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) May 14, 1999
------------
PaineWebber Equity Partners One Limited Partnership
(Exact name of registrant as specified in its charter)
Virginia 0-14857 04-2866287
- --------------------------------------------------------------------------------
(State or other jurisdiction) (Commission (IRS Employer
of incorporation File Number) Identification No.)
265 Franklin Street, Boston, Massachusetts 02110
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (617) 439-8118
--------------
(Former name or address, if changed since last report)
<PAGE>
FORM 8-K
CURRENT REPORT
PAINEWEBBER EQUITY PARTNERS ONE LIMITED PARTNERSHIP
ITEM 2 - Disposition of Assets
Crystal Tree Commerce Center - North Palm Beach, Florida
Disposition Date - May 14, 1999
On May 14, 1999, PaineWebber Equity Partners One Limited Partnership ("the
Partnership"), sold the wholly-owned property known as the Crystal Tree Commerce
Center, located in North Palm Beach, Florida, to an unrelated third party for
$10.55 million. The Partnership received net proceeds of approximately
$6,690,000 from the sale of Crystal Tree after deducting closing costs of
approximately $295,000, net closing proration adjustments of approximately
$287,000 and the repayment of the outstanding first mortgage loan and accrued
interest of $3,278,000. As a result of the sale, the Partnership will make a
special distribution of $6,700,000, or $67 per original $1,000 investment, on or
before June 15, 1999.
The property's management and leasing team had been positioning Crystal
Tree Commerce Center for sale by negotiating rental rates for new leases on a
triple-net basis. This requires each tenant to be 100% responsible for its share
of the property's operating expenses. As of March 31, 1999, leases representing
70% of the Center's leasable area were on a triple-net basis, up from 61% at the
end of the prior quarter. With an occupancy level of 100% and a stable base of
tenants, the Partnership believed this was an opportune time to sell the
property.
As previously reported, as part of its plan to market the property for
sale, the Partnership selected a Florida real estate firm that is a leading
seller of this type of property. Comprehensive sale efforts began in December
1998. As a result of these efforts, twelve offers were received. To reduce the
prospective buyer's due diligence work and the time required to complete it,
updated operating reports as well as environmental information on the property
were provided to the top prospective buyers, who were then asked to submit best
and final offers. Eight of these prospective buyers did so, and all of these
offers were in excess of the property's 1998 year-end estimated value. After
completing an evaluation of these offers and the relative strength of the
prospective purchasers, the Partnership selected an offer and negotiated a
purchase and sale agreement, which was signed on March 4, 1999. As described
above, the transaction closed on May 14, 1999.
As discussed further in the Partnership's most recent Annual Report on
Form 10-K and Quarterly Reports on Form 10-Q, management has been focusing on
potential disposition strategies for the remaining investments in the
Partnership's portfolio. Subsequent to the sale of Crystal Tree, the remaining
investments consist of joint venture interests in the Warner/Red Hill Business
Center, the 1881 Worcester Road Office Building and the 625 North Michigan
Office Building. Although there are no assurances, it is currently contemplated
that sales of the Partnership's remaining assets, which would be followed by a
liquidation of the Partnership, could 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 between PaineWebber Equity Partners
One Limited Partnership and Intervest Properties, Ltd., dated March 4,
1999.
<PAGE>
FORM 8-K
CURRENT REPORT
PAINEWEBBER EQUITY PARTNERS ONE LIMITED PARTNERSHIP
(2) First Amendment to Purchase and Sale Agreement by and among
PaineWebber Equity Partners One Limited Partnership and Intervest
Properties, Ltd., dated April 1, 1999
(3) Special Warranty Deed by PaineWebber Equity Partners One Limited
Partnership and Intervest Properties, Ltd., dated May 14, 1999.
(4) Bill of Sale by PaineWebber Equity Partners One Limited Partnership to
Intervest-Crystal Tree Limited Partnership, dated May 14, 1999.
(5) Assignment and Assumption of Contracts by and between PaineWebber
Equity Partners One Limited Partnership and Intervest-Crystal Tree
Limited Partnership, dated May 14, 1999.
(6) Assignment and Assumption of Leases and Security Deposits by and
between PaineWebber Equity Partners One Limited Partnership and
Intervest-Crystal Tree Limited Partnership, dated May 14, 1999.
(7) Closing Statement - Intervest-Crystal Tree Limited Partnership
acquisition from PaineWebber Equity Partners One Limited Partnership
dated May 14, 1999.
<PAGE>
FORM 8-K
CURRENT REPORT
PAINEWEBBER EQUITY PARTNERS ONE LIMITED PARTNERSHIP
SIGNATURE
Pursuant to the requirements of the Securities and Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
PAINEWEBBER EQUITY PARTNERS
ONE LIMITED PARTNERSHIP
(Registrant)
By: First Equity Partners, Inc.
By: /s/ Walter V. Arnold
--------------------
Walter V. Arnold
Senior Vice President and
Chief Financial Officer
Date: May 25, 1999
<PAGE>
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
PAINEWEBBER EQUITY PARTNERS ONE LIMITED PARTNERSHIP (SELLER)
AND
INTERVEST PROPERTIES, LTD. (BUYER)
<PAGE>
TABLE OF CONTENTS
Page
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ARTICLE 1 DEFINITIONS 1
ARTICLE 2 PURCHASE AND SALE 2
ARTICLE 3 PURCHASE PRICE, DEPOSIT AND ADJUSTMENTS 2
ARTICLE 4 PRECLOSING OPERATION 5
ARTICLE 5 ACCESS, INSPECTION AND DILIGENCE 6
ARTICLE 6 TITLE, SURVEY, CONDITIONS AND REPRESENTATIONS 10
ARTICLE 7 CLOSING 13
ARTICLE 8 CASUALTY AND CONDEMNATION 15
ARTICLE 9 BROKERAGE COMMISSIONS 16
ARTICLE 10 DEFAULT, TERMINATION AND REMEDIES 17
ARTICLE 11 MISCELLANEOUS 17
ARTICLE 12 IRS FORM 1099-S DESIGNATION 23
ARTICLE 13 SECTION 1031 EXCHANGE 23
<PAGE>
SCHEDULE A Legal Description of the Real Property
SCHEDULE B Description of Personal Property
SCHEDULE C Rent Roll
SCHEDULE D 1099 Designation Agreement
SCHEDULE E Form of Tenant Estoppel Certificate
SCHEDULE F Deposit Escrow Agreement
SCHEDULE G Form of Special Warranty Deed
SCHEDULE H Form of Bill ofSale
SCHEDULE I Form of Assignment and Assumption of Leases
SCHEDULE J Form ofAssignment and Assumption of Contracts
SCHEDULE K Form of Certificate of Non-Foreign Status
EXHIBIT 5.2 Due Diligence Items
<PAGE>
Purchase and Sale Agreement
This Purchase and Sale Agreement (this Agreement) is entered into as of
the 4th day of March, 1999 by and between Seller and Buyer, upon the following
terms and conditions:
ARTICLE 1
DEFINITIONS
References in this Agreement to the following terms shall have the
following meanings:
BUYER: Intervest Properties, Ltd., an Oklahoma corporation
- -----
SELLER: PaineWebber Equity Partners One Limited Partnership, a
- ------ Virginia limited partnership
PROPERTY: The Real Property and Personal Property constituting
- -------- Crystal Tree Plaza, North Palm Beach, Florida
REAL PROPERTY: The land as more particularly described in Schedule A
- ------------- attached hereto and the buildings, structures,
improvements and fixtures (collectively, the
Improvements) now located thereon and the rights
appurtenant thereto
PERSONAL PROPERTY: The personal property, described in Schedule B
- ------------------ attached hereto, to the extent that such personal
property is owned by and in Sellers possession at the
Property, together with all tenant leases and occupancy
agreements affecting the property (the Leases), all
rights, title and interest of Seller, if any, in the
name of Crystal Tree Plaza, all licenses, permits,
warranties in relation to the Property, if any, all
tenant deposits of every kind and nature currently held
under the Leases or otherwise, and all furniture,
fixtures, equipment, office machines and computers
located on the Property and owned by Seller, and all
janitorial or other supplies located on the Property and
owned by Seller.
PURCHASE PRICE: $10,850,000.00
- --------------
TITLE COMPANY: Lawyers Title Insurance Company
- -------------
EXISTING LOAN: The loan evidenced by Sellers promissory
- -------------- note payable to The Prudential Insurance Company of
America in the original principal amount of $3,480,000
and secured by a first mortgage on the Property
ARTICLE 2
PURCHASE AND SALE
In consideration of the undertakings and mutual covenants of the parties
set forth in this Agreement, and for other good and valuable consideration, the
receipt and legal sufficiency of which are hereby acknowledged, Seller hereby
agrees to sell and convey the Property to Buyer and Buyer hereby agrees to buy
and pay the Purchase Price for the Property on the terms and conditions
contained herein.
ARTICLE 3
PURCHASE PRICE, DEPOSIT AND ADJUSTMENTS
3.1 The Purchase Price shall be as specified in Article 1 above and shall
be paid on the Closing Date (as hereinafter defined) by wire transfer of
immediately available federal funds, subject to adjustment to reflect
application of the Escrowed Amount (as hereinafter defined) and such other
adjustments herein contained.
3.2 Buyer shall, within two (2) days after the execution of this
Agreement, deposit with the Title Company the sum of Three Hundred Thousand
Dollars ($300,000.00) (the Initial Deposit) to secure Buyers obligations under
this Agreement. The Initial Deposit, the Additional Deposit (if any) as
hereinafter defined and all interest earned thereon shall collectively be
referred to herein as the Escrowed Amount. The Escrowed Amount shall be held by
the Title Company pursuant to the terms of this Agreement and pursuant to the
terms of the Deposit Escrow Agreement contained in Schedule F attached hereto
and made a part hereof. Additionally, concurrently with the execution of this
Agreement, Buyer shall deliver to Seller the sum of One Hundred Dollars
($100.00) (the Inspection Fee) as consideration for Buyers information review
and property inspection rights set forth herein. The Inspection Fee shall remain
the property of Seller in all instances.
