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) November 18, 1998
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Paine Webber Growth Properties LP
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(Exact name of registrant as specified in its charter)
Delaware 0-10995 04-2772109
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(State or other jurisdiction) (Commission (IRS Employer
of incorporation File Number) Identification No.)
265 Franklin Street, Boston, Massachusetts 02110
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(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 GROWTH PROPERTIES LP
ITEM 2 - Disposition of Assets
Chisholm Place Apartments, Plano, Texas
Disposition Date - November 18, 1998
On November 18, 1998, the Partnership's interest in Plano Chisholm Place
Associates, the joint venture that owns the Chisholm Place Apartments, was
redeemed by the co-venture partner for a net price of $3,655,020. After closing
costs of $169,089, the Partnership received net proceeds of $3,485,931. As a
result of this transaction, the Partnership no longer holds an interest in this
property. In addition, the Partnership will also receive a payment on or about
December 18, 1998, representing net cash flow which was due to the Partnership
from the operations of the joint venture through November 18, 1998. The net
proceeds from this transaction are expected to be distributed to the Limited
Partners on or before December 31, 1998 as part of a final liquidating
distribution.
The Partnership's final operating investment property, the Chisholm Place
Apartments, was under contract for sale to the co-venture partner as a result of
the exercise of a right of first refusal option by the co-venture partner.
During the fourth quarter of fiscal 1998, the Partnership and its co-venture
partner had requested broker proposals from two real estate firms with offices
in Texas to market the Chisholm Place Apartments for sale. After reviewing their
respective proposals and conducting interviews, the Partnership and its
co-venture partner selected a local brokerage firm with extensive experience in
marketing apartment properties. Sales materials were finalized and extensive
marketing efforts began in late May 1998. As a result of this marketing process,
the Partnership had executed a purchase and sale agreement with an unrelated
third party which was then presented to the co-venture partner under the right
of first refusal provision of the joint venture agreement. The co-venture
partner decided to exercise its option to purchase the property, and the
transaction closed on November 18, 1998, as described above.
With the sale of this final asset, a formal liquidation of the Partnership
is presently underway. Winding up the affairs of the Partnership will include,
among other things, achieving a final resolution of the litigation involving the
Partnership's Tantra Lake and Parkwoods investments, as described in prior
quarterly and annual reports, as well as receiving formal HUD-approval of the
sale of the Grouse Run property and the prepayment of the related HUD-insured
mortgage loan, which occurred on November 2, 1998. Accordingly, while it is
expected that these maters will be resolved prior to the end of calendar year
1998, there are no assurances that the liquidation of the Partnership will be
completed within this time frame.
ITEM 7 - Financial Statements and Exhibits
(a) Financial Statements: None
(b) Exhibits:
(1)Agreement To Retire Partnership Interest by and among Plano Chisholm
Place Associates, Plano Chisholm Place, Ltd., The Horn-Barlow Partnership
and Plano CP Associates, Ltd., dated November 18, 1998.
(2)Redemption Statement of Partnership Interest in Plano Chisholm Place
Associates, dated November 18, 1998.
<PAGE>
FORM 8-K
CURRENT REPORT
PAINE WEBBER GROWTH PROPERTIES LP
SIGNATURE
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 GROWTH PROPERTIES LP
(Registrant)
By: First PW Growth Properties, Inc.
By: /s/ Walter V. Arnold
--------------------
Walter V. Arnold
Senior Vice President and
Chief Financial Officer
Date: November 30, 1998
<PAGE>
AGREEMENT TO RETIRE PARTNERSHIP INTEREST
This AGREEMENT TO RETIRE PARTNERSHIP INTEREST (the Agreement) is entered
into and shall be effective as of November 18, 1998 by and among PLANO CHISHOLM
PLACE ASSOCIATES, a Texas general partnership (the Partnership), PLANO CHISHOLM
PLACE, LTD., a Texas limited partnership (the Retiring Partner), and THE
HORN-BARLOW PARTNERSHIP, a Texas general partnership, and PLANO CP ASSOCIATES,
LTD., a Texas limited partnership (collectively, the Continuing Partners) (the
Retiring Partner, the Continuing Partners and the Partnership are sometimes
hereinafter referred to individually as a Party and collectively as the
Parties).
