor in interest to
the Leases set forth on Schedule A annexed hereto relating to causes of action
accruing prior to the date hereof arising from a breach of the Leases and the
obligations of the lessor thereunder (including but not limited to the
obligation to pay for tenant improvement work and cash work allowances), (iii)
as Assignor's successor in interest to all Leases not set forth on Schedule A
annexed hereto, including, without limiting the generality of the foregoing
clauses (ii) and (iii), the obligation of Assignor to pay all security deposits
to lessees under the Leases which are due and owing, except those as to which
Assignee has received cash, including cash given by way of a credit against
Assignee's purchase price for the Premises (but only to the extent of such cash
received), and (iv) as Assignor's successor interest to the Sign Lease relating
to causes of action accruing prior to the date hereof arising from a breach of
the Sign Lease and the obligations of the lessee thereunder.
B. Assigns unto Assignee, all of Assignor's right, title and interest in
and to any service, maintenance and concessionaire agreements (collectively, the
"Agreements"), including, but not limited to, those set forth on Schedule B
annexed hereto, affecting the Premises in effect on the date hereof.
TO HAVE AND TO HOLD, the same unto Assignee, its successors and assigns,
from and after the date hereof, subject to the terms, covenants, conditions and
provisions contained in the Agreements.
Assignee hereby assumes, and hereby agrees to indemnify and hold Assignor
harmless from and against any and all loss, cost, expense (including reasonable
attorneys' fees), damage and liability incurred by Assignor as a result of
claims brought against Assignor with respect to, the performance of all of the
terms, covenants and conditions of the Agreements set forth on Schedule B
annexed hereto on Assignor's part to be performed thereunder from and after the
date hereof, but Assignee shall have no obligation to assume, or indemnify
Assignor with respect to, the performance of any Agreement not set forth on
Schedule B.
Assignor hereby agrees to indemnify and hold Assignee harmless from and
against any and all loss, cost, expense (including reasonable attorneys' fees),
damage and liability incurred by Assignee as a result of claims brought against
Assignee (i) as Assignor's successor in interest to the Agreements set forth on
Schedule B annexed hereto relating to causes of action accruing prior to the
date hereof, and (ii) as Assignor's successor in interest to all Agreements not
set forth on Schedule B annexed hereto.
C. Assigns unto Assignee, all of Assignor's right, title and interest in
and to all goodwill, trade names, including the trade name "Camelot East
Apartments", and/or logo-types, trademarks or other symbols, if any, held in
respect of the Premises.
TO HAVE AND TO HOLD, the same unto Assignee, its successors and assigns,
from and after the date hereof.
D. Assigns unto Assignee all of Assignor's right, title and interest, if
any, in and to all (i) assignable licenses and/or permits (collectively, the
"Licenses"), if any, relating to and affecting the Premises, and (ii) pending
applications for Licenses relating to the Premises.
TO HAVE AND TO HOLD, the same unto Assignee, its successors and assigns,
from and after the date hereof, subject to the terms, covenants, conditions and
provisions contained in the Licenses.
E. Assigns unto Assignee, all of Assignor's right, title and interest, if
any, in and to all assignable warranties and guarantees of contractors,
manufacturers, suppliers and/or installers, if any, relating to the Premises,
including all assignable warranties and guarantees covering the materials, goods
and equipment installed in or upon the Premises.
TO HAVE AND TO HOLD, the same unto Assignee, its successors and assigns,
from and after the date hereof, subject to the terms, covenants, conditions and
provisions therein contained.
F. Transfers, conveys, assigns, and sets over and by these presents does
release, transfer, convey, assign, and set over unto Assignee, its successors
and assigns, all of Seller's right, title, and interest in and to:
(i) all fixtures, machinery and equipment to the extent same
constitute personal property, all raw materials, work and materials in
process, stock in trade, inventory and other equipment and all other
tangible personal property owned by Assignor, attached or appurtenant to,
or used in connection with the occupancy and operation of the Premises;
(ii) copies of all of the current business records of Assignor,
including all computer equipment and related software and rights to the
utilization thereof, relating to the Premises;
(iii) copies of all books and records relating to the Premises;
and
(iv) all architectural plans, drawings, land plans, master plans and
surveys relating to the Premises, if any.
All of the foregoing is herein collectively called the "Personal
Property."
