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) March 24, 2000
--------------
PaineWebber Equity Partners Two Limited Partnership
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(Exact name of registrant as specified in its charter)
Virginia 0-15705 04-2918819
- --------------------------------------------------------------------------------
(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
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(Former name or address, if changed since last report)
<PAGE>
FORM 8-K
CURRENT REPORT
PAINEWEBBER EQUITY PARTNERS TWO LIMITED PARTNERSHIP
ITEM 2 - Disposition of Assets
625 North Michigan Avenue Office Building
Disposition Date - March 24, 2000
On March 24, 2000, Chicago 625 Partnership, a joint venture in which Paine
Webber Equity Partners Two Limited Partnership ("the Partnership") and a related
partnership, PaineWebber Equity Partners One Limited Partnership, have
interests, sold the property known as the 625 North Michigan Avenue Office
Building, located in Chicago, Illinois, to 625 NMA Associates LLC, a Delaware
limited liability company and an affiliate of the Partnership's other co-venture
partner, Michigan-Ontario Limited, for $40.75 million. The Partnership received
net proceeds of approximately $13,975,000 after deducting closing costs of
approximately $691,000, net proration charges of $1,782,000, the repayment of
the existing mortgage note of approximately $14,662,000, and a payment to
PaineWebber Equity Partners One Limited Partnership of $9,640,000 as its share
of the sale proceeds. In addition, the Partnership received $221,000 as its
share of the joint venture's net working capital at the time of the sale. The
Partnership's interest in the 625 North Michigan joint venture was its only
remaining real estate asset. Accordingly, an orderly liquidation of the
Partnership is currently underway. The Partnership plans to make a liquidating
distribution to the Limited Partners of between $150 to $160 per original $1,000
investment on April 28, 2000. The formal liquidation of the Partnership will be
completed immediately after the liquidating distribution is paid. Of the
liquidating distribution amount, $105.60 per original $1,000 investment will be
from the sale of the 625 North Michigan Office Building and the remainder will
consist of Partnership reserves after the payment of all liquidation-related
expenses.
As previously reported, during the quarter ended September 30, 1999 the
Partnership selected a real estate brokerage firm to market the 625 North
Michigan Avenue property for sale. Materials for the marketing packages for the
625 North Michigan property were finalized and initial sale efforts began during
the quarter ended December 31, 1999. 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 asked to submit best and final offers. All of the
best and final offers received were substantially in excess of the property's
1998 year-end estimated value. The highest bidder was an affiliate of the
Partnership's co-venture partner in the 625 North Michigan joint venture. After
completing an evaluation of the offers and the relative strength of the
prospective purchasers, the Partnership chose to negotiate a purchase and sale
agreement with the affiliate of the co-venturer, which was signed on January 13,
2000. The prospective buyer made a deposit of $400,000 in connection with the
transaction and completed its due diligence as of February 3, 2000. The
prospective buyer had until February 14, 2000 to secure its financing for the
transaction, at which time an additional deposit of $600,000 was required and
the entire deposit became non-refundable. The transaction closed as described
above on March 24, 2000.
<PAGE>
FORM 8-K
CURRENT REPORT
PAINEWEBBER EQUITY PARTNERS TWO LIMITED PARTNERSHIP
ITEM 7 - Financial Statements and Exhibits
(a) Financial Statements: None
(b) Exhibits:
(1) Purchase and Sale Agreement by and between Chicago-625 Partnership,
as seller, and Golub-Landmark/625, LLC, as buyer, dated January 13,
2000.
(2) Letter Agreement by and between Chicago-625 Partnership, as seller,
and Golub-Landmark/625, LLC, extending the Closing Date from March
21, 2000 to April 5, 2000, dated March 16, 2000.
(3) Letter Agreement by and between Chicago-625 Partnership, as seller,
and Golub-Landmark/625, LLC, establishing the Closing Date as March
24, 2000, dated March 23, 2000.
(4) Bill of Sale by Chicago-625 Partnership to 625 NMA Associates LLC,
dated March 24, 2000.
(5) Assignment and Assumption of Contracts and Intangibles by and
between Chicago-625 Partnership and 625 NMA Associates LLC, dated
March 24, 2000.
(6) Assignment and Assumption of Leases and Security Deposits by and
between Chicago-625 Partnership and 625 NMA Associates LLC, dated
March 24, 2000.