W I T N E S S E T H:
A. The Retiring Partner and The Horn-Barlow Partnership were the sole
partners of the Partnership pursuant to the terms and conditions of the Second
Amended and Restated Partnership Agreement of the Partnership dated September 9,
1991 (the Partnership Agreement).
B. On the Effective Date (as hereinafter defined) of this Agreement, Plano
CP Associates, L.P. has been admitted as a partner of the Partnership by virtue
of its capital contribution to the Partnership.
C. The Parties have agreed that the Retiring Partners entire right, title
and interest in the Partnership (the Redemption Interest) shall be retired and
redeemed by the Partnership and the Retiring Partner shall withdraw from the
Partnership immediately following the admission of Plano CP Associates, Ltd. as
a partner in the Partnership, all as set forth herein.
D. Immediately following the redemption of the Retiring Partners interest
in the Partnership pursuant to this Agreement, the Continuing Partners will
cause the Partnership Agreement to be amended and restated to reflect the
continuation of the Partnership with the Continuing Partners as the sole
partners of the Partnership.
NOW THEREFORE, for and in consideration of the mutual agreements,
covenants and conditions contained herein, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
Parties hereby agree as follows:
1. Retirement, Redemption and Withdrawal. The Redemption Interest shall be
absolutely and unconditionally retired and redeemed by the Partnership effective
as of the close of business on November 18, 1998 (the Effective Date), all in
accordance with the provisions set forth in this Agreement. The Retiring Partner
shall sell, assign and transfer the entire Redemption Interest to the
Partnership and withdraw from the Partnership as of the close of business on the
Effective Date.
2. Consideration for Redemption Interest; Indemnification Provisions. In
consideration for the retirement and redemption of the Redemption Interest, the
Partnership agrees to distribute to the Retiring Partner consideration (the
Redemption Consideration) composed of the following:
(a) The Partnership shall distribute cash to the Retiring Partner in
the amount of $3,655,020 on the Effective Date.
(b) As among the Parties, the Retiring Partner shall be relieved of
all responsibility for those liabilities of the Partnership set forth on Exhibit
A attached hereto. The amounts of such liabilities reflect the amounts
outstanding on November 18, 1998. The Partnership shall indemnify, defend,
protect and hold harmless the Retiring Partner from such liabilities. On or
before December 18, 1998, the Partnership shall cause to be prepared a
calculation of the Retiring Partners share of net income from operations of the
Partnership through the Effective Date and shall remit to the Retiring Partner
in cash any such sums as may be necessary to make a final distribution to the
Retiring Partner of its share of such net income through the Effective Date, as
more fully described in Exhibit B attached hereto.
(c) The Redemption Consideration provided for in this Section is the
total consideration payable by the Partnership to the Retiring Partner for the
Redemption Interest, and the Retiring Partner shall not retain an interest in,
or be entitled to receive distributions of, any other Partnership assets.
Accordingly, any further obligations of the Retiring Partner in and to the
Partnership under the Partnership Agreement, including but not limited to, the
obligation to make capital contributions or loans to the Partnership, are hereby
terminated in their entirety.
3. Continuation of Partnership. The Parties hereby agree that the
Partnership shall continue and shall not be dissolved because of the retirement
and redemption of the Redemption Interest or the withdrawal of the Retiring
Partner.
4. Tax Matters. The Parties agree that:
(a) The Redemption Consideration is based on the agreed fair market
value of the Partnerships assets (the Partnership Assets) as of the Effective
Date.