TO HAVE AND TO HOLD, the same unto Assignee, its successors and assigns,
forever, Assignor does hereby bind itself and its successors to forever warrant
and defend the title to the Personal Property unto Assignee, its successors and
assigns, against the lawful claims of all persons claiming by, through or under
Assignor.
The assignments and transfers described in paragraphs A-F above are made
as part of the transfer of the Premises to Assignee as of the date hereof, and
both parties agree and acknowledge that no part of the consideration is
allocated to the Personal Property.
IN WITNESS WHEREOF, the parties hereto have executed this instrument as of
the _____ day of _______________, 1996.
CAMELOT ASSOCIATES,
an Ohio limited partnership, Assignor
By: PaineWebber Income Properties
Three Limited Partnership, a
Delaware limited partnership,
its general partner
By: Third Income Properties,
Inc., a Delaware corporation,
its managing general partner
By:
By: Chelsea Moore Corporation, an
Ohio corporation, its general
partner
By:
TGM CAMELOT INC., Assignee
By:
<PAGE>
SCHEDULE A
[Schedule of Leases]
<PAGE>
SCHEDULE B
[Schedule of Agreements]
<PAGE>
Exhibit H
[Date]
TGM Camelot Inc.
c/o TGM Associates L.P.
650 Fifth Avenue
New York, NY 10019
Re: Camelot East Apartments
Fairfield, Ohio (the "Premises")
Gentlemen:
In connection with the closing adjustments made pursuant to the transfer of
title of the Premises by the undersigned to you, a copy of which closing
adjustments is annexed hereto, it is hereby agreed that if any arithmetic
calculations shall prove to be erroneous, or any adjustment shall be
inadvertently omitted, or be otherwise subject to post-closing adjustment
pursuant to the provisions of that certain Agreement of Purchase and Sale dated
April ___, 1996 by and between Camelot Associates, as seller, and TGM Realty
Corp. #5, as purchaser, with respect to the Premises, then same shall be
adjusted between you and the undersigned after the closing. Any such adjustment
shall be paid promptly after same is ascertained (and the amount is mutually
agreed to by Purchaser and Seller). The obligation to correct any erroneous
adjustment or to make any additional adjustment in accordance with the above
shall survive the closing for a period of three (3) months.
<PAGE>
Very truly yours,
CAMELOT ASSOCIATES,
an Ohio limited partnership
By: PaineWebber Income Properties
Three Limited Partnership, a
Delaware limited partnership,
its general partner
By: Third Income Properties,
Inc., a Delaware corporation,
its managing general partner
By:___________________________
By: Chelsea Moore Corporation, an
Ohio corporation, its general
partner
By:___________________________
AGREED TO:
TGM CAMELOT INC.
By:___________________________
<PAGE>
Exhibit I
[Letterhead of Seller]
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
AND BY HAND
[Date]
Tenants at Camelot East Apartments
Re: Acquisition of Camelot East Apartments
Fairfield, Ohio (the "Property")
Dear Tenant:
We are pleased to announce that TGM Camelot Inc. ("TGM") has today
acquired the Property from Camelot Associates. TGM's address is: c/o TGM
Associates L.P., 650 Fifth Avenue, New York, New York 10019.
Your security deposit (including any pet deposit) paid in accordance with
your lease at the Property ("Lease") has been transferred to TGM.
From this day forward, all checks payable to the landlord under your Lease
should be made payable to "Camelot East Apartments" at the on-site manager's
office.
<PAGE>
Should you have any questions concerning the acquisition of the Property
by TGM, please call Steven Macy at (212) 830-9300.
Very truly yours,
CAMELOT ASSOCIATES,
an Ohio limited partnership
By: PaineWebber Income Properties
Three Limited Partnership, a
Delaware limited partnership,
its general partner
By: Third Income Properties,
Inc., a Delaware corporation,
its managing general partner
By:___________________________
By: Chelsea Moore Corporation, an
Ohio corporation, its general
partner
By:___________________________
Consented to:
TGM CAMELOT INC.
By:___________________________
<PAGE>
Exhibit J
The undersigned hereby certifies to TGM Camelot Inc.that each of the
representations made by the undersigned to TGM Realty Corp. #5 in that certain
Agreement of Purchase and Sale between the undersigned and TGM Realty Corp. #5
dated as of April __, 1996 are true and correct in all material respects as of
the date hereof and that each of said representations shall inure to the benefit
of TGM Camelot Inc.
