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 30, 1999
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PAINE WEBBER INCOME PROPERTIES SIX LIMITED PARTNERSHIP
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(Exact name of registrant as specified in its charter)
Delaware 0-13129 04-2829686
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(State or other jurisdiction) (Commission (IRS Employer
of incorporation File Number) Identification No.)
265 Franklin Street, Boston, Massachusetts 02110
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (617) 439-8118
(Former name or address, if changed since last report)
<PAGE>
FORM 8-K
CURRENT REPORT
PAINE WEBBER INCOME PROPERTIES SIX LIMITED PARTNERSHIP
ITEM 2 - Disposition of Assets
Regent's Walk Apartments - Overland Park, Kansas
Disposition Date - September 30, 1999
On September 30, 1999, Regent's Walk Associates, a joint venture in which
the Partnership has an interest, sold its operating investment property, the
Regent's Walk Apartments, located in Overland Park, Kansas, to an affiliate of
its unaffiliated joint venture partner for $17.75 million. The sale generated
net proceeds of approximately $8,068,000, after the assumption of the
outstanding first mortgage loan of approximately $8,624,000, accrued interest of
approximately $51,000, closing proration adjustments of approximately $189,000,
and a payment of approximately $818,000 to the Partnership's non-affiliated
co-venture partner for its share of the net proceeds in accordance with the
terms of the joint venture agreement. In addition, as a result of the Regent's
Walk sale, the Partnership received $117,000 which had been held in escrow at
the property plus $233,000 as a result of operations of the property through the
date of sale. The Partnership will make a special distribution to the Limited
Partners of $9,180,000, or $153 per original $1,000 investment, on October 15,
1999 to Unitholders of record on the September 30, 1999 sale date. Of the
$153.00 total, $140.30 results from the sale of Regent's Walk and $12.70 is from
Partnership reserves that exceed expected future requirements.
As previously reported, the Partnership entered into negotiations with its
Regent's Walk Apartments co-venture partner for a sale of the property during
the third quarter of fiscal 1999. On May 19, 1999, the Partnership negotiated a
purchase and sale agreement with an affiliate of the co-venturer to sell the
property for what the Partnership believes was a very favorable price of
$17,750,000. The prospective buyer subsequently made non-refundable deposits
totalling $1,250,000. The only contingency was for approval by the lender for an
assumption of the first mortgage loan as part of the sale transaction. The joint
venture subsequently received this approval and the sale closed on September 30,
1999.
As previously reported, the Partnership has been focusing on potential
near-term disposition strategies for Regent's Walk Apartments and Mall Corners
Shopping Center, its two remaining real estate investments. As part of that
plan, the Partnership has sold the Regent's Walk Apartments to its unaffiliated
joint venture partner. As reported in the Partnership's Quarterly Report on Form
10-Q for the quarter ended June 30, 1999, the Partnership continues to explore
its strategic alternatives for the Mall Corners investment. The Partnership
previously reported that although no assurances could be given, it was
contemplated that a liquidation of the Partnership could be completed by
calendar year-end 1999. However, because of the recently announced closing of
Upton's, an anchor tenant at Mall Corners, as well as other current vacancies,
the Partnership's joint venture partner believes that it could be desirable from
its perspective to re-lease all of the currently vacant space at the Center
before selling the property. The Partnership is still exploring its strategic
alternatives which include exercising its rights of first offer under the joint
venture agreement. As a result, it is unlikely that a liquidation of the
Partnership can be completed by the end of calendar year 1999.
ITEM 7 - Financial Statements and Exhibits
(a) Financial Statements: None
(b) Exhibits:
(1) Purchase and Sale Agreement by and among Regent's Walk Associates,
Peterson Interests Of Kansas, Inc. and Paine Webber Income Properties
Six Limited Partnership, dated May 19, 1999.
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FORM 8-K
CURRENT REPORT
PAINEWEBBER INCOME PROPERTIES SIX LIMITED PARTNERSHIP
(2) Escrow Agreement by and among Regent's Walk Associates, Peterson
Interests Of Kansas, Inc., Paine Webber Income Properties Six Limited
Partnership, and Goodwin, Procter and Hoar, LLP, dated May 19, 1999.
(3) Amendment to Purchase and Sale Agreement by and among Regent's Walk
Associates, Peterson Interests Of Kansas, Inc. and Paine Webber Income
Properties Six Limited Partnership, dated September 2, 1999.
(4) Document Escrow Agreement by and among Regent's Walk Associates,
Peterson Interests Of Kansas, Inc., Paine Webber Income Properties Six
Limited Partnership, and Goodwin, Procter and Hoar, LLP, dated
September 2, 1999.
(5) Kansas Quit-Claim Deed by and between Regent's Walk Associates,
Peterson Interests Of Kansas, Inc. and Paine Webber Income Properties
Six Limited Partnership, dated September 30, 1999.
(6) Bill of Sale by Regent's Walk Associates in favor of Peterson
Interests Of Kansas, Inc, dated September 30, 1999.
(7) Assignment and Assumption of Leases and Security Deposits between
Regent's Walk Associates and Peterson Interests Of Kansas, Inc., dated
September 30, 1999.
(8) Assignment and Assumption of Contracts between Regent's Walk
Associates and Peterson Interests Of Kansas, Inc., dated September 30,
1999.
(9) Seller's Settlement Statement between Regent's Walk Associates and
Peterson Interests Of Kansas, Inc, dated September 30, 1999.
<PAGE>
FORM 8-K
CURRENT REPORT
PAINE WEBBER INCOME PROPERTIES SIX 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 SIX LIMITED PARTNERSHIP
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(Registrant)
By: Sixth Income Properties Fund, Inc.
By: /s/ Walter V. Arnold
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Walter V. Arnold
Senior Vice President and
Chief Financial Officer
Date: October 13, 1999
<PAGE>
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this Agreement) is dated as of May 19,
1999, by and among REGENTS WALK ASSOCIATES, a Kansas general partnership having
an address c/o PaineWebber Properties, Incorporated, 265 Franklin Street - 15th
Floor, Boston, MA 02110 (Seller), PETERSON INTERESTS OF KANSAS, INC., a Kansas
corporation having an address at 10000 West 75th Street, Shawnee Mission, KS
66204 (Purchaser), and PAINEWEBBER INCOME PROPERTIES SIX LIMITED PARTNERSHIP, a
Delaware limited partnership having an address c/o PaineWebber Properties,
Incorporated, 265 Franklin Street - 15th Floor, Boston, MA 02110 (PWIP6).
W I T N E S S E T H :
WHEREAS, PWIP6 and Purchaser are the sole partners of Seller, which was
formed pursuant to that certain Partnership Agreement dated as of April 25, 1985
between Purchaser and PWIP6 (the Partnership Agreement); and
WHEREAS, Seller is the owner of certain improved real property (the
Premises) known as The Regents Walk Apartments located in Overland Park, Kansas,
which real property is more particularly described in the Mortgage (as
hereinafter defined); and
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller, the Premises on the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of Ten ($10.00) Dollars, each party to
the other in hand paid, and in further consideration of the mutual covenants and
agreements hereinafter set forth, the receipt and sufficiency of which is hereby
acknowledged, Seller and Purchaser agree as follows:
ARTICLE 1. AGREEMENT TO SELL AND PURCHASE.
1.1. Sale. Seller hereby agrees to sell to Purchaser, and Purchaser hereby
agrees to purchase from Seller, at the price and upon the terms and conditions
set forth in this Agreement, the Premises.
1.2. Matters to Which the Sale Is Subject. The Premises are to be sold and
are to be conveyed by Seller and accepted by Purchaser subject to all matters
affecting the Premises, whether or not of record, including without limitation:
(a) Any state of facts that a survey of the Premises brought down to
the Closing (as hereinafter defined) would actually disclose;
(b) All title matters, encroachments, covenants, restrictions,
easements, reservations and agreements affecting the Premises, whether or
not of record;
(c) All leases, licenses, occupancy agreements (collectively,
Leases) and the rights of parties in possession affecting the Premises;
(d) Any and all laws, statutes, ordinances, codes, rules,
regulations, requirements, or executive mandates including, without
limitation, all environmental, building and zoning restrictions,
ordinances and regulations, affecting the Premises adopted by the United
States, the State of Kansas, the municipality of Overland Park, and any
and every other agency, department, commission, rule-inducing body,
bureau, instrumentality and/or political subdivision of government of
every kind whatsoever having jurisdiction thereof (each a Government
Entity), and all amendments or additions thereto now in effect or which
may be in force and effect at the time of the Closing (collectively Laws);
(e) Rights, if any, so far as the same may be of present force or
effect, in favor of any public or quasi-public utility company, provided
that Seller shall not grant any such right after the date hereof without
Purchasers consent, which consent shall not be unreasonably withheld or
delayed;
(f) Any and all special assessments, assessments for improvements or
any other assessment or charge of any kind becoming liens subsequent to
the date hereof or which are presently a lien but are not due and payable
until after the Closing (as hereinafter defined);
(g) Unpaid real estate taxes, water and sewer charges; and
(h) The Existing Mortgage Loan.
1.3. Seller's Limited Representation. Seller hereby represents to
Purchaser that PWIP6 has not entered into any agreement on behalf of Seller or
created any matter on behalf of Seller which (a) is not of record and (b)
Purchaser did or does not have knowledge and (c) would be binding upon Purchaser
or the Premises following the Closing (as hereinafter defined); provided,
however, that Purchaser shall not be entitled to pursue a claim against Seller
for any breach of the representation set forth in this Section 1.3 to the extent
that the subject matter thereof is covered under any policy of title insurance
held by Purchaser. This representation shall survive the Closing for a period of
sixty (60) days. Seller's representation in this Section 1.3 shall not accrue to
the benefit of any title insurer (by subrogation, assignment or otherwise).
ARTICLE 2. PURCHASE PRICE; DEPOSIT.
2.1. Purchase Price. The purchase price (the Purchase Price) to be paid by
Purchaser to Seller for the Premises is Seventeen Million Seven Hundred Fifty
Thousand Dollars ($17,750,000.00). The Purchase Price to be paid by Purchaser to
Seller for the Premises shall be paid as follows:
(a) Five Hundred Thousand Dollars ($500,000.00) (the Initial
Deposit) simultaneously with the execution by Purchaser of this Agreement
by one or more wire transfers of immediately available funds to Goodwin,
Procter & Hoar LLP, escrowee (Escrow Agent) pursuant to a certain Escrow
Agreement (the Escrow Agreement) dated of even date herewith by and among
Seller, Purchaser and Escrow Agent (failure of Escrow Agent to receive the
Initial Deposit in due course will give Seller the option of canceling
this Agreement); and
(b) Seventeen Million Two Hundred Fifty Thousand Dollars
($17,250,000.00) by one or more wire transfers of immediately available
federal funds to Seller and other parties, if any, designated by Seller at
Closing (as hereinafter defined). The Closing shall be adjourned, if
necessary, to permit confirmation that the wire transfer of the balance of
the Purchase Price has been received by Seller and other parties, if any,
designated by Seller.
2.2. Escrow. The Initial Deposit, the Additional Deposits (as hereinafter
defined), to the extent received by Escrow Agent, and all interest accrued
thereon shall be held and disbursed by Escrow Agent pursuant to the terms,
covenants, conditions and provisions of the Escrow Agreement. The Initial
Deposit and the Additional Deposits are collectively referred to as the
Deposits.
2.3. Apportionments. The following items shall be apportioned and adjusted
between Seller and Purchaser as of 11:59 p.m. on and as of the day prior to the
Closing Date:
(a) 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 Premises through the Closing Date shall be prorated
and adjusted. 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 shall be used for the purposes of
prorating taxes on the Closing Date, and at such time as the actual amount
of taxes for the current fiscal year are known, Seller and Purchaser
shall, if required, readjust the amounts to be paid by each party. 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 Premises (i)
for all tax periods occurring prior to the applicable tax period in which
the Closing occurs shall be deemed retained by and paid exclusively to
Seller and thereafter remitted as provided in the Partnership Agreement
and (ii) for the applicable tax period in which the Closing occurs shall
be prorated as of the Closing Date such that Seller shall be deemed to
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 Purchaser shall be deemed to 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. Purchaser shall
not settle any tax protests or proceedings in which taxes for the tax
period prior to Closing are being adjudicated without the consent of
Seller (which obligation shall survive the Closing), which consent shall
not be unreasonably withheld, conditioned or delayed.
(b) Contract Proration. All (a) prepaid or past due amounts and (b)
prepaid fees or bonuses under any service, supply, equipment rental,
management, operating and leasing contracts affecting the Premises shall
be prorated and adjusted.
(c) Utility Proration. All prepaid and past due charges for
electricity, gas, water, sewer or other public utility usage at the
Premises shall be prorated and adjusted; provided, however, that if and to
the extent such charges are paid directly by tenants, no such adjustment
or proration shall be required. To facilitate such adjustments and
prorations, Purchaser shall cause all meters for electricity, gas, water,
sewer or other public utility usage at the Premises to be read as of the
day immediately preceding the Closing Date; provided, however, that if and
to the extent such charges are paid directly by tenants, no such reading
shall be required. If the utility companies are unable or refuse to read
meters for which adjustment or proration 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.