3.3 All real estate taxes, assessments, special taxes, special assessments
and any other tax or assessment attributable to the Property through the Closing
Date shall be prorated and adjusted as of the Closing Date unless such items are
paid directly by tenants to the applicable taxing authority, in which case no
adjustment or proration shall be made for the items paid directly by the
tenants. If the tax statements for the year during which the Closing Date occurs
are not finally determined, then the tax figures for the immediately prior year
shall be used for the purposes of prorating taxes on the Closing Date. Any tax
refunds or proceeds (including interest thereon) on account of a favorable
determination resulting from a challenge, protest, appeal or similar proceeding
relating to taxes and assessments relating to the Property (i) for all tax
periods occurring prior to the applicable tax period in which the Closing occurs
shall be retained by and paid exclusively to Seller and (ii) for the applicable
tax period in which the Closing occurs shall be prorated as of the Closing Date
after reimbursement to Seller and Buyer, as applicable, for all fees, costs and
expenses (including reasonable attorneys and consultants fees) incurred by
Seller or Buyer, as applicable, in connection with such proceedings such that
Seller shall retain and be paid that portion of such tax refunds or proceeds as
is applicable to the portion of the applicable tax period prior to the Closing
Date and Buyer shall retain and be paid that portion of such tax refunds or
proceeds as is applicable to the portion of the applicable tax period from and
after the Closing Date. Neither Seller nor Buyer shall settle any tax protests
or proceedings in which taxes for the tax period for which the other party is
responsible are being adjudicated without the consent of such party, which
consent should shall not be unreasonably withheld, conditioned or delayed. Buyer
and Seller shall cooperate in pursuit of any such proceedings and in responding
to reasonable requests of the other for information concerning the status of and
otherwise relating to such proceedings; provided, however, that neither party
shall be obligated to incur any out-of-pocket fees, costs or expenses in
responding to the requests of the other. In no event shall any such proceeding
be commenced by Seller following the Closing Date without Buyers prior written
consent; provided, however, that Seller shall be entitled to continue its
existing proceeding.
3.4 Prepaid or past due amounts under any Contracts (as defined in Section
5.2 below) which are assigned to Buyer at Closing shall be prorated and adjusted
as of the Closing Date.
3.5 Seller shall cause all meters for electricity, gas, water, sewer or
other utility usage at the Property to be read on the Closing Date, and Seller
shall pay all charges for such utilities which have accrued on or prior to the
Closing Date; provided, however, that if and to the extent such charges are paid
directly by tenants, no such reading or payment shall be required. If the
utility companies are unable or refuse to read meters for which payment by
Seller is required, all charges for such utilities to the extent unpaid shall be
prorated and adjusted as of the Closing Date based on the most recent bills
therefor. Seller shall provide notice to Buyer within five (5) days before the
Closing Date setting forth (i) whether utility meters will be read as of the
Closing Date and (ii) a copy of the most recent bill for any utility charges
which are to be prorated and adjusted as of the Closing Date. If the meters
cannot be read as of the Closing Date and, therefore, the most recent bill is
used to prorate and adjust as of the Closing Date, then to the extent that the
amount of such prior bill proves to be more or less than the actual charges for
the period in question, a further adjustment shall be made after the Closing
Date as soon as the actual charges for such utilities are available.
3.6 Collected rents for the then current period; prepaid rentals;
collected or prepaid common area maintenance charges; collected or prepaid
promotional charges; collected or prepaid service charges; collected or prepaid
tax charges, and all other collected or prepaid incidental expenses and charges
paid by tenants shall be apportioned and full value shall be adjusted as of the
Closing Date, and the net amount thereof, if in favor of Seller, shall be added
to the Purchase Price, or if in favor of Buyer, shall be deducted from the
Purchase Price. All tenant security and other deposits currently held under
Leases or otherwise shall be delivered to Buyer at Closing or shall be deducted
from the Purchase Price. From and after Closing all security deposits credited
to Buyer shall thereafter be deemed transferred to Buyer and Buyer shall assume
and be solely responsible for the payments of security and other deposits (for
which Buyer was credited or paid at Closing) to tenants in accordance with the
Leases (as hereinafter defined) and applicable law. Seller shall be entitled to
retain and/or receive a credit for any utility deposits and any deposits for
third parties under any of the Contracts (as hereinafter defined).
3.6.1 All rentals and other tenant charges payable in arrears and
uncollected and all other uncollected rents (including, but not limited
to, percentage rents, common area maintenance charges and real estate tax
charge annual adjustments thereto) for the current and prior rental
periods, less the reasonable expenses of collection thereof, shall be
apportioned (if and when collected by either party); provided, however,
that Buyer shall proceed in a commercially reasonable manner consistent
with Buyers customary practice for tenants owing past due rent to it to
collect such uncollected rents from existing tenants listed on the Rent
Roll (as hereinafter defined) for a period of six (6) months (the Buyers
Collection Period); provided that Buyer shall not be obligated to commence
suit against any tenant and Buyer shall first apply rents subsequently
received to rent due and owing for rental periods accruing after the
Closing Date. Buyer shall not settle or release (i) tenants from any
obligations for such uncollected rents or (ii) rights under any claims
listed in Section 3.6.2 below, in each case, without Sellers prior written
approval. Buyer shall provide Seller with written evidence of its
collection efforts, such evidence shall include, but not be limited to
providing copies of letters and invoices to tenants, copies of reports
regarding follow-up efforts and cash receipts and aged delinquency
reports. Buyer shall provide such written evidence of its collection
efforts within fifteen (15) days of demand therefor provided that Seller
may request such evidence no more than on a quarterly basis. Seller shall
agree not to commence suit against tenants listed on the Rent Roll for
obligations owed to it during Buyers Collection Period unless Buyer fails
to fulfill its obligations under this Section 3.6.1.
3.6.2 Seller shall retain all rights to all refunds, receivables,
past due rent and claims, including, but not limited to, termination fees
or damages from all former tenants or occupants of the Property which are
not listed on the Rent Roll, causes of action and rights of reimbursement
from third parties, bonds, accounts receivable and any other claims for
payments Seller may have to the extent arising or relating to the period
prior to the Closing.
3.6.3 In the event, on the Closing Date, the precise figures
necessary for any of the foregoing adjustments are not capable of
determination, then, at Buyers option, those adjustments shall be made
either (i) on the basis of good faith estimates of Seller and Buyer using
currently available information, and final adjustments shall be made
promptly after precise figures are determined or available or (ii) when
all information for all final adjustments are determined or available.
3.7 At the Closing, Seller shall pay the amount due for (a) state and
county transfer tax (or any tax substituted therefor) imposed in connection with
the consummation of the transaction contemplated hereby (the Transfer Tax); (b)
recording charges for documents to clear title, evidence Sellers authority or
enable Seller to convey; (c) Sellers attorneys fees; (d) charges necessary to
issue the survey described in Section 6.1 below; (e) charges necessary to issue
an owners policy of title insurance described in Section 6.1 below (but not the
cost of a lenders policy or any endorsements) and (f) one-half (2) of the
closing fee, if any.
3.8 At the Closing, Buyer shall pay or reimburse Seller, as the case may
be, for (a) any local tax or mortgage tax other than the Transfer Tax; (b)
charges to record the deed, and evidence of Buyers existence or authority; (c)
Buyers attorneys fees; (d) all costs related to Buyers due diligence, including,
but not limited to the cost of any reliance letters and additional reports or
inspections to supplement the Phase I Environmental Inspection Report and the
Property Inspection Report obtained by Seller (each prepared by Dames & Moore);
(e) any and all fees or prepayment premiums incurred in connection with the
prepayment of the Existing Loan, if any, not to exceed $300,000.00; and (f)
one-half (2) of the closing fee, if any.
3.9 The provisions of this Article 3 shall survive the Closing.
ARTICLE 4
PRECLOSING OPERATION
4.1 A rent roll prepared by Sellers property manager (the Rent Roll)
containing a list of all current occupants of the Property is attached hereto as
Schedule C. The Rent Roll will contain a list of security deposits currently
held by Seller. The leases listed on the Rent Roll, together with leases entered
into pursuant to this Article 4 are collectively referred to herein as the
Leases.
4.2 Seller shall not, after the date hereof; (i) enter into any new Leases
or materially amend or terminate any existing Leases, (ii) enter into or modify
any service contracts, operating agreements, or reciprocal easement agreements,
(iii) alter the zoning classification of the Property or (iv) materially alter
any Improvements, without the written consent of Buyer in any such instance,
which consent shall not be unreasonably withheld or delayed. If Buyer does not
notify Seller in writing of its denial of consent within five (5) business days
after written request therefor from Seller, Buyer shall be deemed to have
consented to such requested action. In the event Buyer denies its consent, Buyer
shall specify its reasons for denial in its written notice thereof. In the event
Sellers requested action with respect to a Lease is consented to or deemed
consented to by Buyer, Buyer shall pay for tenant improvements and leasing
commissions as disclosed on Sellers request for consent.
4.3 At all times prior to Closing, Seller shall continue (a) to conduct
business with respect to the Property in the same manner in which said business
has been heretofore conducted and (b) to insure the Property substantially as
currently insured.
4.4 Buyer shall, by written notice to Seller, on or before the Diligence
Date, identify any Contracts (as defined in Section 5.2 below) which it elects
to have terminated. Buyer shall be deemed to have elected to assume any
Contracts which Buyer does not elect to have terminated. Seller shall terminate
any Contracts at Closing which are identified by Buyer as specified in this
section as Contracts to be terminated at Closing, provided that such Contracts
may be terminated without liability to Seller and provided that such Contracts
are terminable on not more than thirty (30) days notice; provided, however that
Seller shall be required to terminate the property management agreement if so
requested. Seller shall pay any cancellation costs incurred in connection with
all requested terminations of Contracts which are terminable on not more than
thirty (30) days notice and the property management agreement, and Buyer shall
pay any other cancellation costs.