(b) All amounts considered as distributions to the Retiring Partner
(the Deemed Distributions) pursuant to section 752(b) of the Internal Revenue
Code of 1986, as amended (the Code) and all distributions to the Retiring
Partner of cash pursuant to Section 2(a) hereof shall be treated as payment in
exchange for the Retiring Partners interest in the Partnership property and,
accordingly, as distributions pursuant to section 736(b) of the Code (and not as
distributions pursuant to section 736(a) of the Code) and corresponding
provisions of any applicable state or local tax laws.
(c) The Parties agree that none of the Partnership Assets are
inventory items, including inventory items which have appreciated substantially
in value within the meaning of section 751(d) of the Code.
(d) The Retiring Partners distributive share of the Partnerships
income, gain, loss and deduction for the taxable year of the Partnership that
includes the Effective Date shall be determined on the basis of an interim
closing of the books of the Partnership as of the close of business on the
Effective Date and shall not be based upon a proration of such items for the
entire taxable year. The Retiring Partner shall not be allocated a distributive
share of any Partnership items for any subsequent year.
(e) The Parties shall each file all required Federal, state and
local income tax returns and related returns and reports in a manner consistent
with the foregoing provisions of this Section 4. In the event a Party does not
comply with the preceding sentence, the non-complying Party shall indemnify and
hold the other Parties wholly and completely harmless from all cost, liability
and damage that such other Parties may incur (including, without limitation,
incremental tax liabilities, legal fees, accounting fees, and other expenses) as
a consequence of such failure to comply. The Partnership and the Continuing
Partners agree to cause a copy of the Form 1065 U.S. Partnership Return of
Income, including the Retiring Partners Federal Schedule K-1 to be delivered to
the Retiring Partner on or before February 15, 1999 for the taxable year 1998.
5. Representations, Warranties and Covenants.
(a) Of Each Party. The Partnership, the Retiring Partner and the
Continuing Partners each hereby represents and warrants to and covenants with
each other Party that:
(i) Neither the execution nor the delivery of this Agreement,
the incurrence of the obligations herein set forth, the consummation of
the transactions herein contemplated, nor the compliance with the terms of
this Agreement will conflict with, or result in a breach of, any of the
terms, conditions or provisions of, or constitute a default under, any
bond, note or other evidence of indebtedness or any contract, indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which such Party is a party or by which such Party may be
bound.
(ii) Such Party has the right, power, legal capacity and
authority to execute and enter into this Agreement and to execute all
other documents and perform all other acts as may be necessary in
connection with the performance of this Agreement.
(iii) No approval or consent not heretofore obtained by any
person or entity is necessary in connection with the execution of this
Agreement by such Party or the performance of such Party's obligations
under this Agreement.
(iv) Such Party has received independent tax and legal advice
from attorneys of its choice with respect to the advisability of executing
this Agreement.
(v) Such Party has made such investigation of the facts
pertaining to this Agreement, and all of the matters pertaining thereto,
as it deems necessary.
(vi) Except as expressly provided herein, no person has made
any statement or representation to such Party regarding any fact relied
upon by such Party in entering into this Agreement and each Party
specifically does not rely upon any statement, representation or promise
of any other person in executing this Agreement.
(vii) Such Party relies on the finality of this Agreement as a
material factor inducing its execution of this Agreement, and the
obligations under this Agreement.
(viii) Such Party will not take any action which would
interfere with the performance of this Agreement by any other Party or
which would adversely affect any of the rights provided for herein.
(b) Additional Representation, Warranty and Covenant of the Retiring
Partner. The Retiring Partner hereby represents and warrants to and covenants
with each other Party that the Retiring Partner owns the Redemption Interest
free and clear of any and all liens, claims, encumbrances and adverse equities,
other than liens, claims, encumbrances or adverse equities relating to the
liabilities set forth on Exhibit A attached hereto.