(d) Income and Expense Proration. Rents and all other items of
income and all expenses and other charges in connection with the operation
of the Premises shall be apportioned and adjusted between Seller and
Purchaser.
(e) Prorations Generally. A statement of prorations and other
adjustments shall be prepared by Purchaser in conformity with the
provisions of this Section and submitted to Seller for review and approval
not less than three (3) business days prior to the Closing Date. Seller
and Purchaser agree to adjust between themselves after Closing any errors
or omissions in the prorations or adjustments made at Closing, which
obligation shall survive the Closing for a period of six (6) months.
ARTICLE 3. THE CLOSING; STRUCTURING PERIOD.
3.1. Closing. The payment of the balance of the Purchase Price and the
transfer of title to the Premises (the Closing) shall be held in the offices of
Seller's attorneys, Goodwin, Procter & Hoar LLP, Exchange Place, Boston, MA
02109, or at such other place as the parties shall agree in writing, at 10:00
a.m. on July 7, 1999 (the Closing Date); provided, however, that Purchaser shall
have a one-time right to extend the originally scheduled Closing Date for a
period not to exceed thirty (30) days by (i) delivering to Seller on or before
June 29, 1999 written notice exercising such right to extend the originally
scheduled Closing Date and setting forth the new Closing Date which must be a
business day not more than thirty (30) days following the originally scheduled
Closing Date (the First Extended Closing Date) and (ii) delivering to Escrow
Agent on or before the date that is five (5) business days prior to the
originally scheduled Closing Date an additional deposit (the First Extension
Additional Deposit) in the amount of Two Hundred Fifty Thousand Dollars
($250,000.00) by one or more wire transfers of immediately available funds; and
further provided that if Purchaser shall have extended the originally scheduled
Closing Date to the First Extended Closing Date, Purchaser shall have a one-time
right to further extend the Closing Date from the First Extended Closing Date
for a period not to exceed thirty (30) days by (i) delivering to Seller on or
before the date that is five (5) business days prior to the First Extended
Closing Date written notice exercising such right to extend Closing Date and
setting forth the new Closing Date which must be a business day not more than
thirty (30) days following the First Extended Closing Date (the Second Extended
Closing Date) and (ii) delivering to Escrow Agent on or before the date that is
five (5) business days prior to the First Extended Closing Date an additional
deposit (the Second Extension Additional Deposit) in the amount of Two Hundred
Fifty Thousand Dollars ($250,000.00) by one or more wire transfers of
immediately available funds. Purchaser shall have no right to extend the Closing
Date beyond the Second Extended Closing Date. The First Extension Additional
Deposit and the Second Extension Additional Deposit (collectively, the
Additional Deposits) shall be held and disbursed in the same manner as the
Initial Deposit pursuant to the Escrow Agreement. If (A) Purchaser shall have
extended the originally scheduled Closing Date to the First Extended Closing
Date and shall have timely delivered the First Extension Additional Deposit, the
balance of the Purchase Price due at Closing shall be Seventeen Million Dollars
($17,000,000.00) and (B) Purchaser shall have extended the originally Closing
Date from the First Extended Closing Date to the Second Extended Closing Date
and shall have timely delivered the First Extension Additional Deposit and the
Second Extension Additional Deposit, the balance of the Purchase Price due at
Closing shall be Sixteen Million Seven Hundred Fifty Thousand Dollars
($16,750,000.00).
3.2. Closing Costs.
(a) Seller shall pay its legal fees and expenses related to the
negotiation and preparation of this Agreement and all documents required
to close the transaction contemplated hereby.
(b) Purchaser shall pay: (i) Purchasers legal fees and expenses
related to the negotiation of this Agreement and all documents required to
close the transaction contemplated hereby; (ii) all state and county taxes
associated with the transfer of the Premises (including, without
limitation transfer taxes on stamps), if any; (iii) all costs and fees
associated with soliciting and obtaining Lenders approval of the sale and
purchase of the Premises and the Seller Release Documents (as hereinafter
defined); and (iv) the cost of any title insurance.
(c) All other closing costs shall be paid by Seller or Purchaser in
accordance with the other provisions of this Agreement or, if not
addressed herein, in accordance with the custom in the jurisdiction of the
Controlling Law.
3.3. Structuring Period. Purchaser shall have a period of time commencing
on the date hereof and ending on May 28, 1999 (the Structuring Period Expiration
Date) to (a) arrange the capital structure for Purchasers acquisition of the
Premises and (b) confirm that Purchaser shall be able to obtain title insurance
for an insured amount equal to the Purchase Price insuring title to the Premises
subject to all matters affecting the Premises set forth in Section 1.2. If,
notwithstanding Purchasers diligent efforts, Purchaser is unable to arrange the
capital structure for its acquisition of the Premises on or before the
Structuring Period Expiration Date or is unable to confirm the availability of
title insurance as contemplated in clause (b) of the preceding sentence on or
before the Structuring Period Expiration Date, Purchaser shall have the right to
terminate this Agreement by delivery of written notice sent by Purchaser to
Seller any time prior to 5:00 p.m. (Boston time) on the Structuring Period
Expiration Date (for purposes of Purchasers termination notice only, such notice
may be sent to Seller's counsel listed in Article 10 via facsimile at
617-227-8591, followed by a duplicate notice mailed the same day via certified
mail, return receipt requested, or by nationally-recognized overnight courier
(with airbill evidencing date of shipping) in accordance with Section 10.1).
Upon receipt of such notice by Seller (or, if sent by Purchaser to Seller's
counsel in accordance with the preceding sentence, upon sending of such notice
by Purchaser to Seller) prior to 5:00 p.m. (Boston time) on the Structuring
Period Expiration Date, this Agreement shall terminate and Purchaser shall have
the right to receive refund of the Deposits and all interest accrued thereon. If
Purchaser fails to terminate this Agreement by notice to Seller prior to 5:00
p.m. (Boston time) on the Structuring Period Expiration Date, Purchaser shall
have no further right to terminate this Agreement pursuant to this Section 3.3.
ARTICLE 4. CLOSING OBLIGATIONS.
4.1. Seller's Obligations. At the Closing, Seller shall deliver the
following to Purchaser:
(a) A quitclaim deed (without covenants) (the Deed);
(b) A quitclaim bill of sale and general assignment (without
representations or covenants) conveying all of the (i) personal property
owned by Seller and installed, located at and used in connection with the
ownership, occupation and operation of the Premises and (ii) intangible
assets owned by Seller relating solely to the Premises, in the form
attached hereto as Exhibit 1;
(c) An assignment and assumption of the Leases and security deposits
(the Assignment and Assumption of Leases) in the form attached hereto and
Exhibit 2;
(d) An assignment and assumption of all service, supply, equipment
rental, management, operating, leasing and other contracts affecting the
Property, to the extent that Seller is entitled to transfer the same to
Purchaser (the Assignment and Assumption of Contracts) in the form
attached hereto and Exhibit 3;
(e) The form attached hereto as Exhibit 4 titled Disclosure of
Information on Lead-Based Paint and/or Lead-Based Paint Hazards duly
executed by Seller; and
(f) A duly executed counterpart original of the closing statement
setting forth the Purchase Price, the closing adjustments and the
application of such amounts;
(g) An affidavit for the benefit of Purchasers title insurer with
respect to parties-in-possession and mechanics liens at the Premises; and
(h) Any other documents required by this Agreement to be delivered
by Seller at the Closing or otherwise reasonably required to effectuate
the transactions contemplated herein.
4.2. Purchasers Obligations. At the Closing, Purchaser shall:
(a) Deliver to Seller the balance of the Purchase Price payable at
the Closing;
(b) If Seller, PWIP6 or any of PWIP6's affiliates are personally
liable under any guaranties or other financial undertakings for
obligations of Seller (Seller's Recourse Liability), then Purchaser shall
either obtain the release of the Seller's Recourse Liability (and, if
required in order to do so, shall substitute acceptable guaranties,
letters of credit or other financial undertakings in exchange for such
release) or, if the obligee will not agree to release the Seller's
Recourse Liability, then Purchaser shall deliver instrument(s) in form and
substance and from one or more parties satisfactory to Seller whereby such
parties agree to protect, defend, indemnify and hold Seller, PWIP6 and its
affiliates harmless from any liability arising out of or relating to the
Seller's Recourse Liability; and
(c) The Assignment and Assumption of Leases;
(d) The Assignment of and Assumption of Contracts;
(e) A duly executed counterpart original of the closing statement
setting forth the Purchase Price, the closing adjustments and the
application of such amounts;
(f) All documents reasonably required to effect the assignment and
assumption of the Existing Loan in form and substance reasonably
acceptable to the parties and to Lender;
(g) The form attached hereto as Exhibit 4 titled Disclosure of
Information on Lead-Based Paint and/or Lead-Based Paint Hazards duly
executed by Purchaser (Purchaser acknowledges and agrees that it has had a
mutually-agreed upon period to conduct a risk assessment or inspection of
the Premises for the presence of lead-based paint and/or lead-based paint
hazards); and
(h) Execute and deliver any other document required by this
Agreement to be delivered by Purchaser at the Closing or otherwise
reasonably required to effectuate the transactions contemplated herein.
ARTICLE 5. AS IS SALE; ENVIRONMENTAL MATTERS.
5.1. As Is Sale. Purchaser is a general partner of Seller and acknowledges
that (a) it is familiar with the physical condition and state of repair of the
Premises, (b) it is familiar with the business and affairs of the Partnership,
and (c) it is purchasing the Premises in its present condition as is. This
Agreement, as written, contains all the terms of the agreements entered into
between the parties as of the date hereof, and Purchaser acknowledges that
neither Seller nor any agent or representative of Seller has made any
representations, nor held out any inducements to Purchaser, other than those, if
any, herein expressed. Without limiting the generality of the foregoing,
Purchaser acknowledges that it has not relied on any representations (except as
set forth in Section 1.3, if applicable), covenants or warranties, and Seller
(or any of its agents or representatives) has not and is not willing to make any
representations, covenants or warranties, whether express or implied as to: (i)
the current or future real estate tax liability, assessment or valuation of the
Premises; (ii) the potential qualification of the Premises for any and all
benefits conferred by any Laws, whether for subsidies, special real estate tax
treatment, insurance, mortgages, or any other benefits, whether similar or
dissimilar to those enumerated; (iii) the compliance of the Premises, in its
current or any future state, with applicable zoning ordinances; (iv) the
availability of any financing for the purchase, development or operation of the
Premises from any source whatsoever; (v) the present and future physical
condition of the Premises or its suitability for development or any particular
use; (vi) the presence of any Hazardous Substances (as hereinafter defined) on
the Premises and/or the compliance of the Premises, in its current or future
state, with any environmental Laws; or (vii) the compliance by the Premises with
any other Laws issued or promulgated by any Governmental Entity and any
violations thereof.
5.2. Set-Ups; Acceptance. Seller is not liable or bound in any manner by
any verbal or written information pertaining to the Premises furnished by Seller
or Seller's representatives, any real estate broker, agent, employee, or other
person. All oral or written prior statements, representations, or promises, if
any, and all prior negotiations and agreements are superseded by this Agreement
and merged herein. No provision, covenant or representation of Seller contained
in this contract shall survive the Closing except as may be otherwise expressly
provided herein. Acceptance of the Deed shall be an acceptance by Purchaser of
all of the obligations of Seller hereunder except such as may be expressly
required to survive the Closing under this Agreement or which by their terms as
described in this Agreement are to be performed after the Closing.
5.3. Environmental. Purchaser acknowledges that (i) the Premises, or
adjacent or neighboring lands, may have been used by present or prior owners for
manufacturing and other commercial uses which may have involved the use, storage
and transport of Hazardous Substances (as hereinafter defined), and (ii) as a
result of such uses and activities, Hazardous Substances may have been
discharged on, into or from the Premises. For purposes of this Section, the term
Hazardous Substances shall include, without limitation: (a) any element,
compound or chemical that is defined, listed or otherwise classified as a
pollutant, toxic pollutant, toxic or hazardous substance, hazardous waste,
special waste, extremely hazardous substance or chemical under any environmental
Laws; (b) petroleum and its refined products, petroleum-derived substances and
drilling fluids, production waters and other wastes associated with the
exploration, development or production of crude oil or natural gas; (c) any
electrical equipment containing oil that contains polychlorinated biphenyls
(PCBs); (d) any flammable substances, explosives or radioactive materials; and
(e) any raw materials used or stored by Purchaser, building components,
including, without limitation, asbestos-containing materials and manufactured
products containing Hazardous Substances.
5.4. Survival. The provisions of this Article shall survive the Closing or
any termination or cancellation of this Agreement.
ARTICLE 6. EXISTING MORTGAGE LOAN.
