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) September 10, 1998
------------------
PAINE WEBBER INCOME PROPERTIES FIVE LIMITED PARTNERSHIP
-------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 0-12087 04-2780287
- --------------------------------------------------------------------------------
(State or other jurisdiction) (Commission (IRS Employer
of incorporation File Number) Identification No.)
265 Franklin Street, Boston, Massachusetts 02110
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (617) 439-8118
--------------
(Former name or address, if changed since last report)
<PAGE>
FORM 8-K
CURRENT REPORT
PAINE WEBBER INCOME PROPERTIES FIVE LIMITED PARTNERSHIP
ITEM 2 - Disposition of Assets
Greenbrier Apartments, Indianapolis, Indiana
Disposition Date - September 10, 1998
On September 10, 1998, Greenbrier Associates, a joint venture in which
Paine Webber Income Properties Five Limited Partnership ("the Partnership") has
an interest, sold the property known as Greenbrier Apartments located in
Indianapolis, Indiana, to an unrelated third party, Graoch Associates #59
Limited Partnership, a Washington limited partnership, for $11,850,000. The
Partnership received net proceeds of approximately $5,498,000 after deducting
closing costs of approximately $119,000, closing proration adjustments of
approximately $424,000, the repayment of the existing first mortgage loan of
$5,400,000 and related accrued interest of approximately $26,000 and a payment
of approximately $383,000 to the Partnership's co-venture partner for its share
of the sales proceeds in accordance with the joint venture agreement.
As discussed further in the Partnership's Quarterly Report on Form 10-Q
for the period ended June 30, 1998, because the first mortgage loan secured by
the Greenbrier Apartments was scheduled to mature on June 29, 1998, the
Partnership and its joint venture partner had begun to review both refinancing
and sale opportunities during the latter part of fiscal 1997. During the first
quarter of fiscal 1998, the Partnership and the co-venturer agreed to initiate a
marketing program for the possible sale of the property. During the second
quarter, the Partnership and the co-venturer engaged a national real estate
brokerage firm to market Greenbrier for sale. As part of the formal marketing
campaign, which began in early March, the property was marketed extensively.
Sales packages were distributed to national, regional, and local prospective
purchasers. As a result of these sales efforts, several offers were received.
Management then asked the prospective purchasers to submit best and final
offers. Management subsequently received best and final offers from five of the
prospective buyers. After completing an evaluation of the final offers and the
relative strength of the prospective purchasers, the Partnership and its
co-venture partner selected an offer and negotiated a purchase and sale
agreement.
As a result of the sale of Greenbrier Apartments, the Partnership will
make a special distribution of $100 per original $1,000 investment, or
approximately $3,493,000, on October 1, 1998 to unitholders of record as of the
September 10, 1998 sale date. The remaining net proceeds from the sale of
Greenbrier of approximately $2,005,000, along with an amount of the
Partnership's cash reserves, were used to help pay off a $4,000,000 demand loan
that the Partnership had obtained from PaineWebber Capital, Inc., an affiliate
of the Managing General Partner. As previously reported, the Partnership had
obtained this demand loan on June 16, 1998 in conjunction with the purchase of a
co-venture partner's interest in the Carriage Hill Joint Venture. The note bore
interest at a rate of 6.56% per annum. The Partnership paid off the $4 million
demand note and accrued interest of approximately $63,000 on September 11, 1998.
ITEM 7 - Financial Statements and Exhibits
(a) Financial Statements: None
(b) Exhibits:
(1) Purchase and Sale Agreement by and between Greenbrier
Associates and Graoch Associates #59 Limited Partnership,
dated June 1, 1998.
<PAGE>
FORM 8-K
CURRENT REPORT
PAINE WEBBER INCOME PROPERTIES FIVE LIMITED PARTNERSHIP
(2) Warranty Deed by and between Greenbrier Associates and Graoch
Associates #59 Limited Partnership, dated September 9, 1998.
(3) Bill of Sale Greenbrier Associates to Graoch Associates #59
Limited Partnership, dated September 9, 1998.
(4) Assignment of Tenant Leases and Security Deposits between
Greenbrier Associates and Graoch Associates #59 Limited
Partnership, dated September 9, 1998.
(5) Assignment and Assumption of Contracts by and between Greenbrier
Associates and Graoch Associates #59 Limited Partnership, dated
September 9, 1998.
(6) Seller's Closing Statement between Greenbrier Associates and
Graoch Associates #59 Limited Partnership, dated September 10,
1998.
<PAGE>
FORM 8-K
CURRENT REPORT
PAINE WEBBER INCOME PROPERTIES FIVE LIMITED PARTNERSHIP
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
PAINE WEBBER INCOME PROPERTIES FIVE LIMITED PARTNERSHIP
(Registrant)
By: FIFTH INCOME PROPERTIES FUND, INC.
----------------------------------
(Managing General Partner)
By: /s/ Walter V. Arnold
--------------------
Walter V. Arnold
Senior Vice President and
Chief Financial Officer
Date: September 25, 1998
<PAGE>
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
GREENBRIER ASSOCIATES ("SELLER")
AND
GRAOCH ASSOCIATES #59 LIMITED PARTNERSHIP ("BUYER")
THE GREENBRIER APARTMENTS
INDIANAPOLIS, INDIANA
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1..................................................................1
DEFINITIONS..........................................................1
ARTICLE 2..................................................................4
PURCHASE AND SALE....................................................4
ARTICLE 3..................................................................5
PURCHASE PRICE; DEPOSIT; ADJUSTMENTS.................................5
ARTICLE 4..................................................................7
PRECLOSING OPERATION.................................................7
ARTICLE 5..................................................................9
ACCESS, INSPECTION, DILIGENCE........................................9
ARTICLE 6..................................................................13
TITLE AND SURVEY.....................................................14
ARTICLE 7..................................................................15
CONDITIONS PRECEDENT AND CLOSING.....................................15
ARTICLE 8..................................................................18
CASUALTY AND CONDEMNATION............................................18
ARTICLE 9..................................................................19
BROKERAGE COMMISSIONS................................................19
ARTICLE 10.................................................................20
DEFAULT, TERMINATION AND REMEDIES....................................20
ARTICLE 11.................................................................21
REPRESENTATIONS AND WARRANTIES.......................................21
ARTICLE 12.................................................................26
MISCELLANEOUS........................................................26
ARTICLE 13.................................................................30
IRS FORM 1099-S DESIGNATION..........................................30
ARTICLE 14.................................................................30
STATE SPECIFIC REQUIREMENTS..........................................30
<PAGE>
LIST OF EXHIBITS
EXHIBIT A - THE LAND
EXHIBIT B - PERSONAL PROPERTY
EXHIBIT C - PROPERTY CONTRACTS
EXHIBIT D - EARNEST MONEY ESCROW INSTRUCTIONS
EXHIBIT E - RENT ROLL
EXHIBIT F - FORM OF ESCROW CLOSING INSTRUCTIONS
EXHIBIT G - LEAD-BASED PAINT DISCLOSURE
EXHIBIT H - FORM OF WARRANTY DEED
EXHIBIT I - FORM OF BILL OF SALE
EXHIBIT J - FORM OF ASSIGNMENT OF LEASES
EXHIBIT K - FORM OF ASSIGNMENT OF CONTRACTS
<PAGE>
PURCHASE AND SALE AGREEMENT
Greenbrier Apartments
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is entered into as of
the 1st day of June, 1998 by and between Seller and Buyer, upon the following
terms and conditions:
WHEREAS, Seller desires to sell and Buyer desires to purchase, the
Property (hereinafter defined) on the terms and conditions hereinafter set
forth;
NOW THEREFORE, in consideration of the mutual undertakings, covenants and
agreements contained herein, and other good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE 1
DEFINITIONS
References in this Agreement to the following terms shall have the
following meanings:
Buyer: Graoch Associates #59 Limited Partnership, a
- ------ Washington limited partnership
Deposit: See Section 3.1
- -------
Documents: All books, records, plans, studies, site analyses,
- --------- certificates of occupancy, property tax information,
permits, existing title insurance policies, schedule
of insurance claims during the last five years,
existing surveys, existing zoning analyses, existing
engineering reports, existing code compliance reports,
building specifications, Property Contracts, Leases,
agreements or other instruments or documents contained
in Seller's files relating to the construction,
operation and maintenance of the Property in each
case, to the extent the same are in Seller's
possession or control. Without limiting the
foregoing, the term "Documents" shall include the
following items to the extent the same are in Seller's
possession or control: (i) operating statements for
the Property for each of the past five years
("Operating Statements"), which shall be updated
monthly through Closing, (ii) any federal income tax
returns for Greenbrier Associates filed with respect
to the past five years (the "Tax Returns") and (iii)
Rent Rolls for the Property for each of the past five
years.
Dollars: All references herein to dollar amounts are to United
- ------- States Dollars.
Environmental
Requirements: All laws, ordinances, statutes, codes, rules,
- ------------ regulations, agreements, judgments, orders and decrees
now or hereafter enacted, promulgated, or amended, of
the United States, the states, the counties, the
cities or any other political subdivisions in which
the Real Property is located and any other political
subdivision, agency or instrumentality exercising
jurisdiction over the owner of the Real Property, the
Real Property or the use of the Real Property relating
to pollution, the protection or regulation of human
health, natural resources or the environment, or the
emission, discharge, release or threatened release of
pollutants, contaminants, chemicals or industrial,
toxic or hazardous substances or waste or Hazardous
Materials into the environment (including, without
limitation, ambient air, surface water, ground water
or land or soil).
Escrowed Amount: See Section 3.1
- ---------------
EST: Eastern Standard Time.
- ---
Hazardous Substances: Any substance which is or contains: (i) any
- -------------------- "hazardous substance" as now or hereafter defined in
Section 101(14) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as
amended (42 U.S.C. Section 9601 et seq.) or any
regulations promulgated under CERCLA; (ii) any
"hazardous waste" as now or hereafter defined in the
Recourse Conservation and Recovery Act (42 U.S.C.
Section 6901 et seq.) or regulations promulgated under
RCRA; (iii) any substance regulated by the Toxic
Substances Control Act (15 U.S.C. Section 2601
et. seq.); (iv) gasoline, diesel fuel or other
petroleum hydrocarbons; (v) asbestos and asbestos
containing materials, in any form, whether friable or
nonfriable; (vi) polychlorinated biphenyls;
(vii) radon gas; and (viii) any additional substances
or materials which are now or hereafter classified or
considered to be hazardous or toxic under
Environmental Requirements or the common law, or any
other applicable law related to the Property.
Hazardous Materials shall include, without limitation,
any substance, the presence of which on the Real
Property: (A) requires reporting, investigation or
remediation under Environmental Requirements;
(B) causes or threatens to cause a nuisance on the Real
Property or adjacent property or poses or threatens to
pose a hazard to the health or safety of persons on
the Real Property or adjacent property; or (C) if
emanated or migrated from the Real Property, could
constitute a trespass.
Improvements: All buildings, structures and other improvements
- ------------ situated upon the Land and all fixtures, systems and
facilities owned by Seller and located on the Land.
Intangible Property: All of Seller's right, title and interest, if
- ------------------- any, in all intangible assets of any nature relating
to the Land, the Improvements or the Personal
Property, including, without limitation, all of
Seller's right, title and interest in all
(i) warranties and guaranties relating to the
Improvements or Personal Property in the possession of
Seller, (ii) all licenses, permits and approvals
relating to the Real Property, (iii) all logos and
trade names currently used by Seller exclusively in
the operation of the Land and Improvements, including
the use of the name "Greenbrier Apartments", and
(iv) all plans and specifications, in each case to the
extent that Seller may legally transfer the same.
Land: All of the land described on Exhibit A attached
- ---- hereto, together with all privileges, rights,
easements, and appurtenances belonging to such land
and all right, title and interest (if any) of Seller
in and to any streets, alleys, passages, and other
rights-of-way or appurtenances included in, adjacent
to or used in connection with such land and all right,
title and interest (if any) of Seller in all mineral
and development rights appurtenant to such land.
Leases: All of Seller's rights in all leases and other
- ------ occupancy agreements covering any portion of the Land
or Improvements.
Personal Property: All furniture, carpeting, appliances, equipment,
- ----------------- machinery, inventories, supplies, signs and other
tangible personal property of every kind and nature,
if any, owned by Seller and installed, located at and
used in connection with the ownership, occupation and
operation of the Real Property, including, without
limitation, the Personal Property listed on Exhibit B
attached hereto. Personal Property specifically
excludes: (i) any items of personal property owned by
tenants at or on the Real Property, and (ii) any items
of personal property owned by third parties and leased
to Seller.
Property: The Real Property, the Personal Property, the Leases,
- -------- the Tenant Deposits, the Intangible Property and the
Property Contracts known as the Greenbrier Apartments,
located at 205 East Hanna Avenue, Indianapolis,
Indiana.
Property Contracts: All of Seller's rights, if any, in the contracts
- ------------------ listed on Exhibit C attached hereto, being all
service, supply and equipment rental, management,
operating and leasing contracts affecting the
Property, to the extent that (i) Seller is entitled to
transfer the same to Buyer, and (ii) Buyer does not
elect to have Seller terminate them in accordance with
Section 4.3 below.
Purchase Price: $11,850,000.00.
- --------------
Real Property: The Land and the Improvements.
- -------------
Seller: Greenbrier Associates, an Indiana general partnership
- ------
Tenant Deposits: Seller's rights to unapplied security deposits under
- --------------- the Leases.
Title Company: Chicago Title Insurance Company.
- -------------
ARTICLE 2
PURCHASE AND SALE
2.1 Seller hereby agrees to sell and convey the Property to Buyer and
Buyer hereby agrees to buy the Property from Seller for the Purchase Price and
otherwise subject to the covenants, provisions, terms and conditions contained
herein.
ARTICLE 3
PURCHASE PRICE; DEPOSIT; ADJUSTMENTS
3.1 Deposit. Within two (2) business days after the execution and delivery
of this Agreement (and as a condition precedent to the effectiveness of this
Agreement), Buyer shall deposit with the Title Company (hereinafter the "Escrow
Agent") the sum of One Hundred Fifty Thousand Dollars ($150,000.00) in
immediately available funds (the "Initial Deposit") to secure Buyer's
obligations under this Agreement. Unless Buyer shall have terminated this
Agreement prior to the "Diligence Date" (defined below) pursuant to Section 5.2,
not later than 5:00 p.m. EST on the second (2nd) business day after the
Diligence Date, Buyer shall deposit with the Escrow Agent an additional One
Hundred Fifty Thousand Dollars ($150,000.00) in immediately available funds (the
"Additional Deposit") to further secure Buyer's obligations under this
Agreement. The Escrow Agent shall hold the Initial Deposit, the Additional
Deposit and any "Extension Deposits" (defined below) that may be paid pursuant
to Article 5 hereof in a segregated interest bearing money market account with
an FDIC insured bank reasonably acceptable to Buyer and Seller. The Deposit, the
Additional Deposit, any Extension Deposits and all interest accrued on thereon
(collectively, the "Escrowed Amount") shall be maintained by the Escrow Agent in
such account or accounts until the Escrow Agent is required to cause the
Escrowed Amount to be disbursed pursuant to the terms and conditions of this
Agreement and the Earnest Money Escrow Instructions attached hereto as Exhibit
D. The Escrowed Amount shall be applied to the Purchase Price if the Closing
occurs.
3.2 Purchase Price. The Purchase Price, subject to adjustment as provided
herein, shall be as specified in Article 1 above and shall be paid on the
Closing Date (as hereinafter defined) in United States dollars by wire transfer
of federal funds, less the Escrowed Amount (the "Cash Balance").
