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) February 15, 2000
-----------------
Paine Webber/CMJ Properties LP
------------------------------
(Exact name of registrant as specified in its charter)
Delaware 0-17151 02-2780288
- -------------------------------------------------------------------------------
(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/CMJ PROPERTIES LP
ITEM 2 - Disposition of Assets
Holbrook Apartments Company, Fawcett's Pond Apartment Company, Quaker
Meadows Apartment Company, Marvin Gardens Associates and Colonial Farms Ltd.
Disposition Date - February 15, 2000
On February 15, 2000, PaineWebber/CMJ Properties LP ("the Partnership")
sold its interests in five of the six real estate limited partnerships that it
held: Holbrook Apartments Company, which owns the Ramblewood Apartments in
Holbrook, Massachusetts; Fawcett's Pond Apartment Company, which owns the
Village at Fawcett's Pond Apartments in Hyannis, Massachusetts; Quaker Meadows
Apartment Company, which owns the Quaker Court Apartments and The Meadows
Apartments in Lynn, Massachusetts; Marvin Gardens Associates, which owns the
Marvin Gardens Apartments in Cotati, California; and Colonial Farms Ltd., which
owns the Colonial Farms Apartments in Modesto, California. The limited
partnership interests were sold for total consideration of $2,750,000 to
affiliates of the operating general partners of the local limited partnerships.
The sales closed into escrow on February 15, 2000 pending the receipt of the
required regulatory approvals from the various state and federal housing
agencies that subsidize the related residential apartment properties. The sale
proceeds are to be released to the Partnership upon the receipt of all of the
required regulatory approvals, but in no event later than March 31, 2000. A
special distribution of the net proceeds from these sale transactions will be
made to the Limited Partners shortly after the funds are released from escrow.
As previously reported, as a limited partner of the local limited
partnerships, the Partnership does not control property disposition decisions.
The partnership agreements state that the limited partner may cause the sale of
the assets of the local limited partnerships subsequent to June 30, 1995, but
not earlier than one year after it has given written notice to the operating
general partner of its intent to cause such sale, and only if, during such
one-year period, the operating general partner does not cause the sale of such
assets. If the operating general partner has not caused the assets of the
partnership to be sold within such one-year period, the limited partner may
cause such sale, but only after it has offered to sell such assets to the
operating general partner, and either the operating general partner does not
accept such offer within 90 days of receiving it, or the operating general
partner does not complete the sale in accordance with such offer after accepting
the terms. In October 1998, the Partnership gave the written notice described
above to the operating general partner of all six local limited partnerships
after meeting with representatives of the operating general partner to discuss
the Partnership's desire to liquidate its investments in the near term. With
regard to the five properties that were still receiving government subsidies,
the associated distributable cash flow restrictions, substantial capital reserve
requirements and regulatory reporting obligations, which are characteristic of
all subsidized low-income housing properties, significantly limited the pool of
potential buyers for these real estate assets. Furthermore, the uncertainty
regarding potential future reductions in the level of federal government
assistance for these programs further restricted the properties' marketability.
Consequently, a negotiated sale of the Partnership's interests in these
properties to the operating general partners, which receive management fee
revenues from the properties through an affiliated management company, was
deemed to be in the best interests of the Limited Partners.
Notwithstanding the restrictions on the Partnership's ability to cause a
sale of the properties, the Partnership and the operating general partner of the
Villages at Montpelier limited partnership reached an informal agreement during
the third quarter of 1999 to initiate a joint marketing effort for the sale of
the Villages at Montpelier property, which no longer receives any government
subsidies. In July, marketing proposals were requested from three real estate
brokerage firms with a strong background in selling apartment properties. In
August, after a review of each company's proposals and their capabilities to
sell this property, the Partnership selected one of the firms and negotiated an
agreement with them to sell the property. Marketing materials have been prepared
and comprehensive sale efforts began as of the end of February 2000. A sale of
the Partnership's final asset, which management expects to complete during the
second quarter of 2000, would be followed by an orderly liquidation of the
Partnership. Because a buyer of the Villages at Montpelier property is expected
to assume the existing HUD-insured mortgage loan secured by the property, a sale
transaction will require formal HUD approval, which could take as long as
90-to-120 days after closing to receive. Accordingly, the final distribution of
proceeds from the sale of the Villages at Montpelier property and the formal
liquidation of the Partnership may not be completed until the third quarter of
2000. Notwithstanding management's expectations, there are no assurances that
the disposition of the remaining asset and a liquidation of the Partnership will
be completed within this time frame.
<PAGE>
ITEM 7 - Financial Statements and Exhibits
(a) Financial Statements: None
(b) Exhibits:
1. Agreement for Purchase and Sale of Partnership Interest dated December
31, 1999 by and between Paine Webber/CMJ Properties, LP ("Seller") and
CMJ-Colonial Farms Trust ("Buyer")
2. Agreement for Purchase and Sale of Partnership Interest dated December
31, 1999 by and between Paine Webber/CMJ Properties, LP ("Seller") and
The Joseph E. Corcoran Family Trust ("Buyer")
3. Agreement for Purchase and Sale of Partnership Interest dated December
31, 1999 by and between Paine Webber/CMJ Properties, LP ("Seller") and
CMJ-Marvin Garden Trust ("Buyer)
4. Agreement for Purchase and Sale of Partnership Interest dated December
31, 1999 by and between Paine Webber/CMJ Properties, LP ("Seller") and
CMJ-Quaker Meadows Trust ("Buyer")
5. Agreement for Purchase and Sale of Partnership Interest dated December
31, 1999 by and between Paine Webber/CMJ Properties, LP ("Seller") and
The Joseph E. Corcoran Family Trust ("Buyer")
6. Escrow Agreement dated February 15, 2000 regarding Holbrook Apartments
Company, Fawcett's Pond Apartment Company, Quaker Meadows Apartment
Company, Marvin Gardens Associates and Colonial Farms Ltd.
<PAGE>
FORM 8-K
CURRENT REPORT
PAINE WEBBER/CMJ 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/CMJ PROPERTIES LP
------------------------------
(Registrant)
By: PW Shelter Fund, Inc.
---------------------
Managing General Partner
By: /s/ Walter V. Arnold
--------------------
Walter V. Arnold
Senior Vice President and
Chief Financial Officer
Date: February 29, 2000
<PAGE>
AGREEMENT FOR PURCHASE AND SALE
OF
PARTNERSHIP INTEREST
THIS AGREEMENT is made as of December 31, 1999, by and between PAINE
WEBBER/CMJ PROPERTIES, LP ("Seller"), and CMJ-Colonial Farms Trust, a
Massachusetts Trust ("Buyer").
RECITALS
A. Seller is a limited partner of Colonial Farms Ltd., a California limited
partnership (the "Partnership"). Seller owns a ninety five per cent (95%)
limited partnership interest in the Partnership (the "Partnership Interest")
which term shall have the meaning ascribed to the term "Interest" under the
Partnership Agreement described in Exhibit A hereto.
B. The Partnership was created by and exists by virtue of the documents
described on Exhibit A attached hereto (the "Partnership Documents").
C. The Partnership owns the multifamily apartment complex commonly known as
Colonial Farms, Modesto, California (hereinafter referred to as the "Property").
D. Buyer desires to purchase from Seller, and Seller desires to sell to
Buyer, all of Seller's Partnership Interest, on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, described
hereinbelow, and subject to the terms and conditions hereinafter set forth,
Seller and Buyer hereby agree as follows:
TERMS AND CONDITIONS
1. Sale of Partnership Interest. For the "Purchase Price" (as hereinafter
defined) and upon the terms and conditions hereinafter set forth, Seller shall
sell, transfer and assign to Buyer, and Buyer shall purchase from Seller, the
Partnership Interest and all of Seller's right, title and interest in the
Property under the Partnership Documents.
2. Purchase Price. The purchase price for the Partnership Interest shall
be THREE HUNDRED SEVENTY-FIVE THOUSAND TWO HUNDRED THIRTY-SEVEN AND 00/100
DOLLARS ($375,237.00), subject to increase or decrease based upon the
adjustments for the prorations specified in Section 6.1 (the "Purchase Price").
The Purchase Price shall be paid by Buyer to Seller at the Closing (as
hereinafter defined) by wire transfer of immediately available funds to an
account designated by Seller to Buyer prior to noon (Boston time) on the Closing
Date.
3. Representations and Warranties.
-------------------------------
3.1 Seller's Representations and Warranties. Seller represents and warrants
to Buyer as follows:
(a) Seller has the full power and authority to enter into this
Agreement, to execute and deliver the "Seller's Closing Documents" (as
hereinafter defined), and to perform all of the terms, conditions and
provisions hereof and thereof, except that as of the date hereof, Seller
may need to obtain the consents and approvals set forth on Exhibit E
("Seller's Consents"). This Agreement and all documents which are to be
executed by Seller and to be delivered to Buyer at the Closing have been
duly authorized by Seller and, when executed and delivered, will be legal,
valid and binding obligations of Seller, and at the time of Closing will
not violate any provisions of any agreement or judicial order to which
Seller is a party or to which Seller or the Partnership Interest is
subject.
(b) Seller owns the Partnership Interest free and clear of all
rights and claims of third parties (other than any rights of partners
under the Partnership Documents) and has not, directly or indirectly,
voluntarily or involuntarily, by operation of law or otherwise, assigned,
transferred, encumbered or granted a security interest in the Partnership
Interest or the Seller's rights under the Partnership Documents, except as
may be provided in the documents governing mortgaged loans to the
Partnership and secured by the Property.
(c) Seller is not a "foreign person" within the meaning of Section
1445 of the U.S. Internal Revenue Code.
(d) All documents executed by Seller as required by this Agreement
are and shall be valid and enforceable in accordance with their terms
(e) There are no actions, suits, proceedings or investigations
pending or, to the knowledge of Seller, threatened to which it is (or is
threatened to be) a party before any court or other governmental authority
which may have an adverse impact on the transactions contemplated hereby
except to the extent the suit referenced in Section 5 below may require
prior approval of this transaction; and provided, further, that the Seller
has no knowledge and makes no warranties with regard to any actions that
may exist with regard to the real property owned by the Partnership.
3.2 Buyer's Representations and Warranties. Buyer represents and warrants
to Seller as follows:
(a) Buyer is a Massachusetts grantor trust duly formed, validly
existing and in good standing under the laws of the Commonwealth of
Massachusetts. Buyer has the full power and authority to enter into this
Agreement, to execute and deliver the "Buyer's Closing Documents" (as
hereinafter defined), and to perform all of the terms, conditions and
provisions hereof and thereof. This Agreement and all documents which are
to be executed by Buyer and delivered to Seller at the Closing have been
duly authorized, and when executed and delivered, will be legal, valid and
binding obligations of Buyer, and at the time of Closing will not violate
any provisions of any agreement or judicial order to which Buyer is a
party or to which Buyer is subject.
(b) There are no actions, suits, proceedings or investigations
pending or, to the knowledge of Buyer, threatened to which it is (or is
threatened to be) a party before any court or other governmental authority
which may have an adverse impact on the transactions contemplated hereby.
(c) All documents executed by Buyer as required by this Agreement
are and shall be valid and enforceable in accordance with their terms.
(d) Buyer is an affiliate of the general partner of the Partnership,
and in such capacity is fully aware of the condition of the Property, and
is buying the interest with no reliance whatsoever on Seller or any
representation by Seller as to the condition of the Property.
3.3 Continuation and Survival of Representations and Warranties. All
representations and warranties by the respective parties contained herein or
made in writing pursuant to this Agreement are intended to and shall remain true
and correct as to the time of Closing, shall be deemed to be material, shall
survive the execution and delivery of this Agreement, and shall terminate upon
the date which is sixty (60) days after the date of Closing (as hereinafter
defined). Except as provided herein, neither Buyer nor Seller has made any
representations or warranties regarding the subject matter of this transaction.
4. Closing.
-------
4.1 Closing. The closing hereunder ("Closing") and delivery of all items
to be made at the closing under the terms of this Agreement shall be made at the
offices of Buyer's attorney. The execution and exchange of documents shall take
place at the Closing five days (or, if such fifth day is not a business day in
Boston, the next business day thereafter) after the last of the approvals
required under Section 8.17, if any, are received ("Closing Date"). The Closing
Date is intended to occur on or about February 15, 2000. However, closing may
occur on such earlier or later date as the parties may specifically agree in
writing, but if the Closing hereunder has not occurred on or before February 15
2000, except in escrow in accordance with Section 8.17 below, then this
agreement shall automatically terminate without further recourse of the parties
hereto to each other. Time is of the essence hereof.
4.2 Documents To Be Executed and Delivered. At the Closing, the following
documents are to be executed and delivered by or on behalf of the respective
parties as set forth below. To the extent that such documents are not attached
to this Agreement as Exhibits, such documents shall be in form and substance
reasonably satisfactory to the parties.