4.5 Seller shall use commercially reasonable efforts to obtain tenant
estoppel certificates from all tenants currently occupying space under the
Leases in the form attached hereto as Schedule E or such other form required or
containing information required to be given under any Lease, as the case may be
(each, an Estoppel Certificate). Seller shall not be obligated to expend more
than nominal funds or commence litigation in pursuit of such estoppel
certificates and Seller shall not be in default hereunder for the failure to
obtain any tenant estoppel certificate.
ARTICLE 5
ACCESS, INSPECTION AND DILIGENCE
5.1 Seller agrees that Buyer and its authorized agents or representatives
shall be entitled to enter upon the Real Property and the Improvements during
normal business hours after one (1) day notice, which notice may be oral or
written, to Seller (in each case subject to the rights of tenants under the
Leases) to make such reasonable investigations, studies, and tests as Buyer
deems necessary or advisable; provided, however, that Buyer shall not be
permitted to conduct physical testing or conduct interviews with tenants without
Sellers prior written approval, which approval shall not be unreasonably
withheld, conditioned or delayed. Seller shall use its commercially reasonable
efforts to make its personnel available for such inspections or interviews upon
one (1) day notice, which notice may be oral or written, to Seller. Sellers
prior written approval for physical inspections may be conditioned on receipt of
a detailed description of the proposed physical inspection, a list of the
contractors who will be performing the physical inspection, evidence of
insurance satisfactory to Seller, and such other information as Seller
reasonably requires in connection with such proposed inspection. Buyer may not
interview tenants unless a duly authorized representative of Seller accompanies
Buyer. Seller also agrees to make available to Buyer during normal business
hours upon advance written notice to Seller all books, records, plans, building
specifications, contracts, agreements or other instruments or documents
contained in Sellers files, if any, relating to the construction, operation and
maintenance of the Property and the files of the current manager of the Property
that relate to the Property.
5.2 Simultaneously with Buyers delivery of the Initial Deposit to the
Title Company, Seller shall provide Buyer with complete access to all the
information and reports set forth on Exhibit 5.2, to the extent available and in
Sellers possession and control at the Property and shall within one (1) business
day after receipt by the Title Company of the Initial Deposit send to Buyer
copies of the documents, contracts, leases and other materials listed on Exhibit
5.2 as items Nos. 1, 4, 5, 8, 9, and 10 (the Required Materials). In the event
Seller does not so forward the Required Materials within one (1) business day
after the Initial Deposit is made, the Diligence Date shall be extended by one
(1) day for each day beyond one (1) business day after the Initial Deposit that
Seller delays in sending the Required Materials; provided, however, that Sellers
cover letter forwarding the Required Materials shall be deemed to be conclusive
evidence of the date that the Required Materials have been delivered for all
purposes of this Section 5.2. Buyer acknowledges and agrees that any and all
information, documents, surveys, studies and reports provided to Buyer are
provided for informational purposes only and do not constitute representations
and warranties of Seller of any kind.
5.3 Buyer shall promptly commence and actively pursue its due diligence on
the Property and shall complete its due diligence no later than fifteen (15)
business days after the date of this Agreement (the Diligence Date); provided,
however, that Buyer may elect, by written notice to Seller given so that such
notice is received by Seller before 5:00 pm on the Diligence Date, to extend the
Diligence Date for a single period of no longer than seven (7) business days for
the sole purpose of conducting a Phase II Environmental Inspection Report (the
Phase II Report). Buyers notice shall set forth the date to which the Diligence
Date is extended (which date shall not be later than seven (7) business days
from the expiration of the Diligence Date) (the Extended Diligence Date);
provided however that if the notice does not contain such a date, the Extended
Diligence Date shall be the seventh (7th) business day after the Diligence Date.
Buyers extension of the Diligence Date for the Phase II Report shall be deemed
to be Buyers approval of all due diligence other than environmental matters. In
the event that Buyers due diligence shall reveal any matters which are not
acceptable to Buyer in Buyers sole and absolute discretion for any reason or for
no reason, Buyer may elect, by written notice to Seller, received by Seller on
or before 5:00 p.m. eastern time on the Diligence Date or Extended Diligence
Date, as applicable, not to proceed with this purchase, in which event this
Agreement shall terminate, the Escrowed Amount shall be returned to Buyer and
this Agreement shall be null and void without recourse to either party hereto
(except to the extent such recourse arises in connection with a provision of
this Agreement which is intended to survive termination). In the event that
Buyer has extended the Diligence Date and the Phase II Report reveals any
environmental matters unacceptable to Buyer, Buyer may elect, by written notice
to Seller (which notice shall include a detailed description of the issue
together with copies of all such reports obtained), received by Seller on or
before 5:00 p.m. eastern time on the Extended Diligence Date, not to proceed
with this purchase, in which event this Agreement shall terminate, the Escrowed
Amount shall be returned to Buyer and this Agreement shall be null and void
without recourse to either party hereto (except to the extent such recourse
arises in connection with a provision of this Agreement which is intended to
survive termination). If Buyer does not so terminate this Agreement, Buyer shall
deliver to the Title Company, on or before 2:00 p.m. eastern time on the
business day following the Diligence Date or the day following the Extended
Diligence Date if the Buyer so extends the diligence period, the sum of Three
Hundred Thousand Dollars ($300,000.00) (the Additional Deposit). In the event
Buyer does not terminate this Agreement by written notice received by Seller on
or before the Diligence Date or the Extended Diligence Date, as the case may be,
the Escrowed Amount and the Inspection Fee shall become nonrefundable except as
otherwise provided in this Agreement or in default of any Seller obligations
hereunder.
Buyer acknowledges that as of the Closing it will have had an opportunity
to conduct diligence on the Property and is acquiring the Property in its
current condition based on its diligence. Buyer further acknowledges that
neither Seller nor its employees, agents or representatives have made any
representation or warranty as to the condition of the Property or the presence
or absence of any hazardous materials on, in, under or within the Property or a
portion thereof which survive the Closing hereunder except as expressly provided
in this Agreement. THE BUYER ACKNOWLEDGES AND AGREES THAT THE PROPERTY IS TO BE
CONVEYED BY SELLER TO BUYER AS IS, WITH ALL FAULTS, AND SUBSTANTIALLY IN ITS
CURRENT CONDITION. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS
EXPRESSLY CONTAINED IN THIS AGREEMENT, NEITHER SELLER NOR ANY AGENT, EMPLOYEE OR
OTHER REPRESENTATIVE OF SELLER (OR PURPORTED AGENT, EMPLOYEE OR OTHER
REPRESENTATIVE OF SELLER) HAS MADE ANY GUARANTEE, REPRESENTATION OR WARRANTY,
EXPRESS OR IMPLIED (AND SELLER SHALL NOT HAVE ANY LIABILITY WHATSOEVER) AS TO
THE VALUE, USES, HABITABILITY, CONDITION, DESIGN, OPERATION, FINANCIAL CONDITION
OR PROSPECTS, OR FITNESS FOR PURPOSE OR USE OF THE PROPERTY (OR ANY PART
THEREOF) OR THE INFORMATION MATERIALS NOT PREPARED BY SELLER, OR ANY OTHER
GUARANTEE, REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH
RESPECT TO ANY PORTION OF THE PROPERTY (OR ANY PART THEREOF) OR THE INFORMATION
MATERIALS SUPPLIED TO BUYER, EXCEPT AS HEREIN PROVIDED IN WRITING. FURTHER,
SELLER SHALL HAVE NO LIABILITY FOR ANY LATENT, HIDDEN, OR PATENT DEFECT AS TO
THE PROPERTY OR THE FAILURE OF THE PROPERTY, OR ANY PART THEREOF, TO COMPLY WITH
ANY APPLICABLE LAWS AND REGULATIONS. IN PARTICULAR, BUYER ACKNOWLEDGES AND
AGREES THAT THE INFORMATION MATERIALS PROVIDED UNDER THIS AGREEMENT (AND ANY
OTHER INFORMATION BUYER MAY HAVE OBTAINED REGARDING IN ANY WAY ANY OF THE
PROPERTY, INCLUDING WITHOUT LIMITATION, ITS OPERATIONS OR ITS FINANCIAL HISTORY
OR PROSPECTS FROM SELLER OR ITS AGENTS, EMPLOYEES OR OTHER REPRESENTATIVES BUT
NOT INCLUDING INFORMATION PREPARED BY SELLER) IS DELIVERED TO BUYER AS A
COURTESY, WITHOUT REPRESENTATION OR WARRANTY AS TO ITS ACCURACY OR COMPLETENESS
(EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT), AND NOT AS AN INDUCEMENT TO
ACQUIRE THE PROPERTY; THAT NOTHING CONTAINED IN SUCH DELIVERIES SHALL CONSTITUTE
OR BE DEEMED TO BE A GUARANTEE, REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED,
IN ANY REGARD AS TO ANY OF THE PROPERTY (EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT); AND THAT BUYER IS RELYING ONLY UPON THE PROVISIONS OF THIS AGREEMENT
AND ITS OWN INDEPENDENT ASSESSMENT OF THE PROPERTY AND ITS PROSPECTS IN
DETERMINING WHETHER TO ACQUIRE THE PROPERTY. The provisions of this paragraph
shall survive the Closing.
5.4 Return of Documents. If this Agreement is terminated for any reason
whatsoever, Buyer shall promptly deliver to Seller all Section 5.2 and Exhibit
5.2 items delivered to Buyer or Buyers agents, representatives or designees by
Seller or Sellers agents, representatives or employees pursuant to this
Agreement. In addition, Buyer shall promptly deliver to Seller copies of all
materials prepared by third-parties obtained in connection with Buyers
diligence.