Dated as of _______________ CAMELOT ASSOCIATES,
an Ohio limited partnership
By: PaineWebber Income Properties
Three Limited Partnership, a
Delaware limited partnership,
its general partner
By: Third Income Properties,
Inc., a Delaware corporation,
its managing general partner
By:___________________________
By: Chelsea Moore Corporation, an
Ohio corporation, its general
partner
By:___________________________
<PAGE>
Exhibit K
Section 1445 of the Internal Revenue Code provides that a transferee of a U.S.
real property interest must withhold tax if the transferor is a foreign person.
To inform the transferee that withholding of tax is not required upon the
disposition of a U.S. real property interest by Camelot Associates, the
undersigned hereby certifies the following on behalf of Camelot Associates:
1. Camelot Associates is not a foreign
corporation, foreign partnership,
foreign trust, or foreign estate
(as those terms are defined in the
Internal Revenue Code and Income
Tax Regulations);
2. Camelot Associates' U.S. employer
identification number is
31-6153180; and
3. Camelot Associates' office address
c/o PaineWebber Properties, 265
Franklin Street, 16th Floor,
Boston, Massachusetts 02110.
Camelot Associates understands that this certification may be disclosed to the
Internal Revenue Service by the transferee and that any false statement
contained herein could be punished by fine, imprisonment, or both.
Under penalties of perjury I declare that I have examined this
certification and to the best of my knowledge and belief it is true, correct and
complete, and I further declare that I have authority to sign this document on
behalf of Camelot Associates.
Dated:
[Name and Title]
<PAGE>
AMENDMENT TO AGREEMENT OF PURCHASE AND SALE THIS AMENDMENT is
made as of this 24th day of May, 1996, between
CAMELOT ASSOCIATES, an Ohio limited partnership ("Seller"), and TGM REALTY CORP.
#5, a Delaware corporation (the "Purchaser").
BACKGROUND
A. Seller and Purchaser entered into an Agreement of Purchase and Sale
dated as of April 24, 1996 (the "Agreement"), with respect to the property known
as Camelot East Apartments, located in Fairfield, Ohio (the "Property").
B. Seller and Purchaser now wish to further amend the Agreement as
set forth in this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Purchaser and Seller agree as
follows:
1. The definition of "Study Period" on Schedule 1 of the Agreement
shall be amended to read:
"Study Period" shall mean the period commencing with
the date hereof and expiring on May 31, 1996 at 5:00
p.m. EDT.
2. Purchaser agrees that Purchaser will not contact further the City of
Fairfield zoning authorities, without the prior written consent of the Seller,
which consent shall be given or withheld at Seller's sole discretion.
3. Counterparts. To facilitate execution, this Amendment may be
executed in as many counterparts as may be required. It shall not be
necessary that the signatures on behalf of all parties appear on each
counterpart hereof. Signatures sent to the other parties by facsimile shall
be valid to bind the party so signing. All counterparts hereof shall
collectively constitute a single agreement.
Except as set forth herein, the terms of the Agreement remain
unmodified and in full force and effect. If any of the terms of this Amendment
are in conflict with the terms of the Agreement, the terms of this Amendment
supersede and govern the rights of the parties.
[SIGNATURE PAGES FOLLOW.]
<PAGE>
IN WITNESS WHEREOF, Purchaser and Seller have executed this
Amendment as of the date and year first written above.
SELLER:
CAMELOT ASSOCIATES, an Ohio limited partnership
By: PaineWebber Income Properties Three
Limited Partnership, a Delaware limited
partnership, its general partner
By: Third Income Properties, Inc., a
Delaware corporation, its managing
general partner
By: /s/ Richard S. Coomber
Name: Richard S. Coomber
Title: Vice President
By: Chelsea Moore Corporation, an Ohio
corporation, its general partner
By: /s/ Alfred A. Moore
Name: Alfred A. Moore
Title: Chairman of the Board
PURCHASER:
TGM REALTY CORP. #5, a Delaware corporation
By: /s/ Thomas Gochberg
Name: Thomas Gochberg
Title: President
<PAGE>
SECOND AMENDMENT TO AGREEMENT OF PURCHASE AND SALE THIS SECOND
AMENDMENT is made as of this 31st day of May, 1996, between
CAMELOT ASSOCIATES, an Ohio limited partnership ("Seller"), and TGM REALTY CORP.
#5, a Delaware corporation (the "Purchaser").