(a) Documents to be executed and delivered by the Seller ("Seller's Closing
Documents "):
(i) The Assignment and Assumption Agreement in the form of Exhibit B
hereto.
(ii) First Amendment to Amended and Restated Agreement of Limited
Partnership in the form of Exhibit C hereto (the "Partnership
Agreement Amendment").
(iii) All required filings with respect to the Partnership Documents
or fictitious name.
(iv) A certificate of Seller's non-foreign status in the form of
Exhibit D hereto.
(b) Documents to be delivered by Buyer ("Buyer's Closing Documents"):
(i) Counterpart of the Assignment and Assumption Agreement.
(ii) Counterpart of the Partnership Agreement Amendment.
(iii) Any and all consents from all parties having loans outstanding
or committed to the Partnership if such consents are required
pursuant to any agreements executed by or on behalf of the
Partnership in connection with such loans.
5. Conditions to Closing.
---------------------
5.1 The following conditions are conditions precedent to Seller's
obligation to sell the Partnership Interest, each of which may only be waived in
writing by Seller in its sole discretion:
(a) Buyer shall have paid to Seller the Purchase Price.
(b) Buyer shall have delivered to Seller the documents set forth in
4.2(b) above.
(c) Buyer's warranties and representations shall be true and correct
in all material respects as of the time of Closing.
(d) Seller shall have received all of Seller's Consents, in form and
substance fully satisfactory to Seller.
(e) Affiliates of Buyer shall be concurrently closing the purchase
from Seller of all of Seller's partnership interests in all other
partnerships listed on Exhibit Partnerships hereto.
(f) The class plaintiffs in the In re PaineWebber Limited
Partnerships Litigation, No. 94 Civ. 8547 (United States District
Court, Southern District of New York), shall not have furnished
the Seller or other PaineWebber affiliate with a written opinion
from an independent advisor concluding that the proposed
transaction is inadequate from a financial point of view or
otherwise recommending against the consummation of the
transaction contemplated by this Agreement.
5.2 The following conditions are conditions precedent to Buyer's
obligation to purchase the Partnership Interest, each of which may only be
waived in writing by Buyer in its sole discretion:
(a) Buyer shall have received from Seller the documents set forth in
4.2(a) above.
(b) Seller's warranties and representations shall be true and
correct in all material respects as at the time of Closing.
(c) Buyer shall have obtained any required lender consents, as
provided in Section 8.17 below; provided, however, that if Buyer
elects to close without any of such consents, Buyer agrees that the
indemnification of Seller provided for in Section 7 hereof shall
apply to any loss, cost or damage to Seller arising out of the
absence of any such consents.
6. Apportionments.
--------------
6.1 All Partnership revenues and all Net Cash Flow from the Partnership
for the calendar year 1999 and after shall be retained by the Buyer.
6.2 Calculation and Final Adjustment. If there are any pro-rations to be
made, Seller and Buyer shall use reasonable efforts to accurately estimate the
Purchase Price at the Closing Date and Buyer shall pay to Seller the amount of
such estimate at Closing.
7. Indemnification. Buyer agrees, subject to the other terms and
conditions of this Agreement, to indemnify Seller and their respective
affiliates, officers, directors, employees, agents, successors and assigns (each
a "Seller Indemnified Party") against and hold them harmless from all losses,
liabilities, damages, claims, awards, judgments, costs and expenses (including,
without limitation, reasonable attorneys' fees) actually suffered or incurred by
a Seller Indemnified Party arising out of any debts, liabilities and
obligations, whether accrued or fixed, absolute or Contingent, matured or
unmatured or determined or determinable, of the Seller relating to or arising
out of the Partnership Interest, arising subsequent to the Closing.
8. Miscellaneous.
--------------
8.1 Notices. Any notice required or permitted to be given under this
Agreement shall be in writing and shall be sent by a recognized private courier
company, by telecopier, or by United States mail, registered or certified mail,
postage prepaid, return receipt requested, and addressed as follows:
If to Seller:
c/o Paine Webber Properties Incorporated
265 Franklin Street, 15th Floor
Boston, MA 02110
Attention: Peter F. Sullivan
Telephone: 617-439-8106
Facsimile: 617-345-8725
With copy to:
Goulston & Storrs, P.C.
400 Atlantic Avenue
Boston, Massachusetts 02110
Attention: David M. Abromowitz
Telephone: 617-574-4016
Facsimile: 617-574-4112
If to Buyer:
Corcoran, Mullins, Jennison, Inc.
Bayside Office Center - Suite 500
150 Mount Vernon Street
Boston, MA 02125
Attn: Alan Curtis
Telephone: 617-822-7357
Facsimile: 617-822-7352
With copy to:
Goodwin, Procter & Hoar, LLP
Exchange Place
Boston, MA 02109-2881
Attn: Alexander A. Randall, PC.
Telephone: 617-570-1425
Facsimile: 617-227-8591
or such other address as a party may from time to time specify in writing to the
others in the manner aforesaid. Notices delivered by telecopier shall be deemed
delivered upon confirmation of receipt by recipient. All other notices shall be
deemed delivered upon delivery (with requisite proof of receipt of such
delivery) or refusal to accept delivery as indicated in the U.S. Postal Service
return receipt or similar advice from the courier company. Buyer and Seller
shall each have the right to change the address to which notices, demands,
requests, or other communications hereunder shall be given to the other parties
by notice of such change to the other party as set forth herein.
8.2 Continuing Obligation. Buyer agrees to provide Seller with all
required information in a timely fashion required by Seller to complete all tax
filings and tax returns including, but not limited to the type of data and
documents supplied to Seller in the ordinary course of business prior to the
Closing Date. For tax reporting purposes, the Partnership year, as to Seller's
Interest, shall close as of December 31, 1999, and the final form K-1 provided
to Seller shall be consistent therewith.
8.3 Brokers and Finders. In the event of a claim for broker's fee,
finder's fee, commission or other similar compensation in connection herewith,
Buyer, if such claim is based upon any agreement alleged to have been made by
Buyer or any agent of Buyer, hereby agrees to indemnify Seller against and hold
Seller harmless from any and all damages, liabilities, costs, expenses and
losses (including, without limitation, reasonable attorneys' fees, and costs)
which Seller may sustain or incur by reason of such claim, and Seller, if such
claim is based upon any agreement alleged to have been made by Seller or any
agent of Seller, hereby agrees to indemnify Buyer against and hold Buyer
harmless from any and all damages, liabilities, costs, expenses and losses
(including, without limitation, reasonable attorneys' fees and costs) which
Buyer may sustain or incur by reason of such claim. The provisions of this
Section 8.3 shall survive the termination of this Agreement or the Closing.
8.4 Successors and Assigns. This Agreement shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors,
heirs, administrators and assigns; provided, however, that prior to Closing
neither Seller's nor Buyer's interest under this Agreement may be assigned,
encumbered or otherwise transferred, whether voluntarily, involuntarily, by
operation of law or otherwise, without the prior written consent of the other
party, which consent shall not be unreasonably withheld or delayed.
8.5 Amendments. This Agreement may be amended or modified only by a
written instrument executed by the party asserted to be bound thereby.
8.6 Interpretation. Words used in the singular number shall include the
plural, and vice-versa, and any gender shall be deemed to include each other
gender. The captions and headings of the Articles and Sections of this Agreement
are for convenience of reference only, and shall not be deemed to define or
limit the provisions hereof.
8.7 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts.
8.8 Merger of Prior Agreements. This Agreement and the Closing Documents
constitute the entire agreement between the parties with respect to the purchase
and sale of the Partnership Interest and supersede all prior and contemporaneous
agreements arid understandings between the parties hereto relating to the
subject matter thereof.
8.9 Time of the Essence. Time is of the essence to this Agreement.
8.10 No Waiver. No waiver of any of the provisions of this Agreement shall
be deemed, or shall constitute, a waiver of any other provision, whether or not
similar, nor shall any waiver constitute a continuing waiver. No waiver shall be
binding unless executed in writing by the party making the waiver.
8.11 Agreement Not to Benefit Third Parties. This Agreement is made for
the sole benefit of Seller and Buyer and no other person shall be deemed to have
any privity of contract under this Agreement nor any right to rely on this
Agreement to any extent for any purpose whatsoever, nor have any right of action
of any kind on this Agreement nor be deemed to be a third party beneficiary
under this Agreement.
8.12 Facsimile Signatures. Buyer and Seller each (i) has agreed to permit
the use, from time to time and where appropriate, of telecopied signatures in
order to expedite the transaction contemplated by this Agreement, (ii) intends
to be bound by its respective telecopied signature, (iii) is aware that the
other will rely on the telecopied signature, and (iv) acknowledges such reliance
and waives any defenses to the enforcement of the documents effecting the
transaction contemplated by this Agreement based on the fact that a signature
was sent by telecopy.
8.13 Counterpart Execution. This Agreement and any amendments to this
Agreement may be executed in counterparts, each of which shall be fully
effective and all of which together shall constitute one and the same
instrument.
8.14 Further Acts. In addition to the actions set forth in this Agreement
to be taken by the parties, the parties agree to take or cause to be taken all
such further actions as may be reasonably necessary to consummate this
transaction which is the subject of this Agreement.
8.15 Exhibits. All references to Exhibits contained herein are references
to the Exhibits attached hereto, all of which are made a part hereof.
8.16 Closing Costs. Any closing costs, transfer taxes, recording fees,
lender consent fees or other costs (other than each party's attorney fees)
arising from or due to the transactions contemplated by this Agreement and the
closing thereof shall be apportioned equally between Seller and Buyer.
8.17 Lender's Approval. In the event the approval of the current lender
under the loans secured by the Property is required for this transaction
pursuant to any documents executed by or on behalf of the Partnership in
connection with such loans, it shall be Buyer's sole responsibility to obtain
such consent. If such consent and all similar consents required for the
transactions concurrently closing as described on Exhibit Partnerships attached
hereto have not been obtained on or before February 15, 2000, and Buyer
certifies to Seller that Buyer has taken all actions and delivered all
documentation required of it in order to obtain such consents; Buyer may elect
to close the purchase and sale in escrow. If Buyer so elects, Seller and Buyer
shall deliver all executed documents described in Section 4.2 above to the
Boston office of Stewart Title Guaranty Company in accordance with escrow
instructions attached hereto as "Escrow Agreement", and Buyer shall deposit the
entire purchase price with the said title company. All interest on the funds
held in escrow shall accrue for the benefit of Buyer. The escrow shall close,
all funds shall be delivered out of escrow to Seller, and all closing documents
shall be delivered to the respective parties on the earlier to occur of : (1)
March 31, 2000; and (2) when all required consents are obtained. The Buyer
acknowledges that the escrow shall close and the funds and documents will be
delivered no later than March 31, 2000 without regard to whether any such lender
approvals have been received, and without regard, also, to whether any lender or
other party has explicitly disapproved the transfer. In the event the escrow has
not closed by March 1, 2000 and all of the funds and documents under the escrow
distributed by that date, the Buyer agrees to pay an additional Four Thousand
Dollars ($4,000.000) for the partnership interest sold hereunder, and to deliver
said Four Thousand Dollars ($4,000.00) to the escrow agent for deposit in the
escrow by March 3, 2000.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
SELLER:
PAINE WEBBER/CMJ PROPERTIES, LP
By: PW Shelter Fund, Inc., Managing General Partner
By: /s/ Walter V. Arnold
--------------------
Its: Senior Vice President and
Chief Financial Officer
BUYER:
CMJ-COLONIAL FARMS TRUST
By: /s/ Karen F. Meyer
-------------------
By: Karen F. Meyer, as Trustee of CMJ-Colonial
Farms Trust, and not individually
<PAGE>
AGREEMENT FOR PURCHASE AND SALE
OF
PARTNERSHIP INTEREST
THIS AGREEMENT is made as of December 31, 1999, by and between PAINE
WEBBER/CMJ PROPERTIES, LP ("Seller"), and The Joseph E. Corcoran Family Trust
("Buyer").
RECITALS
A. Seller is the sole limited partner of Holbrook Apartment Company, a
Massachusetts limited partnership (the "Partnership"). Seller owns a eighty five
percent (85%) limited partnership interest in the Partnership (the "Partnership
Interest") which term shall have the meaning ascribed to the term "Interest"
under the Partnership Agreement described in Exhibit A hereto.
B. The Partnership was created by and exists by virtue of the documents
described on Exhibit A attached hereto (the "Partnership Documents").
C. The Partnership owns the multifamily apartment complex commonly known as
Ramblewood Apartments, Holbrook, Massachusetts (hereinafter referred to as the
"Property").