3.3 Tax Proration. All due and payable real estate taxes, all general and
special assessments on the Land and ad valorem taxes, if any, on the Personal
Property (based on the most recent ascertainable taxes) attributable to the
Property through the Closing Date shall be prorated and adjusted as of the
Closing Date. Without limiting the generality of the foregoing, such taxes
assessed for 1998 (even if not due until 1999) shall be prorated as of the
Closing Date, and taxes assessed for 1997 (even if payable in 1998), to the
extent not already due and payable and paid by Seller, shall be credited to
Buyer at Closing. In no event shall Seller be charged with or be responsible for
any increase in the taxes on the Property resulting from the sale of the
Property or from any improvements made or leases entered into on or after the
Closing Date. If the tax statements for the fiscal year during which the Closing
Date occurs are not finally determined, then the tax figures for the immediately
prior fiscal year multiplied by 105% shall be used for the purposes of prorating
taxes on the Closing Date, provided that there shall be no further adjustment to
be made after the Closing Date unless the taxes for the fiscal year during which
the Closing Date occurs as finally determined are less than 105% of the taxes
for the immediately preceding fiscal year, in which case Buyer shall promptly
refund to Seller the amount by which the tax figures for the immediately
preceding fiscal year multiplied by 105% and prorated as of the Closing Date
exceed the greater of (i) the taxes for the fiscal year during which the Closing
Date occurs as finally determined, prorated as of the Closing Date or (ii) the
tax figures for the immediately preceding fiscal year, prorated as of the
Closing Date. Any tax refunds or proceeds (including interest thereon) on
account of a favorable determination resulting from a challenge, protest, appeal
or similar proceeding relating to taxes and assessments relating to the Property
(i) for all tax periods occurring prior to the applicable tax period in which
the Closing occurs shall be retained by and paid exclusively to Seller and (ii)
for the applicable tax period in which the Closing occurs shall be prorated as
of the Closing Date after reimbursement to Seller and Buyer, as applicable, for
all fees, costs and expenses (including reasonable attorneys' and consultants'
fees) incurred by Seller or Buyer, as applicable, in connection with such
proceedings such that Seller shall retain and be paid that portion of such tax
refunds or proceeds as is applicable to the portion of the applicable tax period
prior to the Closing Date and Buyer shall retain and be paid that portion of
such tax refunds or proceeds as is applicable to the portion of the applicable
tax period from and after the Closing Date. Neither Seller nor Buyer shall
settle any tax protests or proceedings in which taxes for the tax period for
which the other party is responsible are being adjudicated without the consent
of such party, which consent shall not be unreasonably withheld, conditioned or
delayed. After the Closing, Buyer shall be responsible for and control any tax
protests or proceedings for any period for which taxes are adjusted between the
parties under this Agreement and for any later period. Buyer and Seller shall
cooperate in pursuit of any such proceedings and in responding to reasonable
requests of the other for information concerning the status of and otherwise
relating to such proceedings; provided, however, that neither party shall be
obligated to incur any out-of-pocket fees, costs or expenses in responding to
the requests of the other.
3.4 Contract Proration. To the extent Property Contracts are not
terminated pursuant to Section 4.3, prepaid or past due amounts under any
Property Contracts which are assigned to Buyer at Closing shall be prorated and
adjusted as of the Closing Date.
3.5 Utility Proration. To the extent reasonably feasible, the Seller shall
cause all meters for electricity, gas, water, sewer or other public utility
usage at the Property to be read as of the day immediately preceding the Closing
Date, and the Seller shall pay all charges for such utilities which have accrued
on or prior to the Closing Date; provided, however, that if and to the extent
such charges are paid directly by tenants, no such reading or payment shall be
required. If the utility companies are unable or refuse to read meters for which
payment by the Seller is required, all charges for such utilities to the extent
unpaid shall be prorated and adjusted as of the Closing Date based on the most
recent bills therefor and no further adjustment shall be made. The Seller shall
provide notice to the Buyer within five (5) days of the Closing Date setting
forth (i) whether utility meters will be read as of the Closing Date and (ii) a
copy of the most recent bill for any utility charges which are to be prorated
and adjusted as of the Closing Date.
3.6 Income and Expense Proration. Collected rents for the then current and
any future period, security deposits which have not been previously applied by
Seller, prepaid rentals, and all expenses and other charges in connection with
the operation of the Property shall be apportioned and full value shall be
adjusted as of the Closing Date, and the net amount thereof, if in favor of
Seller, shall be credited to Seller at Closing, or if in favor of Buyer, shall
be credited to Buyer at Closing. From and after Closing all security deposits
credited to Buyer shall thereafter be deemed transferred to Buyer and Buyer
shall assume and be solely responsible for the payments of security deposits to
tenants in accordance with the Leases and applicable law. Seller shall be
entitled to retain or if transferred to Buyer receive a credit for any utility
deposits and any deposits for third parties under any of the Property Contracts.
Buyer shall be credited with the actual value of all rent concessions, rent
reductions, rental inducements and similar benefits to tenants that relate to,
or in any way affect income during, periods after Closing. All rents and other
sums received by Buyer on or after the Closing Date shall be applied first to
rent and other obligations accrued or due on or after the Closing Date, then to
Buyer's reasonable, out-of-pocket, third-party costs of collection, if any,
including attorneys' fees, and finally any excess paid by tenants for rent or
other obligations owed prior to the Closing Date shall be paid to Seller. Buyer
shall use reasonable efforts to collect uncollected and past due rents, if any,
for Seller's account. Buyer's obligation to collect and pay to Seller
uncollected or past due rents as provided above shall survive Closing.
3.7 Prorations Generally. A statement of prorations and other adjustments
shall be prepared by Seller in conformity with the provisions of this Article 3
and submitted to Buyer for review and approval not less than two (2) business
days prior to the Closing Date. For purposes of making prorations, Seller shall
be deemed to be in title to the Property and entitled to the income from and
responsible for the expenses thereof, on the Closing Date.
3.8 Closing Costs.
3.8(a) Seller shall pay: (i) its legal fees and expenses related to
the negotiation and preparation of this Agreement and all documents
required to close the transaction contemplated hereby, and (ii) 50% of the
escrow fees of the Escrow Agent.
3.8(b) Buyer shall pay: (i) 50% of the escrow fees of the Escrow
Agent, (ii) charges to record the deed, and evidence of Buyer's existence
or authority, (iii) Buyer's legal fees and expenses related to the
negotiation of this Agreement and all documents required to close the
transaction contemplated hereby, (iv) all costs related to the Buyer's
inspection and due diligence, including, without limitation, the cost of
appraisals, architectural, engineering, credit and environmental reports,
(v) all costs associated with title examination and preparation of a title
commitment as well as all charges and premiums for an owner's title
policy, (vi) all costs allocable to preparation of the survey, and (vii)
all state, county or other taxes associated with the transfer of the
property.
3.8(c) All other closing costs shall be paid by Seller or Buyer in
accordance with the custom in the jurisdiction where the Property is
located.
ARTICLE 4
PRECLOSING OPERATION
4.1 Leases. A rent roll (the "Rent Roll" containing a list of all
occupants of the Property pursuant to the Leases as of the date hereof
(including a security deposit schedule and a delinquency report) is attached
hereto as Exhibit E. Seller shall cause its property manager for the Property to
provide Buyer with updated Rent Rolls monthly through the Closing. During the
pendency of this Agreement, Seller may enter into Leases with new tenants or
modifications of Leases with existing tenants substantially in accordance with
Seller's existing leasing practices, provided that in all events any new or
modified Leases shall (i) be at or near market rent, (ii) be for a term of not
more than one (1) year (with respect to residential Leases only), and (iii) on
the Seller's current standard form of lease. Notwithstanding the foregoing,
Seller agrees to obtain Buyer's prior written consent to any Leases that provide
for a term in excess of one (1) year, which consent Buyer agrees shall not be
unreasonably withheld, and Buyer's consent shall be deemed to have been granted
if Buyer has not responded within five (5) Business Days following the
submission of a proposed Lease to Buyer for approval.
4.2 Conduct of Business. At all times prior to Closing, Seller shall
continue (a) to conduct business with respect to the Property in the same manner
in which said business has been heretofore conducted, (b) to insure the Property
substantially as currently insured, and (c) maintain the Property in its current
condition, reasonable wear and tear and damage by casualty excepted. Without
limiting the foregoing, at Closing, any vacant residential units shall be in a
clean, rent-ready condition, reasonable wear and tear excepted and subject to
Article 8 below. Between the date hereof and Closing, Seller shall not apply any
security deposits held under Leases to any delinquent or unpaid rent, except for
rent owed by those tenants that have failed to pay rent for a period of at least
two months prior to the Closing Date.
4.3 Property Contracts. Seller shall make copies of all Property Contracts
available for Buyer to review within five (5) days after the date hereof. On or
before the Diligence Date (as defined below), unless Buyer has provided written
notice to Seller of Buyer's election to terminate this Agreement, Buyer shall
provide written notice to Seller of the Property Contracts that Buyer desires to
have terminated by Seller, and Seller will terminate the Property Contracts so
identified at or before Closing, provided that such Property Contracts may be
terminated without cost or liability to Seller and if there is cost or liability
to Seller, Buyer shall be responsible for any such liability. At Closing, Seller
shall assign and Buyer shall assume the Property Contracts, except those
Property Contracts which Seller has agreed to terminate. Buyer and Seller shall
indemnify, defend and hold the other harmless from and against any and all
claims under the Property Contracts which relate to its respective period of
ownership. Notwithstanding the foregoing, Seller's existing management contract,
any employment arrangements with employees providing services at the Property,
and exclusive brokerage contract for the Property shall be terminated by Seller
effective as of the Closing Date at no cost to Buyer. Seller shall not, during
the pendency of this Agreement, enter into any Property Contracts or
modifications, renewals or terminations of any existing Property Contracts, in
each case that would be binding upon Buyer or the Property after Closing,
without the written consent of Buyer, which consent Buyer agrees shall not be
unreasonably withheld. If Buyer disapproves any such request, then Buyer's
notice shall specify the reasons for such disapproval.
ARTICLE 5
ACCESS, INSPECTION, DILIGENCE
5.1 Access/Purchaser's Responsibilities/Purchaser's Indemnity.
5.1(a) From the date hereof through the Closing, Seller agrees that
Buyer and its authorized agents or representatives shall be entitled to
enter upon the Real Property during normal business hours upon advance
written notice to Seller and make such reasonable, nondestructive
investigations, studies and tests including, without limitation, surveys
and engineering studies as Buyer deems necessary or advisable, provided,
however, that Buyer shall not be permitted to conduct physical testing
without Sellers' prior written consent, which consent shall not be
unreasonably withheld, conditioned or delayed. Without limiting the
foregoing, Buyer shall have the right to interview Sellers' property
manager for the Property, provided that a representative of Seller shall
be present at any such interview. Seller's prior written consent for
physical inspections or testing may be conditioned upon receipt of a
detailed description of the proposed physical inspection or testing, a
list of contractors who will be performing the physical inspection or
testing, evidence of insurance satisfactory to Seller, and such other
information as Seller reasonably requires in connection with such proposed
inspection or testing. Seller also agrees to make all Documents available
to Buyer or Buyer's agents during normal business hours for review and
copying at Buyer's expense upon advance written notice to Seller from the
date hereof through the Closing.
5.1(b) Buyer agrees that in conducting any inspections,
investigations or tests of the Property and/or the Documents, Buyer and
its agents and representatives shall (i) not unreasonably interfere with
the operation and maintenance of the Property, (ii) not unreasonably
disturb the tenants under the Leases or unreasonably interfere with their
use of the Property pursuant to their respective Leases, (iii) not damage
any part of the Property or any personal property owned or held by any
tenant or third party, (iv) not injure of otherwise cause bodily harm to
Seller, the property manager, or their respective guests, agents,
invitees, contractors ad employees or any tenant or their guests or
invitees, (v) maintain comprehensive general liability insurance in terms
and amounts which are consistent with industry standards covering any
accident arising in connection with the presence of Buyer, its agents and
representatives on the Property; (vi) promptly pay when due the costs of
all tests, investigations and examinations done with regard to the
Property; (vii) not permit any liens to attach to the Real Property by
reason of the exercise of Buyer's rights hereunder, (viii) fully restore
the Property to the condition in which the same was found before any such
inspection or tests were undertaken (to the extent any changes in such
condition were caused by such inspections or tests); and (ix) not reveal
or disclose any information obtained during the due diligence period
concerning the Property and the Documents to anyone outside Buyer's
organization, except in accordance with the confidentiality standards set
forth in Section 5.4 herein.
5.1(c) Buyer will indemnify, defend, and hold Seller and its
property manager harmless from all losses, costs, liens, claims, causes of
action, liability, damages and out-of pocket expenses, including, without
limitation, reasonable attorneys' fees incurred by Seller as a result of
the entry upon or inspections, tests or investigations of the Property
conducted by or on behalf of Buyer. This indemnity obligation of Buyer
shall survive the termination of this Agreement for any reason.
5.1(d) Buyer acknowledges and agrees that except as expressly set
forth in this Agreement, the Documents are provided to Buyer for
informational purposes only and do not constitute representations or
warranties of Seller or its agents, employees or representatives of any
kind as to the truth, accuracy or completeness of the Documents or the
source(s) thereof. Except as expressly set forth in this Agreement, Seller
has not undertaken any independent investigation as to the truth, accuracy
or completeness of the Documents, and is providing the Documents solely as
an accommodation to Buyer.
5.2 Diligence. Subject to Section 5.1, above, Buyer shall have the right
to commence and pursue the following due diligence items:
5.2(a) Review title and survey matters;
5.2(b) Review Property Contracts;
5.2(c) Obtain and review engineering reports;
5.2(d) Obtain and review environmental reports on oil,
hazardous waste, and asbestos;
5.2(e) Review applicable zoning and other land use controls, and
other permits, licenses, permissions, approvals and consents;
5.2(f) Review all Leases affecting the Property; and
5.2(g) All Documents and other matters referenced in Section 5.1
above.
Buyer shall complete its due diligence on or before the date which is
thirty (30) days from the date hereof (the "Diligence Date"). Notwithstanding
any other term or provision herein to the contrary, in the event that Buyer's
due diligence shall reveal any matters which are not acceptable to Buyer, in
Buyer's sole discretion, Buyer may elect, by written notice to Seller, received
by Seller no later than 5:00 p.m. EST on the Diligence Date, not to proceed with
this purchase, in which event this Agreement shall terminate, the Escrow Agent
shall return the Escrowed Amount to the Buyer and this Agreement shall be null
and void without recourse to either party hereto (except to the extent such
recourse arises in connection with a provision of this Agreement which is
intended to survive termination). Unless Buyer terminates this Agreement before
5:00 p.m. EST on the Diligence Date as provided above, the Initial Deposit and
the Additional Deposit shall be nonrefundable on that date, except with respect
to any breach of this Agreement by Seller or failure of any condition to Buyer's
obligations hereunder.