6.1. General. Reference is hereby made to that certain mortgage loan (the
Existing Mortgage Loan) in the stated principal amount of $9,000,000.00 from the
Lutheran Brotherhood (Lender) to Seller. The Existing Mortgage Loan is evidenced
and/or secured by (a) that certain Promissory Note in the original principal
amount of $9,000,000.00, dated as of September 1, 1995 made by Seller in favor
of Lender, as amended, (b) that certain Combination Mortgage, Security Agreement
and Fixture Financing Statement (the Mortgage) dated as of September 1, 1995
between Seller and Lender, as amended, (c) that certain Assignment of Leases and
Rents dated as of September 1, 1995 made by Seller in favor of Lender and (d)
any and all other documents and instruments evidencing, securing or relating to
the Existing Mortgage Loan, all of which are incorporated herein by reference
(collectively, the Existing Loan Documents). Purchaser desires to assume the
payment of the outstanding principal balance of the Existing Mortgage Loan as of
the Closing Date (the Loan Principal Balance), and the payment of interest
accruing thereon from and after the Closing Date. If the Existing Mortgage Loan
is not paid off and satisfied at Closing, but is instead assumed by Purchaser,
(a) Purchaser shall receive a credit against the balance of the Purchase Price
due at Closing in the amount of the Loan Principal Balance and (b) Purchaser
agrees to perform, assume and observe all obligations of the Seller under the
Existing Loan Documents and the Existing Mortgage Loan.
6.2. Lender Approval. Immediately following the execution and delivery of
this Agreement, Purchaser shall solicit and thereafter diligently pursue (a)
Lenders approval of the sale and purchase of the Premises and the assumption by
Purchaser of all obligations of Seller under the Existing Loan Documents and the
Existing Mortgage Loan and (b) receipt from Lender of the Seller Release
Documents (as hereinafter defined). Seller agrees to cooperate in all reasonable
respects with Purchasers efforts to obtain Lenders approval and the Seller
Release Documents. As used herein, the term Seller Release Documents means
documents in form and substance reasonably satisfactory to Seller and PWIP6
releasing Seller, PWIP6 and any affiliate of PWIP6 from all obligations (whether
directly, as a general partner of Seller or as a guarantor or indemnitor) under
the Existing Loan Documents (including all environmental or hazardous substance
remediation or indemnification agreements). Purchaser shall advise Seller as to
the status of the approval process from time to time promptly following the
request of Seller. Purchaser shall pay all fees and costs charged by the Lender
or otherwise relating to the solicitation of Lenders approval of the sale and
purchase of the Premises and the solicitation from Lender of the Seller Release
Documents.
6.3. Payoff of Existing Mortgage Loan. In the event that Purchaser fails
to obtain and provide Seller with copies of Lenders approval of the sale and
purchase of the Premises and the Seller Release Documents on or before the date
that is five (5) business days prior to the scheduled Closing Date, then (a)
Seller shall be required to repay in full the outstanding principal balance of
the Existing Mortgage Loan and all unpaid accrued interest and other charges
thereon at Closing and (b) Purchaser shall be required to pay any applicable
prepayment premium or fee at Closing without reduction or adjustment of the
Purchase Price.
ARTICLE 7. SELLER'S REMEDIES.
7.1. In the event of a default by Purchaser in the performance of any of
the terms of this Agreement, Seller may, in addition to Seller's rights under
Section 7.2 hereof, receive and retain as liquidated damages the Deposits,
together with any interest thereon, for all loss, damage and expense suffered by
Seller, including, without limitation, Seller's loss of its bargain, and
thereupon this Agreement shall become null and void, and neither party shall
have further rights against the other, except for those rights specifically
stated herein to survive the Closing or earlier termination of this Agreement.
Seller's remedies under this Section 7.1 and Section 7.2 shall be Seller's sole
and exclusive remedies in the event of a default by Purchaser in the performance
of any of the terms of this Agreement. Seller and Purchaser agree that the
damages resulting to Seller as a result of such default by Purchaser as of the
date of this Agreement are difficult or impossible to ascertain and the
liquidated damages set forth in this Section 7.1 (together with Seller's
remedies under Section 7.2) constitute Purchasers and Seller's reasonable
estimate of such damages. Notwithstanding anything to the contrary in the
Partnership Agreement or otherwise (including, without limitation, Section 5.01
thereof), in the event that Seller receives and retains all or any portion of
the Deposits following a default by Purchaser, the entire amount of the Deposits
so retained or received by Seller shall be paid directly to, and retained by,
PWIP6; and Purchaser (in its capacity as a partner of Seller) hereby assigns any
and all right, title or interest in the Deposits to PWIP6.
7.2. In the event of a default by Purchaser in the performance of any of
the terms of this Agreement, in addition to the remedies provided in Section 7.1
and notwithstanding anything to the contrary contained in the Partnership
Agreement:
(a) PWIP6 shall have the right to sell its legal and beneficial
interests in Seller (the PWIP6 Interests) to any third party upon any
terms and conditions without obtaining Purchasers consent, and Purchaser
hereby waives any rights to purchase the PWIP6 Interests pursuant to
Section 7.02 of the Partnership Agreement;
(b) PWIP6 shall have the right, upon five (5) business days notice
to Purchaser, to purchase (or to cause any third party to purchase) all of
Purchasers legal and beneficial interests in Seller (the Peterson
Interests) for a price equal to the aggregate amount that Purchaser would
receive as liquidating distributions from Seller pursuant to Section 5.01
of the Partnership Agreement assuming (i) the Premises and the other
noncash assets of Seller were sold for the Purchase Price in accordance
with the terms of this Agreement, (ii) all liabilities of Seller as of the
closing date were paid in full, with reasonable reserves for those
liabilities of Seller which are not reasonably ascertainable in amount
(the reserves shall be administered and used by PWIP6 for the settlement
and payment of liabilities of Seller which are not reasonably
ascertainable as of the closing date, and at such time as PWIP6 and
Purchaser, acting collectively and unanimously, determine that such
reserves are no longer required, each acting reasonably, the remaining
amount of such reserves shall be distributed to PWIP6 and Purchaser
consistent with the provisions of this Section 5.01 of the Partnership
Agreement) and (iii) the assets of Seller were distributed and applied in
accordance with the terms of Section 5.01 of the Partnership Agreement
(all of the foregoing calculations shall be determined by agreement of the
parties with the assistance of the Partnerships accountants or, failing
such agreement, shall be conclusively determined pursuant to the
provisions of Article 13 hereof);
(c) PWIP6 shall have the right to purchase the Premises pursuant to
the terms hereof, except that (i) the Closing Date shall be a date
selected by PWIP6 not later than ninety (90) days following Purchasers
default and (ii) PWIP6 shall have no obligation to deliver a deposit or to
pay any portion of the purchase price prior to the closing;
(d) PWIP6 shall have the right to cause Seller to sell the Premises
to any unaffiliated third party in a bona fide arms length transaction on
any terms and conditions without obtaining Purchasers consent, and
Purchaser hereby (i) waives any rights to purchase the Premises or the
PWIP6 Interests pursuant to Sections 7.03 and/or 7.04 of the Partnership
Agreement and (ii) any such sale shall be deemed to be Approved by the
Partners (as defined in the Partnership Agreement); and/or
(e) Seller shall have the right to cause the Partnership to
terminate any agreements between the Partnership and Seller or any
affiliate of Seller (including, without limitation, the management
agreement with Peterson Properties, Inc.).
It shall be a condition precedent to any obligation of PWIP6 (or any third
party) to purchase the Peterson Interests or the Premises following any election
by PWIP6 pursuant to this Section 7.2 upon receiving the prior written consent
of the holder of the Existing Mortgage Loan to the purchase by PWIP6 (or such
third party) of the Peterson Interests or the Premises, as applicable, without
requiring prepayment of the Existing Mortgage Loan (the Lender Consent). In such
event, Seller agrees to cooperate in all reasonable respects with PWIP6s efforts
to obtain the Lender Consent. If PWIP6 fails to receive the Lender Consent on or
before the anticipated closing of such transaction, PWIP6 may elect to either
(1) extend the closing date for a reasonable period of time (not to exceed one
hundred twenty (120) days following the anticipated closing of such transaction)
to the extent necessary to obtain the Lender Consent, (2) close on the purchase
of the Peterson Interest or the Premises and prepay the Existing Mortgage Loan
(in which event (A) the amount to be paid by PWIP6 or such third party for the
Peterson Interests shall be reduced by the reduction in the aggregate amount
that Seller would receive pursuant to Section 7.2(b) if the Purchase Price was
reduced by the amount required to prepay the Existing Mortgage Loan, including
any prepayment fee or premium, and (B) the amount to be paid by PWIP6 or such
third party for the Premises shall be reduced by the amount required to prepay
the Existing Mortgage Loan, including any prepayment fee or premium) or (3)
rescind PWIP6s election, in which event PWIP6 (or such third party) shall have
no further obligation to purchase the Peterson Interests or the Premises.
ARTICLE 8. PURCHASER'S REMEDIES.
8.1. If Seller shall be unable to convey the Premises, subject to and in
accordance with this Agreement, or Seller otherwise fails to comply with this
Agreement in any material respect for any reason, Purchaser shall be entitled to
a refund of the Deposits together with interest earned thereon in accordance
with the terms and conditions of the Escrow Agreement and this Agreement. Upon
the making of such refund, this Agreement and the lien, if any, of Purchaser
against the Premises shall wholly cease. Alternatively, as long as all
conditions to Seller's obligations to perform any applicable task hereunder have
been satisfied, Purchaser shall be entitled to specific performance with respect
thereto. Notwithstanding anything to the contrary, Purchasers recourse against
Seller shall be limited to a refund of the Deposits or so much thereof as
deposited with Escrow Agent under the Escrow Agreement (together with all
interest earned thereon) or specific performance, and Purchaser shall have no
right to satisfy any judgment against Seller from any assets of Seller other
than the Premises. Any claims of Purchaser at law or in equity for loss, damage
and expense suffered by Purchaser (including, without limitation, Purchasers
loss of its bargain) following a default by Seller hereunder are hereby waived
by Purchaser. Any obligation of Seller hereunder shall be non-recourse to the
shareholders, officers, directors, and employees of Seller (and their respective
shareholders, venturers, partners, officers, directors, and employees), and such
parties shall never be personally liable for any judgments on account thereof.
8.2. If Seller fails to convey the Premises at Closing due to no fault of
Purchaser (either as the purchaser hereunder or as a general partner of Seller),
subject to and in accordance with this Agreement, and Purchaser elects to pursue
specific performance under Section 8.1 rather than obtain a refund of the
Deposits under Section 8.1, then (a) Purchaser shall be entitled to have so much
of the Deposits then held by Escrow Agent returned that would result in the
aggregate principal balance of the Deposits then held by Escrow Agent being
reduced to One Hundred Thousand Dollars ($100,000.00) and (b) the balance of the
Purchase Price due by Seller at Closing shall be increased so that Seller
receives the entire Purchase Price at Closing.
8.3. The acceptance of the Deed by Purchaser shall be deemed to be a full
performance and discharge of every agreement and obligation on the part of
Seller to be performed pursuant to the provisions of this Agreement except
those, if any, which are herein specifically stated to survive the Closing Date
or which, if any, are required by this Agreement to be performed after the
Closing Date.
<PAGE>
ARTICLE 9. BROKERS.
9.1. Seller and Purchaser each represent and warrant to the other that it
has not dealt with any broker or finder in connection with this Agreement or the
sale and purchase of the Premises, and that the representing party knows of no
broker or finder who has claimed or may have a right to claim a commission or
other fee or compensation in connection with this Agreement or the sale and
purchase of the Premises. Seller and Purchaser agree to indemnify and defend
each other against any claims, costs or expenses (including, without limitation,
Attorney's fees and commissions) arising out of the breach, on their respective
parts, of any representations, warranties or agreements contained in this
Section. The representations and obligations under this Section shall survive
the Closing or, if the Closing does not occur, the termination of this
Agreement.
ARTICLE 10. NOTICES.
10.1. Any notice or demand which, under the provisions of this Agreement
or otherwise, must or may be given or made by any party hereto, must be in
writing and addressed as follows:
If to Seller:
PaineWebber Income Properties Six Limited Partnership
c/o Paine Webber Properties, Incorporated
265 Franklin Street - 15th Floor
Boston, MA 02110
Attn: Mr. Peter Sullivan
with a copy to:
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 02109
Attn: Andrew C. Sucoff, Esq.
If to Purchaser:
Peterson Interests of Kansas, Inc.
10000 West 75th Street
Shawnee Mission, KS 66204
Attn: Mr. Kenneth Riedemann
with a copy to:
Lewis, Rice & Fingersh
1010 Walnut, Suite 500
Kansas City, MO 64106
Attn: William E. Carr, Esq.
Either party may designate by notice in writing a new or other address to which
such notice or demand shall thereafter be so given, made or mailed. Any notice
shall be made as follows: (a) delivered by United States Postal Service,
registered or certified mail, postage prepaid; or (c) delivered by nationally
recognized overnight courier, shipping prepaid. A notice delivered by registered
or certified mail, return receipt requested, shall be deemed received three (3)
business days after being deposited with the United States Postal Service; and a
notice delivered by overnight courier shall be deemed received on the business
day following timely deposit with such courier for next business day delivery.