(7) Disbursement Statement by and between Chicago-625 Partnership and
625 NMA Associates LLC, dated March 24, 2000.
<PAGE>
FORM 8-K
CURRENT REPORT
PAINEWEBBER EQUITY PARTNERS TWO 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
TWO LIMITED PARTNERSHIP
-----------------------
(Registrant)
By: Second Equity Partners, Inc.
By: /s/ Walter V. Arnold
--------------------
Walter V. Arnold
Senior Vice President and
Chief Financial Officer
Date: March 31, 2000
<PAGE>
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
CHICAGO - 625 PARTNERSHIP, AS SELLER
AND
GOLUB-LANDMARK/625, LLC, AS BUYER
625 North Michigan Avenue,
Chicago, Illinois
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE 1 1
DEFINITIONS 1
ARTICLE 2 2
PURCHASE AND SALE 2
ARTICLE 3 2
PURCHASE PRICE, DEPOSIT AND ADJUSTMENTS 2
ARTICLE 4 6
PRECLOSING OPERATION 6
ARTICLE 5 8
ACCESS, INSPECTION AND DILIGENCE 8
ARTICLE 6 13
TITLE, SURVEY, CONDITIONS AND REPRESENTATIONS 13
ARTICLE 7
CONDITIONS PRECEDENT AND CLOSING 16
ARTICLE 8 20
CASUALTY AND CONDEMNATION 20
ARTICLE 9 22
BROKERAGE COMMISSIONS 22
ARTICLE 10 22
DEFAULT, TERMINATION AND REMEDIES 22
ARTICLE 11 24
MISCELLANEOUS 24
ARTICLE 12 30
IRS FORM 1099-S DESIGNATION 30
SCHEDULE A A-1
Legal Description of Real Property A-1
SCHEDULE B B-1
Description of Personal Property and Intangible Property B-1
SCHEDULE C C-1
Escrow Agreement C-1
<PAGE>
SCHEDULE D D-1
Rent Roll D-1
SCHEDULE E E-1
Intentionally Omitted E-1
SCHEDULE F F-1
Form of Bill of Sale F-1
SCHEDULE G G-1
Form of Trustee's Deed G-1
SCHEDULE H H-1
Form of Assignment and Assumption of Leases and Security Deposits H-1
SCHEDULE I I-1
Form of Assignment and Assumption of Contracts and Intangibles I-1
SCHEDULE J I-7
Non-Foreign Affidavit I-7
SCHEDULE K K-1
Form of Tenant Estoppel Certificate K-1
SCHEDULE L L-1
1099 Designation Agreement L-1
SCHEDULE M M-1
Escrow Closing Instructions M-1
<PAGE>
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (this Agreement) is entered into as of
the 13th day of January, 2000 by and between Seller (as hereinafter defined) and
Buyer (as hereinafter defined), upon the following terms and conditions:
ARTICLE 1
DEFINITIONS
References in this Agreement to the following terms shall have the
following meanings:
Buyer: Golub-Landmark/625, LLC, a Delaware limited
- ----- liability company
Seller: Chicago-625 Partnership, an Illinois general
- ------ partnership
Property: The Real Property and Personal Property
- --------
Real Property: The land and the buildings, structures, improvements
- ------------- and fixtures (collectively, the Improvements) now
located thereon known and numbered 625 North
Michigan Avenue, Chicago, Illinois more particularly
described in Schedule A attached hereto, together
with all easements, permits, licenses and rights
(whether or not of record), tenements,
hereditaments, privileges, reciprocal easement
agreements, operating agreements, and the use of all
strips and rights-of-way (including public and
private vehicular and pedestrian rights-of-way), if
any, abutting, adjacent, contiguous to or adjoining
the land and appurtenances in any way belonging or
appertaining to the land and the Improvements,
including, without limitation, all mineral, oil, gas
and other hydrocarbon substances on and under the
land and all development, air and water rights
relating to the land
Personal Property: All personal and intangible property described in
- ----------------- Schedule B attached hereto
Purchase Price: $40,750,000.00
- --------------
Title Company: Near North Title Company
- ------------- 222 North LaSalle Street
Main Floor
Chicago, IL 60601
Attn: Ms. Josie Carlson
Tel: (312) 419-3914
Fax: (312) 419-0778
email: [email protected]
ARTICLE 2
PURCHASE AND SALE
2.1 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, or cause to be conveyed,
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 defined in Section 7.3 hereof) 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 The business day immediately following the day this Agreement is
executed and delivered (and as a condition precedent to the effectiveness of
this Agreement), Buyer shall deposit in immediately available funds with the
Title Company the sum of Four Hundred Thousand Dollars ($400,000.00) (the
Initial Deposit) to secure Buyer's obligations under this Agreement. Provided
Buyer does not terminate this Agreement pursuant to and in accordance with
Sections 5.3 or 6.1, within one (1) business day after February 14, 2000, (the
Additional Deposit Date), Buyer shall deposit in immediately available funds
with the Title Company the additional sum of Six Hundred Thousand Dollars
($600,000.00) (the Additional Deposit) (the Initial Deposit, the Additional
Deposit and the Extension Deposit, if any, are collectively referred to herein