5.5 Confidentiality. Each party hereto agrees to maintain in confidence,
and not to discuss with or to disclose to any person or entity who is not a
party to this Agreement, any material term of this Agreement or any aspect of
the transactions contemplated hereby, except as provided in this Section. Seller
may publicly disclose the existence of this Agreement provided that the identity
of Buyer is not disclosed. Each party hereto may discuss with and disclose to
its directors, officers and employees, partners, accountants, attorneys,
existing or prospective lenders, investment bankers, underwriters, rating
agencies, partners, consultants and other advisors to the extent such parties
reasonably need to know such information and are bound by a confidentiality
obligation identical in all material respects to the one created by this
Section. Additionally, each party may discuss and disclose such matters to the
extent necessary to comply with any requirements of the Securities and Exchange
Commission or in order to comply with any securities law or interpretation
thereof. This provision shall survive termination of this Agreement but shall
terminate upon Closing. Buyer and Seller do not contemplate issuing a press
release. Any press release to be made regarding any matter which is the subject
of the confidentiality obligation created in this Section shall be subject to
the reasonable approval of Buyer and Seller, respectively both as to timing and
content. Buyer agrees that neither it nor any affiliate will acquire or enter
into any agreement to acquire, either directly or indirectly any interest in
Seller.
5.6 Indemnity. If any inspection or test disturbs any of the Property,
Buyer will restore the Property to substantially the same condition as existed
prior to any such inspection or test. Buyer shall keep the Property free and
clear of any liens and will indemnify, defend, and hold Seller harmless from all
losses, costs and damages including reasonable attorneys fees incurred by Seller
as a result of such entry or investigation by or on behalf of Buyer other than
loss, cost or damage which is discovered (and not caused) by such investigation
as a result of pre-existing conditions. This indemnity obligation of Buyer shall
survive the termination of this Agreement for any reason.
5.7 Buyer's Release of Seller. SELLER AND ITS PROPERTY MANAGER ARE HEREBY
RELEASED FROM ALL RESPONSIBILITY AND LIABILITY REGARDING THE CONDITION
(INCLUDING THE PRESENCE IN THE SOIL, AIR, STRUCTURES AND SURFACE AND SUBSURFACE
WATERS, OF MATERIALS OR SUBSTANCES THAT HAVE BEEN OR MAY BE IN THE FUTURE
DETERMINED TO BE TOXIC, HAZARDOUS, UNDESIRABLE OR SUBJECT TO REGULATION AND THAT
MAY NEED TO BE SPECIALLY TREATED, HANDLED AND/OR REMOVED FROM THE PROPERTY UNDER
CURRENT OR FUTURE FEDERAL, STATE AND LOCAL LAWS, REGULATIONS OR GUIDELINES),
VALUATION, SALABILITY OR UTILITY OF THE PROPERTY, OR ITS SUITABILITY FOR ANY
PURPOSE WHATSOEVER. BUYER ACKNOWLEDGES THAT ANY INFORMATION OF ANY TYPE WHICH
BUYER HAS RECEIVED OR MAY RECEIVE FROM SELLER, ITS PROPERTY MANAGER OR THEIR
RESPECTIVE AGENTS, INCLUDING, WITHOUT LIMITATION, ANY ENVIRONMENTAL REPORTS AND
SURVEYS, IS FURNISHED ON THE EXPRESS CONDITION THAT BUYER SHALL MAKE AN
INDEPENDENT VERIFICATION OF THE ACCURACY OF SUCH INFORMATION, ALL SUCH
INFORMATION BEING FURNISHED WITHOUT ANY WARRANTY WHATSOEVER.
ARTICLE 6
TITLE, SURVEY, CONDITIONS AND REPRESENTATIONS
6.1 Promptly following the execution of this Agreement Seller shall
provide Buyer with
(a) an ALTA as-built survey of the Real Property (the Survey); and
(b) a commitment for a standard ALTA Owners Policy of Title
Insurance (the Title Commitment).
If (i) any matter disclosed on the Survey or (ii) matters listed as
exceptions in the Title Commitment are not each satisfactory to Buyer, it shall,
within ten (10) days following receipt of the Title Commitment, provide Seller
with written notice of such objections and if Seller is unable or unwilling to
cure such objections, Seller shall so notify Buyer one (1) day prior to the
expiration of the Diligence Date, and Buyer may terminate this Agreement as
provided in Section 5.3 above or waive such objection and proceed to Closing. To
enable Seller to convey, Seller may, at the Closing use the Purchase Price or
any portion thereof to clear title. Those exceptions or title deficiencies that
appear on the Title Commitment and are not objected to by Buyer shall be the
Permitted Encumbrances.
6.2 On the Closing Date, Seller shall convey by Special Warranty Deed to
Buyer, title to all of the Real Property and the Improvements free and clear of
all liens, encumbrances, conditions, easements, assessments, restrictions and
other conditions, except for the following:
(a) The lien, if any, for real estate taxes not yet due and
payable;
(b) All matters listed on the Title Commitment and as would be
disclosed on a current Survey and not objected to pursuant to
Section 6.1 above;
(c) All Leases disclosed to Buyer;
(d) All zoning, building and other laws applicable to the Property;
and
(e) All matters which arise after the effective date of the Title
Commitment which are agreed upon or consented to by Buyer in
writing.
6.3 At the Closing, Seller shall assign the Leases and Contracts which are
not to be terminated and intangible property, if any, to Buyer and Buyer shall
assume Sellers obligations thereunder from and after the Closing Date and Seller
shall convey the Personal Property to Buyer by quitclaim bill of sale.
6.4 Representations and Warranties
6.4.1 Seller hereby represents and warrants to Buyer as of the date
of this Agreement as follows:
(a) Organization and Power. Seller is a limited partnership validly
existing under the laws of the Commonwealth of Virginia with all necessary
legal power to enter into and perform its obligations hereunder and under
any document or instrument required hereunder to be executed and delivered
on behalf of Seller and is, or will be if required on the Closing Date,
properly qualified to do business in the jurisdiction in which the
Property is located;
(b) Authorization and Execution. The execution and delivery of this
Agreement and the consummation of the transaction contemplated hereby have
been duly authorized by all necessary parties and no other proceedings on
the part of Seller are necessary in order to permit it to consummate the
transaction contemplated hereby. This Agreement has been duly executed and
delivered by Seller and (assuming valid execution and delivery by Buyer)
is a legal, solid and binding obligation of Seller enforceable against it
in accordance with its terms; and
(c) Governmental Notices. Except as otherwise disclosed in the
environmental reports, Seller has not received any written notice from a
government agency that the location, construction, occupancy, operation,
and use of the Property (including any improvements and equipment forming
any part thereof) violate any applicable law, statute, ordinance, rule,
regulation, order or determination of any governmental authority or any
board of fire underwriters (or similar body), or any restrictive covenant
or deed restriction or zoning ordinance or classification affecting the
Property, including, without limitation, all applicable building codes,
flood disaster laws, and health and environmental laws and regulations
(hereinafter sometime collectively called Applicable Laws). Seller has not
received any written notice from a governmental agency that the Property
and Seller are currently subject to any existing pending or threatened
investigation or inquiry by any governmental authority or to any remedial
obligations under any Applicable Laws pertaining to health or the
environment.
6.4.2 The representations and warranties contained in Section
6.4.1(c) are hereby qualified to Sellers actual knowledge without further
inquiry. Each representation or warranty contained in Section 6.4.1 is subject
to being updated by Seller in writing on or before the Diligence Date and shall
be deemed to have been amended and updated by any information delivered to or
made available to Buyer and any other information obtained by Buyer in
connection with its diligence (including but not limited to tenant estoppel
certificates). For purposes of Section 6.4.1 actual knowledge of Seller without
further inquiry shall mean the actual awareness of Rock M. D'Errico provided
that such individuals have no obligation to make further inquiry of any persons
other than reasonable inquiry of its property manager. All representations or
warranties made hereunder shall survive Closing for a period of thirty (30) days
(the Survival Period).
6.4.3 Buyer hereby represents and warrants to Seller as of the date
of this Agreement as follows:
(a) Organization and Power. Buyer is a corporation duly organized,
existing and in good standing under the laws of the State of Oklahoma and
has the requisite power and authority to enter into and perform the terms
of this Agreement; and
(b) Authorization and Execution. The execution and delivery of this
Agreement and the consummation of the transaction contemplated hereby have
been duly authorized by all necessary parties and no other proceedings on
the part of Buyer are necessary in order to permit it to consummate the
transaction contemplated hereby. This Agreement has been duly executed and
delivered by Buyer and (assuming valid execution and delivery by Seller)
is a legal, valid and binding obligation of Buyer enforceable against it
in accordance with its terms.
6.5 The obligations of Buyer to consummate the transaction contemplated by
this Agreement are subject to the following, each of which may be waived by
Buyer: (a) the representations and warranties made by Seller in this Agreement
being true and correct in all material respects on and as of the Closing Date
with the same force and effect as though such representations and warranties had
been made as of the Closing Date; (b) receipt of Estoppel Certificates from each
tenant under a Lease of 3,500 square feet or more (collectively, the Anchors);
and (c) receipt of Estoppel Certificates from tenants representing seventy-five
percent (75%) of the leased space (on a square foot basis) in the Improvements
excluding the space leased by Anchors. To the extent that a signed Estoppel
Certificate as required hereunder is not available on the Closing Date, Seller
may, in its sole discretion, substitute a representation and warranty from the
Seller with respect to each such tenant which shall include the information set
forth in Schedule E attached hereto.
Such representation and warranty shall survive the Closing for the Survival
Period and shall be deemed to satisfy the requirement of an Estoppel Certificate
under Section 6.5(b) or (c) above. In the event that a signed Estoppel
Certificate as required hereunder is not available on the Closing Date and
Seller elects not to substitute a representation and warranty, Buyer may elect,
by written notice to Seller, received by Seller on or before 5:00 p.m. eastern
time on the Closing Date, not to proceed with this purchase, in which event this
Agreement shall terminate, the Escrowed Amount shall be returned to Buyer and
this Agreement shall be null and void without recourse to either party hereto
(except to the extent such recourse arises in connection with a provision of
this Agreement which is intended to survive termination).