Counsel for either party may deliver notices on behalf of such party.
ARTICLE 11. CASUALTY AND CONDEMNATION
11.1. No Termination Right or Adjustment of Purchase Price. Purchaser
shall have no right to terminate this Agreement or receive a reduction or
abatement of the Purchase Price following the occurrence of any casualty or
condemnation affecting the Premises. In such event, Purchaser shall have the
right to receive all insurance proceeds or condemnation awards arising out of
such loss.
11.2. Uniform Vendor and Purchaser Risk Act. The provisions of this
Article are express provisions to the contrary and waivers of the Uniform Vendor
and Purchaser Risk Act or any similar law, to the extent applicable and adopted
in the jurisdiction of the Controlling Law.
ARTICLE 12. CLOSING CONDITIONS
12.1. Conditions to Seller's Performance. The obligations of Seller to
sell the Premises to Purchaser and to perform the other covenants and
obligations to be performed by Seller on the Closing Date shall be subject to
the following conditions (all or any of which may be waived in writing, in whole
or in part, by Seller):
(a) Purchaser shall have performed all covenants and obligations of
Purchaser in all respects and complied with all conditions required by
this Agreement to be performed or complied with by it on or before the
Closing Date;
(b) All instruments and documents required on Purchasers part to
effectuate this Agreement and the transactions contemplated hereunder
shall have been delivered and shall be in form and substance reasonably
satisfactory to Seller;
(c) Unless the Existing Mortgage Loan is paid off and satisfied at
Closing, Seller shall have received the Seller Release Documents; and
(d) Seller shall have received reasonable and customary evidence
that all appropriate organizational action of Purchaser shall have been
taken to authorize and effectuate the transactions contemplated by this
Agreement.
12.2. Conditions to Purchaser's Performance. The obligations of Purchaser
to pay the Purchase Price to Seller, purchase the Premises and to perform the
other covenants and obligations to be performed by Purchaser on the Closing Date
shall be subject to the following conditions (all or any of which may be waived
in writing, in whole or in part, by Purchaser):
(a) Seller shall have performed all covenants and obligations of
Seller in all respects and complied with all conditions required by this
Agreement to be performed or complied with by it on or before the Closing
Date;
(b) All instruments and documents required on Seller's part to
effectuate this Agreement and the transactions contemplated hereunder
shall have been delivered and shall be in form and substance reasonably
satisfactory to Purchaser; and
(c) Purchaser shall have received reasonable and customary evidence
that all appropriate organizational action of Seller shall have been taken
to authorize and effectuate the transactions contemplated by this
Agreement.
ARTICLE 13. INTENTIONALLY OMITTED.
ARTICLE 14. MISCELLANEOUS.
14.1. Modifications. This Agreement shall not be altered, amended,
changed, waived, terminated or otherwise modified in any respect or particular
unless the same shall be in writing and signed by or on behalf of the party to
be charged therewith.
14.2. Choice of Law; Severability. This Agreement shall be interpreted and
enforced in accordance with the laws of the State of Kansas without regard to
principles of conflicts of laws (the Controlling Law). If any provisions of this
Agreement shall be unenforceable or invalid, the same shall not affect the
remaining provisions of this Agreement and to this end the provisions of this
Agreement are intended to be and shall be severable.
14.3. Assignment. This Agreement may be assigned by Purchaser without the
consent of Seller; provided, however, that Purchaser shall give written notice
of such assignee to Seller a minimum of ten (10) days prior to Closing.
Notwithstanding any such assignment, the Purchaser named herein shall remain
liable for all of the representations, covenants and obligations of Purchaser
under this Agreement.
14.4. Successors and/or Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and to their respective heirs,
executors, administrators, successors and permitted assigns.
14.5. Merger; Interpretation. All prior understandings and agreements
between the parties are merged in this Agreement which alone fully and
completely expresses the agreement between them, and which is entered into after
full investigation, neither party relying upon any statement or representation
made by the other not embodied in this Agreement. This Agreement shall be
construed and without regard to or aid of canons requiring construction against
the Purchaser, Seller or party drawing this Agreement.
14.6. Waivers. No failure or delay of either party in the exercise of any
right given to such party hereunder or the waiver by any party of any condition
hereunder for its benefit (unless the time specified herein for exercise of such
right, or satisfaction of such condition, has expired) shall constitute a waiver
of any other or further right nor shall any single or partial exercise of any
right preclude other or further exercise thereof or any other right. The waiver
of any breach hereunder shall not be deemed to be a waiver of any other or any
subsequent breach hereof.
14.7. Further Assurances. Each party hereto shall from time to time
execute, acknowledge and deliver such further instruments and perform such
additional acts as the other party may reasonably request to effectuate the
intent of this Agreement.
14.8. Schedules and Exhibits. Each of the schedules and exhibits referred
to herein and attached hereto is incorporated in this Agreement by this
reference as though fully set forth herein.
14.9. Captions. The caption headings in this Agreement are for convenience
only and are not intended to be a part of this Agreement and shall not be
construed to modify, explain or alter any of the terms, covenants or conditions
herein contained.
14.10. Execution. This Agreement shall not be binding upon Seller, and
Seller shall not have any obligations hereunder, unless and until a
fully-executed original counterpart duly executed by Seller is returned to
Purchaser and the Initial Deposit has been received by Escrow Agent. This
Agreement shall not be binding upon Purchaser, and Purchaser shall not have any
obligations hereunder, unless and until a fully-executed original counterpart
duly executed by Purchaser is returned to Seller.
14.11. No Survival; Rescission Waived. Except as otherwise specifically
set forth herein, all representations, warranties and covenants, if any,
contained herein shall merge with the delivery of the deed hereunder and shall
not survive the Closing Date. Purchaser agrees that after the Closing Date it
shall have no right of rescission arising out of the breach of any
representation, warranty or covenant of Seller which, pursuant to the terms
hereof, survives the Closing.
14.12. Counterparts. This Agreement may be executed in several
counterparts, and/or by execution of counterpart signature pages which may be
attached to one or more counterpart, and all so executed shall constitute one
Agreement binding on all of the parties hereto, notwithstanding that all of the
parties are not signatory to the original or the same counterpart. In addition,
any counterpart signature page may be executed by any party wheresoever such
party is located, and may be delivered by telephone facsimile transmission, and
any such facsimile transmitted signature page may be attached to one or more
counterparts of this Agreement, and such faxed signature(s) shall have the same
force and effect, and be as binding, as original signatures executed and
delivered in person.
14.13. Authority.
(a) The person executing this Agreement on behalf of Purchaser
represents and warrants to Seller and PWIP6 (i) that Purchaser is a Kansas
corporation validly existing and in good standing, (ii) that Purchaser has
the full right and authority to enter into this Agreement and to
consummate the transactions contemplated hereunder, and (iii) that the
person signing this Agreement on behalf of Purchaser is duly authorized to
do so. At Closing, Seller shall provide evidence satisfactory to Purchaser
confirming these representations.
(b) The person executing this Agreement on behalf of Seller
represents and warrants to Purchaser (i) that Seller is a Kansas general
partnership validly existing and in good standing, (ii) that Seller has
the full right and authority to enter into this Agreement and to
consummate the transactions contemplated hereunder, and (iii) that the
person signing this Agreement on behalf of Seller is duly authorized to do
so. At Closing, Seller shall provide evidence reasonably satisfactory to
Purchaser confirming these representations.
14.14. 1099 Filing. 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: (a) that
unless otherwise agreed to by the parties in writing, ATI Title Company (the
Designee) shall be the party responsible for reporting the contemplated sale of
the Premises to the Internal Revenue Service on IRS Form 1099-S; (b) to provide
the Designee with the information necessary to complete Form 1099-S; (c) 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 (d) 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. By
countersigning this Agreement below, the Designee accepts the designation as
reporting agent and agrees to reporting the contemplated sale of the Premises to
the Internal Revenue Service on IRS Form 1099-S. The provisions of this Section
shall survive the Closing.
14.15. No Third Party Beneficiaries. Except as specifically provided
herein, no person or entity that is not a party to this Agreement is intended to
be, nor shall be, a third-party beneficiary hereof.
14.16. 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.
14.17. 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 Purchaser and Seller have contributed
substantially and materially to the preparation of this Agreement.
14.18. Actions of Seller under Agreement. Notwithstanding anything to the
contrary in the Partnership Agreement or otherwise, wherever this Agreement or
the transactions hereunder require or permit any notice, consent or approval of
or by Seller, or otherwise require or permit the decision or action of Seller
(including, without limitation, any decision to elect or pursue Seller's
remedies under Article 7 hereof), any such notice, consent, approval, decision
or action shall be given or taken to or by PWIP6. PWIP6 is hereby appointed and
constituted Seller's attorney-in-fact, with full power of substitution, to
execute and deliver any notices, documents or other items contemplated hereunder
and otherwise take any and all actions contemplated or desired hereunder on
behalf of Seller, which power of attorney shall be deemed to be coupled with an
interest and irrevocable. Any third party shall be entitled to conclusively rely
on any notice, document or other item executed by PWIP6 as the binding act of
Seller for all purposes of this Agreement and the transactions contemplated
hereunder.
[End of Page]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
SELLER:
REGENTS WALK ASSOCIATES, a Kansas general
partnership
By: PAINEWEBBER INCOME PROPERTIES SIX LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Sixth Income Properties Fund, Inc., a
Delaware corporation, its general
partner
By: /s/ Peter F. Sullivan
---------------------
Name: Peter F. Sullivan
Title: Vice President
By: PETERSON INTERESTS OF KANSAS, INC., a
Kansas corporation
By: /s/Kenneth Riedemann
--------------------
Name: Kenneth Riedemann
Title: President
PURCHASER:
PETERSON INTERESTS OF KANSAS, INC., a Kansas
corporation
By: /s/Kenneth Riedemann
--------------------
Name: Kenneth Riedemann
Title: President
<PAGE>
PWIP6:
PAINEWEBBER INCOME PROPERTIES SIX LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Sixth Income Properties Fund, Inc., a
Delaware corporation, its general partner
By: /s/ Peter F. Sullivan
---------------------
Name: Peter F. Sullivan
Title: Vice President
<PAGE>
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this Agreement) dated as of May 19, 1999, by and
among REGENTS WALK ASSOCIATES, a Kansas general partnership having an address
c/o PaineWebber Properties, Incorporated, 265 Franklin Street - 15th Floor,
Boston, MA 02110 (Seller), PETERSON INTERESTS OF KANSAS, INC., a Kansas
corporation having an address at 10000 West 75th Street, Shawnee Mission, KS
66204 (Purchaser), PAINEWEBBER INCOME PROPERTIES SIX LIMITED PARTNERSHIP, a
Delaware limited partnership having an address c/o PaineWebber Properties,
Incorporated, 265 Franklin Street - 15th Floor, Boston, MA 02110 (PWIP6), and
GOODWIN, PROCTER & HOAR LLP, a partnership including professional corporations
having an office at Exchange Place, Boston, MA 02109-2881 (Escrow Agent).
W I T N E S S E T H:
WHEREAS, simultaneously with the execution of this Agreement, Seller,
Purchaser and PWIP6 have entered into a certain Purchase and Sale Agreement of
even date herewith (the Purchase Agreement) regarding the sale and purchase of
certain improved real property (the Premises) known as The Regents Walk
Apartments located in Overland Park, as more particularly described in the
Purchase Agreement; and
WHEREAS, pursuant to the terms and provisions of the Purchase Agreement,
Seller, Purchaser and PWIP6 have agreed that Purchaser will deliver to Escrow
Agent, as escrowee, a deposit (the Initial Deposit) in the amount of Five
Hundred Thousand Dollars ($500,000.00); and
WHEREAS, pursuant to the terms and provisions of the Purchase Agreement,
Seller may deliver to Escrow Agent (a) an additional deposit (the First
Extension Additional Deposit) in the amount of Two Hundred Fifty Thousand
Dollars ($250,000.00) in connection with an extension of the Closing Date (as
defined in the Partnership Agreement) to the First Extended Closing Date (as
defined in the Partnership Agreement) and (b) another additional deposit (the
Second Extension Additional Deposit) in the amount of Two Hundred Fifty Thousand
Dollars ($250,000.00) in connection with an extension of the Closing Date to the
Second Extended Closing Date (as defined in the Partnership Agreement); and
WHEREAS, Seller, Purchaser and PWIP6 have agreed that the Initial Deposit,
the First Additional Deposit and the Second Additional Deposit (collectively,
with all interest accrued thereon, the Deposits) will be held in accordance with
the terms, conditions and provisions contained herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, the parties agree as follows:
1. Simultaneously with the execution of the Purchase Agreement and this
Agreement by Purchaser, Purchaser shall deliver the Initial Deposit to Escrow
Agent by wire transfer of immediately available funds pursuant to the wiring
instructions annexed hereto as Exhibit 1. If Purchaser elects to extend the
Closing Date to the First Extended Closing Date, Purchaser shall deliver the
First Extension Additional Deposit to Escrow Agent by wire transfer of
immediately available funds pursuant to the wiring instructions annexed hereto
as Exhibit 1 (or any other wiring instructions directed by Escrow Agent), and if
Purchaser elects to extend the Closing Date to the Second Extended Closing Date,
Purchaser shall deliver the Second Extension Additional Deposit to Escrow Agent
by wire transfer of immediately available funds pursuant to the wiring
instructions annexed hereto as Exhibit 1 (or any other wiring instructions
directed by Escrow Agent). Following receipt and collection by Escrow Agent of
any of the Deposits, Escrow Agent shall hold the proceeds of the Deposits and
all interest earned thereon in escrow upon the terms and conditions set forth in
this Agreement.