BUYER ACKNOWLEDGES THAT, PURSUANT TO THE TERMS OF THIS AGREEMENT, BUYER
SHALL BE AFFORDED A FULL OPPORTUNITY TO INSPECT THE PROPERTY, OBSERVE ITS
PHYSICAL CHARACTERISTICS AND EXISTING CONDITIONS AND CONDUCT SUCH INVESTIGATIONS
AND STUDIES ON AND OF SAID PROPERTY AS IT DEEMS NECESSARY AND THAT, UNLESS BUYER
TERMINATES THIS AGREEMENT PURSUANT TO THIS SECTION 5.2 BUYER SHALL BE DEEMED TO
HAVE WAIVED ON THE DILIGENCE DATE ANY AND ALL OBJECTIONS TO OR COMPLAINTS
REGARDING (INCLUDING, BUT NOT LIMITED TO, FEDERAL, STATE OF COMMON LAW BASED
ACTIONS AND ANY PRIVATE RIGHT OF ACTION UNDER STATE AND FEDERAL LAW TO WHICH THE
PROPERTY IS OR MAY BE SUBJECT, INCLUDING BUT NOT LIMITED TO, CERCLA AND RCRA)
PHYSICAL CHARACTERISTICS AND EXISTING CONDITIONS, INCLUDING, WITHOUT LIMITATION,
STRUCTURAL AND GEOLOGIC CONDITIONS, SUBSURFACE SOIL AND WATER CONDITIONS AND
SOLID AND HAZARDOUS WASTE AND HAZARDOUS SUBSTANCES ON, UNDER, ADJACENT TO OR
OTHERWISE AFFECTING THE PROPERTY. BUYER FURTHER HEREBY ASSUMES THE RISK OF
CHANGES IN APPLICABLE LAWS AND REGULATIONS RELATING TO PAST, PRESENT AND FUTURE
ENVIRONMENTAL CONDITIONS ON THE PROPERTY AND THE RISK THAT ADVERSE PHYSICAL
CHARACTERISTICS AND CONDITIONS, INCLUDING, WITHOUT LIMITATION, THE PRESENCE OF
HAZARDOUS SUBSTANCES OR OTHER CONTAMINANTS, MAY NOT HAVE BEEN REVEALED BY ITS
INVESTIGATION.
5.3 Copies of Reports/Return of Documents. If this Agreement is terminated
for any reason whatsoever, Buyer shall promptly deliver to Seller all Documents
delivered to Buyer or Buyer's agents, representatives or designees by Seller or
Sellers' agents, representatives or employees pursuant to this Agreement, and
copies of any and all reports, tests or studies involving structural or geologic
conditions, environmental, hazardous waste or Hazardous Substances contamination
of the Property to the extent the same are in Buyer's possession or control.
5.4 Confidentiality. Buyer acknowledges and agrees that any and all of the
Documents are proprietary and confidential in nature and will be delivered to
Buyer solely to assist Buyer in determining the feasibility of purchasing the
Property. Further, each party hereto agrees to maintain in confidence, and not
to discuss with or to disclose to any person or entity who is not a party to
this Agreement, any material term of this Agreement or any aspect of the
transactions contemplated hereby, except as provided in this Section. Seller may
publicly disclose the existence of this Agreement provided that the identity of
Buyer is not disclosed. Buyer shall not disclose to anyone other than its
partners and financiers the Documents and/or any information disclosed by Seller
to Buyer which is not generally known by the public regarding Sellers'
operations and/or the Property. Each party hereto may discuss with and disclose
to its accountants, attorneys, existing or prospective lenders, investment
bankers, underwriters, rating agencies, partners, consultants and other advisors
to the extent such parties reasonably need to know such information and are
bound by a confidentiality obligation identical in all material respects to the
one created by this Section. Additionally, each party may discuss and disclose
such matters to the extent necessary to comply with any requirements of the
Securities and Exchange Commission or in order to comply with any law or
interpretation thereof or court order. This provision shall survive termination
of this Agreement but shall terminate upon the Closing. Any press release to be
made regarding any matter which is the subject of the confidentiality obligation
created in this Section shall be subject to the reasonable approval of Buyer and
the Seller, respectively both as to timing and content.
5.5 Buyer's Acknowledgment. SUBJECT TO SELLER'S REPRESENTATIONS AND
WARRANTIES SET FORTH IN SECTION 11.2, BUYER ACKNOWLEDGES THAT AS OF THE
DILIGENCE DATE IT HAS HAD AN OPPORTUNITY TO CONDUCT DILIGENCE ON THE PROPERTY
AND IS ACQUIRING THE PROPERTY IN ITS CURRENT CONDITION BASED ON ITS DILIGENCE.
SUBJECT TO SELLER'S REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 11.2,
BUYER FURTHER ACKNOWLEDGES THAT NEITHER SELLER NOR ITS EMPLOYEES, AGENTS OR
REPRESENTATIVES HAVE MADE ANY REPRESENTATION OR WARRANTY AS TO THE CONDITION OF
THE PROPERTY OR THE PRESENCE OR ABSENCE OF ANY HAZARDOUS MATERIALS ON, IN, UNDER
OR WITHIN THE PROPERTY OR A PORTION THEREOF WHICH SURVIVE CLOSING HEREUNDER.
SUBJECT TO SELLER'S REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 11.2,
THE BUYER ACKNOWLEDGES AND AGREES THAT THE PROPERTY IS TO BE CONVEYED BY THE
SELLER TO THE BUYER "AS IS," "WITH ALL FAULTS," AND SUBSTANTIALLY IN ITS CURRENT
CONDITION. THE BUYER FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY
CONTAINED HEREIN, NEITHER THE SELLER NOR ANY AGENT, EMPLOYEE OR OTHER
REPRESENTATIVE OF THE SELLER (OR PURPORTED AGENT, EMPLOYEE OR OTHER
REPRESENTATIVE OF THE SELLER) HAS MADE ANY GUARANTEE, REPRESENTATION OR
WARRANTY, EXPRESS OR IMPLIED (AND THE SELLER SHALL NOT HAVE ANY LIABILITY
WHATSOEVER) AS TO THE VALUE, USES, HABITABILITY, CONDITION, DESIGN, OPERATION,
FINANCIAL CONDITION OR PROSPECTS, OR FITNESS FOR PURPOSE OR USE OF THE PROPERTY
(OR ANY PART THEREOF) OR ANY OTHER GUARANTEE, REPRESENTATION OR WARRANTY
WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY (OR ANY PART
THEREOF) OR INFORMATION SUPPLIED TO BUYER WITH RESPECT THERETO. FURTHER, EXCEPT
AS EXPRESSLY SET FORTH HEREIN, THE SELLER SHALL HAVE NO LIABILITY FOR ANY
LATENT, HIDDEN, OR PATENT DEFECT AS TO THE PROPERTY OR THE FAILURE OF THE
PROPERTY, OR ANY PART THEREOF, TO COMPLY WITH ANY APPLICABLE LAWS AND
REGULATIONS. IN PARTICULAR, THE BUYER ACKNOWLEDGES AND AGREES THAT EXCEPT AS
EXPRESSLY SET FORTH HEREIN, ANY INFORMATION PROVIDED TO BUYER BY SELLER WITH
RESPECT TO THE PROPERTY UNDER THIS AGREEMENT (AND ANY OTHER INFORMATION THE
BUYER MAY HAVE OBTAINED REGARDING IN ANY WAY ANY OF THE PROPERTY, INCLUDING
WITHOUT LIMITATION, ITS OPERATIONS OR ITS FINANCIAL HISTORY OR PROSPECTS FROM
THE SELLER OR ITS AGENTS, EMPLOYEES OR OTHER REPRESENTATIVES) IS DELIVERED TO
THE BUYER AS A COURTESY, WITHOUT REPRESENTATION OR WARRANTY AS TO ITS ACCURACY
OR COMPLETENESS, AND NOT AS AN INDUCEMENT TO ACQUIRE THE PROPERTY; THAT NOTHING
CONTAINED IN SUCH DELIVERIES SHALL CONSTITUTE OR BE DEEMED TO BE A GUARANTEE,
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, IN ANY REGARD AS TO ANY OF THE
PROPERTY (EXCEPT AS EXPRESSLY PROVIDED HEREIN); AND THAT THE BUYER IS RELYING
ONLY UPON THE PROVISIONS OF THIS AGREEMENT AND ITS OWN INDEPENDENT ASSESSMENT OF
THE PROPERTY AND ITS PROSPECTS IN DETERMINING WHETHER TO ACQUIRE THE PROPERTY.
THE PROVISIONS OF THIS PARAGRAPH SHALL SURVIVE CLOSING.
5.6 Buyer's Release of Seller. SELLER AND ITS PROPERTY MANAGER ARE HEREBY
RELEASED FROM ALL RESPONSIBILITY AND LIABILITY REGARDING THE CONDITION
(INCLUDING THE PRESENCE IN THE SOIL, AIR, STRUCTURES AND SURFACE AND SUBSURFACE
WATERS, OF MATERIALS OR SUBSTANCES THAT HAVE BEEN OR MAY BE IN THE FUTURE
DETERMINED TO BE TOXIC, HAZARDOUS, UNDESIRABLE OR SUBJECT TO REGULATION AND THAT
MAY NEED TO BE SPECIALLY TREATED, HANDLED AND/OR REMOVED FROM THE PROPERTY UNDER
CURRENT OR FUTURE FEDERAL, STATE AND LOCAL LAWS, REGULATIONS OR GUIDELINES),
VALUATION, SALABILITY OR UTILITY OF THE PROPERTY, OR ITS SUITABILITY FOR ANY
PURPOSE WHATSOEVER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, BUYER ACKNOWLEDGES
THAT ANY INFORMATION OF ANY TYPE WHICH BUYER HAS RECEIVED OR MAY RECEIVE FROM
SELLER, ITS PROPERTY MANAGER OR THEIR RESPECTIVE AGENTS, INCLUDING, WITHOUT
LIMITATION, ANY ENVIRONMENTAL REPORTS AND SURVEYS, IS FURNISHED ON THE EXPRESS
CONDITION THAT BUYER SHALL MAKE AN INDEPENDENT VERIFICATION OF THE ACCURACY OF
SUCH INFORMATION, ALL SUCH INFORMATION BEING FURNISHED WITHOUT ANY WARRANTY
WHATSOEVER.
ARTICLE 6
TITLE AND SURVEY
6.1 Title and Survey. Following the execution of this Agreement, Buyer
shall have the right to obtain:
6.1(a) A current ALTA as-built survey of the Real Property or an
update of Sellers' survey (the "Survey"); and
6.1(b) A commitment for an ALTA Owner's Policy of Title Insurance
from the Escrow Agent (the "Title Commitment"). Buyer shall cause a copy
of the completed Title Commitment to be forwarded to Seller.
If the Survey or matters listed as exceptions in the Title Commitment are
not satisfactory to Buyer, Buyer shall, three (3) business days before the
Diligence Date, provide Seller with written notice of such objections (the
"Title Objections"). Notwithstanding the foregoing or any other provision to the
contrary herein, provided that, within two (2) business days of the date of this
Agreement, Buyer commences diligent efforts to obtain the Survey and thereafter
uses all reasonable efforts to obtain the Survey as soon as practicable, if
Seller has not received the Survey by June 12, 1998, Buyer shall have the right
to make Title Objections until the later of (i) July 3, 1998 or (ii) the seventh
(7th) day after the date on which Seller receives the Survey but, in any event,
not later than July 10, 1998. Seller, at its sole cost and expense shall have
the right, but not the obligation, to cure or remove any Title Objections and
shall give Buyer written notice on or prior to 1:00 p.m. EST on the Diligence
Date or, if later, by 5:00 p.m. EST on the second business day after the day on
which Seller receives any Title Objections timely made by Buyer pursuant to the
preceding sentence ("Seller's Response Date"), identifying those Title
Objections, if any, that Seller agrees to use reasonable efforts to cure;
provided, however, that Seller shall not be obligated to incur any costs or
expenses in excess of $10,000 in connection with any such cure undertaken by
Seller. If there are Title Objections which Seller is unable or unwilling to
cure by the Seller's Response Date, Buyer may terminate this Agreement by
providing written notice to Seller within two business days after Seller's
Response Date, or waive such objections which Seller is not willing or able to
cure. Those exceptions or title deficiencies which (i) Buyer does not object to
pursuant to this Section 6.1 or (ii) are waived because Seller is unwilling or
unable to cure shall be "Permitted Exceptions."
Notwithstanding the foregoing, Seller, at Sellers' sole expense, shall
remove from title at Closing any and all liens voluntarily created by Seller
securing the payment of money and Seller shall remove from title, bond over or
insure against any other Title Objections which, on the face of the recorded
instrument, impose upon the owner of the Property an express obligation to pay
money. If Seller fails to remove, bond over or insure against any such exception
as described in the preceding sentence, Buyer may, as its sole and exclusive
remedy, terminate this Agreement and obtain a return of the Escrowed Amount.
6.2 Deed. On the Closing Date, Seller shall convey by good and sufficient
general warranty deed to Buyer good and clear record and marketable fee simple
title to all of the Real Property free and clear of all liens, encumbrances,
conditions, easements, assessments, restrictions and other conditions, except
for the following:
6.2(a) All Leases;
6.2(b) All zoning, building and other laws applicable to the
Property;
6.2(c) All matters which arise after the Diligence Date which are
agreed upon or consented to by Buyer;
6.2(d) The lien, if any, for real estate taxes for current year not
due and payable prior to the Closing Date (subject to proration in
accordance with Section 3.3 herein);
6.2(e) All matters shown on Schedule B of the Title Commitment or of
public record as of the effective date of the Title Commitment and which
Seller has not agreed to (or is not obligated to) cure pursuant to Section
6.1, above;
6.2(f) The Permitted Exceptions; and
6.2(g) All matters, whether or not of record, to the extent caused
by Buyer or its agents, representatives or contractors.
6.3 Lease Assignment. At the Closing, Seller shall assign the Leases to
Buyer and Buyer shall assume Sellers' obligations thereunder and Seller shall
convey the Personal Property to Buyer by quitclaim bill of sale.
ARTICLE 7
CONDITIONS PRECEDENT AND CLOSING
7.1 Buyer's Conditions Precedent. In addition to any other conditions
precedent in favor of Buyer as may be set forth elsewhere in this Agreement,
Buyer's obligations under this Agreement are expressly subject to the timely
fulfillment of the conditions set forth in this Section 7.1 on or before the
Closing Date, or such earlier date as is set forth below. Each condition may be
waived in whole or in part only by written notice of such waiver from Buyer to
Seller.
7.1(a) Seller performing and complying in all material respects with
all of the terms of this Agreement to be performed and complied with by
Seller prior to or at the Closing.
7.1(b) On the Closing Date, all of the representations and
warranties of Seller set forth herein shall continue to be true, accurate
and complete in all material respects.
7.2 Sellers' Conditions Precedent. In addition to any other conditions
precedent in favor of Seller as may be set forth elsewhere in this Agreement,
Sellers' obligations under this Agreement are expressly subject to the timely
fulfillment of the conditions set forth in this Section 7.2 on or before the
Closing Date, or such earlier date as is set forth below. Each condition may be
waived in whole or part only by written notice of such waiver from Seller to
Buyer.
7.2(a) Buyer performing and complying in all material respects with
all of the terms of this Agreement to be performed and complied with by
Buyer prior to or at the Closing, including, without limitation, payment
by the Buyer of the Purchase Price (as adjusted as otherwise provided
herein); and
7.2(b) On the Closing Date, all of the representations of Buyer set
forth in this Agreement shall continue to be true, accurate and complete.
7.3 Closing Date. Subject to the extension rights described below, the
consummation of the purchase and sale contemplated in this Agreement (the
"Closing") shall occur through an escrow closing arrangement as described in
Exhibit F attached hereto on the first business day thirty (30) days after the
Diligence Date (the "Closing Date") through the escrow closing arrangements set
forth in the Form of Escrow Closing Instructions attached hereto as Exhibit F.