D. Buyer desires to purchase from Seller, and Seller desires to sell to
Buyer, all of Seller's Partnership Interest, on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, described hereinbelow,
and subject to the terms and conditions hereinafter set forth, Seller and Buyer
hereby agree as follows:
TERMS AND CONDITIONS
1. Sale of Partnership Interest. For the "Purchase Price" (as hereinafter
defined) and upon the terms and conditions hereinafter set forth, Seller shall
sell, transfer and assign to Buyer, and Buyer shall purchase from Seller, the
Partnership Interest and all of Seller's right, title and interest in the
Property under the Partnership Documents.
2. Purchase Price. The purchase price for the Partnership Interest shall
be ONE MILLION ONE HUNDRED EIGHTY-ONE THOUSAND SEVEN HUNDRED EIGHTY-SEVEN AND
00/100 DOLLARS ($1,181,787.00), subject to increase or decrease based upon the
adjustments for the prorations specified in Section 6.1 (the "Purchase Price").
The Purchase Price shall be paid by Buyer to Seller at the Closing (as
hereinafter defined) by wire transfer of immediately available funds to an
account designated by Seller to Buyer prior to noon (Boston time) on the Closing
Date.
3. Representations and Warranties.
-------------------------------
3.1 Seller's Representations and Warranties. Seller represents and warrants
to Buyer as follows:
(a) Seller has the full power and authority to enter into this
Agreement, to execute and deliver the "Seller's Closing Documents" (as
hereinafter defined), and to perform all of the terms, conditions and
provisions hereof and thereof, except that as of the date hereof, Seller
may need to obtain the consents and approvals set forth on Exhibit E
("Seller's Consents"). This Agreement and all documents which are to be
executed by Seller and to be delivered to Buyer at the Closing have been
duly authorized by Seller and, when executed and delivered, will be legal,
valid and binding obligations of Seller, and at the time of Closing will
not violate any provisions of any agreement or judicial order to which
Seller is a party or to which Seller or the Partnership Interest is
subject.
(b) Seller owns the Partnership Interest free and clear of all
rights and claims of third parties (other than any rights of partners
under the Partnership Documents) and has not, directly or indirectly,
voluntarily or involuntarily, by operation of law or otherwise, assigned,
transferred, encumbered or granted a security interest in the Partnership
Interest or the Seller's rights under the Partnership Documents, except as
may be provided in the documents governing mortgaged loans to the
Partnership and secured by the Property.
(c) Seller is not a "foreign person" within the meaning of Section
1445 of the U.S. Internal Revenue Code.
(d) All documents executed by Seller as required by this Agreement
are and shall be valid and enforceable in accordance with their terms.
(e) There are no actions, suits, proceedings or investigations
pending or, to the knowledge of Seller, threatened to which it is (or is
threatened to be) a party before any court or other governmental authority
which may have an adverse impact on the transactions contemplated hereby
except to the extent the suit referenced in Section 5 below may require
prior approval of this transaction; and provided, further, that the Seller
has no knowledge and makes no warranties with regard to any actions that
may exist with regard to the real property owned by the Partnership
3.2 Buyer's Representations and Warranties. Buyer represents and warrants
to Seller as follows:
(a) Buyer is a Massachusetts grantor trust duly formed, validly
existing and in good standing under the laws of the Commonwealth of
Massachusetts. Buyer has the full power and authority to enter into this
Agreement, to execute and deliver the "Buyer's Closing Documents" (as
hereinafter defined), and to perform all of the terms, conditions and
provisions hereof and thereof. This Agreement and all documents which are
to be executed by Buyer and delivered to Seller at the Closing have been
duly authorized, and when executed and delivered, will be legal, valid and
binding obligations of Buyer, and at the time of Closing will not violate
any provisions of any agreement or judicial order to which Buyer is a
party or to which Buyer is subject.
(b) There are no actions, suits, proceedings or investigations
pending or, to the knowledge of Buyer, threatened to which it is (or is
threatened to be) a party before any court or other governmental authority
which may have an adverse impact on the transactions contemplated hereby.
(c) All documents executed by Buyer as required by this Agreement
are and shall be valid and enforceable in accordance with their terms.
(d) Buyer is an affiliate of the general partner of the Partnership,
and in such capacity is fully aware of the condition of the Property, and
is buying the interest with no reliance whatsoever on Seller or any
representation by Seller as to the condition of the Property.
3.3 Continuation and Survival of Representations and Warranties. All
representations and warranties by the respective parties contained herein or
made in writing pursuant to this Agreement are intended to and shall remain true
and correct as to the time of Closing, shall be deemed to be material, shall
survive the execution and delivery of this Agreement, and shall terminate upon
the date which is sixty (60) days after the date of Closing (as hereinafter
defined). Except as provided herein, neither Buyer nor Seller has made any
representations or warranties regarding the subject matter of this transaction.
4. Closing.
-------
4.1 Closing. The closing hereunder ("Closing") and delivery of all items
to be made at the closing under the terms of this Agreement shall be made at the
offices of Buyer's attorney. The execution and exchange of documents shall take
place at the Closing five days (or, if such fifth day is not a business day in
Boston, the next business day thereafter) after the last of the approvals
required under Section 8.17, if any, are received ("Closing Date"). The Closing
Date is intended to occur on or about February 15, 2000. However, closing may
occur on such earlier or later date as the parties may specifically agree in
writing, but if the Closing hereunder has not occurred on or before February 15
2000, except in escrow in accordance with Section 8.17 below, then this
agreement shall automatically terminate without further recourse of the parties
hereto to each other. Time is of the essence hereof.
4.2 Documents To Be Executed and Delivered. At the Closing, the following
documents are to be executed and delivered by or on behalf of the respective
parties as set forth below. To the extent that such documents are not attached
to this Agreement as Exhibits, such documents shall be in form and substance
reasonably satisfactory to the parties.
(a) Documents to be executed and delivered by the Seller ("Seller's Closing
Documents "):
(i) The Assignment and Assumption Agreement in the form of Exhibit B
hereto.
(ii) First Amendment to Amended and Restated Agreement of Limited
Partnership in the form of Exhibit C hereto (the "Partnership
Agreement Amendment").
(iii)All required filings with respect to the Partnership Documents
or fictitious name.
(iv) A certificate of Seller's non-foreign status in the form of
Exhibit D hereto.
(b) Documents to be delivered by Buyer ("Buyer's Closing Documents"):
(i) Counterpart of the Assignment and Assumption Agreement.
(ii) Counterpart of the Partnership Agreement Amendment.
(iii)Any and all consents from all parties having loans outstanding
or committed to the Partnership if such consents are required
pursuant to any agreements executed by or on behalf of the
Partnership in connection with such loans.
5. Conditions the Closing.
----------------------
5.1 The following conditions are conditions precedent to Seller's
obligation to sell the Partnership Interest, each of which may only be waived in
writing by Seller in its sole discretion:
(a) Buyer shall have paid to Seller the Purchase Price.
(b) Buyer shall have delivered to Seller the documents set forth in
4.2(b) above.
(c) Buyer's warranties and representations shall be true and correct
in all material respects as of the time of Closing.
(d) Seller shall have received all of Seller's Consents, in form and
substance fully satisfactory to Seller.
(e) Affiliates of Buyer shall be concurrently closing the purchase
from Seller of all of Seller's partnership interests in all other
partnerships listed on Exhibit Partnerships hereto.
(f) The class plaintiffs in the In re PaineWebber Limited
Partnerships Litigation, No. 94 Civ. 8547 (United States District
Court, Southern District of New York), shall not have furnished
the Seller or other PaineWebber affiliate with a written opinion
from an independent advisor concluding that the proposed
transaction is inadequate from a financial point of view or
otherwise recommending against the consummation of the
transaction contemplated by this Agreement.
5.2 The following conditions are conditions precedent to Buyer's
obligation to purchase the Partnership Interest, each of which may only be
waived in writing by Buyer in its sole discretion:
(a) Buyer shall have received from Seller the documents set forth in
4.2(a) above.
(b) Seller's warranties and representations shall be true and
correct in all material respects as at the time of Closing.
(c) Buyer shall have obtained any required lender consents, as
provided in Section 8.17 below; provided, however, that if Buyer
elects to close without any of such consents, Buyer agrees that the
indemnification of Seller provided for in Section 7 hereof shall
apply to any loss, cost or damage to Seller arising out of the
absence of any such consents.
6. Apportionments.
--------------
6.1 All Partnership revenues and all Net Cash Flow from the Partnership
for the calendar year 1999 and after shall be retained by the Buyer.
6.2 Calculation and Final Adjustment. If there are any pro-rations to be
made, Seller and Buyer shall use reasonable efforts to accurately estimate the
Purchase Price at the Closing Date and Buyer shall pay to Seller the amount of
such estimate at Closing.
7. Indemnification. Buyer agrees, subject to the other terms and
conditions of this Agreement, to indemnify Seller and their respective
affiliates, officers, directors, employees, agents, successors and assigns (each
a "Seller Indemnified Party") against and hold them harmless from all losses,
liabilities, damages, claims, awards, judgments, costs and expenses (including,
without limitation, reasonable attorneys' fees) actually suffered or incurred by
a Seller Indemnified Party arising out of any debts, liabilities and
obligations, whether accrued or fixed, absolute or Contingent, matured or
unmatured or determined or determinable, of the Seller relating to or arising
out of the Partnership Interest, arising subsequent to the Closing.
8. Miscellaneous.
--------------
8.1 Notices. Any notice required or permitted to be given under this
Agreement shall be in writing and shall be sent by a recognized private courier
company, by telecopier, or by United States mail, registered or certified mail,
postage prepaid, return receipt requested, and addressed as follows:
If to Seller:
c/o Paine Webber Properties Incorporated
265 Franklin Street, 15th Floor
Boston, MA 02110
Attention: Peter F. Sullivan
Telephone: 617-439-8106
Facsimile: 617-345-8725
With copy to:
Goulston & Storrs, P.C.
400 Atlantic Avenue
Boston, Massachusetts 02110
Attention: David M. Abromowitz
Telephone: 617-574-4016
Facsimile: 617-574-4112
If to Buyer:
Corcoran, Mullins, Jennison, Inc.
Bayside Office Center - Suite 500
150 Mount Vernon Street
Boston, MA 02125
Attn: Alan Curtis
Telephone: 617-822-7357
Facsimile: 617-822-7352
With copy to:
Goodwin, Procter & Hoar, LLP
Exchange Place
Boston, MA 02109-2881
Attn: Alexander A. Randall, PC.
Telephone: 617-570-1425
Facsimile: 617-227-8591
or such other address as a party may from time to time specify in writing to the
others in the manner aforesaid. Notices delivered by telecopier shall be deemed
delivered upon confirmation of receipt by recipient. All other notices shall be
deemed delivered upon delivery (with requisite proof of receipt of such
delivery) or refusal to accept delivery as indicated in the U.S. Postal Service
return receipt or similar advice from the courier company. Buyer and Seller
shall each have the right to change the address to which notices, demands,
requests, or other communications hereunder shall be given to the other parties
by notice of such change to the other party as set forth herein.
8.2 Continuing Obligation. Buyer agrees to provide Seller with all
required information in a timely fashion required by Seller to complete all tax
filings and tax returns including, but not limited to the type of data and
documents supplied to Seller in the ordinary course of business prior to the
Closing Date. For tax reporting purposes, the Partnership year, as to Seller's
Interest, shall close as of December 31, 1999, and the final form K-1 provided
to Seller shall be consistent therewith.
8.3 Brokers and Finders. In the event of a claim for broker's fee,
finder's fee, commission or other similar compensation in connection herewith,
Buyer, if such claim is based upon any agreement alleged to have been made by
Buyer or any agent of Buyer, hereby agrees to indemnify Seller against and hold
Seller harmless from any and all damages, liabilities, costs, expenses and
losses (including, without limitation, reasonable attorneys' fees, and costs)
which Seller may sustain or incur by reason of such claim, and Seller, if such
claim is based upon any agreement alleged to have been made by Seller or any
agent of Seller, hereby agrees to indemnify Buyer against and hold Buyer
harmless from any and all damages, liabilities, costs, expenses and losses
(including, without limitation, reasonable attorneys' fees and costs) which
Buyer may sustain or incur by reason of such claim. The provisions of this
Section 8.3 shall survive the termination of this Agreement or the Closing.
8.4 Successors and Assigns. This Agreement shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors,
heirs, administrators and assigns; provided, however, that prior to Closing
neither Seller's nor Buyer's interest under this Agreement may be assigned,
encumbered or otherwise transferred, whether voluntarily, involuntarily, by
operation of law or otherwise, without the prior written consent of the other
party, which consent shall not be unreasonably withheld or delayed.
8.5 Amendments. This Agreement may be amended or modified only by a
written instrument executed by the party asserted to be bound thereby.
8.6 Interpretation. Words used in the singular number shall include the
plural, and vice-versa, and any gender shall be deemed to include each other
gender. The captions and headings of the Articles and Sections of this Agreement
are for convenience of reference only, and shall not be deemed to define or
limit the provisions hereof.