2. Escrow Agent shall deliver the Deposits to Seller or Purchaser, as the
case may be, as follows:
(a) to Seller, upon completion of the Closing (as defined in the
Purchase Agreement), with all interest earned thereon credited against the
balance of the Purchase Price (as defined in the Purchase Agreement) due
from Purchaser to Seller at Closing (or, at Sellers election, if such
amount is not credited against the balance of the Purchase Price due from
Purchaser to Seller at Closing, the interest shall be delivered to
Purchaser by check or wire transfer at Closing), and, if requested by
Escrow Agent, receipt of a letter of direction executed by both Seller and
Purchaser; or
(b) to Seller, after receipt of Sellers written demand in which
Seller certifies either that (i) Purchaser has defaulted under the
Purchase Agreement, and such default, to the knowledge of Seller, has not
been cured, or (ii) the Purchase Agreement has been otherwise terminated
or canceled, and Seller is thereby entitled to receive the Deposits; but
Escrow Agent shall not honor Sellers written demand until more than ten
(10) business days after Escrow Agent has sent a copy of Sellers written
demand to Purchaser in accordance with Paragraphs 3 and 8 hereof, nor
thereafter if Escrow Agent receives a Notice of Objection (as hereinafter
defined) from Purchaser within such ten (10) business day period; or
(c) to Purchaser, after receipt of Purchasers written demand in
which Purchaser certifies either that (i) Seller has defaulted under the
Purchase Agreement, and such default, to the knowledge of Purchaser, has
not been cured, or (ii) the Purchase Agreement has been otherwise
terminated or canceled, and Purchaser is thereby entitled to receive the
Deposits; but Escrow Agent shall not honor Purchasers written demand until
more than ten (10) business days after Escrow Agent has sent a copy of
Purchasers written demand to Seller in accordance with Paragraphs 3 and 8
hereof, nor thereafter if Escrow Agent receives a Notice of Objection (as
said term is hereinafter defined) from Seller within such ten (10)
business day period.
Upon delivery of the Deposits in accordance herewith, Escrow Agent shall
be relieved of all liability hereunder and with respect to the Deposits. Escrow
Agent shall (unless otherwise agreed to by Escrow Agent and the recipient
thereof) deliver the Deposits by wire transfer in accordance with written wiring
instructions actually received by Escrow Agent from the recipient thereof.
3. Upon receipt of a written demand from Seller or Purchaser under clause
(b) or (c) of Paragraph 2 hereof, Escrow Agent shall send a copy of such written
demand or notice to the other party. Within ten (10) business days after such
copy has been received or deemed received, but not thereafter, the other party
may object to delivery of the Deposits by giving written notice of objection (a
Notice of Objection) to Escrow Agent. After receiving a Notice of Objection,
Escrow Agent shall send a copy of such Notice of Objection to the party who
filed the written demand or notice; and thereafter, in its sole and absolute
discretion, Escrow Agent shall elect either:
(a) to continue to hold the Deposits until Escrow Agent receives a
written agreement of Purchaser and Seller directing the disbursement of
the Deposits, in which event Escrow Agent shall disburse the Deposits in
accordance with such agreement; and/or
(b) to deposit the Deposits into any court of competent jurisdiction
and bring an action of interpleader or any other similar proceeding;
and/or
(c) in the event of any litigation between Seller and Purchaser, to
deposit the Deposits with the clerk of the court in which such litigation
is pending.
4. If Escrow Agent is uncertain for any reason whatsoever as to its duties
or rights hereunder (and whether or not Escrow Agent has received any written
demand under Paragraph 2 or Notice of Objection under Paragraph 3),
notwithstanding anything to the contrary herein, Escrow Agent shall hold and/or
apply the Deposits pursuant to Paragraph 3 hereof and may decline to take any
other action whatsoever. In the event the Deposits are deposited in a court of
competent jurisdiction by Escrow Agent pursuant to Paragraph 3(b) or 3(c) above,
Escrow Agent shall be entitled to rely upon a Final Order of such court. As used
herein, a court order shall be deemed a Final Order when (i) the court order has
not been reversed, stayed, modified or amended (except to the extent that
Purchaser and Seller have consented to such modification or amendment in
writing) and (ii) the time for filing a notice of appeal, petition for
certiorari or motion for reargument has expired and no such pleading shall then
be pending. In the event of any dispute whatsoever among the parties with
respect to disposition of the Deposits, Purchaser and Seller shall pay the
attorneys fees and costs incurred by Escrow Agent (which said parties shall
share equally, but for which said parties shall be jointly and severally liable)
for any litigation in which Escrow Agent is named as, or becomes, a party.
5. As used herein, the term Approved Investment means an interest-bearing
savings account in Citizens Bank, State Street Bank and Trust Company, Boston
Safe Deposit and Trust Company, or in any other state or national bank located
in the Boston, Massachusetts or Providence, Rhode Island reasonably approved by
Purchaser and Seller (an Approved Institution). The rate of interest or yield
need not be the maximum available.
6. Notwithstanding anything to the contrary in the Purchase Agreement,
within five (5) business days after receipt and collection thereof and receipt
by Escrow Agent of an original executed W-9 form from Purchaser, Escrow Agent
shall place the Deposits in an Approved Investment. The interest, if any, which
accrues on such Approved Investment shall be deemed part of the Deposits; and
Escrow Agent shall dispose of such interest as and with the Deposits pursuant to
this Agreement. Escrow Agent may convert the Deposits from the Approved
Investment into cash or a non-interest-bearing deposit account at an Approved
Institution as follows:
(a) at any time within five (5) business days prior to the
anticipated Closing Date (as defined in the Purchase Agreement); or
(b) if such Closing Date is accelerated or postponed, at any time
within five (5) business days prior to the accelerated or adjourned
Closing Date (provided, however, that Seller and Purchaser shall give
Escrow Agent timely notice of any such acceleration or adjournment and
that Escrow Agent may hold the Deposits in cash or a non-interest-bearing
deposit account if Seller and Purchaser do not give Escrow Agent timely
notice of any such adjournment).
As long as Escrow Agent places the Deposits in an Approved Investment in
accordance with the terms hereof, Escrow Agent shall have no liability
whatsoever for the rate of interest or yield, if any, earned on the Deposits nor
for the preservation of principal.
7. Escrow Agent shall have no duties or responsibilities except those set
forth herein, which the parties hereto agree are ministerial in nature. Seller
and Purchaser acknowledge that Escrow Agent is serving without additional
compensation, solely as an accommodation to the parties hereto, and except for
Escrow Agents own willful default or gross negligence, Escrow Agent shall have
no liability of any kind whatsoever arising out of or in connection with its
activity as Escrow Agent. Seller and Purchaser agree to and do hereby indemnify
and hold harmless Escrow Agent from all loss, cost, claim, damage, liability,
and expense (including, without limitation, attorneys fees and disbursements,
whether paid to retained attorneys or representing the fair value of legal
services rendered to itself) which may be incurred by reason of its acting as
Escrow Agent. Escrow Agent shall be entitled to rely and/or act upon any
judgment, certificate, demand or other writing delivered to it hereunder without
being required to determine the authenticity or the correctness of any fact
stated therein, the propriety or validity thereof, or the jurisdiction of a
court issuing any such judgment provided it acts in good faith. Escrow Agent may
act in reliance upon (i) any instrument or signature believed to be genuine and
duly authorized and (ii) advice of counsel in reference to any matter or matters
connected herewith.
8. Any Notice of Objection or written demand or any other notice or
communication which may or must be sent, given or made under this Escrow
Agreement (each, a Notice) shall be in writing and shall be deemed sent, given
or made only if delivered by hand, with delivery evidenced by written receipt,
or if sent by nationally-recognized overnight courier, shipping prepaid (or by
account), addressed to the parties as follows:
If to Seller or to PWIP6:
c/o Paine Webber Properties, Incorporated
265 Franklin Street - 15th Floor
Boston, MA 02110
Attn: Mr. Peter Sullivan
with a copy to:
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 02109
Attn: Andrew C. Sucoff, Esq.
If to Purchaser:
Peterson Interests of Kansas, Inc.
10000 West 75th Street
Shawnee Mission, KS 66204
Attn: Mr. Kenneth Riedemann
with a copy to:
Lewis, Rice & Fingersh
1010 Walnut, Suite 500
Kansas City, MO 64106
Attn: William E. Carr, Esq.
If to Escrow Agent:
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 02109
Attn: Andrew C. Sucoff, Esq.
Any Notice to Escrow Agent shall be deemed sent, given or made on the date
received. For purposes of delivering a Notice of Objection to Escrow Agent only,
such Notice of Objection may be sent to Escrow Agent via facsimile at (617)
227-8591 followed by a duplicate notice sent the same day by
nationally-recognized overnight courier (with airbill evidencing date of
shipping), in accordance with this section. Any Notice from Escrow Agent to
Purchaser or Seller shall be deemed sent, given or made (i) if by hand, when
actually received, and (ii) if by nationally-recognized overnight courier, the
business day following deposit with such courier.
9. This Agreement shall be construed and enforced in accordance with, and
governed by, the laws of The Commonwealth of Massachusetts. This Agreement
embodies the entire agreement and understanding among the parties and supersedes
all prior agreements and understandings relating to the subject matter hereof.
This Agreement may not be modified or amended, or any term or provision hereof
waived or discharged, except in writing signed by the party against whom such
amendment, modification, waiver or discharge is sought to be enforced. All the
terms of this Agreement, whether so expressed or not, shall be binding upon the
respective permitted successors and assigns of the parties hereto and shall
inure to the benefit of and be enforceable by the parties hereto and their
respective permitted successors and assigns. This Agreement may be executed in
several counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
10. Purchaser (as to item 10 (a) below) and Seller (as to item 10 (b)
below) hereby represent and warrant to each other and to Escrow Agent that the
following represent their true Federal Taxpayer Identification Numbers, which
are being furnished to Escrow Agent so that Escrow Agent may file appropriate
income tax information returns with respect to any interest or other income from
the Approved Investment:
(a) Purchasers Federal Taxpayer Identification Number is
48-0998216; and
(b) Sellers Federal Taxpayer Identification Number is 48-0998810.
11. Seller and Purchaser waive any claim of conflict of interest by reason
of Escrow Agents representing PWIP6 and/or Seller hereunder, under the Purchase
Agreement and/or otherwise. Purchaser hereby acknowledges that Escrow Agent is
the attorney for PWIP6 and/or Seller, and agrees that Escrow Agent may represent
PWIP6 and/or Seller in connection with any and all matters, including without
limitation, the transaction contemplated by the Purchase Agreement, and any
litigation, including any action arising out of this Agreement.
12. Reference is hereby made to that certain Partnership Agreement of
Seller dated as of April 25, 1985 between Purchaser and PWIP6 (as amended, the
Partnership Agreement). PWIP6 and Purchaser are the sole partners of Seller.
Notwithstanding anything to the contrary in the Partnership Agreement or
otherwise, wherever this Agreement or the transactions hereunder require or
permit any notice, consent or approval of or by Seller, or otherwise require or
permit the decision or action of Seller, any such notice, consent, approval,
decision or action shall be given or taken to or by PWIP6. PWIP6 is hereby
appointed and constituted Sellers attorney-in-fact, with full power of
substitution, to execute and deliver any notices, documents or other items
contemplated hereunder and otherwise take any and all actions contemplated or
desired hereunder on behalf of Seller, which power of attorney shall be deemed
to be coupled with an interest and irrevocable. Escrow Agent and any third party
shall be entitled to conclusively rely on any notice, document or other item
executed by PWIP6 as the binding act of Seller for all purposes of this
Agreement and the transactions contemplated hereunder. In addition, PWIP6 and
Purchaser acknowledge and agree that pursuant to Section 7.1 of the Purchase
Agreement, in the event that Seller is entitled to receive all or any portion of
the Deposits following a default by Purchaser under the Purchase Agreement, the
entire amount of the Deposits that Seller is entitled to receive shall be paid
directly to, and retained by, PWIP6; and Purchaser (in its capacity as a partner
of Seller) hereby assigns any and all right, title or interest in the Deposits
to PWIP6.