6.6 The obligations of Seller to consummate the transaction contemplated
by this Agreement are subject to the representations and warranties made by
Buyer in this Agreement being true and correct in all material respects on and
as of the Closing Date with the same force and effect as though such
representations and warranties had been made as of the Closing Date.
<PAGE>
ARTICLE 7
CLOSING
7.1 The consummation of the purchase and sale contemplated in this
Agreement (the Closing) shall occur at the offices of the Title Company, on the
date that is thirty (30) days after the Diligence Date (the Closing Date). It is
agreed that time is of the essence in this Agreement.
7.2 On the Closing Date Seller shall deliver or cause to be delivered each
of the following items to Buyer:
(a) A duly executed and acknowledged Special Warranty Deed conveying
the Real Property and the Improvements to Buyer in the form attached
hereto as Schedule G;
(b) Duly executed quitclaim bill of sale conveying the Personal
Property to Buyer in the form attached hereto as Schedule H;
(c) Duly executed assignment and assumption of Leases (the
Assignment of Leases) in the form attached hereto as Schedule I;
(d) Duly executed assignment and assumption of Contracts, and
intangible property (the Assignment of Contracts) in the form attached
hereto as Schedule J;
(e) Transfer tax statements (or similar affidavits or forms), if
required of the Seller by local law to effect transfer or recordation of
the Special Warranty Deed;
(f) Certificate or certificates of non-foreign status from Seller in
the form attached hereto as Schedule K;
(g) Customary affidavits and indemnities sufficient for the Title
Company to delete any exceptions for mechanics or materialmen's liens from
Buyers title policy and such other affidavits relating to such title
policy as the Title Company may reasonably request;
(h) Counterpart original of the closing statement setting forth the
Purchase Price, the closing adjustments and the application of the
Purchase Price as adjusted (the Closing Statement);
(i) Original tenant estoppel certificates, as required hereunder;
(j) All business and accounting records pertaining to the operation
of the Property in Sellers possession;
(k) All original Leases and tenant correspondence in each case, if
in Sellers possession;
(l) Keys to all locks which manager has in its possession;
(m) Notice letters from Seller to tenants of the sale of the
Property and assignment of the Leases; and
(n) All documents customarily and reasonably required by Title
Company confirming Sellers authority to sell the Property.
7.3 On the Closing Date Buyer shall deliver or cause to be delivered at
its expense each of the following to Seller:
(a) Purchase Price for the Property, as such Purchase Price may have
been further adjusted pursuant to the provisions of this Agreement and
credited for the Escrowed Amount;
(b) Duly executed Assignment of Leases;
(c) Duly executed Assignment of Contracts;
(d) Counterpart original of the Closing Statement; and
(e) Such other instruments as Seller may reasonably request to
effectuate the transaction contemplated by this Agreement.
ARTICLE 8
CASUALTY AND CONDEMNATION
8.1 If the Improvements are materially damaged by fire or any other
casualty and are not substantially restored to the condition immediately prior
to such casualty before the Closing Date without a loss of any tenant or rent
abatement or concessions for which Buyer shall be liable, Buyer shall have the
following elections:
(a) to purchase the Property in its then condition and pay the
Purchase Price, in which event Seller shall pay over or assign to Buyer as
the case may be, on the Closing Date, all amounts recovered or recoverable
by Seller on account of any insurance as a result of such casualty plus
the amount of any applicable deductible, less any amounts reasonably
expended by Seller for partial restoration; or
(b) if any portion of the Improvements shall have been substantially
destroyed, to terminate this Agreement by giving notice of termination to
Seller on or before that date which is thirty (30) days after the
occurrence of the fire or other casualty or on the Closing Date, whichever
occurs first, in which event the Title Company shall return the Escrowed
Amount to Buyer, this Agreement shall terminate and neither Seller nor
Buyer shall have any recourse against the other (except to the extent such
recourse arises in connection with a provision of this Agreement which is
intended to survive termination). For purposes of this subparagraph (b),
substantially destroyed shall mean damage, in Sellers reasonable judgment,
greater than $500,000.00 or damage which results in the vacation by any
tenant of its occupancy or any part thereof in the Improvements.
8.2 If any portion of or interest in the Property which would have an
adverse impact on the ability to continue to own and operate the Property as the
same is currently owned and operated or which interferes with the ingress or
egress to and from the Property or which takes any parking spaces shall be taken
or is in the process of being taken by exercise of the power of eminent domain
or if any governmental authority notifies Seller prior to the Closing Date of
its intent to take or acquire any portion of or interest in the Property which
would have an adverse impact on the ability to continue to own and operate the
Property as the same is currently owned and operated (each, an Eminent Domain
Taking), Seller shall give notice promptly to Buyer of such event and Buyer
shall have the option to terminate this Agreement by providing notice to Seller
to such effect on or before the date which is five (5) days from Sellers notice
to Buyer of such Eminent Domain Taking or on the Closing Date, whichever occurs
first, in which event the Title Company shall return the Escrowed Amount to
Buyer, this Agreement shall terminate, and neither Seller nor Buyer shall have
any recourse against the other. If Buyer does not timely notify Seller of its
election to terminate this Agreement, Buyer shall purchase the Property and pay
the Purchase Price, and Seller shall pay over or assign to Buyer on delivery of
the deed all awards recovered or recoverable by Seller on account of such
Eminent Domain Taking, less any amounts reasonably expended by Seller in
obtaining such award.
ARTICLE 9
BROKERAGE COMMISSIONS
Seller represents and warrants to Buyer that Seller has not used or
employed any broker or brokers in connection with the negotiation, execution or
consummation of the transaction contemplated by this Agreement other than RJS
Realty Group (Sellers Agent). Seller will indemnify, defend and hold Buyer
harmless from and against any claims of Sellers Agent for any commission,
finders fee, or other compensation in connection with the transactions
contemplated by this Agreement. Seller agrees to pay Sellers Agent its
commission in accordance with a separate agreement between Seller and Sellers
Agent.
Buyer represents and warrants to Seller that Buyer has not used or
employed any broker or brokers in connection with the negotiation, execution or
consummation of the transaction contemplated by this Agreement.
Buyer and Seller each hereby agree to indemnify, defend and hold the other
harmless from and against any claims, losses, damages, costs, or expenses
(including, but not limited to, reasonable attorneys fees) of any kind or
character which arise as a result of breach of the foregoing representation and
warranty. This Section 9 shall survive the Closing or earlier termination of the
Agreement.
ARTICLE 10
DEFAULT, TERMINATION AND REMEDIES
10.1 In the event that Seller shall have failed in any material respect
adverse to Buyer on the Closing Date to have performed any of the covenants and
agreements contained in this Agreement which are to be performed by Seller on or
before the Closing Date, Buyer shall have the following remedies, (i) the right
to take any and all legal actions necessary to compel Sellers specific
performance hereunder (it being acknowledged that damages at law would be an
inadequate remedy), and to consummate the transaction contemplated by this
Agreement in accordance with the provisions of this Agreement (such conveyance
shall be deemed to satisfy and waive any other remedy) or (ii) the right to
terminate this Agreement and receive the Escrowed Amount.
10.2 In the event that Buyer shall have failed in any material respect
adverse to Seller on the Closing Date to have performed any of the covenants and
agreements contained in this Agreement which are to be performed by Buyer on or
before the Closing Date, or if Buyer defaults in its obligation to close
hereunder, Seller shall be entitled to receive the Escrowed Amount as liquidated
damages, in lieu of all other remedies available to Seller at law or in equity
for such default, and Buyer shall direct the Title Company to release the
Escrowed Amount to Seller. Seller and Buyer agree that the damages resulting to
Seller as a result of such default by Buyer as of the date of this Agreement are
difficult or impossible to ascertain and the liquidated damages set forth in the
preceding sentence constitute Buyers and Sellers reasonable estimate of such
damages.
10.3 In any action brought to enforce this Agreement, the prevailing party
shall be entitled to recover its attorney fees and costs.
ARTICLE 11
MISCELLANEOUS
11.1 Buyer may only assign or transfer its rights under this Agreement to
an entity in which Buyer or an affiliate is a general partner or manager or
which is owned, or controlled by Buyer or which owns or controls Buyer, provided
that notice thereof, together with evidence of the affiliation is given to
Seller no less than ten (10) days prior to Closing and provided that no such
assignment shall relieve Buyer of its obligations hereunder. The covenants and
agreements contained in this Agreement shall extend to and be obligatory upon
the permitted successors and assigns of the respective parties to this
Agreement.
11.2 Except as otherwise specifically provided herein, any notice required
or permitted to be delivered under this Agreement shall be in writing and shall
be deemed given if (i) delivered by hand during regular business hours, (ii)
sent by United States Postal Service, registered or certified mail, postage
prepaid, return receipt requested, (iii) sent by a reputable overnight express
mail service that provides tracing and proof of receipt or refusal of items
mailed, or (iv) sent by telecopier or facsimile transmission with confirmation
copy by notice methods (i), (ii) or (iii) above addressed to Seller or Buyer, as
the case may be, at the address or addresses set forth below or such other
addresses as the parties may designate in a notice similarly sent. Any notice
given by a party to Title Company shall be simultaneously given to the other
party. Any notice given by a party to the other party relating to its
entitlement to the Escrowed Amount shall be simultaneously given to the Title
Company.
(1) If to Buyer:
Intervest Properties, Ltd.
15 E. 5th Street
Suite 2700
Tulsa, Oklahoma 74103
Attn: Dale A. Williams
Telephone: (918) 587-0938
Telecopy: (918) 583-0331
with a copy to:
Riggs, Abney, Neal, Turpen, Orbison & Lewis
502 West 6th Street
Tulsa, Oklahoma 74119
Attention: Gary Neal, Esq.