8.7 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts.
8.8 Merger of Prior Agreements. This Agreement and the Closing Documents
constitute the entire agreement between the parties with respect to the purchase
and sale of the Partnership Interest and supersede all prior and contemporaneous
agreements arid understandings between the parties hereto relating to the
subject matter thereof.
8.9 Time of the Essence. Time is of the essence to this Agreement.
8.10 No Waiver. No waiver of any of the provisions of this Agreement shall
be deemed, or shall constitute, a waiver of any other provision, whether or not
similar, nor shall any waiver constitute a continuing waiver. No waiver shall be
binding unless executed in writing by the party making the waiver.
8.11 Agreement Not to Benefit Third Parties. This Agreement is made for
the sole benefit of Seller and Buyer and no other person shall be deemed to have
any privity of contract under this Agreement nor any right to rely on this
Agreement to any extent for any purpose whatsoever, nor have any right of action
of any kind on this Agreement nor be deemed to be a third party beneficiary
under this Agreement.
8.12 Facsimile Signatures. Buyer and Seller each (i) has agreed to permit
the use, from time to time and where appropriate, of telecopied signatures in
order to expedite the transaction contemplated by this Agreement, (ii) intends
to be bound by its respective telecopied signature, (iii) is aware that the
other will rely on the telecopied signature, and (iv) acknowledges such reliance
and waives any defenses to the enforcement of the documents effecting the
transaction contemplated by this Agreement based on the fact that a signature
was sent by telecopy.
8.13 Counterpart Execution. This Agreement and any amendments to this
Agreement may be executed in counterparts, each of which shall be fully
effective and all of which together shall constitute one and the same
instrument.
8.14 Further Acts. In addition to the actions set forth in this Agreement
to be taken by the parties, the parties agree to take or cause to be taken all
such further actions as may be reasonably necessary to consummate this
transaction which is the subject of this Agreement.
8.15 Exhibits. All references to Exhibits contained herein are references
to the Exhibits attached hereto, all of which are made a part hereof.
8.16 Closing Costs. Any closing costs, transfer taxes, recording fees,
lender consent fees or other costs (other than each party's attorney fees)
arising from or due to the transactions contemplated by this Agreement and the
closing thereof shall be apportioned equally between Seller and Buyer.
8.17 Lender's Approval. In the event the approval of the current lender
under the loans secured by the Property is required for this transaction
pursuant to any documents executed by or on behalf of the Partnership in
connection with such loans, it shall be Buyer's sole responsibility to obtain
such consent. If such consent and all similar consents required for the
transactions concurrently closing as described on Exhibit Partnerships attached
hereto have not been obtained on or before February 15, 2000, and Buyer
certifies to Seller that Buyer has taken all actions and delivered all
documentation required of it in order to obtain such consents; Buyer may elect
to close the purchase and sale in escrow. If Buyer so elects, Seller and Buyer
shall deliver all executed documents described in Section 4.2 above to the
Boston office of Stewart Title Guaranty Company in accordance with escrow
instructions attached hereto as "Escrow Agreement", and Buyer shall deposit the
entire purchase price with the said title company. All interest on the funds
held in escrow shall accrue for the benefit of Buyer. The escrow shall close,
all funds shall be delivered out of escrow to Seller, and all closing documents
shall be delivered to the respective parties on the earlier to occur of : (1)
March 31, 2000; and (2) when all required consents are obtained. The Buyer
acknowledges that the escrow shall close and the funds and documents will be
delivered no later than March 31, 2000 without regard to whether any such lender
approvals have been received, and without regard, also, to whether any lender or
other party has explicitly disapproved the transfer. In the event the escrow has
not closed by March 1, 2000 and all of the funds and documents under the escrow
distributed by that date, the Buyer agrees to pay an additional Four Thousand
Dollars ($4,000.000) for the partnership interest sold hereunder, and to deliver
said Four Thousand Dollars ($4,000.00) to the escrow agent for deposit in the
escrow by March 3, 2000.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
SELLER:
PAINE WEBBER/CMJ PROPERTIES, LP
By: PW Shelter Fund, Inc., Managing General Partner
By: /s/ Walter V. Arnold
--------------------
Its: Senior Vice President and
Chief Financial Officer
BUYER:
THE JOSEPH E. CORCORAN FAMILY TRUST
By: /s/ Joseph J. Corcoran
----------------------
Joseph J. Corcoran as Trustee under the
Joseph E. Corcoran Family Trust, and not
individually
By: /s/ Michael J. Corcoran
-----------------------
Michael J. Corcoran as Trustee under the
Joseph E. Corcoran Family Trust, and not
individually
By: /s/ Alexander A. Randall
------------------------
Alexander A. Randall as Trustee under the
Joseph E. Corcoran Family Trust, and not
individually
<PAGE>
AGREEMENT FOR PURCHASE AND SALE
OF
PARTNERSHIP INTEREST
THIS AGREEMENT is made as of December 31, 1999, by and between PAINE
WEBBER/CMJ PROPERTIES, LP ("Seller"), and CMJ-MARVIN GARDEN TRUST, a
Massachusetts trust ("Buyer").
RECITALS
A. Seller is the sole limited partner of Marvin Garden Associates, a
California limited partnership (the "Partnership"). Seller owns a ninety-five
percent (95%) limited partnership interest in the Partnership (the "Partnership
Interest") which term shall have the meaning ascribed to the term "Interest"
under the Partnership Agreement described in Exhibit A hereto.
B. The Partnership was created by and exists by virtue of the documents
described on Exhibit A attached hereto (the "Partnership Documents").
C. The Partnership owns the multifamily apartment complex commonly known as
Marvin Gardens, Cotati California (hereinafter referred to as the "Property").
D. Buyer desires to purchase from Seller, and Seller desires to sell to
Buyer, all of Seller's Partnership Interest, on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, described hereinbelow,
and subject to the terms and conditions hereinafter set forth, Seller and Buyer
hereby agree as follows:
TERMS AND CONDITIONS
1. Sale of Partnership Interest. For the "Purchase Price" (as hereinafter
defined) and upon the terms and conditions hereinafter set forth, Seller shall
sell, transfer and assign to Buyer, and Buyer shall purchase from Seller, the
Partnership Interest and all of Seller's right, title and interest in the
Property under the Partnership Documents.
2. Purchase Price. The purchase price for the Partnership Interest shall
be TWO HUNDRED FORTY-SIX SEVEN HUNDRED SEVENTY-SIX AND 00/100 DOLLARS
($246,776.00), subject to increase or decrease based upon the adjustments for
the prorations specified in Section 6.1 (the "Purchase Price").
The Purchase Price shall be paid by Buyer to Seller at the Closing (as
hereinafter defined) by wire transfer of immediately available funds to an
account designated by Seller to Buyer prior to noon (Boston time) on the Closing
Date.
3. Representations and Warranties.
-------------------------------
3.1 Seller's Representations and Warranties. Seller represents and warrants
to Buyer as follows:
(a) Seller has the full power and authority to enter into this
Agreement, to execute and deliver the "Seller's Closing Documents" (as
hereinafter defined), and to perform all of the terms, conditions and
provisions hereof and thereof, except that as of the date hereof, Seller
may need to obtain the consents and approvals set forth on Exhibit E
("Seller's Consents"). This Agreement and all documents which are to be
executed by Seller and to be delivered to Buyer at the Closing have been
duly authorized by Seller and, when executed and delivered, will be legal,
valid and binding obligations of Seller, and at the time of Closing will
not violate any provisions of any agreement or judicial order to which
Seller is a party or to which Seller or the Partnership Interest is
subject.
(b) Seller owns the Partnership Interest free and clear of all
rights and claims of third parties (other than any rights of partners
under the Partnership Documents) and has not, directly or indirectly,
voluntarily or involuntarily, by operation of law or otherwise, assigned,
transferred, encumbered or granted a security interest in the Partnership
Interest or the Seller's rights under the Partnership Documents, except as
may be provided in the documents governing mortgaged loans to the
Partnership and secured by the Property.
(c) Seller is not a "foreign person" within the meaning of Section
1445 of the U.S. Internal Revenue Code.
(d) All documents executed by Seller as required by this Agreement
are and shall be valid and enforceable in accordance with their terms.
(e) There are no actions, suits, proceedings or investigations
pending or, to the knowledge of Seller, threatened to which it is (or is
threatened to be) a party before any court or other governmental authority
which may have an adverse impact on the transactions contemplated hereby
except to the extent the suit referenced in Section 5 below may require
prior approval of this transaction; and provided, further, that the Seller
has no knowledge and makes no warranties with regard to any actions that
may exist with regard to the real property owned by the Partnership.
3.2 Buyer's Representations and Warranties. Buyer represents and warrants
to Seller as follows:
(a) Buyer is a Massachusetts grantor trust duly formed, validly
existing and in good standing under the laws of the Commonwealth of
Massachusetts. Buyer has the full power and authority to enter into this
Agreement, to execute and deliver the "Buyer's Closing Documents" (as
hereinafter defined), and to perform all of the terms, conditions and
provisions hereof and thereof. This Agreement and all documents which are
to be executed by Buyer and delivered to Seller at the Closing have been
duly authorized, and when executed and delivered, will be legal, valid and
binding obligations of Buyer, and at the time of Closing will not violate
any provisions of any agreement or judicial order to which Buyer is a
party or to which Buyer is subject.
(b) There are no actions, suits, proceedings or investigations
pending or, to the knowledge of Buyer, threatened to which it is (or is
threatened to be) a party before any court or other governmental authority
which may have an adverse impact on the transactions contemplated hereby.
(c) All documents executed by Buyer as required by this Agreement
are and shall be valid and enforceable in accordance with their terms.
(d) Buyer is an affiliate of the general partner of the Partnership,
and in such capacity is fully aware of the condition of the Property, and
is buying the interest with no reliance whatsoever on Seller or any
representation by Seller as to the condition of the Property.
3.3 Continuation and Survival of Representations and Warranties. All
representations and warranties by the respective parties contained herein or
made in writing pursuant to this Agreement are intended to and shall remain true
and correct as to the time of Closing, shall be deemed to be material, shall
survive the execution and delivery of this Agreement, and shall terminate upon
the date which is sixty (60) days after the date of Closing (as hereinafter
defined). Except as provided herein, neither Buyer nor Seller has made any
representations or warranties regarding the subject matter of this transaction.
4. Closing.
-------
4.1 Closing. The closing hereunder ("Closing") and delivery of all items
to be made at the closing under the terms of this Agreement shall be made at the
offices of Buyer's attorney. The execution and exchange of documents shall take
place at the Closing five days (or, if such fifth day is not a business day in
Boston, the next business day thereafter) after the last of the approvals
required under Section 8.17, if any, are received ("Closing Date"). The Closing
Date is intended to occur on or about February 15, 2000. However, closing may
occur on such earlier or later date as the parties may specifically agree in
writing, but if the Closing hereunder has not occurred on or before February 15
2000, except in escrow in accordance with Section 8.17 below, then this
agreement shall automatically terminate without further recourse of the parties
hereto to each other. Time is of the essence hereof.
4.2 Documents To Be Executed and Delivered. At the Closing, the following
documents are to be executed and delivered by or on behalf of the respective
parties as set forth below. To the extent that such documents are not attached
to this Agreement as Exhibits, such documents shall be in form and substance
reasonably satisfactory to the parties.
(a) Documents to be executed and delivered by the Seller ("Seller's
Closing Documents "):
(i) The Assignment and Assumption Agreement in the form of Exhibit B
hereto.
(ii) First Amendment to Amended and Restated Agreement of Limited
Partnership in the form of Exhibit C hereto (the "Partnership
Agreement Amendment").
(iii)All required filings with respect to the Partnership Documents
or fictitious name.
(iv) A certificate of Seller's non-foreign status in the form of
Exhibit D hereto.
(b) Documents to be delivered by Buyer ("Buyer's Closing Documents"):
(i) Counterpart of the Assignment and Assumption Agreement.
(ii) Counterpart of the Partnership Agreement Amendment.
(iii)Any and all consents from all parties having loans outstanding
or committed to the Partnership if such consents are required
pursuant to any agreements executed by or on behalf of the
Partnership in connection with such loans.
5. Conditions to Closing.
---------------------
5.1 The following conditions are conditions precedent to Seller's
obligation to sell the Partnership Interest, each of which may only be waived in
writing by Seller in its sole discretion:
(a) Buyer shall have paid to Seller the Purchase Price.
(b) Buyer shall have delivered to Seller the documents set forth in
4.2(b) above.
(c) Buyer's warranties and representations shall be true and correct
in all material respects as of the time of Closing.
(d) Seller shall have received all of Seller's Consents, in form and
substance fully satisfactory to Seller.
(e) Affiliates of Buyer shall be concurrently closing the purchase
from Seller of all of Seller's partnership interests in all other
partnerships listed on Exhibit Partnerships hereto.