BACKGROUND
A. Seller and Purchaser entered into an Agreement of Purchase and Sale
dated as of April 24, 1996, as amended by Amendment dated May 24, 1996 (as
amended, the "Agreement"), with respect to the property known as Camelot East
Apartments, located in Fairfield, Ohio (the "Property").
B. Seller and Purchaser now wish to further amend the Agreement as
set forth in this Second Amendment.
C. The defined terms used in this Second Amendment shall have the
meaning assigned to them in the Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Purchaser and Seller agree as
follows:
1. Modification. The Agreement is modified as follows:
(a) The Study Period has expired for all due diligence
matters other than zoning and related matters relative to the Property (the
"Zoning Matters"), provided, however, that the expiration of the Study Period
shall be extended to June 11, 1996 at 5:00 p.m. EDT with respect to any changes
after the date hereof ("Changes") to the physical or economic condition of the
Property or the matters heretofore covered or disclosed by any of the Tests or
Property Information.
(b) The expiration of the Study Period set forth in the
Agreement shall be extended solely for the purpose of the Purchaser satisfying
itself as to the Zoning Matters, to June 11, 1996 at 5:00 p.m.
EDT.
(c) If the Purchaser, in the Purchaser's sole judgment, shall
find the Zoning Matters or any Changes to be unsatisfactory for any reason
whatsoever or for no reason, the Purchaser shall have the right, at its option,
to be exercised not later than the expiration of the Study Period as set forth
in subsections 1(a) and 1(b) of this Second Amendment, to elect to terminate the
Agreement, and, upon such election, the Deposit shall be immediately refunded to
the Purchaser, and thereupon the parties hereto shall have no further
liabilities one to the other except as set forth in Section 2.3(c) of the
Agreement.
(d) Closing shall occur on June 18, 1996, or such earlier date
that is mutually satisfactory to the Seller and the Purchaser.
2. Counterparts. To facilitate execution, this Amendment
may be executed in as many counterparts as may be required. It shall not be
necessary that the signatures on behalf of all parties appear on each
counterpart hereof. Signatures sent to the other parties by facsimile shall
be valid to bind the party so signing. All counterparts hereof shall
collectively constitute a single agreement.
Except as set forth herein, the terms of the Agreement remain
unmodified and in full force and effect. If any of the terms of this Amendment
are in conflict with the terms of the Agreement, the terms of this Amendment
supersede and govern the rights of the parties.
[SIGNATURE PAGES FOLLOW.]
<PAGE>
IN WITNESS WHEREOF, Purchaser and Seller have executed this
Amendment as of the date and year first written above.
SELLER:
CAMELOT ASSOCIATES, an Ohio limited partnership
By: PaineWebber Income Properties Three
Limited Partnership, a Delaware limited
partnership, its general partner
By: Third Income Properties, Inc., a
Delaware corporation, its managing
general partner
By: /s/ Richard S. Coomber
Name: Richard S. Coomber
Title: Vice President
By: Chelsea Moore Corporation, an Ohio
corporation, its general partner
By: /s/ Alfred A. Moore
Name: Alfred A. Moore
Title: Chairman of the Board
PURCHASER:
TGM REALTY CORP. #5, a Delaware corporation
By: /s/ Thomas Gochberg
Name: Thomas Gochberg
Title: President
<PAGE>
SETTLEMENT STATEMENT AND DISBURSEMENT SCHEDULE
PURCHASER: TGM CAMELOT INC., a Delaware corporation
SELLER: CAMELOT ASSOCIATES, an Ohio limited partnership (Louis C.
Buschle, Assignee, Qualified Intermediary)
DATE: June 19, 1996
PROPERTY: CAMELOT DR., FAIRFIELD, OH
AGENT: CHICAGO TITLE INSURANCE COMPANY
SETTLEMENT STATEMENT
PURCHASER SELLER
PURCHASE PRICE ($15,150,000.00) $15,150,000.00
Earnest Money Deposit 251,764.28
BUTLER COUNTY AUDITOR
Conveyance Fee/Phase I (573.00)
Conveyance Fee/Phase I & II (30,300.00)
BUTLER COUNTY RECORDER*
Conveyance & Release Docs
for Phase I (90.50)
Deed for Phase II (18.50)
Release Docs for Phase II (70.00)
BUTLER COUNTY TREASURER
2nd Half 1995 Taxes (80,559.97)
Proration 1-1-96 to
6-19-95 75,042.16 (75,042.16)
THE TRAVELERS INSURANCE CO.