Telephone: (918) 587-3161
Telecopy: (918) 587-2150
(2) If to Seller:
PaineWebber Equity Partners One Limited Partnership
c/o PaineWebber Properties Incorporated
265 Franklin Street, 15th Floor
Boston, MA 02110
Attention: Mr. Rock M. D'Errico
Telephone: (617) 439-8123
Telecopy: (617) 345-8752
with a copy to:
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, Massachusetts 02109
Attention: Andrew C. Sucoff, Esq.
Telephone: (617) 570-1995
Telecopy: (617) 227-8591
(3) If to the Title Company:
Lawyers Title Insurance Company
One Washington Mall, 15th Floor
Boston, Massachusetts 02108
Attention: David M. Walker
Telephone: (617) 619-4800
Telecopy: (617) 619-4848
11.3 Words of any gender used in this Agreement shall be held and
construed to include any other gender, and words of a singular number shall be
held to include the plural and vice versa, unless the context requires
otherwise.
11.4 The captions used in connection with the Articles of this Agreement
are for convenience only and shall not be deemed to extend, limit or otherwise
define or construe the meaning of the language of this Agreement.
11.5 Nothing in this Agreement, express or implied, is intended to confer
upon any person, other than the parties hereto and their respective successors
and assigns, any rights or remedies under or by reason of this Agreement.
11.6 This Agreement may be amended only by a written instrument executed
by Seller and Buyer (or Buyers assignee or transferee).
11.7 This Agreement embodies the entire agreement between Seller and Buyer
with respect to the transaction contemplated in this Agreement, and there have
been and are no covenants, agreements, representations, warranties or
restrictions between Seller and Buyer with regard thereto other than those set
forth or provided for in this Agreement.
11.8 This Agreement shall be construed under and in accordance with the
laws of the State of Florida.
11.9 This Agreement may be executed in two (2) or more counterparts, each
of which shall be an original but such counterparts together shall constitute
one and the same instrument notwithstanding that both Buyer and Seller are not
signatory to the same counterpart.
11.10 The Title Company has executed this Agreement only for the purpose
of agreeing to perform the duties assigned to it under this Agreement. Prior to
the Diligence Date, Title Company is hereby authorized and directed to release
the Escrowed Amount to Buyer promptly upon Buyers written request, without
joinder by Seller and not withstanding any objection interposed by Seller. This
Agreement shall terminate upon any such request from Buyer pursuant to Section
5.3 above. From and after the Diligence Date the Title Company shall, upon
receiving a copy of a notice given by a party in accordance with this Agreement
claiming entitlement to all or a portion of the Escrowed Amount, give a notice
to the other party that such claim of entitlement has been made. If the Escrowed
Amount is in the form of a letter of credit and the expiry thereof has not been
extended, Title Company shall cause the letter of credit to be drawn upon and
hold the proceeds as the Escrowed Amount. The Title Company shall not cause or
permit any portion of the Escrowed Amount to be disbursed until the expiration
of five (5) business days of giving such notice whereupon, if the party to whom
such notice was given has not given the Title Company notice of its objection to
a disbursement in accordance with the claim of entitlement, the Title Company
shall cause a disbursement of the Escrowed Amount as requested. If such party
timely objects, however, the Title Company shall retain the Escrowed Amount and
not disburse any portion of the same unless directed by the mutual written
direction of the parties. The Title Company shall at all times disburse the
Escrowed Amount as required in a mutual written direction of the parties.
11.11 In the event of any disagreement between the parties, the Title
Company shall retain all deposits pending instructions mutually agreed to by
Seller and Buyer. In the event there is no mutual agreement by Seller and Buyer
for disbursements, the Title Company shall hold said deposits pending a court
order to disburse. The Title Company may conclusively rely on the authenticity,
validity and effectiveness of any writing delivered to it, and Title Company
shall not be obligated to make any investigation or determination, except as
provided in the case of disputes as to the truth and accuracy of any information
contained therein. Buyer and Seller agree to defend, indemnify and hold Title
Company harmless from any liabilities, suits, claims, or expenses arising from
or out of or in connection with Title Company's acts or failure to act
hereunder, unless caused or created as a result of Title Company's gross
negligence, and Title Company shall be entitled to reimbursement by Buyer and/or
Seller for all reasonable costs and expenses incurred in the performance of its
duties hereunder including, without limitation, all out-of-pocket expenses and
reasonable attorneys fees of counsel retained by Title Company. Any such costs
and expenses not paid by the parties after billing and supporting documentation
by Title Company may be paid by Title Company out of the Escrowed Amount. If
there is a settlement by Buyer and Seller prior to a court order, Buyer and
Seller will share equally in the expenses incurred by the Title Company.
Otherwise, the non-prevailing party shall assume full responsibility for the
Title Company's expenses. Title Company is not required to advance or expend or
risk its own funds or otherwise incur personal liability in performance of its
duties hereunder and it may require advancement of funds by the parties.
11.12 Time is expressly declared to be of the essence of this Agreement.
11.13 The obligations of Seller hereunder shall be binding only on the
Property and neither Buyer nor anyone claiming by, through or under Buyer shall
be entitled to obtain any judgment extending liability beyond the Property or
creating personal liability on the part of the officers, directors,
shareholders, or agents of Seller or any of their successors actions based upon
fraud excluded. The obligations of Buyer hereunder shall be binding only on the
assets of Buyer and neither Seller nor anyone claiming by, through or under
Seller shall be entitled to obtain any judgment creating personal liability on
the part of the partners, officers, shareholders, or agents of Buyer or any of
their successors or any affiliated entities actions based upon fraud excluded.
11.14 As used herein, the term business day shall mean any day other than
on Saturday, Sunday, or federal holiday. If any date hereunder falls on a day
which is other than a business day, it shall mean the next business day.
11.15 Property Conveyed AS IS.
(a) IT IS UNDERSTOOD AND AGREED THAT, EXCEPT AS EXPRESSLY SET FORTH
HEREIN, SELLER AND ITS PROPERTY MANAGER HAVE NOT MADE AND ARE NOT NOW MAKING,
AND THEY SPECIFICALLY DISCLAIM, ANY OTHER WARRANTIES, REPRESENTATIONS OR
GUARANTIES OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST,
PRESENT OR FUTURE, WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO,
WARRANTIES, REPRESENTATIONS OR GUARANTIES AS TO (I) MATTERS OF TITLE (OTHER THAN
SELLERS WARRANTY OF TITLE SET FORTH IN THE DEED (HEREINAFTER DEFINED) TO BE
DELIVERED AT CLOSING), (II) ENVIRONMENTAL MATTERS RELATING TO THE PROPERTY OR
ANY PORTION THEREOF, (III) GEOLOGICAL CONDITIONS, INCLUDING, WITHOUT LIMITATION,
SUBSIDENCE, SUBSURFACE CONDITIONS, WATER TABLE, UNDERGROUND WATER RESERVOIRS,
LIMITATIONS REGARDING THE WITHDRAWAL OF WATER, AND EARTHQUAKE FAULTS AND THE
RESULTING DAMAGE OF PAST AND/OR FUTURE EARTHQUAKES, (IV) WHETHER, AND TO THE
EXTENT TO WHICH THE PROPERTY OR ANY PORTION THEREOF IS AFFECTED BY ANY STREAM
(SURFACE OR UNDERGROUND), BODY OF WATER, FLOOD PRONE AREA, FLOOD PLAIN, FLOODWAY
OR SPECIAL FLOOD HAZARD, (V) DRAINAGE, (VI) SOIL CONDITIONS, INCLUDING THE
EXISTENCE OF INSTABILITY, PAST SOLID REPAIRS, SOIL ADDITIONS OR CONDITIONS OF
SOIL FILL, OR SUSCEPTIBILITY TO LANDSLIDES, OR THE SUFFICIENCY OF ANY
UNDERSHORING, (VII) ZONING TO WHICH THE PROPERTY OR ANY PORTION THEREOF MAY BE
SUBJECT, (VIII) THE AVAILABILITY OF ANY UTILITIES TO THE PROPERTY OR ANY PORTION
THEREOF INCLUDING, WITHOUT LIMITATION, WATER, SEWAGE, GAS AND ELECTRIC, (IX)
USAGES OF ADJOINING PROPERTY, (X) ACCESS TO THE PROPERTY OR ANY PORTION THEREOF,
(XI) THE VALUE, COMPLIANCE WITH THE PLANS AND SPECIFICATIONS, SIZE, LOCATION,
AGE, USE, DESIGN, QUALITY, DESCRIPTION, SUITABILITY, STRUCTURAL INTEGRITY,
OPERATION, TITLE TO, OR PHYSICAL OR FINANCIAL CONDITION OF THE PROPERTY OR ANY
PORTION THEREOF, OR ANY INCOME, EXPENSES, CHARGES, LIENS, ENCUMBRANCES, RIGHTS
OR CLAIMS ON OR AFFECTING OR PERTAINING TO THE PROPERTY OR ANY PART THEREOF, OR
ANY INCOME, EXPENSES, CHARGES, LIENS, ENCUMBRANCES, RIGHTS OR CLAIMS ON OR
AFFECTING OR PERTAINING TO THE PROPERTY OR ANY PART THEREOF, (XII) THE PRESENCE
OF HAZARDOUS SUBSTANCES IN OR ON, UNDER OR IN THE VICINITY OF THE PROPERTY,
(XIII) THE CONDITION OR USE OF THE PROPERTY OR COMPLIANCE OF THE PROPERTY WITH
ANY OR ALL PAST, PRESENT OR FUTURE FEDERAL, STATE OR LOCAL ORDINANCES, RULES,
REGULATIONS OR LAWS, BUILDING, FIRE OR ZONING ORDINANCES, CODES OR OTHER SIMILAR
LAWS, (XIV) THE EXISTENCE OR NON-EXISTENCE OF UNDERGROUND STORAGE TANKS, (XV)
ANY OTHER MATTER AFFECTING THE STABILITY OR INTEGRITY OF THE REAL PROPERTY,
(XVI) THE POTENTIAL FOR FURTHER DEVELOPMENT OF THE PROPERTY, (XVII) THE
EXISTENCE OF VESTED LAND USE, ZONING OR BUILDING ENTITLEMENTS AFFECTING THE
PROPERTY, (XVIII) THE MERCHANTABILITY OF THE PROPERTY OR FITNESS OF THAT
PROPERTY FOR ANY PARTICULAR PURPOSE (BUYER AFFIRMING THAT BUYER HAS NOT RELIED
ON SELLERS OR ITS PROPERTY MANAGERS SKILL OR JUDGMENT TO SELECT OR FURNISH THE
PROPERTY FOR ANY PARTICULAR PURPOSE, AND THAT SELLER MAKES NO WARRANTY THAT THE
PROPERTY IS FIT FOR ANY PARTICULAR PURPOSE), OR (XIX) TAX CONSEQUENCES.