(f) The class plaintiffs in the In re PaineWebber Limited
Partnerships Litigation, No. 94 Civ. 8547 (United States District
Court, Southern District of New York), shall not have furnished
the Seller or other PaineWebber affiliate with a written opinion
from an independent advisor concluding that the proposed
transaction is inadequate from a financial point of view or
otherwise recommending against the consummation of the
transaction contemplated by this Agreement.
5.2 The following conditions are conditions precedent to Buyer's
obligation to purchase the Partnership Interest, each of which may only be
waived in writing by Buyer in its sole discretion:
(a) Buyer shall have received from Seller the documents set forth in
4.2(a) above.
(b) Seller's warranties and representations shall be true and
correct in all material respects as at the time of Closing.
(c) Buyer shall have obtained any required lender consents, as
provided in Section 8.17 below; provided, however, that if Buyer
elects to close without any of such consents, Buyer agrees that the
indemnification of Seller provided for in Section 7 hereof shall
apply to any loss, cost or damage to Seller arising out of the
absence of any such consents.
6. Apportionments.
--------------
6.1 All Partnership revenues and all Net Cash Flow from the Partnership
for the calendar year 1999 and after shall be retained by the Buyer.
6.2 Calculation and Final Adjustment. If there are any pro-rations to be
made, Seller and Buyer shall use reasonable efforts to accurately estimate the
Purchase Price at the Closing Date and Buyer shall pay to Seller the amount of
such estimate at Closing.
7. Indemnification. Buyer agrees, subject to the other terms and
conditions of this Agreement, to indemnify Seller and their respective
affiliates, officers, directors, employees, agents, successors and assigns (each
a "Seller Indemnified Party") against and hold them harmless from all losses,
liabilities, damages, claims, awards, judgments, costs and expenses (including,
without limitation, reasonable attorneys' fees) actually suffered or incurred by
a Seller Indemnified Party arising out of any debts, liabilities and
obligations, whether accrued or fixed, absolute or Contingent, matured or
unmatured or determined or determinable, of the Seller relating to or arising
out of the Partnership Interest, arising subsequent to the Closing.
8. Miscellaneous.
--------------
8.1 Notices. Any notice required or permitted to be given under this
Agreement shall be in writing and shall be sent by a recognized private courier
company, by telecopier, or by United States mail, registered or certified mail,
postage prepaid, return receipt requested, and addressed as follows:
If to Seller:
c/o Paine Webber Properties Incorporated
265 Franklin Street, 15th Floor
Boston, MA 02110
Attention: Peter F. Sullivan
Telephone: 617-439-8106
Facsimile: 617-345-8725
With copy to:
Goulston & Storrs, P.C.
400 Atlantic Avenue
Boston, Massachusetts 02110
Attention: David M. Abromowitz
Telephone: 617-574-4016
Facsimile: 617-574-4112
If to Buyer:
Corcoran, Mullins, Jennison, Inc.
Bayside Office Center - Suite 500
150 Mount Vernon Street
Boston, MA 02125
Attn: Alan Curtis
Telephone: 617-822-7357
Facsimile: 617-822-7352
With copy to:
Goodwin, Procter & Hoar, LLP
Exchange Place
Boston, MA 02109-2881
Attn: Alexander A. Randall, PC.
Telephone: 617-570-1425
Facsimile: 617-227-8591
or such other address as a party may from time to time specify in writing to the
others in the manner aforesaid. Notices delivered by telecopier shall be deemed
delivered upon confirmation of receipt by recipient. All other notices shall be
deemed delivered upon delivery (with requisite proof of receipt of such
delivery) or refusal to accept delivery as indicated in the U.S. Postal Service
return receipt or similar advice from the courier company. Buyer and Seller
shall each have the right to change the address to which notices, demands,
requests, or other communications hereunder shall be given to the other parties
by notice of such change to the other party as set forth herein.
8.2 Continuing Obligation. Buyer agrees to provide Seller with all
required information in a timely fashion required by Seller to complete all tax
filings and tax returns including, but not limited to the type of data and
documents supplied to Seller in the ordinary course of business prior to the
Closing Date. For tax reporting purposes, the Partnership year, as to Seller's
Interest, shall close as of December 31, 1999, and the final form K-1 provided
to Seller shall be consistent therewith.
8.3 Brokers and Finders. In the event of a claim for broker's fee,
finder's fee, commission or other similar compensation in connection herewith,
Buyer, if such claim is based upon any agreement alleged to have been made by
Buyer or any agent of Buyer, hereby agrees to indemnify Seller against and hold
Seller harmless from any and all damages, liabilities, costs, expenses and
losses (including, without limitation, reasonable attorneys' fees, and costs)
which Seller may sustain or incur by reason of such claim, and Seller, if such
claim is based upon any agreement alleged to have been made by Seller or any
agent of Seller, hereby agrees to indemnify Buyer against and hold Buyer
harmless from any and all damages, liabilities, costs, expenses and losses
(including, without limitation, reasonable attorneys' fees and costs) which
Buyer may sustain or incur by reason of such claim. The provisions of this
Section 8.3 shall survive the termination of this Agreement or the Closing.
8.4 Successors and Assigns. This Agreement shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors,
heirs, administrators and assigns; provided, however, that prior to Closing
neither Seller's nor Buyer's interest under this Agreement may be assigned,
encumbered or otherwise transferred, whether voluntarily, involuntarily, by
operation of law or otherwise, without the prior written consent of the other
party, which consent shall not be unreasonably withheld or delayed.
8.5 Amendments. This Agreement may be amended or modified only by a
written instrument executed by the party asserted to be bound thereby.
8.6 Interpretation. Words used in the singular number shall include the
plural, and vice-versa, and any gender shall be deemed to include each other
gender. The captions and headings of the Articles and Sections of this Agreement
are for convenience of reference only, and shall not be deemed to define or
limit the provisions hereof.
8.7 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts.
8.8 Merger of Prior Agreements. This Agreement and the Closing Documents
constitute the entire agreement between the parties with respect to the purchase
and sale of the Partnership Interest and supersede all prior and contemporaneous
agreements arid understandings between the parties hereto relating to the
subject matter thereof.
8.9 Time of the Essence. Time is of the essence to this Agreement.
8.10 No Waiver. No waiver of any of the provisions of this Agreement shall
be deemed, or shall constitute, a waiver of any other provision, whether or not
similar, nor shall any waiver constitute a continuing waiver. No waiver shall be
binding unless executed in writing by the party making the waiver.
8.11 Agreement Not to Benefit Third Parties. This Agreement is made for
the sole benefit of Seller and Buyer and no other person shall be deemed to have
any privity of contract under this Agreement nor any right to rely on this
Agreement to any extent for any purpose whatsoever, nor have any right of action
of any kind on this Agreement nor be deemed to be a third party beneficiary
under this Agreement.
8.12 Facsimile Signatures. Buyer and Seller each (i) has agreed to permit
the use, from time to time and where appropriate, of telecopied signatures in
order to expedite the transaction contemplated by this Agreement, (ii) intends
to be bound by its respective telecopied signature, (iii) is aware that the
other will rely on the telecopied signature, and (iv) acknowledges such reliance
and waives any defenses to the enforcement of the documents effecting the
transaction contemplated by this Agreement based on the fact that a signature
was sent by telecopy.
8.13 Counterpart Execution. This Agreement and any amendments to this
Agreement may be executed in counterparts, each of which shall be fully
effective and all of which together shall constitute one and the same
instrument.
8.14 Further Acts. In addition to the actions set forth in this Agreement
to be taken by the parties, the parties agree to take or cause to be taken all
such further actions as may be reasonably necessary to consummate this
transaction which is the subject of this Agreement.
8.15 Exhibits. All references to Exhibits contained herein are references
to the Exhibits attached hereto, all of which are made a part hereof.
8.16 Closing Costs. Any closing costs, transfer taxes, recording fees,
lender consent fees or other costs (other than each party's attorney fees)
arising from or due to the transactions contemplated by this Agreement and the
closing thereof shall be apportioned equally between Seller and Buyer.
8.17 Lender's Approval. In the event the approval of the current lender
under the loans secured by the Property is required for this transaction
pursuant to any documents executed by or on behalf of the Partnership in
connection with such loans, it shall be Buyer's sole responsibility to obtain
such consent. If such consent and all similar consents required for the
transactions concurrently closing as described on Exhibit Partnerships attached
hereto have not been obtained on or before February 15, 2000, and Buyer
certifies to Seller that Buyer has taken all actions and delivered all
documentation required of it in order to obtain such consents; Buyer may elect
to close the purchase and sale in escrow. If Buyer so elects, Seller and Buyer
shall deliver all executed documents described in Section 4.2 above to the
Boston office of Stewart Title Guaranty Company in accordance with escrow
instructions attached hereto as "Escrow Agreement", and Buyer shall deposit the
entire purchase price with the said title company. All interest on the funds
held in escrow shall accrue for the benefit of Buyer. The escrow shall close,
all funds shall be delivered out of escrow to Seller, and all closing documents
shall be delivered to the respective parties on the earlier to occur of : (1)
March 31, 2000; and (2) when all required consents are obtained. The Buyer
acknowledges that the escrow shall close and the funds and documents will be
delivered no later than March 31, 2000 without regard to whether any such lender
approvals have been received, and without regard, also, to whether any lender or
other party has explicitly disapproved the transfer. In the event the escrow has
not closed by March 1, 2000 and all of the funds and documents under the escrow
distributed by that date, the Buyer agrees to pay an additional Four Thousand
Dollars ($4,000.000) for the partnership interest sold hereunder, and to deliver
said Four Thousand Dollars ($4,000.00) to the escrow agent for deposit in the
escrow by March 3, 2000.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
SELLER:
PAINE WEBBER/CMJ PROPERTIES, LP
By: PW Shelter Fund, Inc., Managing General Partner
By: /s/ Walter V. Arnold
--------------------
Its: Senior Vice President and
Chief Financial Officer
BUYER:
CMJ-MARVIN GARDENS TRUST
/s/ Karen F. Meyer
------------------
By: Karen F. Meyer, as Trustee of CMJ-
Marvin Gardens Trust, and not individually
<PAGE>
AGREEMENT FOR PURCHASE AND SALE
OF
PARTNERSHIP INTEREST
THIS AGREEMENT is made as of December 31, 1999, by and between PAINE
WEBBER/CMJ PROPERTIES, LP ("Seller"), and CMJ-Quaker Meadows Trust, a
Massachusetts Trust ("Buyer").
RECITALS
A. Seller is a limited partner of Quaker Meadow Apartment Company, a
Massachusetts limited partnership (the "Partnership"). Seller owns a ninety five
per cent (95%) limited partnership interest in the Partnership (the "Partnership
Interest") which term shall have the meaning ascribed to the term "Interest"
under the Partnership Agreement described in Exhibit A hereto.
B. The Partnership was created by and exists by virtue of the documents
described on Exhibit A attached hereto (the "Partnership Documents").
C. The Partnership owns the multifamily apartment complex commonly known as
Quaker Court and The Meadows, Lynn, Massachusetts (hereinafter referred to as
the "Property").
D. Buyer desires to purchase from Seller, and Seller desires to sell to
Buyer, all of Seller's Partnership Interest, on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, described
hereinbelow, and subject to the terms and conditions hereinafter set forth,
Seller and Buyer hereby agree as follows:
TERMS AND CONDITIONS
1. Sale of Partnership Interest. For the "Purchase Price" (as hereinafter
defined) and upon the terms and conditions hereinafter set forth, Seller shall
sell, transfer and assign to Buyer, and Buyer shall purchase from Seller, the
Partnership Interest and all of Seller's right, title and interest in the
Property under the Partnership Documents.
2. Purchase Price. The purchase price for the Partnership Interest shall
be SEVEN HUNDRED SEVENTY-EIGHT THOUSAND EIGHT HUNDRED SEVENTY-TWO AND 00/100
DOLLARS ($778,872.00), subject to increase or decrease based upon the
adjustments for the prorations specified in Section 6.1 (the "Purchase Price").
The Purchase Price shall be paid by Buyer to Seller at the Closing (as
hereinafter defined) by wire transfer of immediately available funds to an
account designated by Seller to Buyer prior to noon (Boston time) on the Closing
Date.
3. Representations and Warranties.
------------------------------
3.1 Seller's Representations and Warranties. Seller represents and warrants
to Buyer as follows:
(a) Seller has the full power and authority to enter into this
Agreement, to execute and deliver the "Seller's Closing Documents" (as
hereinafter defined), and to perform all of the terms, conditions and
provisions hereof and thereof, except that as of the date hereof, Seller
may need to obtain the consents and approvals set forth on Exhibit E
("Seller's Consents"). This Agreement and all documents which are to be
executed by Seller and to be delivered to Buyer at the Closing have been
duly authorized by Seller and, when executed and delivered, will be legal,
valid and binding obligations of Seller, and at the time of Closing will
not violate any provisions of any agreement or judicial order to which
Seller is a party or to which Seller or the Partnership Interest is
subject.