It is agreed that time is of the essence in this Agreement. Notwithstanding the
foregoing, (i) Seller shall have the right, in its sole discretion, to extend
the Closing Date for up to thirty (30) days, by delivering written notice to
Buyer no later than ten (10) days before the then-current Closing Date, and (ii)
Buyer shall have the right, in its sole discretion, to extend the Closing Date
for up to thirty (30) days by (a) delivering written notice to Seller and (b)
depositing an additional $50,000.00 the ("Extension Deposit") with Escrow Agent
no later than ten (10) days before the then-current Closing Date.
7.4 Closing Deliveries. On the Closing Date, Seller shall deliver or
cause to be delivered:
7.4(a) A duly executed and acknowledged warranty deed conveying the
Land and the Improvements to Buyer in the form attached hereto as Exhibit
H;
7.4(b) A duly executed quitclaim bill of sale and general assignment
conveying the Personal Property and the Intangible Property to Buyer in
the form attached hereto as Exhibit I;
7.4(c) A duly executed assignment and assumption of the Leases and
Tenant Deposits (the "Assignment of Leases") in the form attached hereto
as Exhibit J;
7.4(d) A duly executed assignment and assumption of Property
Contracts being assumed (the "Assignment of Contracts") including an
indemnity pursuant to Section 4.3, in the form attached hereto as Exhibit
K;
7.4(e) A certificate or certificates of non-foreign status
from Seller;
7.4(f) Customary affidavits sufficient for the Escrow Agent to
delete any exceptions for mechanic's or materialmen's liens and parties in
possession from Buyer's title policy and such other affidavits relating to
such title policy as the Escrow Agent may reasonably request;
7.4(g) An updated Rent Roll (including a list if all delinquent and
prepaid rents) certified by the Seller as true and correct as of the
Closing Date;
7.4(h) Such other instruments as Buyer or the Escrow Agent may
reasonably request to effectuate the transactions contemplated by this
Agreement;
7.4(i) A duly executed counterpart original of the closing statement
setting forth the Purchase Price, the closing adjustments and the
application of the Purchase Price as adjusted;
7.4(j) Evidence or documents as may reasonably be required by the
Escrow Agent evidencing the status and capacity of Seller to sell the
Property and the authority of the person or persons executing the various
documents on behalf of Seller in connection with the sale of the Property;
7.4(k) Originals, or where unavailable, copies of all Property
Contracts, Leases (with all amendments and modifications thereto),
operating information, permits, warranties and financial information about
the Property in Sellers' possession or control relating to the Property;
and
7.4(l) All keys to all locks on the Property and similar items, to
the extent in Sellers' possession.
7.5 Buyer's Deliveries. On the Closing Date, Buyer shall deliver or cause
to be delivered at its expense each of the following to Seller:
7.5(a) The Purchase Price for the Property, as such Purchase Price
may have been adjusted pursuant to the provisions of this Agreement and
credited for any portion of the Escrowed Amount paid to Seller, in the
manner provided for in Article 3;
7.5(b) Evidence in form and substance reasonably satisfactory to
Escrow Agent and Seller of Buyer's authority to purchase the Property;
7.5(c) The Assignment of Leases;
7.5(d) The Assignment of Contracts;
7.5(e) Such other instruments as Seller or Escrow Agent may
reasonably request to effectuate the transactions contemplated by this
Agreement;
7.5(f) A duly executed counterpart original of the closing statement
setting forth the Purchase Price, the closing adjustments and the
application of such amounts;
7.5(g) Such evidence or documents as may reasonably be required by
the Escrow Agent evidencing the status and capacity of Buyer and the
authority of the person or persons who are executing the various documents
on behalf of Buyer in connection with the purchase of the Property;
7.5(h) Acknowledgment by Buyer of Buyer's receipt from Seller
of the Tenant Deposits; and
7.5(i) Executed counterparts of any other documents listed in
Section 7.4 required to be signed by Buyer.
7.6 Possession. Possession of the Property shall be delivered to Buyer by
Seller at the Closing, subject only to those items listed in Section 6.2 of this
Agreement and rights arising under any Property Contracts not terminated by
Buyer pursuant to Section 4.3. Seller and Buyer covenant and agree to execute,
at Closing, a written notice of the acquisition of the Property by Buyer, for
duplication and transmittal to all tenants affected by the sale and purchase of
the Property (or otherwise in such manner as will comply with applicable law
respecting notification of tenants). Such notice shall be prepared by Buyer and
approved by Seller, shall notify the tenants of the sale and transfer and shall
contain appropriate instructions relating to the payment of future rentals, the
giving of future notices, and other matters reasonably required by Buyer or
required by law. Unless a different procedure is required by applicable law, in
which event such laws shall be controlling, Buyer agrees to transmit or
otherwise deliver such letters to the tenants promptly after the Closing.
ARTICLE 8
CASUALTY AND CONDEMNATION
8.1 Casualty. If the Improvements are materially damaged by fire or any
other casualty and are not substantially restored to the condition immediately
prior to such casualty before the Closing Date, Buyer shall have the following
elections:
8.1(a) to purchase the Property in its then condition and pay the
Purchase Price, in which event Seller shall pay over or assign to Buyer as
the case may be, on the Closing Date, amounts recovered or recoverable by
Seller on account of any insurance as a result of such casualty up to the
amount of the Purchase Price, less any amounts reasonably expended by
Seller for partial restoration, plus fifty percent (50%) of the amount of
the deductible with respect to such casualty under such policy; or
8.1(b) if any portion of the Improvements suffers damage in excess
of $250,000.00 from fire or any other casualty which Seller, in its sole
option, elects not to repair, to terminate this Agreement by giving notice
of termination to Seller on or before that date which is thirty (30) days
after the occurrence of the fire or other casualty or on the Closing Date,
whichever occurs first, in which event the Escrow Agent shall return the
Escrowed Amount to Buyer, this Agreement shall terminate and neither
Seller nor Buyer shall have any recourse against the other (except to the
extent such recourse arises in connection with a provision of this
Agreement which is intended to survive termination).
8.2 Condemnation. If any substantial portion of or interest in the
Property shall be taken or is in the process of being taken by exercise of the
power of eminent domain or if any governmental authority notifies Seller prior
to the Closing Date of its intent to take or acquire any portion of or interest
in the Property (each an "Eminent Domain Taking"), Seller shall give notice
promptly to Buyer of such event and Buyer shall have the option to terminate
this Agreement by providing notice to Seller to such effect on or before the
date which is ten (10) days from Sellers' notice to Buyer of such Eminent Domain
Taking or on the Closing Date, whichever occurs first, in which event the Escrow
Agent shall return the Escrowed Amount to Buyer, this Agreement shall terminate,
and neither Seller nor Buyer shall have any recourse against the other (except
to the extent such recourse arises in connection with a provision of this
Agreement which is intended to survive termination). If Buyer does not timely
notify Seller of its election to terminate this Agreement, Buyer shall purchase
the Property and pay the Purchase Price, and Seller shall pay over or assign to
Buyer on delivery of the deed awards recovered or recoverable by Seller on
account of such Eminent Domain Taking up to the amount of the Purchase Price,
less any amounts reasonably expended by Seller in obtaining such award.
ARTICLE 9
BROKERAGE COMMISSIONS
Seller and Buyer each mutually represent and warrant to the other that
they have not dealt with, and are not obligated to pay, any fees or commissions
to any broker in connection with the transaction contemplated by this Agreement
other than George H. Tikijian III of CB Commercial Real Estate Group, Inc. (the
"Broker"). Seller agrees to pay all commissions, payments and fees due to the
Broker at the Closing. Buyer agrees to indemnify, defend and hold Seller
harmless from and against all loss, liabilities, costs, damages and expenses
(including reasonable attorneys' fees) arising from any claims for brokerage or
finder's fees, commissions or other similar fees in connection with the
transaction covered by this Agreement insofar as such claims shall be based upon
alleged arrangements or agreements made by Buyer or on Buyer's behalf. Seller
hereby agrees to indemnify, defend and hold Buyer harmless from and against all
loss, liabilities, costs, damages and expenses (including reasonable attorneys'
fees) arising from any claims for brokerage or finders' fees, commissions or
other similar fees, including any claim made by the Broker, in connection with
the transaction covered by this Agreement as such claims shall be based upon
alleged arrangements or agreements made by Seller or on Sellers' behalf. The
covenants and agreements contained in this Article shall survive the termination
of this Agreement or the Closing of the transaction contemplated hereunder.
ARTICLE 10
DEFAULT, TERMINATION AND REMEDIES
10.1 Seller's Default. In the event that Seller shall have failed in any
material respect adverse to Buyer as of the Closing Date to have performed any
of the covenants and agreements contained in this Agreement which are to be
performed by Seller on or before the Closing Date or Seller defaults in its
obligation to close hereunder, Buyer shall have the right either to (i)
terminate this Agreement and receive the Escrowed Amount whereupon this
Agreement shall terminate without further recourse; or (ii) provided an action
is brought within thirty (30) days after Buyer becomes aware of such failure,
seek specific performance of Sellers' obligations hereunder, in any court of
competent jurisdiction, and seek a judgment for attorneys' fees pursuant to
Section 12.20 below. Buyer hereby waives any right to sue Seller for any reason
whatsoever, other than to seek specific performance and attorneys' fees as
provided above, or for breach of Sellers' representations or warranties as
provided in Section 11.2 below. Buyer agrees that Seller shall not be liable to
Buyer for any actual, punitive, speculative, consequential or other damages for
breach by Seller, except for payment of the Escrowed Amount, attorneys' fees
under Section 12.20, and damages for breach of Sellers' representations and
warranties under Section 11.2. IN NO EVENT SHALL SELLER, ITS DIRECT OR INDIRECT
PARTNERS, SHAREHOLDERS, OWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR, EMPLOYEE OR
AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF, HAVE ANY
LIABILITY BEYOND ITS INTEREST IN THE PROPERTY (AND THE PROCEEDS THEREOF) FOR ANY
CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE PROPERTY, WHETHER BASED ON COMMON LAW, CONTRACT, STATUTE,
EQUITY OR OTHERWISE.
10.2 Buyer's Default. In the event that Buyer shall have failed in any
material respect adverse to Seller as of the Closing Date to have performed any
of the covenants and agreements contained in this Agreement which are to be
performed by Buyer on or before the Closing Date, or if Buyer defaults in its
obligation to close hereunder, Seller shall be entitled to receive the Escrowed
Amount as liquidated damages, in lieu of all other remedies available to Seller
at law or in equity for such default, and Buyer shall direct the Escrow Agent to
release the Escrowed Amount to Seller. Seller and Buyer agree that the damages
resulting to Seller as a result of such default by Buyer as of the date of this
Agreement are difficult or impossible to ascertain and the liquidated damages
set forth in the preceding sentence constitute Buyer's and Sellers' reasonable
estimate of such damages. Notwithstanding the foregoing, in the event of Buyer's
default or a termination of this Agreement, Seller shall have all remedies
available at law or in equity in the event Buyer or any party related to or
affiliated with Buyer asserts any claims or rights to the Property that would
otherwise delay or prevent Seller from having clear, indefeasible and marketable
title to the Property.
10.3 Indemnity. Buyer agrees to indemnify, hold harmless and defend Seller
from and against any and all claims, demands, causes of action, loss,
liabilities, damages, costs and expenses (including reasonable attorneys' fees
and court costs) of every kind and character asserted against or incurred by
Seller at any time and from time to time by reason of or arising as a result of
the ownership, occupancy, operation, use, and/or maintenance of the Property by
Buyer for the period from and after the Closing Date. Seller agrees to
indemnify, hold harmless and defend Buyer from and against any and all claims,
demands, causes of action, loss, liabilities, damages, costs and expenses
(including reasonable attorneys' fees and court costs) of every kind and
character asserted against or incurred by Buyer at any time and from time to
time by reason of or arising as a result of the ownership, occupancy, operation,
use, and/or maintenance of the Property by Seller for the period prior to the
Closing Date. The provisions of this Section 10.3 shall survive the Closing.
ARTICLE 11
REPRESENTATIONS AND WARRANTIES
11.1 Buyer's Representations and Warranties. Buyer represents and warrants
to Seller that:
11.1(a) Buyer is a limited partnership, duly organized and in good
standing under the laws of the State of Washington, is qualified to do
business in the State of Indiana and has the power and authority to enter
into this Agreement and to execute and deliver this Agreement and to
perform all duties and obligations imposed upon it hereunder. As of the
date of this Agreement, Buyer has obtained all necessary corporate,
partnership or other organizational authorizations required in connection
with the execution and delivery of this Agreement. Each of the individuals
executing this Agreement on Buyer's behalf is authorized to do so. Buyer
has the financial ability to pay the Purchase Price by tendering the Cash
Balance to perform the other covenants of Buyer set forth in this
Agreement.
11.1(b) Neither the execution nor the delivery of this Agreement,
nor the consummation of the purchase and sale transaction contemplated
hereby, nor the fulfillment of or compliance with the terms and conditions
of this Agreement conflict with or will result in the breach of any of the
terms, conditions or provisions of any agreement or instrument to which
Buyer is a party or by which Buyer or any of Buyer's assets is bound;
11.1(c) Buyer is not in any way affiliated with Seller;
11.1(d) No approval, consent, order or authorization of, or
designation, registration or declaration with, any of the United States,
the State of Washington, the State of Indiana, any department, board,
agency, office, commission or other subdivisions thereof, or any official
thereof or any third party is required in connection with the valid
execution and delivery of, and performance of the covenants of, this
Agreement by Buyer.
11.1(e) There are no actions, suits or proceedings pending or, to
the knowledge of Buyer, threatened, against or affecting Buyer which, if
determined adversely to Buyer, would adversely affect its ability to
perform its obligations hereunder.
As a condition precedent to Sellers' obligation to close the purchase and
sale transaction contemplated in this Agreement, Buyer's representations and
warranties contained herein must remain and be true and correct as of the
Closing Date. Prior to the Closing Date, Buyer shall notify Seller in writing of
any facts, conditions or circumstances which render any of the representations
and warranties set forth in this Section 11.1 in any way inaccurate, incomplete,
incorrect or misleading. Buyer's representations and warranties set forth in
this Section 11.1 shall survive the Closing for a period of sixty (60) days and
no longer.
11.2 Seller's Representations and Warranties. Seller represents and
warrants to Buyer that:
11.2(a) Seller is a general partnership existing under the laws of
the State of Indiana.
11.2(b) Seller has full right, power and authority and is duly
authorized to enter into this Agreement, to perform each of the covenants
on its part to be performed hereunder and to execute and deliver, and to
perform its obligations under all documents required to be executed and
delivered by it pursuant to this Agreement and this Agreement constitutes
the valid and binding obligation of Seller enforceable in accordance with
its terms.
11.2(c) Seller has directed its property manager (i) to deliver or
make available to Buyer complete copies of all Leases and (ii) to deliver
to Buyer within five (5) days of the date hereof the Rent Roll, copies of
all Property Contracts and the Operating Statements and to Sellers'
knowledge, the Rent Roll and the Operating Statements are and as of the
Closing Date shall be true and correct in all material respects.
11.2(d) Seller shall cause the Tax Returns to be delivered to Buyer
within five (5) days of the date hereof.
11.2(e) Seller has not been served with notice of any actions,
suits, or proceedings against or affecting the Seller or the Property that
either (i) are not covered by applicable insurance or (ii) if determined
adversely to Seller would materially affect the ownership or operation of
the Property or Sellers' ability to perform its obligations under this
Agreement.