(c) Additional Representation, Warranty and Covenant of the
Partnership. The Partnership hereby represents and warrants to and covenants
with the Retiring Partner that the Partnership shall cause the federal and any
state or local tax returns or information returns of the Partnership for the
Partnerships taxable year that includes the Effective Date to be filed on a
timely basis at the Partnerships expense. The Partnership further represents and
warrants to and covenants with the Retiring Partner that the Partnership shall
allow independent accountants selected by the Retiring Partner, at the sole cost
and expense of the Retiring Partner, to conduct a final audit of the Partnership
for the period ending on the Effective Date, including the calculation described
in Paragraph 2(b) of this Agreement.
6. Releases and Indemnification. From and after the Effective Date, the
Retiring Partner and the Partnership (and the Continuing Partners for the
purposes of this paragraph), hereby remise, release, acquit, satisfy and forever
discharge each other, of or from all, and all manner of action or actions, cause
and causes of action, suits, debts, dues, sums of money, accounts, reckonings,
bonds, bills, specialties, covenants, contracts, controversies, agreements,
promises, variances, trespasses, damages, judgments, executions, claims and
demands whatsoever, in law or in equity, which such party ever had, now has, or
which any personal representative, successor, heir or assign of such party,
hereafter can, shall or may have, against the other, for, upon or by reason of
any matter, causes or things whatsoever related to the Redemption Interest. The
Partnership hereby agrees to indemnify and save harmless the Retiring Partner
from and against all claims, loss, costs, damage and reasonable expenses
(including, but not limited to, reasonable attorneys fees) and liabilities
incurred by the Retiring Partner resulting from or arising out of the duties or
obligations of the Retiring Partner with respect to the Redemption Interest
attributable to any period from and after the Effective Date. The Retiring
Partner hereby agrees to indemnify and save harmless the Partnership and the
Continuing Partners from and against all claims, loss, costs, damage and
reasonable expenses (including, but not limited to, reasonable attorneys fees)
and liabilities incurred by the Partnership or the Contributing Partners
resulting from or arising out of any action of the Retiring Partner occurring
prior to the Effective Date with respect to the Redemption Interest.
7. Miscellaneous.
(a) Statement of Partnership; Other Filings.
The Partnership may prepare and file fictitious business name statements
and such other statements or documents as the Continuing Partners deem
appropriate to reflect the withdrawal of the Retiring Partner from the
Partnership and the continuation of the Partnership.
(b) Name of Partnership. The Partnership may, in the sole discretion
of the Continuing Partners, continue to use Plano Chisholm Place Associates as
the name of the Partnership after the Effective Date.
(c) Amendment of Partnership Agreement. The Continuing Partners
shall promptly amend the Partnership Agreement to reflect the consummation of
the transactions which are the subject matter of this Agreement.
(d) Attorneys' Fees to Enforce This Agreement or in Subsequent
Litigation. In the event any Party shall maintain or commence any action,
proceeding or motion against any other Party to enforce this Agreement or any
provision thereof, the prevailing Party therein shall be entitled to recover its
reasonable attorneys fees and costs therein incurred. Each Party agrees that if
such Party hereafter commences, joins in or in any manner asserts against any
other Party any of the claims released hereunder, then it will pay to the other
Party, in addition to any other damages caused to the other Party thereby, all
reasonable attorneys fees and costs incurred in defending or otherwise
responding to such suit or claim.
(e) Severability. Each provision of this Agreement is intended to be
severable. If any term or provision hereof is illegal or invalid for any reason
whatsoever, such illegality or invalidity shall not affect the legality or
validity of the remainder of the Agreement.
(f) Survival. All of the terms, representations, warranties and
other provisions of this Agreement of the Partnership or the Continuing Partners
shall survive and remain in effect after the Effective Date.
(g) Costs. Each Party shall pay its own legal fees and expenses
incidental to the execution of this Agreement and the consummation of the
transactions contemplated hereby.