(b) BUYER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER
DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR ITS PROPERTY
MANAGER OR ANY OF THEIR RESPECTIVE AGENTS, EXPECT AS EXPRESSLY SET FORTH HEREIN,
AND ACKNOWLEDGES THAT NO OTHER SUCH REPRESENTATIONS HAVE BEEN MADE. BUYER
REPRESENTS THAT IT IS A KNOWLEDGEABLE, EXPERIENCED AND SOPHISTICATED BUYER OF
REAL ESTATE AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF
BUYERS CONSULTANTS IN PURCHASING THE PROPERTY. BUYER WILL CONDUCT SUCH
INSPECTIONS AND INVESTIGATIONS OF THE PROPERTY AS BUYER DEEMS NECESSARY,
INCLUDING, BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS
THEREOF, AND SHALL RELY UPON SAME. UPON CLOSING, BUYER SHALL ASSUME THE RISK
THAT ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO, ADVERSE PHYSICAL AND
ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY BUYERS INSPECTIONS AND
INVESTIGATIONS. BUYER ACKNOWLEDGES AND AGREES THAT UPON CLOSING, SELLER SHALL
SELL AND CONVEY TO BUYER AND BUYER SHALL ACCEPT THE PROPERTY AS IS, WHERE IS,
WITH ALL FAULTS. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT THERE ARE NO ORAL
AGREEMENTS, WARRANTIES OR REPRESENTATIONS, COLLATERAL TO OR AFFECTING THE
PROPERTY BY SELLER, ANY AGENT OF SELLER OR ANY THIRD PARTY. THE TERMS AND
CONDITIONS OF THIS SECTION 11.4(B) SHALL EXPRESSLY SURVIVE THE CLOSING, NOT
MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS AND SHALL BE INCORPORATED
INTO THE DEED. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR
WRITTEN STATEMENTS, REPRESENTATIONS, OR INFORMATION PERTAINING TO THE PROPERTY
FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE, SERVANT OR OTHER PERSON,
UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED TO HEREIN. BUYER
ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS THE AS IS NATURE OF THIS SALE AND
ANY FAULTS, LIABILITIES, DEFECTS OR OTHER ADVERSE MATTERS THAT MAY BE ASSOCIATED
WITH THE PROPERTY. BUYER HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET
FORTH IN THIS AGREEMENT WITH ITS COUNSEL AND UNDERSTANDS THE SIGNIFICANCE AND
EFFECT THEREOF.
--------------
Buyer's Initials
ARTICLE 12
IRS FORM 1099-S DESIGNATION
In order to comply with information reporting requirements of Section
6045(e) of the Internal Revenue Code of 1986, as amended, and the Treasury
Regulations thereunder, the parties agree (1) to execute an IRS Form 1099-S
Designation Agreement in the form attached hereto as Schedule D at or prior to
the Closing to designate the Title Company (the Designee) as the party who shall
be responsible for reporting the contemplated sale of the Property to the
Internal Revenue Service (the IRS) on IRS Form 1099-S; (2) to provide the
Designee with the information necessary to complete Form 1099-S; (3) that the
Designee shall not be liable for the actions taken under this Agreement, or for
the consequences of those actions, except as they may be the result of gross
negligence or willful misconduct on the part of the Designee; and (4) that the
Designee shall be indemnified by the parties for any costs or expenses incurred
as a result of the actions taken hereunder, except as they may be the result of
gross negligence or willful misconduct on the part of the Designee. The Designee
shall provide all parties to this transaction with copies of the IRS Forms
1099-S filed with the IRS and with any other documents used to complete IRS Form
1099-S.
ARTICLE 13
SECTION 1031 EXCHANGE
Either Seller or Purchaser may consummate the purchase of the Property as
part of a so-called like kind exchange (the Exchange) pursuant to Section 1031
of the Internal Revenue Code of 1986, as amended (the Code), provided that; (i)
the Closing shall not be delayed or adversely affected by reason of the Exchange
nor shall the consummation or accomplishment of the Exchange be a condition
precedent or condition subsequent to Purchasers or Sellers obligations under
this Agreement; (ii) either Seller or Purchaser may effect the Exchange through
a qualified intermediary so long as neither of their respective rights and
obligations under this Agreement are adversely affected thereby; and (iii)
neither Seller nor Purchaser shall be required to make an assignment of the
purchase agreement for the exchanged property or be required to acquire or hold
title to any real property for the purposes of consummating the Exchange.
Neither Seller nor Purchaser shall, by this Agreement or acquiescence to the
Exchange, (1) have their rights under this Agreement adversely affected or
diminished in any manner, or (2) be responsible for compliance with or be deemed
to have warranted to the other that the Exchange in fact complies with Section
1031 of the Code.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this instrument as of the
day and year first set forth above.
SELLER:
PAINEWEBBER EQUITY PARTNERS ONE LIMITED
PARTNERSHIP, a Virginia limited partnership
By: First Equity Partners, Inc., a Delaware
corporation, its managing general partner
By: /s/ Rock M. D'Errico
--------------------
Name: Rock M. D'Errico
Title: Vice President
BUYER:
INTERVEST PROPERTIES, LTD., an Oklahoma corporation
By: /s/ Dale A. Williams
--------------------
Name: Dale A. Williams
Title: President
TITLE COMPANY:
LAWYERS TITLE INSURANCE COMPANY
By: /s/ David M. Walker
-------------------
Name: David M. Walker
Title: National Title Officer
<PAGE>
First Amendment to Purchase and Sale Agreement
----------------------------------------------
This First Amendment to Purchase and Sale Agreement (the First Amendment)
is entered into as of this 1st day of April, 1999 by and among PaineWebber
Equity Partners One Limited Partnership, a Virginia limited partnership (Seller)
and Intervest Properties, Ltd., an Oklahoma corporation (Buyer), for the purpose
of amending that certain Purchase and Sale Agreement dated as of March 4, 1999
(the Agreement) between Seller and Buyer with respect to the Property described
therein known as Crystal Tree Plaza. Capitalized terms used in this First
Amendment, if not otherwise defined, shall have the same meaning as in the
Agreement.
WHEREAS, Buyer has completed its due diligence on the Property; and
WHEREAS, Seller and Buyer desire to amend the Agreement as set forth
below:
NOW THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, Seller and Buyer hereby agree as follows:
1. Purchase Price. The definition of Purchase Price contained in
Article 1 of the Agreement is hereby deleted and $10,550,000.00 is
substituted therefor.
2. Due Diligence. Notwithstanding the extension of the Diligence Date
to the Extended Diligence Date of April 5, 1999, Buyer hereby
acknowledges that it has completed its due diligence on the Property
(including, but not limited to its environmental inspections and
receipt of its Phase II Report) and hereby waives any right to
terminate the Agreement pursuant to Section 5.3 thereof.
3. Additional Deposit. Buyer hereby agrees to deliver the Additional
Deposit to the Title Company, on or before 2:00 p.m. eastern time on
the first business day after the execution of this First Amendment.
4. Closing Date. Pursuant to Section 7.1 of the Agreement, Buyer and
Seller agree that the Closing Date is currently May 4, 1999.
Notwithstanding the foregoing, Buyer shall have the one time right
to extend the Closing Date for a period of up to twenty one (21)
days. Buyers one time right to extend the Closing Date shall be
exercised by giving Seller and Title Company written notice of such
extension, at least three (3) business days prior to the Closing
Date (the Extension Notice). To be effective, the Extension Notice
must state the date to which the Closing has been extended and Buyer
must deposit with the Title Company on or before 2:00 p.m. eastern
time on the first business day after the date of the Extension
Notice, an additional deposit of One Hundred and Fifty Thousand
Dollars ($150,000.00) which shall be added to and become a part of
the Escrowed Amount.
5. Closing Deliveries. The first sentence of Section 6.5 of the
Agreement is hereby amended to include the following and (d) receipt
of an estoppel certificate, reasonably satisfactory to Buyer from
North Palm Beach Properties, Inc., its successors or assigns,
pertaining to that certain Agreement and Declaration dated March 11,
1969, as amended (the Declaration). Seller may also (but shall not
be required to) satisfy the condition contained in subsection 6.5(d)
above by (i) Seller providing the estoppel certificate under the
Declaration, or (ii) affirmative title insurance reasonably
acceptable to Buyer, or (iii) causing the Declaration to be amended,
altered or annulled to address any of Buyers reasonable concerns
thereunder.
6. Agreement. The Agreement, as modified herein, remains in full force
and effect and is hereby ratified and confirmed in all respects.
Executed as a sealed instrument as of the date set forth above.