as the Deposit). The Title Company shall hold the Deposit as set forth in the
Escrow Agreement attached hereto as Schedule C (the Escrow Agreement). The
Deposit and all interest accrued on the Deposit (collectively, the Escrowed
Amount) shall be held by the Title Company pursuant to and in accordance with
the terms and conditions of this Agreement and the Escrow Agreement. After
January 21, 2000 (the Non-refundable Amount Date), One Hundred Thousand Dollars
($100,000) of the Escrowed Amount (the Non-refundable Amount) shall be
non-refundable to Buyer for any reason, except (i) if Seller defaults under this
Agreement and Buyer elects to terminate this Agreement as a result of such
default pursuant to Section 10.1 and the Escrowed Amount is returned to Buyer,
(ii) if Buyer elects to terminate this Agreement pursuant to Section 7.1, or
(iii) if Buyer elects to terminate this Agreement pursuant to Article 8.
Accordingly, in the event of a termination of this Agreement pursuant to
Sections 5.3, 5.4 or 6.1 after the Non-refundable Amount Date, notwithstanding
any other provision in this Agreement to the contrary, the Non-refundable Amount
shall be released to Seller. The Escrowed Amount shall be applied to the
Purchase Price if the Closing (as hereinafter defined) occurs.
3.2.1 If Buyer does not timely terminate this Agreement pursuant to
Section 5.3 or 6.1 and Buyer fails to deliver the Additional Deposit to
the Title Company on or before the Additional Deposit Date, Seller shall
be entitled to terminate this Agreement by written notice to Buyer given
prior to Seller's receipt and acceptance of the Additional Deposit and to
receive liquidated damages in the amount of the Escrowed Amount then being
held by the Title Company pursuant to the Escrow Agreement.
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 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. 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 (as defined in Section 7.3 hereof) 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 after accounting for any portion
of such refund which may be due to tenants, such that Seller shall retain and be
paid that portion of such net 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 net 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 Buyer's prior written
consent; provided, however, that Seller shall be entitled to continue any
proceeding pending at Closing.
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.
3.6 Collected rents for the then current period; security deposits which
have not been previously applied by Seller; 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. From and after Closing all security deposits credited to Buyer shall
thereafter be deemed transferred to Buyer and Buyer shall assume and be solely
responsible for the payments of security deposits (for which Buyer was credited
at Closing) to tenants in accordance with the Leases (as hereinafter defined)
and applicable law. At Seller's election, Seller shall be entitled to retain, or
assign to Buyer and receive a credit for, any utility deposits and any deposits
for third parties under any of the Contracts (as hereinafter defined). If Seller
assigns such utility deposits to Buyer, and if requested by Buyer, Seller shall
notify the utility companies of the assignment of the deposit. With respect to
any security deposits which are letters of credit, Seller shall, if the same are
assignable, (i) deliver to Buyer at the Closing such letters of credit, which
are deemed delivered for purposes of this Section 3.6, as they are in the
possession of Michigan-Ontario Limited, an Illinois limited partnership, (ii)
execute and deliver such other instruments as the issuers of such letters of
credit shall reasonably require to assign such letters of credit, and (iii)
cooperate with Buyer to change the named beneficiary under such letters of
credit to Buyer so long as Seller does not incur any additional liability or
expense in connection therewith.
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 Buyer's 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). Rents subsequently received from such
tenants shall be applied in the following order of priority: (a) first to
the month in which the Closing occurred; (b) then to the period prior to
the month in which the Closing occurred; and (c) then to any month or
months following the month in which the Closing occurred. 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 Seller's 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 unless Buyer
fails to fulfill its obligations under this Section 3.6.1., and, in any
event, Seller shall not be entitled to pursue eviction proceedings in
connection with its collection efforts. Buyer's obligation to remit rents
to Seller shall continue for six months after Closing.