(h) Execution of Documents. Each Party agrees to execute all
documents necessary to carry out the purpose of this Agreement and to cooperate
with each other for the expeditious filing of any and all documents and the
fulfillment of the terms of this Agreement.
(i) Successors and Assigns. This Agreement shall inure to the
benefit of the transferees, successors, assigns, heirs, beneficiaries,
executors, administrators, partners, agents, employees and representatives of
each Party.
(j) Controlling Law. This Agreement has been entered into in the
State of Texas and the Agreement, including any rights, remedies or obligations
provided for thereunder, shall be construed and enforced in accordance with the
laws of the State of Texas.
(k) Counterpart Execution. This Agreement may be executed in
multiple counterparts each of which may be deemed an original and shall become
effective when the separate counterparts have been exchanged among the Parties.
(l) Construction. Every covenant, term and provision of this
Agreement shall be construed simply according to its fair meaning and not
strictly for or against any Party.
(m) Headings. Section and other headings contained in this Agreement
are for reference purposes only and are not intended to describe, interpret,
define or limit the scope, extent or intent of this Agreement or any provision
hereof.
(n) Incorporation by Reference. Every exhibit, schedule and other
appendix attached to this Agreement and referred to herein is hereby
incorporated in this Agreement by reference.
(o) Variation of Provisions. All pronouns and any variations thereof
shall be deemed to refer to the masculine, feminine or neuter, singular or
plural, as the identity of the person or persons may require.
(p) Notices. Any notice, payment, demand or communication required
or permitted to be given by any provision of this Agreement shall be in writing
and shall be delivered personally to the Party or to an officer of the Party to
whom the same is directed, or sent by regular, registered or certified mail,
addressed to the person to whom directed at the following address, or to such
other address as such Party may from time to time specify by notice to the
Parties:
(i) If to the Partnership or the Continuing Partners:
c/o The Horn-Barlow Partnership
1226 Commerce Street, Suite 300
Dallas, Texas 75202
Attention: C. Jay Barlow
(ii) If to the Retiring Partner:
c/o Paine Webber Properties Incorporated
265 Franklin Street- 15th Floor
Boston, Massachusetts 02110
Attention: Portfolio Manager
Any such notice shall be deemed to be delivered, given and received for all
purposes as of the date so delivered, if delivered personally or if sent by
regular mail, or as of the date on which the same was deposited in a regularly
maintained receptacle for the deposit of United States mail, if sent by
registered or certified mail, postage and charges prepaid. Any Party may from
time to time specify a different address by choice to the other Parties.
(q) Amendments. Any amendment to this Agreement shall be in writing
and executed by each Party hereto.
(r) Entire Agreement. This Agreement contains the entire
understanding among the Parties and supersedes any prior written or oral
agreements between them respecting the subject matter of this Agreement. There
are no representations, agreements, arrangements or understandings, oral or
written, between the Parties relating to the subject matter of this Agreement
that are not fully set forth herein. This Agreement amends and restates the
Partnership Agreement with respect to the subject matter of this Agreement. This
Agreement shall be considered part of the Partnership Agreement for all purposes
under the Code.
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
<PAGE>
IN WITNESS WHEREOF, the Parties hereto have approved and executed this
Agreement as of the date first set forth above.