<PAGE>
SELLER:
PAINEWEBBER EQUITY PARTNERS ONE LIMITED
PARTNERSHIP, a Virginia limited partnership
By: First Equity Partners, Inc., a Delaware
corporation, its managing general partner
By: /s/ Rock M. D'Errico
--------------------
Name: Rock M. D'Errico
Title: Vice President
BUYER:
INTERVEST PROPERTIES, LTD., an Oklahoma corporation
By: /s/ Dale A. Williams
--------------------
Name: Dale A. Williams
Title: President
<PAGE>
Special Warranty Deed
---------------------
Know all men by these presents that, PaineWebber Equity Partners One
Limited Partnership (Grantor), a Virginia limited partnership, for and in
consideration of Ten Million Five Hundred Fifty Thousand Dollars
($10,550,000.00), in hand paid does hereby grant, bargain, sell, alien, convey,
transfer and confirm unto Intervest-Crystal Tree Limited Partnership, an
Oklahoma limited partnership (Grantee), the land and improvements legally
described in Exhibit A attached hereto and incorporated herein.
TO HAVE AND TO HOLD, the same unto the said Grantee, and assigns forever,
with all appurtenances thereunto belonging, subject to and excepting all
encumbrances and restrictions of record.
WITNESS my hand and seal this 14th day of May, 1999.
GRANTOR:
PAINEWEBBER EQUITY PARTNERS ONE
LIMITED PARTNERSHIP
By: First Equity Partners, Inc., a Delaware
corporation, its managing general partner
By: /s/ Rock M. D'Errico
--------------------
Name: Rock M. D'Errico
Title: Vice President
<PAGE>
Exhibit A
Legal Description of Real Property
----------------------------------
Lots 1 and 2, GOLFVIEW ADDITION TO THE VILLAGE OF NORTH PALM BEACH,
according to the Plat thereof, recorded in Plat Book 28, Page 199, of the Public
Records of Palm Beach County, Florida; said lands situate, lying and being in
Palm Beach County, Florida.
<PAGE>
Bill of Sale
------------
This Bill of Sale is made as of this 14th day of May, 1999 from
PaineWebber Equity Partners One Limited Partnership, a Virginia limited
partnership, having an office at c/o PaineWebber Properties Incorporated, 265
Franklin Street, 15th Floor, Boston, Massachusetts 02110 (the Seller) to
Intervest-Crystal Tree Limited Partnership, an Oklahoma limited partnership,
having an office at 15 E. 5th Street, Suite 2700, Tulsa, Oklahoma 74103 (the
Buyer).
WHEREAS, in connection with the conveyance of the real property commonly
known as Crystal Tree Plaza, North Palm Beach, Florida (the Real Property),
Seller is obligated to convey, transfer, set over and assign to Buyer all of the
Sellers right, title and interest, if any, in and to all personal property owned
by Seller located at the Real Property, but specifically excluding (i) any items
of personal property owned by tenants at or on the Real Property, and (ii) any
items of personal property owned by third parties and leased to Seller
(collectively Personal Property).
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Seller does hereby sell, deliver,
transfer, set over and assign unto Buyer the Personal Property in its as is
condition without express or implied warranty of any kind or nature except as
expressly set forth in the Purchase and Sale Agreement by and between Seller and
Buyer, to have and to hold the same unto Buyer and the Buyers successors and
assigns, forever.
EXECUTED UNDER SEAL as of the date first written above.
SELLER:
PAINEWEBBER EQUITY PARTNERS ONE LIMITED
PARTNERSHIP, a Virginia limited partnership
By: First Equity Partners, Inc., a Delaware
corporation, its managing general partner
By: /s/ Rock M. D'Errico
--------------------
Name: Rock M. D'Errico
Title: Vice President
<PAGE>
Assignment and Assumption of Contracts
--------------------------------------
THIS ASSIGNMENT AND ASSUMPTION OF CONTRACTS (Assignment) is made and
entered into effective this 14th day of May, 1999, by and between PaineWebber
Equity Partners One Limited Partnership, a Virginia limited partnership
(Assignor) and Intervest-Crystal Tree Limited Partnership, an Oklahoma limited
partnership (Assignee).
The parties enter into this Assignment on the basis of and in
reliance upon the following facts:
A. Assignor has conveyed contemporaneously herewith to Assignee that
certain improved parcel of land located in North Palm Beach, Florida, more
particularly described on Exhibit A attached hereto and by this reference
incorporated herewith (the Property).
B. Assignor has previously, in its capacity as owner of the Property,
entered into certain contracts with respect to the Property, which are currently
in force and effect, as described in Exhibit B attached hereto and by this
reference incorporated herewith (Contracts).
C. Assignor now desires to assign and transfer to Assignee all of the
Contracts for all purposes, and Assignee desires to accept the Contracts and all
of Assignors right, title, interest and obligations in, to and under the
Contracts, as set forth herein.
NOW, THEREFORE, in consideration of (i) Ten Dollars ($10.00) and
other good and valuable cash consideration and (ii) the mutual covenants and
promises of the parties provided for herein, Assignor and Assignee agree as
follows:
1. Assignment. Assignor hereby assigns all of its right, title and
interest in, to and under the Contracts and any security deposits paid pursuant
thereto as set forth on Exhibit B to Assignee.
2. Assumption. Assignee hereby accepts said assignment and assumes all of
the obligations of Assignor under the Contracts from and after the date hereof.
3. Counterparts. This Assignment may be executed in multiple counterparts
each of which shall be deemed an original and all of which shall constitute one
and the same document.
<PAGE>
IN WITNESS WHEREOF, the undersigned parties have executed this Assignment
as of the date first written above.
ASSIGNOR:
PAINEWEBBER EQUITY PARTNERS ONE LIMITED
PARTNERSHIP
By: First Equity Partners, Inc., a
Delaware corporation, its
managing general partner
By: /s/ Rock M. D'Errico
--------------------
Name: Rock M. D'Errico
Title: Vice President
ASSIGNEE:
INTERVEST-CRYSTAL TREE LIMITED PARTNERSHIP
By: CT Holding Corp., a Nevada corporation,
its general partner
By: /s/ Dale A. Williams
--------------------
Name: Dale A. Williams
Title: President
<PAGE>
Assignment and Assumption of Leases and Security Deposits
---------------------------------------------------------
THIS ASSIGNMENT OF LEASES AND SECURITY DEPOSITS (Assignment) is made
and entered into effective this 14th day of May, 1999, by and between
PaineWebber Equity Partners One Limited Partnership, a Virginia limited
partnership (Assignor) and Intervest-Crystal Tree Limited Partnership, an
Oklahoma limited partnership (Assignee).
The parties enter into this Assignment on the basis of and in
reliance upon the following facts:
A. Assignor has conveyed contemporaneously herewith to Assignee that
certain improved parcel of land located in North Palm Beach, Florida, more
particularly described on Exhibit A attached hereto and by this reference
incorporated herewith (the Property).
B. Assignor has previously, in its capacity as owner of the Property,
entered into certain occupancy leases at the Property, which are currently in
force and effect, as described in Exhibit B attached hereto and by this
reference incorporated herewith (Leases).
C. Assignor now desires to assign and transfer to Assignee all of the
Leases, together with any security deposits paid pursuant to the terms thereof
and listed on Exhibit C attached hereto and made a part hereof for all purposes
(Security Deposits), and Assignee desires to accept the Leases and all of
Assignors right, title, interest and obligations in, to and under the Leases, as
set forth herein.
NOW, THEREFORE, in consideration of (i) Ten Dollars ($10.00) and
other good and valuable cash consideration and (ii) the mutual covenants and
promises of the parties provided for herein, Assignor and Assignee agree as
follows:
1. Assignment. Assignor hereby assigns all of its right, title and
interest in, to and under the Leases and any security deposits paid pursuant
thereto as set forth on Exhibit B and Exhibit C to Assignee.
2. Assumption. Assignee hereby accepts said assignment and assumes all of
the obligations of Assignor under the Leases from and after the date hereof.
3. Counterparts. This Assignment may be executed in multiple counterparts
each of which shall be deemed an original and all of which shall constitute one
and the same document.
<PAGE>
IN WITNESS WHEREOF, the undersigned parties have executed this Assignment
as of the date first written above.
ASSIGNOR:
PAINEWEBBER EQUITY PARTNERS ONE LIMITED
PARTNERSHIP
By: First Equity Partners, Inc., a
Delaware corporation, its
managing general partner
By: /s/ Rock M. D'Errico
--------------------
Name: Rock M. D'Errico
Title: Vice President
ASSIGNEE:
INTERVEST-CRYSTAL TREE LIMITED PARTNERSHIP
By: CT Holding Corp., a Nevada corporation,
its general partner
By: /s/ Dale A. Williams
--------------------
Name: Dale A. Williams
Title: President
<PAGE>
CLOSING STATEMENT
-----------------
Intervest-Crystal Tree Limited Partnership
acquisition from
PaineWebber Equity Partners One Limited Partnership
Crystal Tree Plaza, North Palm Beach, Florida
May 14, 1999
Funds Due to Seller
- --------------------------------------------------------------------------------
Purchase Price $10,550,000.00
Deductions
Escrow Deposits (with
interest through
5/13/99)* $ 751,904.64
Rent 88,158.70
Taxes 67,495.94
Tenant Security Deposits 13,218.67
Prepaid Rent and Utility
Charges 128,127.10
---------------
Total Deductions $ 1,048,905.05 $ 1,048,905.05
===============
Additions
Utility Security Deposits $ 4,854.00
Items Paid in Advance 4,744.67
---------------
Total Additions $ 9,598.67 $ 9,598.67
GROSS FUNDS DUE TO SELLER $ 9,510,693.62
==============
Seller's Disbursements
Mortgage Loan Payoff $ 3,277,694.19
Seller's Closing Costs 294,776.63
---------------
Total Seller's
Disbursements $ 3,572,470.82 $ 3,572,470.82
NET FUNDS DUE TO SELLER $ 5,938,222.80
Deposits Plus Interest Released by
Title Company to Seller $ 751,904.64
TOTAL FUNDS DUE TO SELLER $ 6,690,127.44
* interest to be updated by title co and paid outside of closing