Seller reserves the right to update the representations and warranties
made by it herein. All of Seller's representations and warranties shall be
deemed to be updated by information disclosed to or obtained by Purchaser in
connection with its due diligence investigations. Prior to the Closing Date,
Seller shall notify Buyer in writing of any facts, conditions or circumstances
of which Seller has actual knowledge which render any of the representations or
warranties set forth in this Section 11.2 in any material respect inaccurate,
incomplete, incorrect or misleading. Notwithstanding any terms herein to the
contrary, in the event that any material change in Sellers' representations or
warranties materially adverse to Buyer is made known to Buyer prior to the
Closing, Buyer may terminate this Agreement and receive a refund of the Escrowed
Amount by notifying Seller of such election and the reason therefore prior to
Closing and no later than two business days after such material adverse change
is made known to Buyer. Seller's representations and warranties shall survive
the Closing for a period of forty-five (45) days and no longer.
Notwithstanding anything to the contrary herein or in any of the
conveyance documents delivered pursuant hereto, after Closing, Seller shall not
be liable to Buyer in respect of any breach of Sellers' representations or
warranties for any amounts in excess of Two Hundred Fifty Thousand Dollars
($250,000.00) in the aggregate, or for any amounts less than Ten Thousand
Dollars ($10,000.00) in the aggregate, and Buyer hereby waives any and all
claims it may have to such recoveries in excess of, or less than, the foregoing
amounts. Without limiting the foregoing, any claim of Buyer for recovery from
Seller arising for breach of Sellers' representations and warranties shall be
brought by Buyer, if at all, on or before the forty-fifth (45th) day after the
Closing Date, and Buyer hereby waives any right to any claim or action for
recovery not commenced within such time period. The provisions of this Section
11.2 shall survive the Closing.
11.3 Seller; Seller's Knowledge. Whenever a representation is made to
"Seller's knowledge", or a term of similar import, the accuracy of such
representation shall be based solely on the actual knowledge of Mr. D'Errico,
without independent investigation or inquiry except for inquiry of Sellers'
property manager for the Property. Mr. D'Errico is the employee of Seller who
has had primary responsibility for the sale of the Property to Buyer.
Notwithstanding the foregoing, if, prior to the Closing, Buyer obtains actual
knowledge that any representation or warranty of Seller is inaccurate and Buyer
nonetheless proceeds with the Closing, Seller shall have no liability for any
such matter regarding which Buyer had actual knowledge prior to Closing.
11.4 Property Conveyed "AS IS". (a) NOTWITHSTANDING ANYTHING CONTAINED
HEREIN TO THE CONTRARY, IT IS UNDERSTOOD AND AGREED THAT, EXCEPT AS EXPRESSLY
SET FORTH HEREIN, SELLER AND ITS PROPERTY MANAGER HAVE NOT MADE AND ARE NOT NOW
MAKING, AND THEY SPECIFICALLY DISCLAIM, ANY OTHER WARRANTIES, REPRESENTATIONS OR
GUARANTIES OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST,
PRESENT OR FUTURE, WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO,
WARRANTIES, REPRESENTATIONS OR GUARANTIES AS TO (I) MATTERS OF TITLE (OTHER THAN
SELLER'S WARRANTY OF TITLE SET FORTH IN THE DEED TO BE DELIVERED AT CLOSING),
(II) ENVIRONMENTAL MATTERS RELATING TO THE PROPERTY OR ANY PORTION THEREOF,
(III) GEOLOGICAL CONDITIONS, INCLUDING, WITHOUT LIMITATION, SUBSIDENCE,
SUBSURFACE CONDITIONS, WATER TABLE, UNDERGROUND WATER RESERVOIRS, LIMITATIONS
REGARDING THE WITHDRAWAL OF WATER, AND EARTHQUAKE FAULTS AND THE RESULTING
DAMAGE OF PAST AND/OR FUTURE EARTHQUAKES, (IV) WHETHER, AND TO THE EXTENT TO
WHICH THE PROPERTY OR ANY PORTION THEREOF IS AFFECTED BY ANY STREAM (SURFACE OR
UNDERGROUND), BODY OF WATER, FLOOD PRONE AREA, FLOOD PLAIN, FLOODWAY OR SPECIAL
FLOOD HAZARD, (V) DRAINAGE, (VI) SOIL CONDITIONS, INCLUDING THE EXISTENCE OF
INSTABILITY, PAST SOLID REPAIRS, SOIL ADDITIONS OR CONDITIONS OF SOIL FILL, OR
SUSCEPTIBILITY TO LANDSLIDES, OR THE SUFFICIENCY OF ANY UNDERSHORING, (VII)
ZONING TO WHICH THE PROPERTY OR ANY PORTION THEREOF MAY BE SUBJECT, (VIII) THE
AVAILABILITY OF ANY UTILITIES TO THE PROPERTY OR ANY PORTION THEREOF INCLUDING,
WITHOUT LIMITATION, WATER, SEWAGE, GAS AND ELECTRIC, (IX) USAGES OF ADJOINING
PROPERTY, (X) ACCESS TO THE PROPERTY OR ANY PORTION THEREOF, (XI) THE VALUE,
COMPLIANCE WITH THE PLANS AND SPECIFICATIONS, SIZE, LOCATION, AGE, USE, DESIGN,
QUALITY, DESCRIPTION, SUITABILITY, STRUCTURAL INTEGRITY, OPERATION, TITLE TO, OR
PHYSICAL OR FINANCIAL CONDITION OF THE PROPERTY OR ANY PORTION THEREOF, OR ANY
INCOME, EXPENSES, CHARGES, LIENS, ENCUMBRANCES, RIGHTS OR CLAIMS ON OR AFFECTING
OR PERTAINING TO THE PROPERTY OR ANY PART THEREOF, OR ANY INCOME, EXPENSES,
CHARGES, LIENS, ENCUMBRANCES, RIGHTS OR CLAIMS ON OR AFFECTING OR PERTAINING TO
THE PROPERTY OR ANY PART THEREOF, (XII) THE PRESENCE OF HAZARDOUS SUBSTANCES IN
OR ON, UNDER OR IN THE VICINITY OF THE PROPERTY, (XIII) THE CONDITION OR USE OF
THE PROPERTY OR COMPLIANCE OF THE PROPERTY WITH ANY OR ALL PAST, PRESENT OR
FUTURE FEDERAL, STATE OR LOCAL ORDINANCES, RULES, REGULATIONS OR LAWS, BUILDING,
FIRE OR ZONING ORDINANCES, CODES OR OTHER SIMILAR LAWS, (XIV) THE EXISTENCE OR
NON-EXISTENCE OF UNDERGROUND STORAGE TANKS, (XV) ANY OTHER MATTER AFFECTING THE
STABILITY OR INTEGRITY OF THE REAL PROPERTY, (XVI) THE POTENTIAL FOR FURTHER
DEVELOPMENT OF THE PROPERTY, (XVII) THE EXISTENCE OF VESTED LAND USE, ZONING OR
BUILDING ENTITLEMENTS AFFECTING THE PROPERTY, (XVIII) THE MERCHANTABILITY OF THE
PROPERTY OR FITNESS OF THAT PROPERTY FOR ANY PARTICULAR PURPOSE (BUYER AFFIRMING
THAT BUYER HAS NOT RELIED ON SELLER'S OR ITS PROPERTY MANAGER'S SKILL OR
JUDGMENT TO SELECT OR FURNISH THE PROPERTY FOR ANY PARTICULAR PURPOSE, AND THAT
SELLER MAKES NO WARRANTY THAT THE PROPERTY IS FIT FOR ANY PARTICULAR PURPOSE),
OR (XIX) TAX CONSEQUENCES.
(b) BUYER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER
DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR ITS PROPERTY
MANAGER OR ANY OF THEIR RESPECTIVE AGENTS, EXPECT AS EXPRESSLY SET FORTH HEREIN,
AND ACKNOWLEDGES THAT NO OTHER SUCH REPRESENTATIONS HAVE BEEN MADE(EXCEPT AS
OTHERWISE EXPRESSLY SET FORTH HEREIN). BUYER REPRESENTS THAT IT IS A
KNOWLEDGEABLE, EXPERIENCED AND SOPHISTICATED BUYER OF REAL ESTATE AND THAT IT IS
RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF BUYER'S CONSULTANTS IN
PURCHASING THE PROPERTY. BUYER WILL CONDUCT SUCH INSPECTIONS AND INVESTIGATIONS
OF THE PROPERTY AS BUYER DEEMS NECESSARY, INCLUDING, BUT NOT LIMITED TO, THE
PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AND SHALL RELY UPON SAME. SUBJECT
TO SELLER'S REPRESENTATIONS AND WARRANTIES HEREUNDER, UPON CLOSING, BUYER SHALL
ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO, ADVERSE
PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY BUYER'S
INSPECTIONS AND INVESTIGATIONS. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN,
BUYER ACKNOWLEDGES AND AGREES THAT UPON CLOSING, SELLER SHALL SELL AND CONVEY TO
BUYER AND BUYER SHALL ACCEPT THE PROPERTY "AS IS, WHERE IS", WITH ALL FAULTS.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, BUYER FURTHER ACKNOWLEDGES AND
AGREES THAT THERE ARE NO ORAL AGREEMENTS, WARRANTIES OR REPRESENTATIONS,
COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLER, ANY AGENT OF SELLER OR ANY
THIRD PARTY. THE TERMS AND CONDITIONS OF THIS SECTION 11.4(B) SHALL EXPRESSLY
SURVIVE THE CLOSING, NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS AND
SHALL BE INCORPORATED INTO THE DEED. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER
BY ANY ORAL OR WRITTEN STATEMENTS, REPRESENTATIONS, OR INFORMATION PERTAINING TO
THE PROPERTY FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE, SERVANT OR
OTHER PERSON, UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED TO HEREIN.
BUYER ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS THE "AS IS" NATURE OF THIS
SALE AND ANY FAULTS, LIABILITIES, DEFECTS OR OTHER ADVERSE MATTERS THAT MAY BE
ASSOCIATED WITH THE PROPERTY. BUYER HAS FULLY REVIEWED THE DISCLAIMERS AND
WAIVERS SET FORTH IN THE THIS AGREEMENT WITH ITS COUNSEL AND UNDERSTANDS THE
SIGNIFICANCE AND EFFECT THEREOF.
--------------
Buyer's Initials
ARTICLE 12
MISCELLANEOUS
12.1 Successors and Assigns. Without the prior written consent of Seller,
Buyer shall not, directly or indirectly, assign this Agreement or any of its
rights hereunder. Any attempted assignment in violation hereof shall, at the
election of Seller in its sole discretion, be of no force or effect and shall
constitute a default by Buyer. Notwithstanding the foregoing, and so long as it
will not affect the timing of the Closing, Buyer may elect to have a nominee
entity accept title to the Property at Closing, provided that any such nominee
must be an affiliated entity controlled by or under common control with Buyer,
and Buyer shall give written notice of such nominee to Seller, together with any
reasonable evidence of affiliation requested by Seller, a minimum of fifteen
(15) days prior to Closing. No designation of a nominee to receive title shall
release Buyer from its obligations under this Agreement.
12.2 Notices. Except as otherwise specifically provided herein, any notice
required or permitted to be delivered under this Agreement shall be in writing
and shall be deemed given (i) when delivered or refused if sent by hand during
regular business hours, (ii) three (3) days after being sent by United States
Postal Service, registered or certified mail, postage prepaid, return receipt
requested, or (iii) on the next business day when sent by a reputable overnight
express mail service that provides tracing and proof of receipt or refusal of
items mailed, or (iv) when received by the addressee if by telecopier
transmission addressed to Seller or Buyer, as the case may be, at the address or
addresses set forth below or such other addresses as the parties may designate
in a notice similarly sent. Any notice given by a party to Escrow Agent shall be
simultaneously given to the other party. Any notice given by a party to the
other party relating to its entitlement to the Escrowed Amount shall be
simultaneously given to the Escrow Agent.
(1) If to Seller:
c/o Paine Webber Properties Incorporated
265 Franklin Street - 16th Floor
Boston, MA 02110
Attn: Rock M. D'Errico, Vice President
Telecopier: (617) 478-4725
and
Indianapolis Greenbrier Company, LTD
c/o Paragon Group
1401 South Brentwood Boulevard
St. Louis, MO 63144
Attn: Mr. Lewis A. Levey
Telecopier: (314) 963-9715
with a copy to:
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 02109
Attn: Andrew C. Sucoff, Esq.
Telecopier: (617) 227-8591
(2) If to Buyer:
Graoch Associates #59 Limited Partnership
1066 West Hastings, Suite 1400
Vancouver, British Columbia
CANADA V6E 3X1
Telecopier: (604) 683-6182
with a copy to:
Bruce P. Weiland, Esq.
151 Finch Place Southwest
Bainbridge Island, WA 98110
Telecopier: (206) 842-4434
(3) If to the Escrow Agent:
Chicago Title Insurance Company
101 West Ohio Street, Suite 1100
Indianapolis, Indiana 46204
Attn: Alan Kolb
Telecopier: (317) 684-3843
12.3 Construction. Words of any gender used in this Agreement shall be
held and construed to include any other gender, and words of a singular number
shall be held to include the plural and vice versa, unless the context requires
otherwise.
12.4 Captions. The captions used in connection with the Articles of this
Agreement are for convenience only and shall not be deemed to extend, limit or
otherwise define or construe the meaning of the language of this Agreement.
12.5 No Other Parties. Nothing in this Agreement, express or implied, is
intended to confer upon any person, other than the parties hereto and their
respective successors and assigns, any rights or remedies under or by reason of
this Agreement.
12.6 Amendments. This Agreement may be amended only by a written
instrument executed by Seller and Buyer (or Buyer's assignee or transferee).
12.7 Severability. If any provision of this Agreement or application to
any party or circumstance shall be determined by any court of competent
jurisdiction to be invalid and unenforceable to any extent, the remainder of
this Agreement or the application of such provision to such person or
circumstances, other than those as to which it is so determined invalid or
unenforceable, shall not be affected thereby, and each provision hereof shall be
valid and shall be enforced to the fullest extent permitted by law.
12.8 Applicable Law. This Agreement shall be construed under and in
accordance with the laws of state in which the Property is located.
12.9 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be an original but such counterparts together
shall constitute one and the same instrument notwithstanding that both Buyer and
Seller are not signatory to the same counterpart.
12.10 Time of the Essence. Time is expressly declared to be of the essence
of this Agreement, provided, however that in the event any date hereunder falls
on a Saturday, Sunday or legal holiday, the date applicable shall be the next
business day.
12.11 No Personal Liability. The obligations of Seller hereunder shall be
binding only on the Property and the proceeds thereof, and neither Buyer nor
anyone claiming by, through or under Buyer shall be entitled to obtain any
judgment extending liability beyond the Property and the proceeds thereof, or
creating personal liability on the part of the partners of the Seller or of the
officers, directors, shareholders, advisors or agents of Seller or Sellers'
partners or any of their successors (except to the extent necessary to bind the
Property and the proceeds thereof).
12.12 No Recordation. Without the prior written consent of Seller, there
shall be no recordation of either this Agreement or any memorandum hereof, or
any affidavit pertaining hereto, and any such recordation of this Agreement or
memorandum hereto by Purchaser without the prior written consent of Seller shall
constitute a default hereunder by Buyer, whereupon this Agreement shall, at the
option of Seller, terminate and be of no further force and effect. Upon
termination, the Escrowed Amount shall be immediately delivered to Seller,
whereupon the parties shall have no further duties or obligations to one another
except as otherwise specifically provided herein.