THE PARTNERSHIP:
PLANO CHISHOLM PLACE ASSOCIATES,
a Texas general partnership
By: The Horn-Barlow Partnership,
a Texas general partnership doing
business as
Horn Barlow Companies,
Managing General Partner
By: /s/ C. Jay Barlow
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Name: C. Jay Barlow
Title: General Partner
RETIRING PARTNER:
PLANO CHISHOLM PLACE, LTD.,
a Texas limited partnership
By: Paine Webber Growth Properties LP,
a Delaware limited partnership,
General Partner
By: First PW Growth Properties, Inc.,
a Delaware corporation,
General Partner
By: /s/ Celia R. Deluga
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Name: Celia R. Deluga
Title: Vice President
<PAGE>
CONTINUING PARTNERS:
THE HORN-BARLOW PARTNERSHIP,
a Texas general partnership doing
business as
Horn Barlow Companies
By: /s/ C. Jay Barlow
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Name: C. Jay Barlow
Title: General Partner
By: /s/ Gerald L. Horn
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Name: Gerald L. Horn
Title: General Partner
PLANO CP ASSOCIATES, LTD.,
a Texas limited partnership
By: /s/ C. Jay Barlow
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Name: C. Jay Barlow
Title: General Partner
<PAGE>
REDEMPTION STATEMENT
DATE: November 18, 1998 GF No: 500641-G
REDEMPTION OF: Partnership interest in PLANO CHISHOLM PLACE ASSOCIATES, a
Texas general partnership
REDEEMED BY: PLANO CHISHOLM PLACE ASSOCIATES, a Texas general partnership
DEEMED PRICE: $8,312,187.50
PLUS: REIMBURSEMENTS/CREDITS
Prorations:
Prepd Ins. 11/19/98 - 2/9/99 $ 4,777.00
Total Reimbursements/Credits $4,777.00
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Gross Amount Due to Seller $8,316,964.50
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LESS: CHARGES AND DEDUCTIONS
Fees to AMERICAN TITLE CO.
Escrow Fee $100.00
Note: Assumed or Paid to National Home Life
Prin. $4,160,000.00
Int. $20,800.08
Prepymt. $124,800.00
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$4,305,600.08
Tax Proration 1/1/98 - 11/18/98
(real & personal property
$391.946 per diem) $126,206.63
Rent Proration 11/19/98 - 12/01/99 $42,642.00
Security Deposits $34,500.00
Total Charges and Deductions $4,509,048.71
=============
Amount Due to Seller $3,807,915.79
Less Paine Webber Recoupment 750,000.00
NET PROCEEDS: 3,057,915.79
Distribution of Net Proceeds:
PLANO CHISHOLM PLACE, LTD. 95%
DISTRIBUTABLE SHARE (PW) $2,905,020.00
Less Commission to La Paul Partners (129,089.00)
Less Break Up Fee to Archstone
Communities Trust (40,000.00)
Plus Paine Webber Recoupment $750,000.00
Net Distribution to PW $3,485,931.00
=============
<PAGE>
THE HORN-BARLOW PARTNERSHIP (HB)
REMAINING EQUITY IN PLANO CHISHOLM PLACE
ASSOCIATES (Note: HB will not receive any
distribution, its equity is remaining
in Plano Chisholm Place Associates) $152,895.00
Seller understands the Closing or Escrow Agent has assembled this
information representing the transaction from the best information available
from other sources and cannot guarantee the accuracy thereof. Any real estate
agent or lender involved may be furnished a copy of this Statement.
Seller understands that tax and insurance prorations and reserves were
based on figures for the preceding year or supplied by others or estimates for
current year, and in the event of any change for current year, all necessary
adjustments must be made between Purchaser and Seller direct.
The undersigned hereby authorizes AMERICAN TITLE CO. to make expenditures
and disbursements as shown above and approves same for payment. The undersigned
also acknowledges receipt of Loan Funds, if applicable, in the amount shown
above and a receipt of a copy of this Statement.
CLOSING OR ESCROW AGENT - Gwen G. Behrens
Plano Chisholm Place, Ltd., a Texas limited partnership,
a General Partner
BY: Paine Webber Growth Properties, LP., a Delaware limited
partnership, a General Partner
By: First PW Growth Properties, Inc., a Delaware corporation
the Managing General Partner
By: /s/ Celia Deluga
----------------
Celia Deluga, Vice President
* Note: Interest on outstanding liens is figured to the date indicated. If not
paid by then, additional interest will have to be collected and your
adjustment will be adjusted to have sufficient funds to secure release from
the lienholder.