13. Any amendment of the Purchase Agreement which could alter or otherwise
affect Escrow Agents obligations hereunder will not be effective against or
binding upon Escrow Agent without Escrow Agents prior written consent, which
consent may be withheld in Escrow Agents sole and absolute discretion.
[End of Page]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
SELLER:
REGENTS WALK ASSOCIATES, a Kansas general
partnership
By: PAINEWEBBER INCOME PROPERTIES SIX LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Sixth Income Properties Fund, Inc., a
Delaware corporation, its general
partner
By: /s/ Peter F. Sullivan
---------------------
Name: Peter Sullivan
Title: Vice President
By: PETERSON INTERESTS OF KANSAS, INC., a
Kansas corporation
By: /s/Kenneth Riedemann
--------------------
Name: Kenneth Riedemann
Title: President
PURCHASER:
PETERSON INTERESTS OF KANSAS, INC., a Kansas
corporation
By: /s/Kenneth Riedemann
--------------------
Name: Kenneth Riedemann
Title: President
<PAGE>
PAINEWEBBER INCOME PROPERTIES SIX LIMITED PARTNERSHIP
265 Franklin Street, 15th Floor
Boston, MA 02110
September 2, 1999
BY FACSIMILE
Peterson Interests of Kansas, Inc.
1000 West 75th Street
Shawnee Mission, KS 66204
Re: Purchase and Sale Agreement dated as of May 19, 1999 (as amended, the
Agreement) by and among Regents Walk Associates (Seller), Peterson
Interests of Kansas, Inc. (Purchaser) and PaineWebber Income Properties Six
Limited Partnership (PWIP6)
Gentlemen:
Unless otherwise defined herein, capitalized terms used in this letter
agreement shall have the meanings ascribed to them in the Agreement. The parties
acknowledge and agree that (i) the Closing Date has been extended by Purchaser
to September 7, 1999 pursuant to Section 3.1 of the Agreement and (ii) Purchaser
has no further right to extend the Closing Date. Purchaser has requested that
Seller and PWIP6 agree to extend the Closing Date from September 7, 1999 to
September 30, 1999. Purchaser is willing to extend the Closing Date on the terms
and conditions set forth herein.
In consideration of Seller agreeing to extend the Closing Date as
hereinafter described, Purchaser has agreed to (i) send $250,000.00 (the
Supplemental Deposit) to Goodwin, Procter & Hoar LLP (Escrow Agent) to hold in
accordance with the terms of this letter agreement and (ii) authorize and direct
Escrow Agent to immediately disburse $750,000.00 of the Deposits now held by
Escrow Agent pursuant to the Escrow Agreement to PWIP6 in accordance with the
terms of this letter agreement. The Supplemental Deposit shall be delivered to
Escrow Agent by wire transfer or certified check on or before September 3, 1999.
In addition, Seller and Purchaser hereby agree as follows:
1. Supplemental Deposit. The Supplemental Deposit will be held, deposited
and disbursed by Escrow Agent pursuant to the Escrow Agreement in the
same manner as the Deposits. Without limiting the generality of the
foregoing, the Supplemental Deposit will be credited against the
balance of the Purchase Price due at Closing in the manner and to the
same extent as the Deposits under the Agreement and the Escrow
Agreement. The wiring information for Escrow Agents escrow account is
set forth in Exhibit 1 of the Escrow Agreement. If Purchaser delivers
the Supplemental Deposit, the balance of the Purchase Price due at
Closing shall be Sixteen Million Five Hundred Thousand Dollars
($16,500,000.00).
2. $750,000.00 Disbursement to PWIP6. Notwithstanding anything to the
contrary contained in the Agreement or the Escrow Agreement, Purchaser
and Seller each hereby authorize and direct Escrow Agent to
immediately deliver the sum of $750,000.00 from the Deposits now held
by Escrow Agent under the Escrow Agreement to PWIP6. Such $750,000.00
disbursement to PWIP6 shall be non-refundable; however, if Seller
shall default in its obligation to convey the Premises to Purchaser on
September 30, 1999, subject to and in accordance with the Agreement,
Purchaser may elect to obtain a refund of such $750,000.00
disbursement from PWIP6 in the same manner, and to the same extent,
that Purchaser may elect to obtain a refund of the Deposits pursuant
to Section 8.1 of the Agreement.
3. Application of Deposits Following Purchaser Default. Purchaser
acknowledges and agrees that pursuant to Section 7.1 of the Agreement,
and notwithstanding anything to the contrary contained in the
Partnership Agreement, in the event of a default by Purchaser in the
performance of any terms of the Agreement (as amended and affected by
this letter agreement), PWIP6 shall be entitled to receive and retain
all of the Deposits, the Supplemental Deposit and all interest earned
thereon, without adjustment to PWIP6s capital account, as liquidated
damages to PWIP6 arising from such default by Purchaser.
4. Time of the Essence. Time is of the essence for (i) Purchaser to
deliver the Supplemental Deposit to Seller on or before September 3,
1999, and (ii) the Closing to occur on or before September 30, 1999.
Purchasers failure to cause any of the foregoing events to occur on or
before the dates set forth in the preceding sentence shall be deemed a
material default by Purchaser under the Agreement entitling PWIP6 to
immediately thereafter receive the balance of the Deposits held by
Escrow Agent, the Supplemental Deposit, and all interest, if any,
earned thereon. Purchaser represents and warrants to Seller and PWIP6
that, as of the date hereof, no facts or circumstances exist which
would entitle Purchaser to deliver a Notice of Objection (as defined
in the Escrow Agreement) if Seller makes a demand for the Deposits,
the Supplemental Deposit, and all interest, if any, earned thereon in
accordance with the terms of the Escrow Agreement and this letter
agreement following the failure by Purchaser to cause any of the
events described in the first sentence of this paragraph to occur on
or before the dates set forth above.
Except as otherwise provided herein, the Agreement and the Escrow
Agreement shall remain unmodified and in full force and effect. Seller and
Purchaser hereby ratify and confirm the Agreement and the Escrow Agreement as
modified hereby. Except as expressly set forth herein, the execution of this
letter agreement shall not be deemed a waiver by any party hereto of any of the
terms, covenants and conditions contained in the Agreement and the Escrow
Agreement.
Please acknowledge Purchasers agreement to the terms of this letter
agreement by countersigning a copy of this letter agreement on behalf of
Purchaser where indicated below. This letter agreement may be executed in
several counterparts, and/or by execution of counterpart signature pages which
may be attached to one or more counterpart, and all so executed shall constitute
one letter agreement binding on all of the parties hereto, notwithstanding that
all of the parties are not signatory to the original or the same counterpart. In
addition, any counterpart signature page may be executed by any party
wheresoever such party is located, and may be delivered by telephone facsimile
transmission, and any such facsimile transmitted signature pages may be attached
to one or more counterparts of this letter agreement, and such faxed
signature(s) shall have the same force and effect, and be as binding, as
original signatures executed and delivered in person.
Very truly yours,
PAINEWEBBER INCOME PROPERTIES SIX LIMITED
PARTNERSHIP
By: Sixth Income Properties Fund, Inc., its
general partner
By: /s/ Peter F. Sullivan
---------------------
Name: Peter Sullivan
Title: Vice President
ACKNOWLEDGED AND AGREED TO BY:
SELLER:
REGENTS WALK ASSOCIATES,
a Kansas general partnership
By: PAINEWEBBER INCOME PROPERTIES
SIX LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Sixth Income Properties Fund, Inc.,
a Delaware corporation, its general partner
By: /s/ Peter F. Sullivan
---------------------
Name: Peter Sullivan
Title: Vice President
By: PETERSON INTERESTS OF KANSAS, INC.,
a Kansas corporation
By: /s/Kenneth Riedemann
--------------------
Name: Kenneth Riedemann
Title: President
PURCHASER:
PETERSON INTERESTS OF KANSAS, INC.,
a Kansas corporation
By: /s/Kenneth Riedemann
--------------------
Name: Kenneth Riedemann
Title: President
<PAGE>
DOCUMENT ESCROW AGREEMENT
THIS DOCUMENT ESCROW AGREEMENT (this Agreement) is made as of September 2,
1999, by and among REGENTS WALK ASSOCIATES, a Kansas general partnership having
an address c/o Paine Webber Properties, Incorporated, 265 Franklin Street - 15th
Floor, Boston, MA 02110 (Seller), PETERSON INTERESTS OF KANSAS, INC., a Kansas
corporation having an address at 10000 West 75th Street, Shawnee Mission, KS
66204 (Purchaser), PAINEWEBBER INCOME PROPERTIES SIX LIMITED PARTNERSHIP, a
Delaware limited partnership having an address c/o Paine Webber Properties,
Incorporated, 265 Franklin Street - 15th Floor, Boston, MA 02110 (PWIP6), and
GOODWIN, PROCTER & HOAR LLP, a partnership including professional corporations
having an office at Exchange Place, Boston, MA 02109-2881 (Escrow Agent).
W I T N E S S E T H:
WHEREAS, Seller, Purchaser and PWIP6 (collectively, the Parties) are
parties to that certain Purchase and Sale Agreement dated as of May 19, 1999 (as
amended from time to time, the Purchase Agreement); and
WHEREAS, simultaneously with the execution and delivery of this Agreement,
the Parties are entering into a certain letter agreement (the Extension
Agreement) whereby the Closing Date (as defined in the Purchase Agreement) shall
be extended from September 7, 1999 to September 30, 1999, subject to the terms
and conditions set forth in the Extension Agreement; and
WHEREAS, PWIP6 has agreed to execute and deliver to Escrow Agent the
documents listed on Schedule 1 attached hereto and made a part hereof (the
Escrow Documents), which Escrow Documents shall be held and/or released by
Escrow Agent in accordance with the terms, conditions and provisions contained
herein; and
WHEREAS, the Escrow Agent is willing to hold and/or release the Escrow
Documents on behalf of the Parties on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of ten dollars ($10.00) and other good
and valuable consideration, and intending to be legally bound hereby, the
Parties and Escrow Agent agree as follows:
1. Unless otherwise defined herein, capitalized terms used without
definition shall have the meanings ascribed to them in the Purchase Agreement.
2. PWIP6 agrees to execute and deliver the Escrow Documents to Escrow
Agent on or before September 3, 1999. Upon receipt thereof, Escrow Agent shall
hold and/or release the Escrow Documents in escrow in accordance with the terms
of this Agreement.
3. Upon satisfaction of the Escrow Conditions (as hereinafter defined),
Escrow Agent shall complete the Escrow Documents by attaching all schedules and
exhibits and by filling in all blanks contained therein as instructed by the
Parties and thereafter deliver the Escrow Documents out of escrow to ATI Title
Company (the Designee), and the Escrow Documents shall be deemed executed,
delivered and effective as specified in Section 3 hereof. Alternatively, at
Escrow Agents election, Escrow Agent may at any time deposit the Escrow
Documents with the Designee without attaching any schedules or exhibits and
without completing any blanks contained herein with instructions to the Designee
to (a) hold the Escrow Documents in escrow unless and until the Escrow
Conditions have been satisfied and (b) upon satisfaction of the Escrow
Conditions, complete the Escrow Documents by attaching all schedules and
exhibits and by filling in all blanks contained therein as instructed by the
Parties and thereafter release and/or record the Escrow Documents as appropriate
to effect the Closing.
4. For purposes of this Agreement, the term Escrow Conditions shall mean
all of the following:
(a) Execution by the Parties of a closing statement for the
transaction (the Closing Statement) setting forth the Purchase Price, the
closing adjustments and the application of such amounts;
(b) Receipt by Escrow Agent of all schedules, exhibits and other
information needed to complete the Escrow Documents, together with
instructions from the Parties or counsel to the Parties authorizing Escrow
Agent to complete the Escrow Documents with such schedules, exhibits and
other information;
(c) Receipt by Escrow Agent of (i) original executed counterparts of
the items listed on Schedule 2 attached hereto and made a part hereof (the
Purchaser Delivery Documents) or (ii) a written confirmation and
undertaking from the Designee that Designee has received original executed
counterparts of the Purchaser Delivery Documents and is ready, willing and
able, subject only to receipt by the Designee of the Escrow Documents, to
deliver, release and/or record the Purchaser Delivery Documents as
directed by PWIP6; and
(d) Receipt by Escrow Agent of (i) the PWIP6 Payment (as hereinafter
defined) for immediate distribution to PWIP6, (ii) confirmation from PWIP6
that PWIP6 has received the PWIP6 Payment or (iii) a written confirmation
and undertaking from the Designee that the Designee has received PWIP6
Payment and is ready, willing and able, subject only to receipt by
Designee of the Escrow Documents, to deliver the PWIP6 Payment as directed
by PWIP6.
As used herein, the term PWIP6 Payment shall mean such portion of the
balance of the Purchase Price due to Seller at Closing to be paid or distributed
to PWIP6 under the terms of the Purchase Agreement and the Partnership
Agreement, as shown on the Closing Statement executed by the Parties.
The Escrow Documents shall not be deemed to have been executed, delivered
and/or accepted unless and until all of the Escrow Conditions have been
satisfied.