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, licensees and
concessionaires of the Property which are not listed on the Rent Roll
delivered at Closing, causes of action and rights of reimbursement from
third parties, bonds, accounts receivable and any other claims for
payments Seller may have against such former tenants or occupants 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 Seller's authority or
enable Seller to convey; (c) Seller's attorneys' fees; (d) the Survey (as
hereinafter defined); and (e) one-half of the cost of the standard owner's title
insurance policy referred to in Article 6 below, including all title examination
costs for such policy and the Title Commitment (as hereinafter defined), but not
endorsements or extended coverage, up to a maximum of $9,000 (Seller's Title
Charges).
3.8 At the Closing, Buyer shall pay for (a) any local tax or mortgage tax
other than the Transfer Tax; (b) charges to record the deed, and evidence of
Buyer's existence or authority; (c) any updates, changes or re-certifications to
the Survey (as hereinafter defined); (d) Buyer's attorney's fees and all costs
related to Buyer's due diligence; (e) the cost in excess of Seller's Title
Charges for the standard owner's title insurance policy referred to in Article 6
below, including all title examination costs for such policy and the Title
Commitment (as hereinafter defined); and (f) costs as to additional title
insurance coverages or endorsements, including the cost of a new lender's title
policy.
3.9 For the purpose of making all prorations and adjustments provided for
in this Agreement, the Buyer shall be deemed to own the Property on the Closing
Date and shall have the benefit of all income from the Property for the Closing
Date and the obligation to pay all costs and expenses for the Property for the
Closing Date and therefore all adjustments and prorations shall be made as of
11:59 p.m. on the day immediately preceding the Closing Date.
3.10 The provisions of this Article 3 shall survive the Closing.
ARTICLE 4
PRECLOSING OPERATION
4.1 A rent roll prepared by Seller's property manager (the Rent Roll)
containing a list of all current occupants, licensees and concessionaires of the
Property is attached hereto as Schedule D. The leases, licenses and concession
agreements listed on the Rent Roll (copies of which Buyer acknowledges have been
previously delivered to Buyer), together with leases entered into subsequent to
the date hereof are collectively referred to herein as the Leases.
4.2 Seller shall not, after the Diligence Date (defined below): (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 Seller's 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 Seller's request for
consent.
4.3 At all times prior to Closing, Seller shall (a) continue to conduct
business with respect to the Property in the same manner in which said business
has been heretofore conducted, (b) continue to insure the Property substantially
as currently insured, and (c) timely pay all accounts payable with respect to
the Property, unless Seller is contesting such accounts payable.
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 assigned to it and therefore will assume. Buyer shall be deemed to have
elected not to assume any Contracts which are not identified as to be assigned
and assumed. Seller shall terminate any Contracts at Closing which are not
identified by Buyer as specified in this section as to be assigned and assumed
at Closing provided that such Contracts may be terminated without cost or
liability to Seller.
4.5 Seller shall use commercially reasonable efforts to obtain tenant
estoppel certificates from all tenants currently occupying their space under a
Lease substantially in the form attached hereto as Schedule K or in the form or
covering the substance as required pursuant to each such tenant's Lease with
regard to tenant estoppel certificates and subordination, attornment and
non-disturbance agreements. Seller shall not be obligated to expend more than
nominal funds or commence litigation in pursuit of such tenant estoppel
certificates. Delivery to Buyer of tenant estoppel certificates from all tenants
leasing more than 10,000 square feet at or prior to the Closing shall be a
condition precedent to Buyer's obligation to proceed to Closing. Seller's
failure to provide all or any tenant estoppel certificates shall not constitute
a default under this Agreement, however, if Seller fails to satisfy the
condition precedent set forth in the immediately preceding sentence, Buyer shall
have the rights set forth in Section 7.1 subject to the terms of Section 7.1.
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, including the Improvements,
during normal business hours after reasonable advance written notice to Seller
(in each case subject to the rights of tenants under the Leases) to make such
reasonable nondestructive 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 Seller's
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 reasonable
prior written notice.