(b) Seller owns the Partnership Interest free and clear of all
rights and claims of third parties (other than any rights of partners
under the Partnership Documents) and has not, directly or indirectly,
voluntarily or involuntarily, by operation of law or otherwise, assigned,
transferred, encumbered or granted a security interest in the Partnership
Interest or the Seller's rights under the Partnership Documents, except as
may be provided in the documents governing mortgaged loans to the
Partnership and secured by the Property.
(c) Seller is not a "foreign person" within the meaning of Section
1445 of the U.S. Internal Revenue Code.
(d) All documents executed by Seller as required by this Agreement
are and shall be valid and enforceable in accordance with their terms.
(e) There are no actions, suits, proceedings or investigations
pending or, to the knowledge of Seller, threatened to which it is (or is
threatened to be) a party before any court or other governmental authority
which may have an adverse impact on the transactions contemplated hereby
except to the extent the suit referenced in Section 5 below may require
prior approval of this transaction and provided, further, that the Seller
has no knowledge and makes no warranties with regard to any actions that
may exist with regard to the real property owned by the Partnership.
3.2 Buyer's Representations and Warranties. Buyer represents and warrants
to Seller as follows:
(a) Buyer is a limited liability company duly formed, validly
existing and in good standing under the laws of the Commonwealth of
Massachusetts. Buyer has the full power and authority to enter into this
Agreement, to execute and deliver the "Buyer's Closing Documents" (as
hereinafter defined), and to perform all of the terms, conditions and
provisions hereof and thereof. This Agreement and all documents which are
to be executed by Buyer and delivered to Seller at the Closing have been
duly authorized, and when executed and delivered, will be legal, valid and
binding obligations of Buyer, and at the time of Closing will not violate
any provisions of any agreement or judicial order to which Buyer is a
party or to which Buyer is subject.
(b) There are no actions, suits, proceedings or investigations
pending or, to the knowledge of Buyer, threatened to which it is (or is
threatened to be) a party before any court or other governmental authority
which may have an adverse impact on the transactions contemplated hereby.
(c) All documents executed by Buyer as required by this Agreement
are and shall be valid and enforceable in accordance with their terms.
(d) Buyer is an affiliate of the general partner of the Partnership,
and in such capacity is fully aware of the condition of the Property, and
is buying the interest with no reliance whatsoever on Seller or any
representation by Seller as to the condition of the Property.
3.3 Continuation and Survival of Representations and Warranties. All
representations and warranties by the respective parties contained herein or
made in writing pursuant to this Agreement are intended to and shall remain true
and correct as to the time of Closing, shall be deemed to be material, shall
survive the execution and delivery of this Agreement, and shall terminate upon
the date which is sixty (60) days after the date of Closing (as hereinafter
defined). Except as provided herein, neither Buyer nor Seller has made any
representations or warranties regarding the subject matter of this transaction.
4. Closing.
-------
4.1 Closing. The closing hereunder ("Closing") and delivery of all items
to be made at the closing under the terms of this Agreement shall be made at the
offices of Buyer's attorney. The execution and exchange of documents shall take
place at the Closing five days (or, if such fifth day is not a business day in
Boston, the next business day thereafter) after the last of the approvals
required under Section 8.17, if any, are received ("Closing Date"). The Closing
Date is intended to occur on or about February 15, 2000. However, closing may
occur on such earlier or later date as the parties may specifically agree in
writing, but if the Closing hereunder has not occurred on or before February 15
2000, except in escrow in accordance with Section 8.17 below, then this
agreement shall automatically terminate without further recourse of the parties
hereto to each other. Time is of the essence hereof.
4.2 Documents To Be Executed and Delivered. At the Closing, the following
documents are to be executed and delivered by or on behalf of the respective
parties as set forth below. To the extent that such documents are not attached
to this Agreement as Exhibits, such documents shall be in form and substance
reasonably satisfactory to the parties.
(a) Documents to be executed and delivered by the Seller ("Seller's Closing
Documents "):
(i) The Assignment and Assumption Agreement in the form of Exhibit B
hereto.
(ii) First Amendment to Amended and Restated Agreement of Limited
Partnership in the form of Exhibit C hereto (the "Partnership
Agreement Amendment").
(iii)All required filings with respect to the Partnership Documents
or fictitious name.
(iv) A certificate of Seller's non-foreign status in the form of
Exhibit D hereto.
(b) Documents to be delivered by Buyer ("Buyer's Closing Documents"):
(i) Counterpart of the Assignment and Assumption Agreement.
(ii) Counterpart of the Partnership Agreement Amendment.
(iii)Any and all consents from all parties having loans outstanding
or committed to the Partnership if such consents are required
pursuant to any agreements executed by or on behalf of the
Partnership in connection with such loans.
5. Conditions to Closing.
---------------------
5.1 The following conditions are conditions precedent to Seller's
obligation to sell the Partnership Interest, each of which may only be waived in
writing by Seller in its sole discretion:
(a) Buyer shall have paid to Seller the Purchase Price.
(b) Buyer shall have delivered to Seller the documents set forth in
4.2(b) above.
(c) Buyer's warranties and representations shall be true and correct
in all material respects as of the time of Closing.
(d) Seller shall have received all of Seller's Consents, in form and
substance fully satisfactory to Seller.
(e) Affiliates of Buyer shall be concurrently closing the purchase
from Seller of all of Seller's partnership interests in all other
partnerships listed on Exhibit Partnerships hereto.
(f) The class plaintiffs in the In re PaineWebber Limited
Partnerships Litigation, No. 94 Civ. 8547 (United States District
Court, Southern District of New York), shall not have furnished
the Seller or other PaineWebber affiliate with a written opinion
from an independent advisor concluding that the proposed
transaction is inadequate from a financial point of view or
otherwise recommending against the consummation of the
transaction contemplated by this Agreement.
5.2 The following conditions are conditions precedent to Buyer's
obligation to purchase the Partnership Interest, each of which may only be
waived in writing by Buyer in its sole discretion:
(a) Buyer shall have received from Seller the documents set forth in
4.2(a) above.
(b) Seller's warranties and representations shall be true and correct
in all material respects as at the time of Closing.
(c) Buyer shall have obtained any required lender consents, as
provided in Section 8.17 below; provided, however, that if Buyer
elects to close without any of such consents, Buyer agrees that
the indemnification of Seller provided for in Section 7 hereof
shall apply to any loss, cost or damage to Seller arising out of
the absence of any such consents.
6. Apportionments.
--------------
6.1 All Partnership revenues and all Net Cash Flow from the Partnership
for the calendar year 1999 and after shall be retained by the Buyer
6.2 Calculation and Final Adjustment. If there are any pro-rations to be
made, Seller and Buyer shall use reasonable efforts to accurately estimate the
Purchase Price at the Closing Date and Buyer shall pay to Seller the amount of
such estimate at Closing.
7. Indemnification. Buyer agrees, subject to the other terms and
conditions of this Agreement, to indemnify Seller and their respective
affiliates, officers, directors, employees, agents, successors and assigns (each
a "Seller Indemnified Party") against and hold them harmless from all losses,
liabilities, damages, claims, awards, judgments, costs and expenses (including,
without limitation, reasonable attorneys' fees) actually suffered or incurred by
a Seller Indemnified Party arising out of any debts, liabilities and
obligations, whether accrued or fixed, absolute or Contingent, matured or
unmatured or determined or determinable, of the Seller relating to or arising
out of the Partnership Interest, arising subsequent to the Closing.
8. Miscellaneous.
--------------
8.1 Notices. Any notice required or permitted to be given under this
Agreement shall be in writing and shall be sent by a recognized private courier
company, by telecopier, or by United States mail, registered or certified mail,
postage prepaid, return receipt requested, and addressed as follows:
If to Seller:
c/o Paine Webber Properties Incorporated
265 Franklin Street, 15th Floor
Boston, MA 02110
Attention: Peter F. Sullivan
Telephone: 617-439-8106
Facsimile: 617-345-8725
With copy to:
Goulston & Storrs, P.C.
400 Atlantic Avenue
Boston, Massachusetts 02110
Attention: David M. Abromowitz
Telephone: 617-574-4016
Facsimile: 617-574-4112
If to Buyer:
Corcoran, Mullins, Jennison, Inc.
Bayside Office Center - Suite 500
150 Mount Vernon Street
Boston, MA 02125
Attn: Alan Curtis
Telephone: 617-822-7357
Facsimile: 617-822-7352
With copy to:
Goodwin, Procter & Hoar, LLP
Exchange Place
Boston, MA 02109-2881
Attn: Alexander A. Randall, PC.
Telephone: 617-570-1425
Facsimile: 617-227-8591
or such other address as a party may from time to time specify in writing to the
others in the manner aforesaid. Notices delivered by telecopier shall be deemed
delivered upon confirmation of receipt by recipient. All other notices shall be
deemed delivered upon delivery (with requisite proof of receipt of such
delivery) or refusal to accept delivery as indicated in the U.S. Postal Service
return receipt or similar advice from the courier company. Buyer and Seller
shall each have the right to change the address to which notices, demands,
requests, or other communications hereunder shall be given to the other parties
by notice of such change to the other party as set forth herein.
8.2 Continuing Obligation. Buyer agrees to provide Seller with all
required information in a timely fashion required by Seller to complete all tax
filings and tax returns including, but not limited to the type of data and
documents supplied to Seller in the ordinary course of business prior to the
Closing Date. For tax reporting purposes, the Partnership year, as to Seller's
Interest, shall close as of December 31, 1999, and the final form K-1 provided
to Seller shall be consistent therewith.
8.3 Brokers and Finders. In the event of a claim for broker's fee,
finder's fee, commission or other similar compensation in connection herewith,
Buyer, if such claim is based upon any agreement alleged to have been made by
Buyer or any agent of Buyer, hereby agrees to indemnify Seller against and hold
Seller harmless from any and all damages, liabilities, costs, expenses and
losses (including, without limitation, reasonable attorneys' fees, and costs)
which Seller may sustain or incur by reason of such claim, and Seller, if such
claim is based upon any agreement alleged to have been made by Seller or any
agent of Seller, hereby agrees to indemnify Buyer against and hold Buyer
harmless from any and all damages, liabilities, costs, expenses and losses
(including, without limitation, reasonable attorneys' fees and costs) which
Buyer may sustain or incur by reason of such claim. The provisions of this
Section 8.3 shall survive the termination of this Agreement or the Closing.
8.4 Successors and Assigns. This Agreement shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors,
heirs, administrators and assigns; provided, however, that prior to Closing
neither Seller's nor Buyer's interest under this Agreement may be assigned,
encumbered or otherwise transferred, whether voluntarily, involuntarily, by
operation of law or otherwise, without the prior written consent of the other
party, which consent shall not be unreasonably withheld or delayed.
8.5 Amendments. This Agreement may be amended or modified only by a
written instrument executed by the party asserted to be bound thereby.
8.6 Interpretation. Words used in the singular number shall include the
plural, and vice-versa, and any gender shall be deemed to include each other
gender. The captions and headings of the Articles and Sections of this Agreement
are for convenience of reference only, and shall not be deemed to define or
limit the provisions hereof.
8.7 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts.
8.8 Merger of Prior Agreements. This Agreement and the Closing Documents
constitute the entire agreement between the parties with respect to the purchase
and sale of the Partnership Interest and supersede all prior and contemporaneous
agreements arid understandings between the parties hereto relating to the
subject matter thereof.
8.9 Time of the Essence. Time is of the essence to this Agreement.
8.10 No Waiver. No waiver of any of the provisions of this Agreement shall
be deemed, or shall constitute, a waiver of any other provision, whether or not
similar, nor shall any waiver constitute a continuing waiver. No waiver shall be
binding unless executed in writing by the party making the waiver.
8.11 Agreement Not to Benefit Third Parties. This Agreement is made for
the sole benefit of Seller and Buyer and no other person shall be deemed to have
any privity of contract under this Agreement nor any right to rely on this
Agreement to any extent for any purpose whatsoever, nor have any right of action
of any kind on this Agreement nor be deemed to be a third party beneficiary
under this Agreement.
8.12 Facsimile Signatures. Buyer and Seller each (i) has agreed to permit
the use, from time to time and where appropriate, of telecopied signatures in
order to expedite the transaction contemplated by this Agreement, (ii) intends
to be bound by its respective telecopied signature, (iii) is aware that the
other will rely on the telecopied signature, and (iv) acknowledges such reliance
and waives any defenses to the enforcement of the documents effecting the
transaction contemplated by this Agreement based on the fact that a signature
was sent by telecopy.
8.13 Counterpart Execution. This Agreement and any amendments to this
Agreement may be executed in counterparts, each of which shall be fully
effective and all of which together shall constitute one and the same
instrument.