5. If, for any reason whatsoever, the Escrow Conditions are not satisfied
before the September 30, 1999 (the Termination Time), the Escrow Documents shall
be void and of no force and effect whatsoever and shall be deemed never to have
been entered into or executed and delivered, and neither Party shall have any
liability whatsoever to the other Party by reason of the execution and deliver
of the Escrow Documents or any matter whatsoever pertaining thereto. In such
event, Escrow Agent shall hold the Escrow Documents for thirty (30) days after
the Termination Time and, promptly thereafter, unless Escrow Agent shall receive
a written agreement signed by the Parties directing otherwise (which no Party
shall have any obligation to enter into), Escrow Agent shall destroy all the
Escrow Documents to signify that the same have never existed.
6. Escrow Agent shall have no duties or responsibilities except those set
forth herein, which the Parties agree are ministerial in nature. The Parties
acknowledge that Escrow Agent is serving without compensation, solely as an
accommodation to the Parties, and except for Escrow Agents own willful default
or gross negligence, Escrow Agent shall have no liability of any kind whatsoever
arising out of or in connection with its activity as Escrow Agent. The Parties
jointly and severally agree to and do hereby indemnify and hold harmless Escrow
Agent from all loss, cost, claim, damage, liability, and expense (including,
without limitation, attorneys fees and disbursements, whether paid to retained
attorneys or representing the fair value of legal services rendered to itself)
which may be incurred by reason of its acting as Escrow Agent. Escrow Agent may
rely and/or act upon any judgment, certificate, demand or other writing
delivered to it hereunder without being required to determine the authenticity
or the correctness of any fact stated therein, the propriety or validity
thereof, or the jurisdiction of a court issuing any such judgment. Escrow Agent
may rely and/or act upon (i) any instrument or signature believed to be genuine
and to have been duly authorized, executed and delivered and (ii) advice of
counsel in reference to any matter or matters connected herewith.
7. If Escrow Agent is uncertain for any reason whatsoever as to its duties
or rights hereunder, or if Escrow Agent receives instructions from any person
which (in Escrow Agents sole judgment) conflict with this Escrow Agreement,
Escrow Agent may act as follows:
(a) Escrow Agent may continue to hold the Escrow Documents until
Escrow Agent receives a written agreement of all the Parties with respect
to disposition of all the Escrow Documents, in which event Escrow Agent
shall distribute the Escrow Documents in accordance with such agreement;
and/or
(b) Escrow Agent may take any and all such actions as Escrow Agent
deems necessary or proper, in its exclusive good-faith discretion, to
discharge and terminate its duties under this Escrow Agreement, including
(but not limited to) delivery of the Escrow Documents into any court and
the bringing of an action of interpleader or any other proceeding which
Escrow Agent deems appropriate; and/or
(c) In event of litigation between or among some or all of the
Parties and/or any other persons, Escrow Agent may deposit the Escrow
Documents with the clerk of the court in which any such litigation is
pending.
In any such event the Parties agree to pay the attorneys fees and costs incurred
by Escrow Agent, whether paid to retained attorneys or representing the fair
value of legal services rendered to itself (which the Parties shall share
equally, but for which the Parties shall be jointly and severally liable to
Escrow Agent), for any litigation which Escrow Agent is named as, or becomes, a
party.
8. Seller and Purchaser waive any claim of conflict of interest by reason
of Escrow Agents representing Seller and/or PWIP6 hereunder, under the Purchase
Agreement and/or otherwise. Purchaser hereby acknowledges that Escrow Agent is
the attorney for Seller and/or PWIP6, and agrees that Escrow Agent may represent
Seller and PWIP6 in connection with any and all matters, including without
limitation, the transaction contemplated by the Purchase Agreement, and any
litigation, including any action arising out of this Agreement; provided that in
no event shall Purchaser be responsible for payment of any fees incidental to
any such representation. The foregoing shall not release Escrow Agent from
properly performing Escrow Agents duties hereunder.
9. All notices, requests, demands, elections, consents, approvals and
other communications hereunder must be in writing (each such, a notice) and
addressed as follows (or to any other address which any Party or Escrow Agent
may designate by a notice):
If to Seller or to PWIP6:
c/o Paine Webber Properties, Incorporated
265 Franklin Street - 15th Floor
Boston, MA 02110
Attn: Mr. Peter Sullivan
with a copy to:
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 02109
Attn: Andrew C. Sucoff, Esq.
If to Purchaser:
Peterson Interests of Kansas, Inc.
10000 West 75th Street
Shawnee Mission, KS 66204
Attn: Mr. Kenneth Riedemann
with a copy to:
Lewis, Rice & Fingersh
1010 Walnut, Suite 500
Kansas City, MO 64106
Attn: William E. Carr, Esq.
If to Escrow Agent:
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 02109
Attn: Andrew C. Sucoff, Esq.
Any notice required by this Agreement to be given or made within a specified
period of time, or on or before a date certain, shall be deemed to have been
duly given only if (i) delivered by hand, evidenced by written receipt, or (ii)
mailed by first class, registered mail, return receipt requested, postage and
fees prepaid or (iii) sent by nationally recognized overnight courier, fees
prepaid. A notice sent by registered mail (as above) shall be deemed given three
(3) business days after mailing. All other notices shall be deemed given when
received.
10. This Agreement shall be construed and enforced in accordance with, and
governed by, the laws of The Commonwealth of Massachusetts without regard to
principles of conflicts of laws. This Agreement embodies the entire agreement
and understanding among the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof. This Agreement may not be
modified or amended, or any term or provision hereof waived or discharged,
except in writing signed by the party against whom such amendment, modification,
waiver or discharge is sought to be enforced. All the terms of this Agreement,
whether so expressed or not, shall be binding upon the respective permitted
successors and assigns of the parties hereto and shall inure to the benefit of
and be enforceable by the parties hereto and their respective permitted
successors and assigns. This Agreement may be executed in several counterparts,
and/or by execution of counterpart signature pages which may be attached to one
or more counterpart, and all so executed shall constitute one Agreement binding
on all of the parties hereto, notwithstanding that all of the parties are not
signatory to the original or same counterpart. In addition, any counterpart
signature page may be executed by any party wheresoever such party is located,
and may be delivered by telephone facsimile transmission, and any such facsimile
transmitted signature pages may be attached to one or more counterparts of this
Agreement, and such faxed signature(s) shall have the same force and effect, and
be as binding, as original signatures executed and delivered in person.
11. Reference is hereby made to that certain Partnership Agreement of
Seller dated as of April 25, 1985 between Purchaser and PWIP6 (as amended, the
Partnership Agreement). PWIP6 and Purchaser are the sole partners of Seller.
Notwithstanding anything to the contrary in the Partnership Agreement or
otherwise, wherever this Agreement or the transactions hereunder require or
permit any notice, consent or approval of or by Seller, or otherwise require or
permit the decision or action of Seller, any such notice, consent, approval,
decision or action shall be given or taken to or by PWIP6. PWIP6 is hereby
appointed and constituted Sellers attorney-in-fact, with full power of
substitution, to execute and deliver any notices, documents or other items
contemplated hereunder and otherwise take any and all actions contemplated or
desired hereunder on behalf of Seller, which power of attorney shall be deemed
to be coupled with an interest and irrevocable. Escrow Agent and any third party
shall be entitled to conclusively rely on any notice, document or other item
executed by PWIP6 as the binding act of Seller for all purposes of this
Agreement and the transactions contemplated hereunder.
12. Any amendment of the Purchase Agreement, this Agreement or any other
instrument which could alter or otherwise affect Escrow Agents obligations
hereunder will not be effective against or binding upon Escrow Agent without
Escrow Agents prior written consent, which consent may be withheld in Escrow
Agents sole and absolute discretion.
IN WITNESS WHEREOF, this Agreement has been duly executed as of the day
and year first above written.
[End of Page]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
SELLER:
REGENTS WALK ASSOCIATES, a Kansas general
partnership
By: PAINEWEBBER INCOME PROPERTIES SIX LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Sixth Income Properties Fund, Inc., a
Delaware corporation, its general
partner
By: /s/ Peter F. Sullivan
---------------------
Name: Peter Sullivan
Title: Vice President
By: PETERSON INTERESTS OF KANSAS, INC., a
Kansas corporation
By: /s/Kenneth Riedemann
--------------------
Name: Kenneth Riedemann
Title: President
PURCHASER:
PETERSON INTERESTS OF KANSAS, INC., a Kansas
corporation
By: /s/Kenneth Riedemann
--------------------
Name: Kenneth Riedemann
Title: President
PWIP6:
PAINEWEBBER INCOME PROPERTIES SIX LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Sixth Income Properties Fund, Inc., a
Delaware corporation, its general partner
By: /s/ Peter F. Sullivan
---------------------
Name: Peter Sullivan
Title: Vice President
ESCROW AGENT:
GOODWIN, PROCTER & HOAR LLP
/s/ Andrew C. Sucoff
----------------
Andrew C. Sucoff
<PAGE>
KANSAS QUIT-CLAIM DEED
THIS INDENTURE is made as of September 30, 1999, by and between Regents
Walk Associates, a Kansas general partnership having an address c/o PaineWebber
Properties, Incorporated, 265 Franklin Street - 15th Floor, Boston, MA 02110
(Grantor), and Peterson Interests of Kansas, Inc., a Kansas corporation having
an address at 10000 West 75th
Street, Shawnee Mission, KS 66204 (Grantee).
WITNESSETH, that Grantor, in consideration of the sum of Ten Dollars
($10.00) and other good and valuable consideration paid by Grantee, the receipt
and sufficiency of which is hereby acknowledged, do by these presents remise,
release and forever quit-claim unto Grantee the following described lots, tracts
or parcels of land, lying, being and situate in the County of Johnson and State
of Kansas, to-wit:
Tracts 1 and 2, REGENTS WALK REPLAT, a subdivision in the City of Overland
Park, Johnson County, Kansas, according to the recorded plat thereof.
SUBJECT TO all matters affecting the premises, whether or not of record.
TO HAVE AND TO HOLD THE SAME, with all the rights, immunities, privileges
and appurtenances thereto belonging, unto Grantee and unto Grantees heirs and
assigns forever.
IN WITNESS WHEREOF, Grantor has hereunto set its hand as of the day and
year above written.
REGENTS WALK ASSOCIATES, a Kansas general
partnership
By: PAINEWEBBER INCOME PROPERTIES SIX LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Sixth Income Properties Fund, Inc., a
Delaware corporation, its general
partner
By: /s/ Peter F. Sullivan
---------------------
Name: Peter Sullivan
Title: Vice President
By: PETERSON INTERESTS OF KANSAS, INC., a
Kansas corporation
By: /s/Kenneth Riedemann
--------------------
Name: Kenneth Riedemann
Title: President
<PAGE>
BILL OF SALE
THIS BILL OF SALE (this Bill of Sale) is dated as of September 30, 1999,
by REGENTS WALK ASSOCIATES, a Kansas general partnership having an address c/o
PaineWebber Properties, Incorporated, 265 Franklin Street - 15th Floor, Boston,
MA 02110 (Seller), in favor of PETERSON INTERESTS OF KANSAS, INC., a Kansas
corporation having an address at 10000 West
75th Street, Shawnee Mission, KS 66204 (Purchaser).
1. Definitions.
(a) As used herein, the term Real Property shall mean the improved
real property known as The Regents Walk Apartments located in Overland
Park, Kansas, as more particularly described in that certain Purchase and
Sale Agreement dated as of May 19, 1999 between Assignor and Assignee.
(b) As used herein, the term Personal Property shall mean 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 solely
in connection with the ownership, occupation and operation of the Real
Property. 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.
(c) As used herein, the term Intangible Property shall mean all of
Sellers 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 Sellers 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 The Regents Walk Apartments,
but excluding the name PaineWebber or any derivative thereof, (iv) all
plans and specifications and (v) leases for items of personal property
owned by third parties and leased to Seller, in each case to the extent
that Seller may legally transfer the same.
2. Sale. For good and valuable consideration received by Seller, the
receipt and sufficiency of which are hereby acknowledged, Seller hereby sells,
assigns and transfers the Personal Property and the Intangible Property to
Purchaser.
3. As Is. The Personal Property and the Intangible Property is sold,
transferred and delivered by Seller and hereby accepted by Purchaser in its
current as is condition, without any warranties, covenants or representations,
express or implied, by Seller. Without limiting the generality of the foregoing,
the Personal Property and the Intangible Property is transferred, sold and
delivered without any express or implied warranty of merchantability or fitness.
4. Counterparts. This Bill of Sale may be executed in multiple
counterparts, any or all of which may contain the signatures of fewer than all
of the parties, but all of which shall constitute a single instrument.
5. No Personal Liability. Neither Purchaser nor anyone claiming by,
through or under Purchaser shall be entitled to obtain any judgment 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. Under no circumstances is any person other than Seller
liable for Sellers obligations under this Assignment or in respect of the
transaction contemplated by this Assignment, and Purchaser hereby waives any
right that it otherwise might have to pursue any partner of Seller, any other
person who might be liable for Sellers obligations because of the direct or
indirect ownership interest in Seller, or any officer, director, agent, advisor
or affiliate of any such partner or other person.