12.13 Waiver. The excuse or waiver of the performance by a party of any
obligation of the other party under this Agreement shall only be effective if
evidenced by a written statement signed by the party so excusing or waiving. No
delay in exercising any right or remedy shall constitute a waiver thereof, and
no waiver by Seller or Buyer of the breach of any covenant of this Agreement
shall be construed as a waiver of any preceding or succeeding breach of the same
or any other covenant or condition of this Agreement.
12.14 Binding On Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
12.15 Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the transactions contemplated herein,
and it supersedes all prior discussions, understandings or agreements between
the parties. All Exhibits and Schedules attached hereto are a part of this
Agreement and are incorporated herein by reference.
12.16 Construction of Agreement. This Agreement shall not be construed
more strictly against one party than against the other merely by virtue of the
fact that it may have been prepared primarily by counsel for one of the parties,
it being recognized that both Buyer and Seller have contributed substantially
and materially to the preparation of this Agreement.
12.17 Further Instruments. Each party, promptly upon the request of the
other, shall execute and have acknowledged and delivered to the other or to
Escrow Agent, as may be appropriate, any and all further instruments reasonably
requested or appropriate to evidence or give effect to the provisions of this
Agreement and which are consistent with the provisions of this Agreement.
12.18 Buyer Represented by Counsel. Buyer hereby represents and warrants
to Seller that (i) Buyer is not in a significantly disparate bargaining position
in relation to Seller, (ii) Buyer is represented by legal counsel in connection
with the transaction contemplated by this Agreement, and (iii) Buyer is buying
the Property for business, commercial, investment or other similar purpose and
not for use as Buyer's residence.
12.19 Preparation of Documents. All of the documents to be executed at the
Closing shall be in the form prepared to the reasonable satisfaction of Sellers'
and Buyer's counsel and delivered to Buyer on or before five (5) days prior to
the Closing Date, provided that the failure to timely deliver such documents
shall not constitute a default by Seller hereunder.
12.20 Attorney's Fees. In the event any dispute between the parties to
this Agreement should result in litigation or other proceeding, the prevailing
party shall be reimbursed by the non-prevailing party in connection with such
litigation or other proceeding and any appeal thereof. Such costs, expenses and
fees shall be included in and made a part of the judgement recovered by the
prevailing party, if any.
ARTICLE 13
IRS FORM 1099-S DESIGNATION
In order to comply with information reporting requirements of Section
6045(e) of the Internal Revenue Code of 1986, as amended, and the Treasury
Regulations thereunder, the parties agree (1) to execute an IRS Form 1099-S
Designation Agreement in the form attached hereto as Schedule D at or prior to
the Closing to designate the Escrow Agent (the "Designee") as the party who
shall be responsible for reporting the contemplated sale of the Property to the
Internal Revenue Service (the "IRS") on IRS Form 1099-S; (2) to provide the
Designee with the information necessary to complete Form 1099-S; (3) that the
Designee shall not be liable for the actions taken under this Agreement, or for
the consequences of those actions, except as they may be the result of gross
negligence or willful misconduct on the part of the Designee; and (4) that the
Designee shall be indemnified by the parties for any costs or expenses incurred
as a result of the actions taken hereunder, except as they may be the result of
gross negligence or willful misconduct on the part of the Designee. The Designee
shall provide all parties to this transaction with copies of the IRS Forms
1099-S filed with the IRS and with any other documents used to complete IRS Form
1099-S.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first set forth above.
SELLER:
GREENBRIER ASSOCIATES
By: Indianapolis Greenbrier Company, Ltd.,
general partner
By:/s/ Lewis A. Levey
------------------
Lewis A. Levey, a managing general partner
By: PaineWebber Income Properties Five Limited
Partnership, general partner
By: Fifth Properties, Inc., its managing
general partner
By:/s/ Rock M. D'Errico
--------------------
Rock M. D'Errico, Vice President
BUYER:
GRAOCH ASSOCIATES #59 LIMITED PARTNERSHIP
By: 10425 Sales Road Associates, Inc., its
sole general partner
By: /s/ Gary M. Gray
----------------
Name: Gary M. Gray
Title: President
ESCROW AGENT:
CHICAGO TITLE INSURANCE COMPANY
By:/s/ Alan F. Kolb
----------------
Name: Alan F. Kolb
Title: Vice President
<PAGE>
JOINDER BY TITLE COMPANY
Chicago Title Insurance Company, referred to in this Agreement as the
Escrow Agent, hereby acknowledges that it received this Agreement executed by
Seller and Buyer on the __ day of ______, 1998, and accepts the obligations of
the Escrow Agent as set forth herein. It further acknowledges that it received
the Deposit on the __ day of ______, 1998. The Escrow Agent agrees to deposit
the Deposit and to distribute the Escrowed Amount in accordance with the terms
and provisions of this Agreement.
ESCROW AGENT: Chicago Title Insurance Company
By: _____________________________
Name:
Title:
Date:
<PAGE>
JOINDER BY BROKER
The undersigned Broker joins herein to evidence such Broker's agreement to
the provisions of Article 9 and to represent to Seller and Buyer that such
Broker (i) knows of no other brokers, salespersons or other parties entitled to
any compensation for brokerage services arising out of this transaction other
than those whose names appear in this Agreement, (ii) has not made any of the
representations or warranties specifically disclaimed by Seller in Section
12.20, and (iii) is a duly licensed broker in the State of Indiana and is
currently permitted to conduct business in the State of Indiana and be paid a
real estate commission.
BROKER: CB Commercial Real Estate Group, Inc.
BY: ____________________________
Name: George H. Tikijian III
Title: Senior Vice
President/MultiHousing
Properties
License No:
Tax Id. No.:
Date:
<PAGE>
EXHIBIT A
The Land
PARCEL I
A part of the Northwest Quarter of Section 36, Township 15 North of Range
3 East in Marion County, Indiana, being more particularly described as follows,
to-wit:
Beginning at a point on the North line of said Quarter Section a distance
of 1224.41 feet South 89 degrees 26 minutes 38 seconds West of the Northeast
corner of said Quarter Section; running thence South 89 degrees 26 minutes 38
seconds West upon and along said North line a distance of 407.39 feet to a
point; running thence South 00 degrees 00 minutes 00 seconds and parallel to the
East line of said Quarter Section a distance of 524.72 feet to a point; running
thence South 70 degrees 00 minutes 00 seconds East a distance of 286.38 feet to
a point; running thence South 20 degrees 00 minutes 00 seconds West a distance
of 70.667 feet to a point; running thence South 70 degrees 00 minutes 00 seconds
East a distance of 215.00 feet to a point; running thence South 90 degrees 00
minutes 00 seconds East a distance of 65.39 feet to a point; running thence
North 00 degrees 00 minutes 00 seconds and parallel to the East line of said
Quarter Section a distance of 350.92 feet to a point, running thence South 89
degrees 26 minutes 38 seconds West and parallel to the North line of said
Quarter Section a distance of 105.00 feet to a point, running thence North 00
degrees 00 minutes 00 seconds and parallel to the East line of said Quarter
Section a distance of 416.66 feet to the point of beginning. (Phase I)
PARCEL II
A part of the Northwest Quarter of Section 36, Township 15 North of Range
3 East in Marion County, Indiana, being more particularly described as follows:
Commencing at a point on the North line of said Quarter Section, a
distance of 1631.80 feet South 89 degrees 26 minutes 38 seconds West of the
Northeast corner of said Quarter Section; running thence South 00 degrees 00
minutes 00 seconds a distance of 524.72 feet to the POINT OF BEGINNING; running
thence South 70 degrees 00 minutes 00 seconds East a distance of 286.38 feet to
a point; thence South 20 degrees 00 minutes 00 seconds West a distance of 70.67
feet to a point; thence South 70 degrees 00 minutes 00 seconds East a distance
of 215.00 feet to a point; thence North 90 degrees 00 minutes 00 seconds East a
distance of 65.39 feet to a point; thence South 00 degrees 00 minutes 00 seconds
and parallel to the East line of said Quarter Section a distance of 258.42 feet
to a point; thence South 89 degrees 26 minutes 38 seconds West and parallel to
the North line of said Quarter Section a distance of 512.39 feet to a point;
running thence North 00 degrees 00 minutes 00 seconds a distance of 501.28 feet
to the point of beginning.
(Phase II)
PARCEL III
Part of the Northwest Quarter of Section 36, Township 15 North, Range 3
East in Marion County, Indiana, more particularly described as follows, to-wit:
Commencing at the Northeast corner of the Northwest Quarter of said
Section 36; thence on the North line of said Northwest Quarter South 89E 26= 38@
West 1230.05 feet; thence South parallel with the East line of said Northwest
Quarter 1026 feet; thence South 89E 26= 38@ West parallel with the North line of
said Northwest Quarter 375 feet to the point of beginning of the herein
described parcel; thence South parallel with the East line of said Northwest
Quarter 711.25 feet; thence South 89E 26= 38@ West parallel with the North line
of said Northwest Quarter 493.77 feet; thence North parallel with the East line
of said Northwest Quarter 711.25 feet; thence North 89E 26= 38@ East parallel
with the North line of said Northwest Quarter 493.77 feet to the point of
beginning. (Phase III)
PARCEL IV
Part of the Northwest Quarter of Section 36, Township 15 North, Range 3
East in Marion County, Indiana, more particularly described as follows, to-wit:
Commencing at a point 1163.95 feet South and 1599.8 feet West of Northeast
corner of the Northwest Quarter of Section 36 of said Section; thence East
parallel to the North line of said Quarter Sect 375 feet to a point; thence
North parallel to the East line of said Quarter Section 135 feet to a point;
which is coincident with the South line of property owned by George M. Bixler
and Frank D. Bixler; thence West parallel to the North line of said Quarter
Section 375 feet to a point which is coincident with the East line of property
owned by George M. Bixler and Frank D. Bixler; thence South parallel to the East
line of said Quarter Section 135 feet to the point of beginning, containing
1.162 acres, more or less.
ALSO, all of the Grantors' right, title and interest in a non-exclusive
easement from Southern Plaza, Inc. to George M. Bixler, Jr. and Frank D.
Bixler, their tenants, mortgagees, successors and assigns dated November 22,
1966, recorded November 28, 1966 under Instrument #66-59951 in the Office of
the Marion County Recorder:
(a) For travel by pedestrians and vehicles over and across a strip of
ground 40 feet wide, lying 20 feet on each side of a center line
described as follows:
Commencing at the northeast corner of the northwest quarter of
Section 36, Township 15 north, Range 3 east, Marion County,
Indiana, thence south 89 degrees 26 minutes 38 seconds west on the
north line thereof 1134.91 feet; thence south parallel with the
east line of said quarter section 1026 feet to the point of
beginning of said center line, said point being the point of
curvature of a curve concave northwest having a central angle of
57 degrees 0 minutes 57 seconds and a radius of 64.56 feet; thence
southwestwardly on said curve 64.24 feet to the point of tangency;
thence south 57 degrees 0 minutes 57 seconds west 85.10 feet to
the point of curvature of a curve concave north having a central
angle of 32 degrees 25 minutes 41 seconds and a radius of 100
feet; thence southwesterly on said curve 56.60 feet to the point
of tangency; thence south 89 degrees 26 minutes 38 seconds west
315.92 feet to the east line of a tract containing 8.06 acres,
more or less, owned by George M. Bixler, Jr. and Frank D. Bixler,
on which tract said Bixlers are constructing an apartment project
to be known as Greenbrier Phase III;
AND
(b) For the use of tennis courts then constructed on the following
described real estate:
Part of the northwest quarter of said Section 36, commencing at
the northeast corner thereof, thence south 89 degrees 26 minutes
38 seconds west on the north line thereof 1605.05 feet; thence
south parallel with the east line of said quarter section 1026
feet to the point of beginning of the real estate described
herein; thence continuing on the same line 95 feet; thence north
89 degrees 26 minutes 38 seconds east parallel with the north line
of said quarter section 250 feet; thence north parallel with the
east line of said quarter section 95 feet; thence south 89 degrees
26 minutes 38 seconds west parallel with the north line of said
quarter section 250 feet to the point of beginning, containing
.545 acre, more or less.
<PAGE>
WARRANTY DEED
THIS INDENTURE WITNESSETH, That GREENBRIER ASSOCIATES, an Indiana general
partnership having an address c/o PaineWebber Properties, Incorporated, 265
Franklin Street - 16th Floor, Boston, Massachusetts 02110 ("Grantor"), CONVEYS
AND WARRANTS to GRAOCH ASSOCIATES #59 LIMITED PARTNERSHIP, a Washington limited
partnership having an address at 1066 West Hastings, Suite 1400, Vancouver,
British Columbia, Canada V6E 3X1 ("Grantee"), for the sum of Ten Dollars and
no/100 Dollars ($10.00) and other good and valuable consideration, the receipt
of which is hereby acknowledged, the following-described real estate in Marion
County, in the State of Indiana:
LEGAL DESCRIPTION ATTACHED HERETO AS EXHIBIT A .
Subject to the exceptions set forth in EXHIBIT B.
Subject to rights of tenants, as tenants only, in possession.
Subject to unpaid taxes not yet due and payable.
Subject to applicable laws and regulations of any governmental
authority including, without limitation, zoning and building laws.
Meaning and intending to describe and convey, and hereby conveying, the
land conveyed and described in (i) the General Warranty Deed dated June 29,
1984 from George M. Bixler, Jr. and Frank D. Bixler to Grantor recorded as
Instrument #840049556 in the Office of the Recorder of Marion County, Indiana
and (i) the General Warranty Deed dated June 29, 1984 from George M. Bixler,
Jr. and Frank D. Bixler to Grantor recorded as Instrument #840049555 in the
Office of the Recorder of Marion County, Indiana.
<PAGE>
IN WITNESS WHEREOF, Grantor has caused this Deed to be executed this 9th
day of September, 1998.
GRANTOR:
GREENBRIER ASSOCIATES
By: Indianapolis Greenbrier
Company, Ltd., general partner
By:/s/ Lewis A. Levey
------------------
Lewis A. Levey, a managing general
partner
By: PaineWebber Income Properties
Five Limited Partnership, general
partner
By: Fifth Properties, Inc., its
managing general partner
By: /s/ Rock M. D'Errico
--------------------
Rock M. D'Errico, Vice President
<PAGE>
EXHIBIT A
The Land
PARCEL 1:
A part of the Northwest Quarter of Section 36, Township 15 North of Range 3 East
in Marion County, Indiana, being more particularly described as follows, to-wit:
Beginning at a point on the North line of said Quarter Section a distance of
1224.41 feet South 89 degrees 26 minutes 38 seconds West of the Northeast corner
of said Quarter Section; running thence South 89 degrees 26 minutes 38 seconds
West upon and along said North line a distance of 407.39 feet to a point;
running thence South 00 degrees 00 minutes 00 seconds and parallel to the East
line of said Quarter Section a distance of 524.72 feet to a point; running
thence South 70 degrees 00 minutes 00 seconds East a distance of 286.38 feet to
a point; running thence South 20 degrees 00 minutes 00 seconds West a distance
of 286.38 feet to a point 70.667 feet to a point; running thence South 70
degrees 00 minutes 00 seconds East a distance of 215.00 feet to a point; running
thence South 90 degrees 00 minutes 00 seconds East a distance of 65.39 feet to a
point; running thence North 00 degrees 00 minutes 00 seconds and parallel to the
East line of said Quarter Section a distance of 350.92 feet to a point; running
thence South 89 degrees 26 minutes 38 seconds West and parallel to the North
line of said Quarter Section a distance of 105.00 feet to a point; running
thence North 00 degrees 00 minutes 00 seconds and parallel to the East line of
said Quarter Section a distance of 416.66 feet to the point of beginning. (Phase
I)
PARCEL 2:
A part of the Northwest Quarter of Section 36, Township 15 North of Range 3 East
in Marion County, Indiana, being more particularly described as follows:
Commencing at a point on the North line of said Quarter Section, a distance of
1631.80 feet South 89 degrees 26 minutes 38 seconds West of the Northeast corner
of said Quarter Section; running thence south 00 degrees 00 minutes 00 seconds a
distance of 524.72 feet to the POINT OF BEGINNING; running thence South 70
degrees 00 minutes 00 seconds East a distance of 286.38 feet to a point; thence
South 20 degrees 00 minutes 00 seconds West a distance of 70.67 feet to a point;
thence south 70 degrees 00 minutes 00 seconds East a distance of 215.00 feet to
a point; thence North 90 degrees 00 minutes 00 seconds East a distance of 65.39
feet to a point; thence South 00 degrees 00 minutes 00 seconds and parallel to
the East line of said Quarter Section a distance of 258.42 feet to a point;
thence South 89 degrees 26 minutes 38 seconds West and parallel to the North
line of said Quarter Section a distance of 512.39 feet to a point; running
thence North 00 degrees 00 minutes 00 seconds a distance of 501.28 feet to the
point of beginning.