Mortgage Payoff (2,185,372.66)
Mortgage Payoff (1,974,942.18)
CORSON & ASSOCIATES
Commission (300,000.00)
CHARLES I. WESTHEIMER, TR.
& ROBERT I. WESTHEIMER, TR.
Payoff on Ground Lease (286,500.00)
COHEN, TODD, KITE & STANFORD
Legal Fees (7,271.82)
KEATING, MUETHING, KLEKAMP (3,998.67)
HUNTON & WILLIAMS
Sale Transaction Legal Fees (26,500.00)
BAYER BECKER ENGINEERS (7,544.00)
CARDELLA & ASSOCIATES, INC.
R/E Consultant Fee (25,000.00)
PRORATION ON INCOME & EXPENSE
Rent 86,454.16 (86,454.16)
Operating Agreement
Phone Svc. 116.00 (116.00)
Yellow Page Adv. (32.00) 32.00
Pager Svc. (17.60) 17.60
TCI Cable (20.42) 20.42
Lawn Care 1,797.48 (1,797.48)
Pest Control (230.00) 230.00
Plant Rental (35.03) 35.03
Trash Removal 1,000.00 (1,000.00)
Rental Guide AD (137.73) 137.73
Rental Sign (75.00) 75.00
Swimming Pool Repair 7,150.00 (7,150.00)
Spa Filters 2,000.00 (2,000.00)
Apt. 3A Foundation Work 3,000.00 (3,000.00)
"Make Ready of Vacancies" 9,000.00 (9,000.00)
CHICAGO TITLE INSURANCE CO.
Premium (36,200.00)
Closing Costs (1,250.00)
Post Closing Adj. Escrow (100,000.00)
Post Closing Adj. Escrow (20,000.00)
TOTAL DUE FROM PURCHASER ($14,758,236.20)
TOTAL DUE TO SELLER $9,923,809.18
<PAGE>
DISBURSEMENT SCHEDULE
RECEIPTS:
WIRE ON ACCOUNT OF PURCHASER $15,200,000.00
EARNEST MONEY DEPOSIT 250,000.00
INTEREST ON FUNDS 1,764.28
-----------------
TOTAL $15,451,764.28
DISBURSEMENTS:
BUTLER COUNTY AUDITOR $ 30,873.00
BUTLER COUNTY RECORDER 179.00
BUTLER COUNTY TREASURER 80,559.97
THE TRAVELERS INSURANCE CO. 4,160,314.84
CORSON & ASSOCIATES 300,000.00
CHARLES I. WESTHEIMER, TRUSTEE &
ROBERT I. WESTHEIMER, TRUSTEE 286,500.00
COHEN, TODD, KITE & STANFORD 7,271.82
KEATING, MUETHING & KLEKAMP 3,998.67
HUNTON & WILLIAMS 26,500.00
BAYER BECKER ENGINEERS 7,544.00
CARDELLA & ASSOCIATES, INC. 25,000.00
CHICAGO TITLE INSURANCE CO. 37,450.00
CHICAGO TITLE INSURANCE CO. (ESCROW) 120,000.00
CAMELOT ASSOCIATES, an Ohio limited prtn. 9,923,809.18
To be distributed as follows directly to:
PAINEWEBBER INCOME PROPERTIES $5,908,481.02
THREE LIMITED PARTNERSHIP
CHELSEA MOORE CORPORATION $ 707,391.77
LOUIS C. BUSCHLE (for 1031 tax $3,301,973.89
deferred exchange)
HUNTON & WILLIAMS $ 5,962.50
TGM CAMELOT INC. - REFUND 441,763.80
--------------
TOTAL DISBURSED $15,451,764.28
*Recording Fees Estimated
TGM CAMELOT INC. CAMELOT ASSOCIATES, an
Ohio limited partnership
BY: /s/ Steven C. Macy
BY: PAINEWEBBER INCOME
PROPERTIES THREE
LIMITED PARTNERSHIP,
a Delaware limited partnership,
its general partner
LOUIS C. BUSCHLE, BY: THIRD INCOME
ASSIGNEE, QUALIFIED PROPERTIES, INC.
INTERMEDIARY a Delaware corporation,
its managing general partner
/s/ Louis C. Buschle
BY: /s/ Richard S. Coomber
CHICAGO TITLE INSURANCE CO. BY: CHELSEA MOORE CORPORATION
an Ohio corporation, its
BY: /s/ Asher Fried general partner
BY: /s/ Alfred A. Moore