<PAGE>
IN WITNESS WHEREOF, Seller has executed this Bill of Sale the day and year
first above written.
REGENTS WALK ASSOCIATES, a Kansas general
partnership
By: PAINEWEBBER INCOME PROPERTIES SIX LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: Sixth Income Properties Fund, Inc., a
Delaware corporation, its general
partner
By: /s/ Peter F. Sullivan
---------------------
Name: Peter Sullivan
Title: Vice President
By: PETERSON INTERESTS OF KANSAS, INC., a
Kansas corporation
By: /s/Kenneth Riedemann
--------------------
Name: Kenneth Riedemann
Title: President
<PAGE>
ASSIGNMENT AND ASSUMPTION
OF LEASES AND SECURITY DEPOSITS
THIS ASSIGNMENT AND ASSUMPTION OF LEASES AND SECURITY DEPOSITS (this
Assignment) is dated as of September 30, 1999, between REGENTS WALK ASSOCIATES,
a Kansas general partnership having an address c/o PaineWebber Properties,
Incorporated, 265 Franklin Street - 15th Floor, Boston, MA 02110 (Assignor), and
PETERSON INTERESTS OF KANSAS, INC., a Kansas corporation having an address at
10000 West 75th Street, Shawnee Mission, KS 66204 (Assignee).
1. Definitions.
(a) As used herein, the term Leases means all leases, tenancies,
rental agreements and occupancy agreements affecting the improved real
property known as The Regents Walk Apartments located in Overland Park, as
more particularly described in that certain Purchase and Sale Agreement
dated as of May 19, 1999 between Assignor and Assignee, to the extent that
Assignor is entitled to transfer the same to Assignee.
(b) As used herein, the term Tenant Deposits means those security
deposits held by or for Assignor on account of tenants under the Leases as
such deposits and with respect to which Assignee received a credit at the
closing of the transaction with respect to which this Assignment has been
executed and delivered. The Tenant Deposits are set forth on attached
Exhibit A.
2. Assignment. For good and valuable consideration received by Assignor,
the receipt and sufficiency of which are hereby acknowledged, Assignor hereby
grants, transfers and assigns to Assignee the entire right, title and interest
of Assignor in and to the Leases and the Tenant Deposits.
3. Assumption. Assignee hereby assumes the covenants, agreements and
obligations of Assignor as landlord or lessor under the Leases and Assignee
further assumes all liability of Assignor for the proper refund or return of the
Tenant Deposits if, when and as required by the Leases.
4. Indemnity. Assignee hereby agrees to indemnify and hold Assignor, its
successors and assigns, harmless against all costs, expenses and liabilities
(including, without limitation, attorneys fees and disbursements) of the lessor
under all Leases for any matters arising from and after the date hereof.
Assignor hereby agrees to indemnify and hold Assignee, its successors and
assigns, harmless against all costs, expenses and liabilities (including,
without limitation, attorneys fees and disbursements) of the lessor under the
Leases for any matters existing prior to the date hereof; provided, however, it
is expressly understood and agreed that Assignor shall not be responsible to the
lessees under the Leases for Assignees duty and obligation to return the Tenant
Deposits to lessees under the Leases to the extent the Tenant Deposits are
assigned to Assignee hereunder.
5. Attorneys Fees. If either Assignee or Assignor, or their respective
successors or assigns, file suit to enforce the obligations of the other party
under this Assignment, the prevailing party shall be entitled to recover the
reasonable fees and expenses of its attorneys.
6. Successors and Assigns. This Assignment shall be binding upon and inure
to the benefit of Assignor and Assignee and their respective successors and
assigns.
7. Counterparts. This Assignment may be executed in multiple counterparts,
any or all of which may contain the signatures of fewer than all of the parties,
but all of which shall constitute a single instrument.
8. As Is. The Leases and the Security Deposits are granted, transferred
and assigned by Assignor and hereby accepted by Assignee on an as is, where is
basis, without any warranties, covenants or representations, express or implied,
by Assignor.
9. No Personal Liability. Neither Assignee nor anyone claiming by, through
or under Assignee shall be entitled to obtain any judgment creating personal
liability on the part of the partners of the Assignor or of the officers,
directors, shareholders, advisors or agents of Assignor or Assignors partners or
any of their successors. Under no circumstances is any person other than
Assignor liable for Assignors obligations under this Assignment or in respect of
the transaction contemplated by this Assignment, and Assignee hereby waives any
right that it otherwise might have to pursue any partner of Assignor, any other
person who might be liable for Assignors obligations because of the direct or
indirect ownership interest in Assignor, or any officer, director, agent,
advisor or affiliate of any such partner or other person.
[Remainder of Page Intentionally Left Blank]
<PAGE>
IN WITNESS WHEREOF, Assignor and Assignee have executed and delivered this
Assignment the day and year first above written.
ASSIGNOR:
REGENTS WALK ASSOCIATES, a Kansas general
partnership
By: PAINEWEBBER INCOME PROPERTIES SIX LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: Sixth Income Properties Fund, Inc., a
Delaware corporation, its general
partner
By: /s/ Peter F. Sullivan
---------------------
Name: Peter Sullivan
Title: Vice President
By: PETERSON INTERESTS OF KANSAS, INC., a
Kansas corporation
By: /s/Kenneth Riedemann
--------------------
Name: Kenneth Riedemann
Title: President
ASSIGNEE:
PETERSON INTERESTS OF KANSAS, INC., a Kansas
corporation
By: /s/Kenneth Riedemann
-------------------
Name: Kenneth Riedemann
Title: President
<PAGE>
ASSIGNMENT AND ASSUMPTION OF CONTRACTS
THIS ASSIGNMENT AND ASSUMPTION OF CONTRACTS (this Assignment) is entered
into as of September 30, 1999, between REGENTS WALK ASSOCIATES, a Kansas general
partnership having an address c/o PaineWebber Properties, Incorporated, 265
Franklin Street - 15th Floor, Boston, MA 02110 (Assignor), and PETERSON
INTERESTS OF KANSAS, INC., a Kansas corporation having an address at 10000 West
75th Street, Shawnee Mission, KS 66204 (Assignee).
1. Assignment. For good and valuable consideration received by Assignor
the receipt and sufficiency of which is hereby acknowledged, Assignor hereby
grants, transfers and assigns to Assignee the entire right, title and interest
of Assignor in and to all service, supply, equipment rental, management,
operating and leasing contracts (collectively, the Contracts) affecting the
improved real property known as The Regents Walk Apartments located in Overland
Park, as more particularly described in that certain Purchase and Sale Agreement
dated as of May 19, 1999 between Assignor and Assignee (the Purchase and Sale
Agreement), to the extent that Assignor is entitled to transfer the same to
Assignee; provided, however, that the term Contracts shall exclude any
agreements which PWIP6 (as defined in the Purchase and Sale Agreement) has
executed on behalf of Assignor without Assignees knowledge.
2. Assumption. Assignee hereby assumes the covenants, agreements and
obligations of Assignor under the Contracts which are applicable to the period
and required to be performed from and after the date of this Assignment, but not
otherwise. Assignor shall remain liable for the covenants, agreements and
obligations of Assignor under the Contracts which are applicable to the period
and required to be performed prior to the date of this Assignment.
3. Indemnity. Assignee hereby agrees to indemnify and hold Assignor, its
successors and assigns, harmless against all loss, costs, expenses, liabilities,
damages, actions, causes of action, demands or claims (including, without
limitation, attorneys fees and disbursements) arising out of or in connection
with the obligations of Assignor as vendee under the Contracts which are
applicable to the period and required to be performed from and after the date of
this Assignment. Assignor hereby agrees to indemnify and hold Assignee, its
successors and assigns, harmless against all loss, costs, expenses, liabilities,
damages, actions, causes of action, demands or claims (including, without
limitation, attorneys fees and disbursements) arising out of or in connection
with the obligations of Assignor as vendee under the Contracts which are
applicable to the period and required to be performed prior to the date of this
Assignment.
4. Attorney's Fees. If either Assignee or Assignor or their respective
successors or assigns, file suit to enforce the obligations of the other party
under this Assignment, the prevailing party shall be entitled to recover the
reasonable fees and expenses of its attorneys.
5. Successors and Assigns. This Assignment shall be binding upon and inure
to the benefit of Assignor and Assignee and their respective successors and
assigns.
6. Counterparts. This Assignment may be executed in multiple counterparts,
any or all of which may contain the signatures of fewer than all of the parties,
but all of which shall constitute a single instrument.
7. As Is. The Contracts are granted, transferred and assigned by Assignor
and hereby accepted by Assignee on an as is, where is basis, without any
warranties, covenants or representations, express or implied, by Assignor.
8. No Personal Liability. Neither Assignee nor anyone claiming by, through
or under Assignee shall be entitled to obtain any judgment creating personal
liability on the part of the partners of the Assignor or of the officers,
directors, shareholders, advisors or agents of Assignor or Assignors partners or
any of their successors. Under no circumstances is any person other than
Assignor liable for Assignors obligations under this Assignment or in respect of
the transaction contemplated by this Assignment, and Assignee hereby waives any
right that it otherwise might have to pursue any partner of Assignor, any other
person who might be liable for Assignors obligations because of the direct or
indirect ownership interest in Assignor, or any officer, director, agent,
advisor or affiliate of any such partner or other person.
[Remainder of Page Intentionally Left Blank]
<PAGE>
IN WITNESS WHEREOF, Assignor and Assignee have executed and delivered this
Assignment the day and year first above written.
ASSIGNOR:
REGENTS WALK ASSOCIATES, a Kansas general
partnership
By: PAINEWEBBER INCOME PROPERTIES SIX LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: Sixth Income Properties Fund, Inc., a
Delaware corporation, its general
partner
By: /s/ Peter F. Sullivan
---------------------
Name: Peter Sullivan
Title: Vice President
By: PETERSON INTERESTS OF KANSAS, INC., a
Kansas corporation
By: /s/Kenneth Riedemann
--------------------
Name: Kenneth Riedemann
Title: President
ASSIGNEE:
PETERSON INTERESTS OF KANSAS, INC., a Kansas
corporation
By: /s/Kenneth Riedemann
--------------------
Name: Kenneth Riedemann
Title: President
<PAGE>
SELLER'S SETTLEMENT STATEMENT
SELLER'S NAME: Regents Walk Associates
BUYER'S NAME: Peterson Interests of Kansas, Inc.
SETTLEMENT AGENT: ATI Land Title Insurance Company
1100 Main, Suite 200
Kansas City, MO 64105
SETTLEMENT DATE: September 30, 1999
PROPERTY LOCATION: The Regents Walk Apartments
9130 Riggs
Overland Park, Kansas 66212
Debit Credit
----- ------
Purchase Price $17,750,000.00 $
Prorations/Deposits:
Real estate taxes 92,804.94
Rent proration 7,854.17
Prepaid rent 8,390.00
Free rent 5,915.00
Security deposits 116,960.00
Closing Costs:
Escrow fee 250.00
Earnest Money Deposit Paid
to Goodwin, Procter & Hoar 1,250,000.00
Interest on Earnest Money 9,091.00
Assumption of Lutheran Brotherhood
Loan ($9,000,000 original principal) 8,624,441.08
Accrued interest on loan 50,855.56
Tax escrow assigned to buyer 43,304.00
-------------- -------------
Subtotals 17,793,304.00 10,166,561.75
Funds to seller 7,626,742.25
-------------- -------------
Totals $17,793,304.00 $17,793,304.00
============== ==============
1. Proceeds Available for Distribution:
Funds from closing of the sale of the
Regents Walk Apartments 7,626,742.25
Funds held in escrow
(including $750,000 disbursed to PWIP) 1,250,000.00
Interest on funds held in escrow 9,091.00
--------------
Total $ 8,885,833.25
==============
2. Distribution of Available Sales Proceeds:
Proceeds under proviso of Section
5.01(1) of the Partnership Agreement:
PWIP 6 PIK TOTAL
------ --- -----
Payment of obligations under
Section 7.01 of the Partnership
Agreement:
PIK operating loans 567,609.00 567,609.00
PWIP 6 operating loans 278,945.00 278,945.00
Distributions in accordance
with Capital
Account Balances:
PIK capital account 250,000.00 250,000.00
----------
PWIP 6 capital account 7,789,279.25 7,789,279.25
------------- -------------
Total $8,068,224.25 $817,609.00 $8,885,833.25
============= =========== =============
APPROVED:
PAINEWEBBER INCOME PROPERTIES PETERSON INTERESTS OF KANSAS, INC.
SIX LIMITED PARTNERSHIP
By: /s/ Kenneth Riedemann
---------------------
By: Sixth Income Properties Kenneth Riedemann
Fund, Inc. President
By: /s/ Peter F. Sullivan
---------------------
Peter F. Sullivan
Vice President