(Phase II)
PARCEL 3:
Part of the Northwest Quarter of Section 36, Township 15 North, Range 3 East in
Marion County, Indiana, more particularly described as follows, to-wit:
Commencing at the Northeast corner of the Northwest Quarter of said Section 36;
thence on the North line of said Northwest Quarter South 89 degrees 26 minutes
38 seconds West 1230.05 feet; thence South parallel with the East line of said
Northwest Quarter 1026 feet; thence South 89 degrees 26 minutes 38 seconds West
parallel with the North line of said Northwest Quarter 375 feet to the point of
beginning of the herein described parcel; thence South parallel with the East
line of said Northwest Quarter 711.25 feet; thence South 89 degrees 26 minutes
38 seconds West parallel with the North line of said Northwest Quarter 493.77
feet; thence North parallel with the East line of said Northwest Quarter 711.25
feet; thence North 89 degrees 26 minutes 38 seconds East parallel with the North
line of said Northwest Quarter 493.77 feet to the point of beginning. (Phase
III)
PARCEL 4:
Part of the Northwest Quarter of Section 36, Township 15 North, Range 3 East in
Marion County, Indiana, more particularly described as follows, to-wit:
Commencing at a point 1163.95 feet South and 1599.8 feet West of the Northeast
corner of the Northwest Quarter of Section 36 of said Section; thence East
parallel to the North line of said Quarter Section 375 feet to a point; thence
North parallel to the East line of said Quarter Section 135 feet to a point;
which is coincident with the South line of property owned by George M. Bixler
and Frank D. Bixler; thence West parallel to the North line of said Quarter
Section 375 feet to a point which is coincident with the East line of property
owned by George M. Bixler and Frank D. Bixler; thence South parallel to the East
line of said Quarter Section 135 feet to the point of beginning.
PARCEL 5:
Together with a non-exclusive easement for travel by pedestrians and vehicles as
set out in Grant of Easements by Southern Plaza, Inc. to George M. Bixler, Jr.,
et al, recorded November 28, 1966, as Instrument No. 66-59951 over and across a
strip of ground 40 feet wide, lying 20 feet on each side of a center line
described as follows:
Commencing at the Northeast corner of the Northeast Quarter of Section 36,
Township 15 North, Range 3 East, Marion County, Indiana, thence South 89 degrees
26 minutes 38 seconds West on the North line thereof 1134.91 feet; thence South
parallel with the East line of said Quarter Section 1026 feet to the point of
beginning of said center line, said point being the point of curvature of a
curve concave Northwest having a central angle of 57 degrees 0 minutes 57
seconds and a radius of 64.56 feet; thence Southwestwardly on said curve 64.24
feet to the point of tangency; thence South 57 degrees 0 minutes 57 seconds West
85.10 feet to the point of a curvature of a curve concave North having a central
angel of 32 degrees 25 minutes 41 seconds and a radius of 100 feet; thence
Southwesterly on said curve 56.60 feet to the point of tangency; thence South 89
degrees 26 minutes 38 seconds West 315.92 feet to the East line of tract
containing 8.06 acres more or less, owned by George M. Bixler, Jr. and Frank D.
Bixler, on which tract said Bixlers are constructing an apartment project to be
known as Greenbrier Phase III.
PARCEL 6:
Together with a non-exclusive easement for ingress and egress as set out in
Easement recorded June 29, 1984, as Instrument No. 84-49557, more
particularly described as follows:
Part of the Northwest Quarter of Section 36, Township 15 North of Range 3 East
in Marion County, Indiana, more particularly described as follows, to-wit:
An 80-foot strip running along a center line described as follows:
Beginning at a point 1777.25 feet South and 1819.8 feet West of the Northeast
corner of the Northwest Quarter of Section 36, Township 15 North, Range 3 East
and in part being South of an contiguous to Parcel 3 described in Exhibit "A"
attached herein and incorporated herein; thence West 865 feet to the center line
of South Meridian Street.
PARCEL 7:
Together with a non-exclusive easement for ingress and egress as set out in
Easement from Wareham Corporation N.V. by instrument dated November 1, 1978 and
recorded November 2, 1978, as Instrument No. 78-77549, more particularly
described as follows:
Part of the Northwest Quarter of Section 36, Township 15 North of Range 3 East
in Marion County, Indiana, more particularly described as follows, to-wit:
Commencing at a point 1026 feet South of the Northeast corner of the Northwest
Quarter of Section 36 of said Section; thence South along the East line of said
quarter Section 975.9 feet to a point; thence West parallel to the North line of
said Quarter Section 1599.8 feet to a point; thence North parallel to the East
line of said Quarter Section 837.95 feet to a point; thence East parallel to the
North line of said Quarter Quarter Section 375.0 feet to a point; thence North
parallel to the East line of said Quarter Quarter Section 135.0 feet to a point;
thence East parallel to the North line of said Quarter Quarter Section 594.23
feet to a point; thence North parallel to the East line of said Quarter Section
426.0 feet to a point; thence East parallel to the North line of said quarter
Section 580.82 feet to a point; thence South parallel to the East line of said
Quarter Section a distance of 426.0 feet to a point; thence East parallel to the
North line of said Quarter Section a distance of 55.0 feet to the place of
beginning.
<PAGE>
EXHIBIT B
Exceptions
1. Rights of the public, the State of Indiana and the municipality in and to
that part of the premises taken or used for Hanna Avenue, Meridian Street and
East Street, as deliniated on the survey prepared by Paul I. Cripe, Inc., Job
No. 840311-3000, last certified ____, by Brian L. Wood, RLS No. 880004.
2. Terms and provisions of a Grant of Easements by Southern Plaza, Inc. to
George M. Bixler, Jr. et al by instrument dated November 22, 1966 and recorded
November 28, 1966, as Instrument No. 66-59951.
3. Easement granted to Indiana Bell Telephone Company, Incorporated by
instrument dated November 6, 1986 and recorded December 15, 1986 as Instrument
No. 86-129263.
4. Terms and provisions of an Agreement With Respect to Sanitary Sewers as set
out in instrument dated November 1, 1978 and recorded November 2, 1978, as
Instrument No. 78-77548 and also instrument dated June 29, 1984 and recorded
June 29, 1984, as Instrument No. 84-49561. Further modified by Assignment of
Agreement With Respect to Sanitary Sewers assigning one connection by instrument
dated April 11, 1985 and recorded April 18, 1985, as Instrument No. 85-28715 and
further modified by Cost Sharing Agreement With Respect to Sanitary Sewers dated
April 13, 1988 and recorded April 19, 1988, as Instrument No. 88-35298.
<PAGE>
BILL OF SALE
This Bill of Sale is made as of this 9th day of September, 1998 from
Greenbrier Associates, an Indiana general partnership, having an office at c/o
PaineWebber Properties, Incorporated, 265 Franklin Street, Boston, Massachusetts
02110 (the "Seller") to Graoch Associates #59 Limited Partnership, a Washington
limited partnership, having an office at 1066 West Hastings, Suite 1400,
Vancouver, British Columbia, Canada V6E 3X1 (the "Purchaser").
WHEREAS, in connection with the conveyance of the real property commonly
known as The Greenbrier Apartments, Indianapolis, Indiana, (the "Real
Property"), Seller is obligated to convey, transfer, set over and assign to
Purchaser all of the Seller's right, title and interest, if any, in and to all
personal property owned by Seller located at the Real Property, including all
furniture, carpeting, appliances, equipment, machinery, inventories, supplies,
signs and other tangible personal property of every kind and nature, if any,
owned by Seller and installed, located at and used in connection with the
ownership, occupation and operation of the Real Property, including, without
limitation, the personal property listed on Schedule A attached hereto, but
specifically excluding (i) any items of personal property owned by tenants at or
on the Real Property, and (ii) any items of personal property owned by third
parties and leased to Seller (collectively "Personal Property").
WHEREAS, in connection with the conveyance of the Real Property, Seller is
obligated to convey, transfer, set over and assign to Purchaser all of Seller's
right, title and interest, if any, in all intangible assets of any nature
relating to the Real Property or the Personal Property, including, without
limitation, all of Seller's right, title and interest in all (i) warranties and
guaranties relating to the Real Property or Personal Property in the possession
of Seller, (ii) all licenses, permits and approvals relating to the Real
Property, (iii) all logos and trade names currently used by Seller exclusively
in the operation of the Real Property, including the use of the name "Greenbrier
Apartments", and (iv) all plans and specifications, in each case to the extent
that Seller may legally transfer the same (collectively, the "Intangible
Property").
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Seller does hereby sell, deliver,
transfer, set over and assign unto Purchaser the Personal Property and the
Intangible Property in their "as is" condition without express or implied
warranty of any kind or nature except as expressly set forth in the Purchase and
Sale Agreement by and between Seller and Purchaser, to have and to hold the same
unto Purchaser and the Purchaser's successors and assigns, forever.
<PAGE>
EXECUTED UNDER SEAL as of the date first written above.
GREENBRIER ASSOCIATES
By: PaineWebber Income Properties
Five Limited Partnership, general
partner
By: Fifth Properties, Inc.,
general partner
By:/s/ Rock M. D'Errico
--------------------
Name: Rock M. D'Errico
Title: Vice President
By: Indianapolis Greenbrier Company,
Ltd., general partner
By:/s/ Lewis A. Levey
------------------
Name: Lewis A. Levey
Title: Managing General Partner
<PAGE>
SCHEDULE A
(Personal Property)
Maintenance Inventory:
B-tank
Nitro Tank
2-2 Wheel Carts
Snow Blower
Western Spreader
Skil saw 7 1/4 5/50
Power Pak 60 Auger
KRTI Recovery Unit S#009258
JS Vac Pump S#11126
Craftsman Weadeater 972009n600384
Grenline MSTA-1500 Thermometer
Craftsman Vise
Craftsman Die Grinder 315.27440
Key Machine 025 Manual S# V015917
Craftsman Bench Grinder
Castley Shampoo Machine
Super Line Sprayer Ac4419019
Shop Vac 1.25
Glidden Power Pak
Gas Leak Detect
Refrigerator Leak Detect
B+d 3/8 Drill
Jig Saw Model 7568
Heat Gun Model 35405
Router S# A9173
4 Motorola Spirit Pro Radios
Office Inventory:
3-Secretarial Desk
4-Secretarial Caster Base Chairs
1-Sharp Sf-7300 Copier
1-Hewlett Packard Fax-700 Machine
1-IBM Wheel Writer 10-series II Typewriter
1-Key Box
3-Sharp Calculators EL-1197G
3-ATT Phones
1-HP Laser Jet 6.1 Printer
1-View Sonic E655 Monitor
1-Compaq Keyboard
1-Compaq Keyboard & Mouse
1-Compaq Desk Pro CPU Tower
1-HP Laser Jet Series II Printer
1-Gateway 2000 Monitor Crystal Scan 1572DG
1-Gateway Keyboard
1-Gateway Keyboard 4dx33CPU
1-Microsoft Mouse
1-Robotics Sporster 3.6 Fax Modem
1-HP Laser Jet S Printer
2-Library Tables
3-Couches
1-Coffee Table
1-End Table
1-Dining Room Table with 6 Chairs
1-4 Drawer Chest
1-Table Lamp
2-Wall Hanging Pictures
1-Wall Hanging Mirror
10-Live Plants (Maintenance by a Vendor)
1-Plastic Palm Tree
3-Floral Arrangements
3-3 Drawer Lateral File Drawers
1-Combination Safe
1-2 Door Frost Free Refrigerator (Roper)
1-Automatic Coffee Maker (Hamilton Beach)
Model - 2 Bedroom Town Home:
Patio:
1 Black Iron Table with Umbrella & 4 Matching Chairs
Living Room:
1-Couch with 2 Matching Chairs
2-End Tables
1-Coffee Table
1-Armoire Entertainment Center
2-Floral Arrangements
2-Table Lamps
3-Wall Hanging Pictures
Dining Room:
Glass Table with 4 Chairs
1-Large Wall Hanging Picture
Kitchen:
Frost Free Refrigerator
Century Gas Stove
Table with 2 Chairs
Master Bedroom:
Full Size Bed
Vanity with Mirror
2-Night Stands
Bedspread, Matching Curtains, Blinds
2-Table Lamps
Director Chair
Throw Rug
2-Decor Storage Boxes
2-Artificial Plans
2nd Bedroom:
2-Twin Beds
1-4 Drawer Dresser
2-Bedspreads
1-2 Drawer Night Stand
4-Pillows
Throw Rug
5-Pictures
Decor Storage Boxes
Bathroom:
Shower Curtain
Towels
Rug
Bath Basket
Floral Arrangements
Accessories & Etc.:
Kitchen Canister Set
Decor Plates
Paper Tower Holder
6-Pictures
Cook Books
Cutting Board
Decor Pizza & Glasses of Coke
Books
Candy Dish
Apple Checkers & Board Game
Candles & Holders
Tea Kettle
Appliances Located in Apartment Units as Follows:
24-Dishwashers
324-Stoves
324-Refrigerators
<PAGE>
ASSIGNMENT OF TENANT LEASES AND SECURITY DEPOSITS
THIS ASSIGNMENT OF TENANT LEASES AND SECURITY DEPOSITS
("Assignment") is made and entered into effective this 9th day of September,
1998, by and between GREENBRIER ASSOCIATES, an Indiana general partnership
("Assignor") and GRAOCH ASSOCIATES #59 LIMITED PARTNERSHIP, ("Assignee").
The parties enter into this Assignment on the basis of and in
reliance upon the following facts:
A. Assignor has conveyed contemporaneously herewith to Assignee that
certain improved parcel of land located in the Marion County, Indiana, more
particularly described on Exhibit A attached hereto and by this reference
incorporated herewith (the "Property").
B. Assignor has previously, in its capacity as owner of the Property,
entered into certain occupancy leases at the Property, which are currently in
force and effect, as described in the rent roll attached hereto as Exhibit B and
by this reference incorporated herewith ("Leases").
C. Assignor now desires to assign and transfer to Assignee all of the
Leases, together with any security deposits paid pursuant to the terms thereof
and listed on the rent roll attached hereto as Exhibit B and made a part hereof
for all purposes, and Assignee desires to accept the Leases and all of
Assignor's right, title, interest and obligations in, to and under the Leases,
as set forth herein.