8.14 Further Acts. In addition to the actions set forth in this Agreement
to be taken by the parties, the parties agree to take or cause to be taken all
such further actions as may be reasonably necessary to consummate this
transaction which is the subject of this Agreement.
8.15 Exhibits. All references to Exhibits contained herein are references
to the Exhibits attached hereto, all of which are made a part hereof.
8.16 Closing Costs. Any closing costs, transfer taxes, recording fees,
lender consent fees or other costs (other than each party's attorney fees)
arising from or due to the transactions contemplated by this Agreement and the
closing thereof shall be apportioned equally between Seller and Buyer.
8.17 Lender's Approval. In the event the approval of the current lender
under the loans secured by the Property is required for this transaction
pursuant to any documents executed by or on behalf of the Partnership in
connection with such loans, it shall be Buyer's sole responsibility to obtain
such consent. If such consent and all similar consents required for the
transactions concurrently closing as described on Exhibit Partnerships attached
hereto have not been obtained on or before February 15, 2000, and Buyer
certifies to Seller that Buyer has taken all actions and delivered all
documentation required of it in order to obtain such consents; Buyer may elect
to close the purchase and sale in escrow. If Buyer so elects, Seller and Buyer
shall deliver all executed documents described in Section 4.2 above to the
Boston office of Stewart Title Guaranty Company in accordance with escrow
instructions attached hereto as "Escrow Agreement", and Buyer shall deposit the
entire purchase price with the said title company. All interest on the funds
held in escrow shall accrue for the benefit of Buyer. The escrow shall close,
all funds shall be delivered out of escrow to Seller, and all closing documents
shall be delivered to the respective parties on the earlier to occur of : (1)
March 31, 2000; and (2) when all required consents are obtained. The Buyer
acknowledges that the escrow shall close and the funds and documents will be
delivered no later than March 31, 2000 without regard to whether any such lender
approvals have been received, and without regard, also, to whether any lender or
other party has explicitly disapproved the transfer. In the event the escrow has
not closed by March 1, 2000 and all of the funds and documents under the escrow
distributed by that date, the Buyer agrees to pay an additional Four Thousand
Dollars ($4,000.000) for the partnership interest sold hereunder, and to deliver
said Four Thousand Dollars ($4,000.00) to the escrow agent for deposit in the
escrow by March 3, 2000.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
SELLER:
PAINE WEBBER/CMJ PROPERTIES, LP
By: PW Shelter Fund, Inc., Managing General Partner
By: /s/ Walter V. Arnold
--------------------
Its: Senior Vice President and
Chief Financial Officer
BUYER:
/s/ Karen F. Meyer
------------------
Karen F. Meyer, as Trustee of CMJ-Quaker Meadows
Trust and not individually
<PAGE>
AGREEMENT FOR PURCHASE AND SALE
OF
PARTNERSHIP INTEREST
THIS AGREEMENT is made as of December 31, 1999, by and between PAINE
WEBBER/CMJ PROPERTIES, LP ("Seller"), and The Joseph E. Corcoran Family Trust,
("Buyer").
RECITALS
A. Seller is the sole limited partner of Fawcett's Pond Apartment Company,
a Massachusetts limited partnership (the "Partnership"). Seller owns a ninety
five per cent (95%) limited partnership interest in the Partnership (the
"Partnership Interest") which term shall have the meaning ascribed to the term
"Interest" under the Partnership Agreement described in Exhibit A hereto.
B. The Partnership was created by and exists by virtue of the documents
described on Exhibit A attached hereto (the "Partnership Documents").
C. The Partnership owns the multifamily apartment complex commonly known as
Village at Fawcett's Pond, Hyannis, Massachusetts (hereinafter referred to as
the "Property").
D. Buyer desires to purchase from Seller, and Seller desires to sell to
Buyer, all of Seller's Partnership Interest, on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, described
hereinbelow, and subject to the terms and conditions hereinafter set forth,
Seller and Buyer hereby agree as follows:
TERMS AND CONDITIONS
1. Sale of Partnership Interest. For the "Purchase Price" (as hereinafter
defined) and upon the terms and conditions hereinafter set forth, Seller shall
sell, transfer and assign to Buyer, and Buyer shall purchase from Seller, the
Partnership Interest and all of Seller's right, title and interest in the
Property under the Partnership Documents.
2. Purchase Price. The purchase price for the Partnership Interest shall
be ONE HUNDRED SIXTY-SEVEN THOUSAND THREE HUNDRED TWENTY-EIGHT AND 00/100
DOLLARS ($167,328.00), subject to increase or decrease based upon the
adjustments for the prorations specified in Section 6.1 (the "Purchase Price").
The Purchase Price shall be paid by Buyer to Seller at the Closing (as
hereinafter defined) by wire transfer of immediately available funds to an
account designated by Seller to Buyer prior to noon (Boston time) on the Closing
Date.
3. Representations and Warranties.
-------------------------------
3.1 Seller's Representations and Warranties. Seller represents and warrants
to Buyer as follows:
(a) Seller has the full power and authority to enter into this
Agreement, to execute and deliver the "Seller's Closing Documents" (as
hereinafter defined), and to perform all of the terms, conditions and
provisions hereof and thereof, except that as of the date hereof, Seller
may need to obtain the consents and approvals set forth on Exhibit E
("Seller's Consents"). This Agreement and all documents which are to be
executed by Seller and to be delivered to Buyer at the Closing have been
duly authorized by Seller and, when executed and delivered, will be legal,
valid and binding obligations of Seller, and at the time of Closing will
not violate any provisions of any agreement or judicial order to which
Seller is a party or to which Seller or the Partnership Interest is
subject.
(b) Seller owns the Partnership Interest free and clear of all rights
and claims of third parties (other than any rights of partners under the
Partnership Documents) and has not, directly or indirectly, voluntarily or
involuntarily, by operation of law or otherwise, assigned, transferred,
encumbered or granted a security interest in the Partnership Interest or
the Seller's rights under the Partnership Documents, except as may be
provided in the documents governing mortgaged loans to the Partnership and
secured by the Property.
(c) Seller is not a "foreign person" within the meaning of Section
1445 of the U.S. Internal Revenue Code.
(d) All documents executed by Seller as required by this Agreement are
and shall be valid and enforceable in accordance with their terms.
(e) There are no actions, suits, proceedings or investigations pending
or, to the knowledge of Seller, threatened to which it is (or is threatened
to be) a party before any court or other governmental authority which may
have an adverse impact on the transactions contemplated hereby except to
the extent the suit referenced in Section 5 below may require prior
approval of this transaction and provided, further, that the Seller has no
knowledge and makes no warranties with regard to any actions that may exist
with regard to the real property owned by the Partnership.
3.2 Buyer's Representations and Warranties. Buyer represents and warrants
to Seller as follows:
(a) Buyer is a Massachusetts grantor trust duly formed, validly
existing and in good standing under the laws of the Commonwealth of
Massachusetts. Buyer has the full power and authority to enter into this
Agreement, to execute and deliver the "Buyer's Closing Documents" (as
hereinafter defined), and to perform all of the terms, conditions and
provisions hereof and thereof. This Agreement and all documents which are
to be executed by Buyer and delivered to Seller at the Closing have been
duly authorized, and when executed and delivered, will be legal, valid and
binding obligations of Buyer, and at the time of Closing will not violate
any provisions of any agreement or judicial order to which Buyer is a
party or to which Buyer is subject.
(b) There are no actions, suits, proceedings or investigations
pending or, to the knowledge of Buyer, threatened to which it is (or is
threatened to be) a party before any court or other governmental authority
which may have an adverse impact on the transactions contemplated hereby.
(c) All documents executed by Buyer as required by this Agreement
are and shall be valid and enforceable in accordance with their terms.
(d) Buyer is an affiliate of the general partner of the Partnership,
and in such capacity is fully aware of the condition of the Property, and
is buying the interest with no reliance whatsoever on Seller or any
representation by Seller as to the condition of the Property.
3.3 Continuation and Survival of Representations and Warranties. All
representations and warranties by the respective parties contained herein or
made in writing pursuant to this Agreement are intended to and shall remain true
and correct as to the time of Closing, shall be deemed to be material, shall
survive the execution and delivery of this Agreement, and shall terminate upon
the date which is sixty (60) days after the date of Closing (as hereinafter
defined). Except as provided herein, neither Buyer nor Seller has made any
representations or warranties regarding the subject matter of this transaction.
4. Closing.
-------
4.1 Closing. The closing hereunder ("Closing") and delivery of all items
to be made at the closing under the terms of this Agreement shall be made at the
offices of Buyer's attorney. The execution and exchange of documents shall take
place at the Closing five days (or, if such fifth day is not a business day in
Boston, the next business day thereafter) after the last of the approvals
required under Section 8.17, if any, are received ("Closing Date"). The Closing
Date is intended to occur on or about February 15, 2000. However, closing may
occur on such earlier or later date as the parties may specifically agree in
writing, but if the Closing hereunder has not occurred on or before February 15
2000, except in escrow in accordance with Section 8.17 below, then this
agreement shall automatically terminate without further recourse of the parties
hereto to each other. Time is of the essence hereof.
4.2 Documents To Be Executed and Delivered. At the Closing, the following
documents are to be executed and delivered by or on behalf of the respective
parties as set forth below. To the extent that such documents are not attached
to this Agreement as Exhibits, such documents shall be in form and substance
reasonably satisfactory to the parties.
(a) Documents to be executed and delivered by the Seller ("Seller's Closing
Documents "):
(i) The Assignment and Assumption Agreement in the form of Exhibit
B hereto.
(ii) First Amendment to Amended and Restated Agreement of Limited
Partnership in the form of Exhibit C hereto (the "Partnership
Agreement Amendment").
(iii) All required filings with respect to the Partnership Documents
or fictitious name.
(iv) A certificate of Seller's non-foreign status in the form of
Exhibit D hereto.
(b) Documents to be delivered by Buyer ("Buyer's Closing Documents"):
(i) Counterpart of the Assignment and Assumption Agreement.
(ii) Counterpart of the Partnership Agreement Amendment.
(iii) Any and all consents from all parties having loans outstanding
or committed to the Partnership if such consents are required
pursuant to any agreements executed by or on behalf of the
Partnership in connection with such loans.
5. Conditions to Closing.
---------------------
5.1 The following conditions are conditions precedent to Seller's
obligation to sell the Partnership Interest, each of which may only be waived in
writing by Seller in its sole discretion:
(a) Buyer shall have paid to Seller the Purchase Price.
(b) Buyer shall have delivered to Seller the documents set forth
in 4.2(b) above.
(c) Buyer's warranties and representations shall be true and
correct in all material respects as of the time of Closing.
(d) Seller shall have received all of Seller's Consents, in form
and substance fully satisfactory to Seller.
(e) Affiliates of Buyer shall be concurrently closing the purchase
from Seller of all of Seller's partnership interests in all
other partnerships listed on Exhibit Partnerships hereto.
(f) The class plaintiffs in the In re PaineWebber Limited
Partnerships Litigation, No. 94 Civ. 8547 (United States
District Court, Southern District of New York), shall not
have furnished the Seller or other PaineWebber affiliate with
a written opinion from an independent advisor concluding that
the proposed transaction is inadequate from a financial point
of view or otherwise recommending against the consummation
of the transaction contemplated by this Agreement.
5.2 The following conditions are conditions precedent to Buyer's
obligation to purchase the Partnership Interest, each of which may only be
waived in writing by Buyer in its sole discretion:
(a) Buyer shall have received from Seller the documents set forth in
4.2(a) above.
(b) Seller's warranties and representations shall be true and
correct in all material respects as at the time of Closing.
(c) Buyer shall have obtained any required lender consents, as
provided in Section 8.17 below; provided, however, that if Buyer
elects to close without any of such consents, Buyer agrees that the
indemnification of Seller provided for in Section 7 hereof shall
apply to any loss, cost or damage to Seller arising out of the
absence of any such consents.
6. Apportionments.
--------------
6.1 All Partnership revenues and all Net Cash Flow from the Partnership
for the calendar year 1999 and after shall be retained by the Buyer.
6.2 Calculation and Final Adjustment. If there are any pro-rations to be
made, Seller and Buyer shall use reasonable efforts to accurately estimate the
Purchase Price at the Closing Date and Buyer shall pay to Seller the amount of
such estimate at Closing.
7. Indemnification. Buyer agrees, subject to the other terms and
conditions of this Agreement, to indemnify Seller and their respective
affiliates, officers, directors, employees, agents, successors and assigns (each
a "Seller Indemnified Party") against and hold them harmless from all losses,
liabilities, damages, claims, awards, judgments, costs and expenses (including,
without limitation, reasonable attorneys' fees) actually suffered or incurred by
a Seller Indemnified Party arising out of any debts, liabilities and
obligations, whether accrued or fixed, absolute or Contingent, matured or
unmatured or determined or determinable, of the Seller relating to or arising
out of the Partnership Interest, arising subsequent to the Closing.