NOW, THEREFORE, in consideration of (i) Ten Dollars ($10.00) and
other good and valuable cash consideration and (ii) the mutual covenants and
promises of the parties provided for herein, Assignor and Assignee agree as
follows:
1. Assignment. Assignor hereby assigns all of its right, title and
interest in, to and under the Leases and any security deposits paid pursuant
thereto as set forth on Exhibit B to Assignee.
2. Assumption. Assignee hereby accepts said assignment and assumes all of
the obligations of Assignor under the Leases from and after the date hereof.
<PAGE>
IN WITNESS WHEREOF, the undersigned parties have executed this Assignment
effective as of the date first above written.
ASSIGNOR:
GREENBRIER ASSOCIATES
By: PaineWebber Income Properties
Five Limited Partnership, general
partner
By: Fifth Properties, Inc.,
general partner
By: /s/ Rock M. D'Errico
--------------------
Name: Rock M. D'Errico
Title: Vice President
By: Indianapolis Greenbrier
Company, Ltd., general partner
By:/s/ Lewis A. Levey
------------------
Name: Lewis A. Levey
Title: Managing General Partner
ASSIGNEE:
GRAOCH ASSOCIATES #59 LIMITED PARTNERSHIP
By: 10425 Sales Road Associates,
Inc., its sole general partner
By: /s/ Gary M. Gray
----------------
Name: Gary M. Gray
Title: President
<PAGE>
Exhibit A
(The Land)
PARCEL 1:
A part of the Northwest Quarter of Section 36, Township 15 North of Range 3 East
in Marion County, Indiana, being more particularly described as follows, to-wit:
Beginning at a point on the North line of said Quarter Section a distance of
1224.41 feet South 89 degrees 26 minutes 38 seconds West of the Northeast corner
of said Quarter Section; running thence South 89 degrees 26 minutes 38 seconds
West upon and along said North line a distance of 407.39 feet to a point;
running thence South 00 degrees 00 minutes 00 seconds and parallel to the East
line of said Quarter Section a distance of 524.72 feet to a point; running
thence South 70 degrees 00 minutes 00 seconds East a distance of 286.38 feet to
a point; running thence South 20 degrees 00 minutes 00 seconds West a distance
of 286.38 feet to a point 70.667 feet to a point; running thence South 70
degrees 00 minutes 00 seconds East a distance of 215.00 feet to a point; running
thence South 90 degrees 00 minutes 00 seconds East a distance of 65.39 feet to a
point; running thence North 00 degrees 00 minutes 00 seconds and parallel to the
East line of said Quarter Section a distance of 350.92 feet to a point; running
thence South 89 degrees 26 minutes 38 seconds West and parallel to the North
line of said Quarter Section a distance of 105.00 feet to a point; running
thence North 00 degrees 00 minutes 00 seconds and parallel to the East line of
said Quarter Section a distance of 416.66 feet to the point of beginning. (Phase
I)
PARCEL 2:
A part of the Northwest Quarter of Section 36, Township 15 North of Range 3 East
in Marion County, Indiana, being more particularly described as follows:
Commencing at a point on the North line of said Quarter Section, a distance of
1631.80 feet South 89 degrees 26 minutes 38 seconds West of the Northeast corner
of said Quarter Section; running thence south 00 degrees 00 minutes 00 seconds a
distance of 524.72 feet to the POINT OF BEGINNING; running thence South 70
degrees 00 minutes 00 seconds East a distance of 286.38 feet to a point; thence
South 20 degrees 00 minutes 00 seconds West a distance of 70.67 feet to a point;
thence south 70 degrees 00 minutes 00 seconds East a distance of 215.00 feet to
a point; thence North 90 degrees 00 minutes 00 seconds East a distance of 65.39
feet to a point; thence South 00 degrees 00 minutes 00 seconds and parallel to
the East line of said Quarter Section a distance of 258.42 feet to a point;
thence South 89 degrees 26 minutes 38 seconds West and parallel to the North
line of said Quarter Section a distance of 512.39 feet to a point; running
thence North 00 degrees 00 minutes 00 seconds a distance of 501.28 feet to the
point of beginning.
(Phase II)
PARCEL 3:
Part of the Northwest Quarter of Section 36, Township 15 North, Range 3 East in
Marion County, Indiana, more particularly described as follows, to-wit:
Commencing at the Northeast corner of the Northwest Quarter of said Section 36;
thence on the North line of said Northwest Quarter South 89 degrees 26 minutes
38 seconds West 1230.05 feet; thence South parallel with the East line of said
Northwest Quarter 1026 feet; thence South 89 degrees 26 minutes 38 seconds West
parallel with the North line of said Northwest Quarter 375 feet to the point of
beginning of the herein described parcel; thence South parallel with the East
line of said Northwest Quarter 711.25 feet; thence South 89 degrees 26 minutes
38 seconds West parallel with the North line of said Northwest Quarter 493.77
feet; thence North parallel with the East line of said Northwest Quarter 711.25
feet; thence North 89 degrees 26 minutes 38 seconds East parallel with the North
line of said Northwest Quarter 493.77 feet to the point of beginning. (Phase
III)
PARCEL 4:
Part of the Northwest Quarter of Section 36, Township 15 North, Range 3 East in
Marion County, Indiana, more particularly described as follows, to-wit:
Commencing at a point 1163.95 feet South and 1599.8 feet West of the Northeast
corner of the Northwest Quarter of Section 36 of said Section; thence East
parallel to the North line of said Quarter Section 375 feet to a point; thence
North parallel to the East line of said Quarter Section 135 feet to a point;
which is coincident with the South line of property owned by George M. Bixler
and Frank D. Bixler; thence West parallel to the North line of said Quarter
Section 375 feet to a point which is coincident with the East line of property
owned by George M. Bixler and Frank D. Bixler; thence South parallel to the East
line of said Quarter Section 135 feet to the point of beginning.
PARCEL 5:
Together with a non-exclusive easement for travel by pedestrians and vehicles as
set out in Grant of Easements by Southern Plaza, Inc. to George M. Bixler, Jr.,
et al, recorded November 28, 1966, as Instrument No. 66-59951 over and across a
strip of ground 40 feet wide, lying 20 feet on each side of a center line
described as follows:
Commencing at the Northeast corner of the Northeast Quarter of Section 36,
Township 15 North, Range 3 East, Marion County, Indiana, thence South 89 degrees
26 minutes 38 seconds West on the North line thereof 1134.91 feet; thence South
parallel with the East line of said Quarter Section 1026 feet to the point of
beginning of said center line, said point being the point of curvature of a
curve concave Northwest having a central angle of 57 degrees 0 minutes 57
seconds and a radius of 64.56 feet; thence Southwestwardly on said curve 64.24
feet to the point of tangency; thence South 57 degrees 0 minutes 57 seconds West
85.10 feet to the point of a curvature of a curve concave North having a central
angel of 32 degrees 25 minutes 41 seconds and a radius of 100 feet; thence
Southwesterly on said curve 56.60 feet to the point of tangency; thence South 89
degrees 26 minutes 38 seconds West 315.92 feet to the East line of tract
containing 8.06 acres more or less, owned by George M. Bixler, Jr. and Frank D.
Bixler, on which tract said Bixlers are constructing an apartment project to be
known as Greenbrier Phase III.
PARCEL 6:
Together with a non-exclusive easement for ingress and egress as set out in
Easement recorded June 29, 1984, as Instrument No. 84-49557, more
particularly described as follows:
Part of the Northwest Quarter of Section 36, Township 15 North of Range 3 East
in Marion County, Indiana, more particularly described as follows, to-wit:
An 80-foot strip running along a center line described as follows:
Beginning at a point 1777.25 feet South and 1819.8 feet West of the Northeast
corner of the Northwest Quarter of Section 36, Township 15 North, Range 3 East
and in part being South of an contiguous to Parcel 3 described in Exhibit "A"
attached herein and incorporated herein; thence West 865 feet to the center line
of South Meridian Street.
PARCEL 7:
Together with a non-exclusive easement for ingress and egress as set out in
Easement from Wareham Corporation N.V. by instrument dated November 1, 1978 and
recorded November 2, 1978, as Instrument No. 78-77549, more particularly
described as follows:
Part of the Northwest Quarter of Section 36, Township 15 North of Range 3 East
in Marion County, Indiana, more particularly described as follows, to-wit:
Commencing at a point 1026 feet South of the Northeast corner of the Northwest
Quarter of Section 36 of said Section; thence South along the East line of said
quarter Section 975.9 feet to a point; thence West parallel to the North line of
said Quarter Section 1599.8 feet to a point; thence North parallel to the East
line of said Quarter Section 837.95 feet to a point; thence East parallel to the
North line of said Quarter Quarter Section 375.0 feet to a point; thence North
parallel to the East line of said Quarter Quarter Section 135.0 feet to a point;
thence East parallel to the North line of said Quarter Quarter Section 594.23
feet to a point; thence North parallel to the East line of said Quarter Section
426.0 feet to a point; thence East parallel to the North line of said quarter
Section 580.82 feet to a point; thence South parallel to the East line of said
Quarter Section a distance of 426.0 feet to a point; thence East parallel to the
North line of said Quarter Section a distance of 55.0 feet to the place of
beginning.
<PAGE>
ASSIGNMENT AND ASSUMPTION OF CONTRACTS
This Assignment and Assumption of Contracts (this "Assignment") is made
and entered into as of this 9th day of September, 1998, by and between
Greenbrier Associates, an Indiana general partnership, ("Assignor"), and Graoch
Associates #59 Limited Partnership, a Washington limited partnership,
("Assignee").
WITNESSETH:
1. Assignment and Assumption. Assignor, for good and valuable
consideration and pursuant to that certain Purchase and Sale Agreement dated as
of June 1, 1998, by and between Assignor and Assignee (as amended, the "Purchase
Agreement"), the receipt and sufficiency of which is hereby acknowledged, does
hereby sell, transfer, assign, convey, sign over and deliver to Assignee all
right, title and interest of the Assignor in, to and under all of the contracts
listed on Exhibit A to the extent that Seller is entitled to transfer the same
to Buyer (the "Property Contracts").
Subject to the provisions of this Assignment, Assignee hereby accepts the
foregoing assignment by Assignor and assumes all obligations of Assignor under
the Property Contracts which arise, accrue or mature after the date hereof.
2. Indemnity.
A. Assignee shall indemnify, defend and hold Assignor harmless and free
and clear against, and reimburse Assignor for, any damage, loss, cost,
expense (including reasonable attorneys' fees), claim, liability,
obligation or debt resulting from, arising out of or in any way related
to:
(i) any obligations or liabilities of Assignor under the
Property Contracts which mature, become due or accrue after the date
hereof; and
(ii) performance to be made by the Assignor under the Property
Contracts which performance was to be made by Assignor after the
date hereof.
B. Assignor shall indemnify, defend and hold Assignee harmless and free
and clear against, and reimburse Assignee for, any damage, loss, cost,
expense (including reasonable attorneys' fees), claim, liability,
obligation or debt resulting from, arising out of or in any way related
to:
(i) any obligations or liabilities of Assignee under the
Property Contracts which matured, became due or accrued on or prior
to the date hereof;
(ii) performance to be made by the Assignee under the Property
Contracts which performance was to be made by Assignor on or prior
to the date hereof.
3. Recourse. Assignee hereby acknowledges and agrees that, except as
provided in Section 2 above, this Agreement is made without recourse, warranty
or representation of any kind whatsoever except as set forth herein or except as
set forth in the Purchase Agreement, all of which shall survive the execution
and delivery of this Assignment on the terms and conditions contained in the
Purchase Agreement.
4. Governing Law. This Assignment shall be governed by and construed in
accordance with the laws of the State of Indiana.
<PAGE>
IN WITNESS WHEREOF this Assignment and Assumption of Contracts has been
executed as of the date first above written.
ASSIGNOR:
GREENBRIER ASSOCIATES
By: PaineWebber Income Properties Five
Limited Partnership, general partner
By: Fifth Properties, Inc.,
general partner
By: /s/ Rock M. D'Errico
--------------------
Name: Rock M. D'Errico
Title: Vice President
By: Indianapolis Greenbrier Company,
Ltd., general partner
By: /s/ Lewis A. Levey
------------------
Name: Lewis A. Levey
Title: Managing General Partner
ASSIGNEE:
GRAOCH ASSOCIATES #59 LIMITED PARTNERSHIP
By: 10425 Sales Road Associates, Inc.,
its sole general partner
By: /s/ Gary M. Gray
----------------
Name: Gary M. Gray
Title: President
<PAGE>
EXHIBIT A
Property Contracts
1. Advertising Agreement with Zart Publications, Inc., dated October 9, 1996.
2. Lease with Living Interiors, Inc., Interior Plantscaping.
3. Contract with Aramark Uniform Services, Inc., dated September 18, 1997.
4. Service Agreement with Trans Union Credit Information Co., dated August
31, 1988.
5. Advertising Agreement for the Greater Indianapolis Apartment Guide with
Haas Publishing Companies, Inc. (last issue/month June 1, 1998).
6. Contract with Hoosier Lawn Maintenance.
7. Lease Laundry Facilities, dated July 24, 1996, between Paragon
Residential Services, Inc., and Automatic Apartment Laundries, Inc.
<PAGE>
SELLER'S CLOSING STATEMENT
BUYER: GRAOCH ASSOCIATES #59 LIMITED PARTNERSHIP
SELLER: GREENBRIER ASSOCIATES
PROPERTY: GREENBRIER APARTMENTS, INDIANAPOLIS, INDIANA
CTIC NOL: 262-819CI
SELLER SEPTEMBER 10, 1998 @ 9:00 AM
PURCHASE PRICE: $ 11,850,000.00
LESS CREDITS TO PURCHASER:
Real Estate Tax Proration $ (239,661.71)
Security Deposits $ (50,935.00)
Rent and Other Income Proration $ (110,023.76)
Rent Concessions $ (640.00)
Prepaid Income $ (14,557.72)
Unit Repair Costs $ (8,585.00)
SUBTOTAL: $ 11,425,596.81
CREDIT TO SELLER: Prepaid Expenses
(Contracts Assumed by Purchaser) $ 612.00
LESS SELLER COSTS:
Insured Closing Fee - 1/2 $ (300.00)
Sale Commission - CB Richard Ellis, Inc. $ (118,500.00)
Environmental Study - Dames & Moore ($3,000) POC
Mortgage Loan Payoff - Equitable Life
Assurance Company $ (488,456.93)
Mortgage Loan Payoff - Frank D. Bixler
QT - Trust $ (2,469,086.60)
Mortgage Loan Payoff - George M. Bixler
Estate $ (2,469,086.61)
PROCEEDS TO SELLER $ 5,880,778.67
DISBURSED TO: Indianapolis Greenbrier Company, Ltd. $ 382,671.27
PaineWebber Income Properties Five
Limited Partnership $ 5,498,107.40
The above settlement is hereby approved and the settlement agent is authorized
and directed to disburse the sale proceeds as indicated herein and deliver
instruments, documents and other property, if any, to the designated grantees
and otherwise close this transaction in accordance with the settlement
instructions.
SELLERS: GREENBRIER ASSOCIATES
By: Indianapolis Greenbrier Company, Ltd., General Partner
By: /s/ Lewis A. Levey
------------------
Lewis A. Levey, a managing general partner
By: PaineWebber Income Properties Five Limited Partnership,
General Partner
By: /s/ Rock M. D'Errico
--------------------
Rock M. D'Errico, Vice President
SETTLEMENT AGENT: CHICAGO TITLE INSURANCE COMPANY
By: /s/ Alan F. Kolb
-----------------
Resident Vice President