8. Miscellaneous.
--------------
8.1 Notices. Any notice required or permitted to be given under this
Agreement shall be in writing and shall be sent by a recognized private courier
company, by telecopier, or by United States mail, registered or certified mail,
postage prepaid, return receipt requested, and addressed as follows:
If to Seller:
c/o Paine Webber Properties Incorporated
265 Franklin Street, 15th Floor
Boston, MA 02110
Attention: Peter F. Sullivan
Telephone: 617-439-8106
Facsimile: 617-345-8725
With copy to:
Goulston & Storrs, P.C.
400 Atlantic Avenue
Boston, Massachusetts 02110
Attention: David M. Abromowitz
Telephone: 617-574-4016
Facsimile: 617-574-4112
If to Buyer:
Corcoran, Mullins, Jennison, Inc.
Bayside Office Center - Suite 500
150 Mount Vernon Street
Boston, MA 02125
Attn: Alan Curtis
Telephone: 617-822-7357
Facsimile: 617-822-7352
With copy to:
Goodwin, Procter & Hoar, LLP
Exchange Place
Boston, MA 02109-2881
Attn: Alexander A. Randall, PC.
Telephone: 617-570-1425
Facsimile: 617-227-8591
or such other address as a party may from time to time specify in writing to the
others in the manner aforesaid. Notices delivered by telecopier shall be deemed
delivered upon confirmation of receipt by recipient. All other notices shall be
deemed delivered upon delivery (with requisite proof of receipt of such
delivery) or refusal to accept delivery as indicated in the U.S. Postal Service
return receipt or similar advice from the courier company. Buyer and Seller
shall each have the right to change the address to which notices, demands,
requests, or other communications hereunder shall be given to the other parties
by notice of such change to the other party as set forth herein.
8.2 Continuing Obligation. Buyer agrees to provide Seller with all
required information in a timely fashion required by Seller to complete all tax
filings and tax returns including, but not limited to the type of data and
documents supplied to Seller in the ordinary course of business prior to the
Closing Date. For tax reporting purposes, the Partnership year, as to Seller's
Interest, shall close as of December 31, 1999, and the final form K-1 provided
to Seller shall be consistent therewith.
8.3 Brokers and Finders. In the event of a claim for broker's fee,
finder's fee, commission or other similar compensation in connection herewith,
Buyer, if such claim is based upon any agreement alleged to have been made by
Buyer or any agent of Buyer, hereby agrees to indemnify Seller against and hold
Seller harmless from any and all damages, liabilities, costs, expenses and
losses (including, without limitation, reasonable attorneys' fees, and costs)
which Seller may sustain or incur by reason of such claim, and Seller, if such
claim is based upon any agreement alleged to have been made by Seller or any
agent of Seller, hereby agrees to indemnify Buyer against and hold Buyer
harmless from any and all damages, liabilities, costs, expenses and losses
(including, without limitation, reasonable attorneys' fees and costs) which
Buyer may sustain or incur by reason of such claim. The provisions of this
Section 8.3 shall survive the termination of this Agreement or the Closing.
8.4 Successors and Assigns. This Agreement shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors,
heirs, administrators and assigns; provided, however, that prior to Closing
neither Seller's nor Buyer's interest under this Agreement may be assigned,
encumbered or otherwise transferred, whether voluntarily, involuntarily, by
operation of law or otherwise, without the prior written consent of the other
party, which consent shall not be unreasonably withheld or delayed.
8.5 Amendments. This Agreement may be amended or modified only by a
written instrument executed by the party asserted to be bound thereby.
8.6 Interpretation. Words used in the singular number shall include the
plural, and vice-versa, and any gender shall be deemed to include each other
gender. The captions and headings of the Articles and Sections of this Agreement
are for convenience of reference only, and shall not be deemed to define or
limit the provisions hereof.
8.7 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts.
8.8 Merger of Prior Agreements. This Agreement and the Closing Documents
constitute the entire agreement between the parties with respect to the purchase
and sale of the Partnership Interest and supersede all prior and contemporaneous
agreements arid understandings between the parties hereto relating to the
subject matter thereof.
8.9 Time of the Essence. Time is of the essence to this Agreement.
8.10 No Waiver. No waiver of any of the provisions of this Agreement shall
be deemed, or shall constitute, a waiver of any other provision, whether or not
similar, nor shall any waiver constitute a continuing waiver. No waiver shall be
binding unless executed in writing by the party making the waiver.
8.11 Agreement Not to Benefit Third Parties. This Agreement is made for
the sole benefit of Seller and Buyer and no other person shall be deemed to have
any privity of contract under this Agreement nor any right to rely on this
Agreement to any extent for any purpose whatsoever, nor have any right of action
of any kind on this Agreement nor be deemed to be a third party beneficiary
under this Agreement.
8.12 Facsimile Signatures. Buyer and Seller each (i) has agreed to permit
the use, from time to time and where appropriate, of telecopied signatures in
order to expedite the transaction contemplated by this Agreement, (ii) intends
to be bound by its respective telecopied signature, (iii) is aware that the
other will rely on the telecopied signature, and (iv) acknowledges such reliance
and waives any defenses to the enforcement of the documents effecting the
transaction contemplated by this Agreement based on the fact that a signature
was sent by telecopy.
8.13 Counterpart Execution. This Agreement and any amendments to this
Agreement may be executed in counterparts, each of which shall be fully
effective and all of which together shall constitute one and the same
instrument.
8.14 Further Acts. In addition to the actions set forth in this Agreement
to be taken by the parties, the parties agree to take or cause to be taken all
such further actions as may be reasonably necessary to consummate this
transaction which is the subject of this Agreement.
8.15 Exhibits. All references to Exhibits contained herein are references
to the Exhibits attached hereto, all of which are made a part hereof.
8.16 Closing Costs. Any closing costs, transfer taxes, recording fees,
lender consent fees or other costs (other than each party's attorney fees)
arising from or due to the transactions contemplated by this Agreement and the
closing thereof shall be apportioned equally between Seller and Buyer.
8.17 Lender's Approval. In the event the approval of the current lender
under the loans secured by the Property is required for this transaction
pursuant to any documents executed by or on behalf of the Partnership in
connection with such loans, it shall be Buyer's sole responsibility to obtain
such consent. If such consent and all similar consents required for the
transactions concurrently closing as described on Exhibit Partnerships attached
hereto have not been obtained on or before February 15, 2000, and Buyer
certifies to Seller that Buyer has taken all actions and delivered all
documentation required of it in order to obtain such consents; Buyer may elect
to close the purchase and sale in escrow. If Buyer so elects, Seller and Buyer
shall deliver all executed documents described in Section 4.2 above to the
Boston office of Stewart Title Guaranty Company in accordance with escrow
instructions attached hereto as "Escrow Agreement", and Buyer shall deposit the
entire purchase price with the said title company. All interest on the funds
held in escrow shall accrue for the benefit of Buyer. The escrow shall close,
all funds shall be delivered out of escrow to Seller, and all closing documents
shall be delivered to the respective parties on the earlier to occur of : (1)
March 31, 2000; and (2) when all required consents are obtained. The Buyer
acknowledges that the escrow shall close and the funds and documents will be
delivered no later than March 31, 2000 without regard to whether any such lender
approvals have been received, and without regard, also, to whether any lender or
other party has explicitly disapproved the transfer. In the event the escrow has
not closed by March 1, 2000 and all of the funds and documents under the escrow
distributed by that date, the Buyer agrees to pay an additional Four Thousand
Dollars ($4,000.000) for the partnership interest sold hereunder, and to deliver
said Four Thousand Dollars ($4,000.00) to the escrow agent for deposit in the
escrow by March 3, 2000.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
SELLER:
PAINE WEBBER/CMJ PROPERTIES, LP
By: PW Shelter Fund, Inc., Managing General Partner
By: /s/ Walter V. Arnold
--------------------
Its: Senior Vice President and
Chief Financial Officer
BUYER:
The Joseph E. Corcoran Family Trust
By: /s/ Joseph J. Corcoran
----------------------
Joseph J. Corcoran, as Trustee under the Joseph
E. Corcoran Family and not individually
By: /s/ Michael J. Corcoran
-----------------------
Michael J. Corcoran, as Trustee under the Joseph
E. Corcoran Family Trust, and not individually
By: /s/ Alexander A. Randall
------------------------
Alexander A. Randall, as Trustee under the Joseph
E. Corcoran Family Trust, and not individually
<PAGE>
ESCROW AGREEMENT
February 15, 2000
Stewart Title Guaranty Company
99 Summer Street, Suite 930
Boston, Massachusetts 02110
Re: Holbrook Apartments Company
Fawcett's Pond Apartment Company
Quaker Meadows Apartment Company
Marvin Gardens Associates
Colonial Farms Ltd.
(collectively, the "Partnerships")
Ladies and Gentlemen:
This letter (the "Escrow Agreement") sets forth escrow instructions to
Stewart Title Company (the "Title Company") in connection with the sale of the
five limited partnership interests in the partnerships set forth above by Paine
Webber/CMJ Properties, L.P. (the "Seller") to the respective purchasers as set
forth below:
Purchaser of
Paine Webber/CMJ Properties, L.P.
Limited Partnership Limited Partnership Interest
------------------- ----------------------------
1) Holbrook Apartments Company Joseph E. Corcoran
2) Fawcett's Pond Apartment Company Joseph E. Corcoran
3) Quaker Meadows Apartment Company CMJ-Quaker Meadows Trust
4) Marvin Gardens Associates CMJ-Marvin Gardens Trust
5) Colonial Farms Ltd. CMJ-Colonial Farms Trust
Copies of each of the purchase and sales agreements (collectively, the
"Purchase and Sales Agreements") have been attached to this letter as Exhibit A.
Pursuant to Section 8.17 of each of the respective Purchase and Sales
Agreements the Buyers have the right to elect to close the transactions and
deliver the respective funds (the "Escrow Funds") and documents (the "Escrow
Documents")as set forth therein, into escrow. This escrow agreement is the
"Escrow Agreement" with respect to the respective Purchase and Sales Agreements.
The Seller and Buyers have each delivered to the Title Company the Escrow Funds
and two sets of Escrow Documents.
The Escrow Documents and the Escrow Funds are being delivered to the Title
Company, subject to the following terms and conditions:
1) The sole duty of the Title Company hereunder is to close the escrow
and deliver: a) to the Seller the Escrow Funds (including all
interest earned thereon) and one set of Escrow Documents; and b) to
the Buyer the other set of Escrow Documents, pursuant to the
directions set forth below.
2) The Title Company will close the escrow and deliver the Escrow Funds
and Escrow Documents as set forth in paragraph number (1) above on
March 31, 2000.
3) The Title Company will close the escrow and deliver the Escrow Funds
and Escrow Documents as set forth in paragraph number (1) above
prior to March 31, 2000 in the event the Buyer has requested the
Title Company to do so in writing.
The Title Company's liability under this Escrow Agreement and its duties
are limited to safe keeping of funds and documents referenced herein. The Title
Company is not liable for any acts or omissions done in good faith or for any
damage, except such as may arise or be caused by The Title Company's willful
misconduct or neglect.
This Escrow Agreement may only be modified by a writing signed by all
parties hereto.
Upon the delivery of the Escrow Funds and the Escrow Documents the Title
Company's duty hereunder shall cease.
This agreement may be executed in counterparts, each of which, taken on a
whole, shall form one agreement.
This Escrow Agreement is accepted as of this 15th of February, 2000 and
each of the undersigned hereby agree to be bound by all of the terms and
conditions set forth herein.
[Remainder of Page Intentionally Blank]
<PAGE>
Stewart Title Insurance Company
By: /s/ Stewart Title Insurance Company
-----------------------------------
Its:
SELLER:
PAINE WEBBER/CMJ PROPERTIES, LP
By: PW Shelter Fund, Inc., Managing General Partner
By: /s/ Walter V. Arnold
--------------------
Its: Senior Vice President and
Chief Financial Officer
BUYER:
JOSEPH E. CORCORAN
/s/ Joseph E. Corcoran
-----------------------
Joseph E. Corcoran
CMJ-QUAKER MEADOWS TRUST
By: /s/ Karen F. Meyer
------------------
Karen F. Meyer, as Trustee of CMJ-Quaker
Meadows Trust and not individually
CMJ - MARVIN GARDENS TRUST
By: /s/ Karen F. Meyer
------------------
Karen F. Meyer, as Trustee of CMJ-Marvin
Gardens Trust and not individually
CMJ-COLONIAL FARMS TRUST
By: /s/ Karen F. Meyer
------------------
By: Karen F. Meyer, as Trustee of CMJ-Colonial
Farms Trust, and not individually