Seller's 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 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 Seller has provided to Buyer, to the extent in Seller's possession or
control, and Buyer acknowledges the receipt of, copies of all (i) Leases, (ii)
maintenance, service, supply and equipment rental contracts affecting the
Property (collectively, the Contracts), and (iii) such other information and
reports affecting the Property to the extent in Seller's possession or control
including financial statements for the current operating year and for the
immediately preceding two (2) year period, capital improvement schedules,
occupancy histories, appraisals, environmental reports, structural reports, tax
bills, insurance certificates and certificates of occupancy.
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. Seller shall not reveal or disclose any information obtained during
the due diligence period concerning the Property and the informational materials
to anyone outside Buyer's organization, except in accordance with the
confidentiality standards set forth in Section 5.6 herein.
5.3 To the extent Buyer deems appropriate or necessary, Buyer may promptly
commence and actively pursue its due diligence on the Property, including, but
not limited to the following items:
(a) Review of title and survey matters;
(b) Review of Contracts and information materials;
(c) Obtain and review engineering reports on structural
condition of the mechanical systems;
(d) Obtain and review environmental reports on oil, hazardous
waste, and asbestos;
(e) Review of applicable zoning and other land use controls,
and other permits, licenses, permissions, approvals and
consents;
(f) Conduct tenant interviews, subject to Section 5.1 above;
and
(g) Review of all Leases affecting the Property.
Buyer shall complete its due diligence including, but not limited to the
foregoing, no later than February 3, 2000 (the Diligence Date). In the event
that Buyers due diligence shall reveal any matters which are not acceptable to
Buyer in Buyer's sole and absolute discretion or for any other reason, Buyer may
elect, by written notice to Seller delivered pursuant to Section 11.2 on or
before the 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 specifically provides that it survives termination as
set forth in Sections 5.6 and 5.7 and Article 9 (Sections 5.6 and 5.7 and
Article 9 shall be collectively referred to herein as the Surviving Provisions).
In the event Buyer does not terminate this Agreement on or before the Diligence
Date, the Escrowed Amount shall become nonrefundable subject to the other terms
and provisions of this Agreement.
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,
except as set forth in Section 6.4.1 of this Agreement, 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.
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 INFORMATIONAL
MATERIALS PROVIDED TO BUYER IN CONNECTION WITH THIS TRANSACTION BUT 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 INFORMATIONAL MATERIALS SUPPLIED TO BUYER. 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 Mortgage Contingency. Promptly following execution of this Agreement
by both parties, Buyer shall apply for and shall make necessary submissions and
deposits in an effort to procure financing related to the acquisition from
Bankers Trust, or such other institutional lender, in the acquisition amount of
$29,650,000.00, for a term of three (3) years, at a rate not to exceed 30-day
LIBOR plus 300 basis points. Buyer shall pay all costs, fees and expenses
necessary to obtain a commitment for such financing. Buyer shall provide Seller
with evidence of the submission of an application for the referenced financing
on or before February 3, 2000.
If during the period commencing on the date of this Agreement and ending
on February 14, 2000, despite Buyer's commercially reasonable efforts to so
obtain a commitment for financing, Buyer is unable to obtain a commitment for
financing on the terms contained in the immediately preceding paragraph and
containing such other terms reasonably satisfactory to Buyer, Buyer may,
provided Buyer has applied for and diligently pursued obtaining a commitment for
such financing, deliver to Seller a written notice of termination of this
Agreement on or before February 14, 2000 in which case 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 any of the Surviving Provisions.) If Buyer does not timely deliver a
termination notice pursuant to this Section 5.4, Buyer shall be deemed to be
satisfied with its financing and to have elected to proceed to Closing
hereunder.
Buyer shall promptly provide Seller with a copy of its financing
commitment once accepted. Acceptance of a commitment shall operate to waive the
contingency contained in this Section 5.4.
5.5 If this Agreement is terminated for any reason whatsoever, Buyer shall
promptly deliver to Seller all documents, plans, surveys, contracts, Leases and
the like delivered to Buyer or Buyers agents, representatives or designees by
Seller or Seller's agents, representatives or employees pursuant to this
Agreement. In addition, Buyer shall promptly deliver to Seller copies of all
materials prepared by third-parties regarding the physical condition of the
Property obtained in connection with Buyer's diligence for the Property. Such
deliveries shall be made without representation and warranty of the Buyer or any
third party and Seller acknowledges that Seller may not be entitled to rely on
such deliveries.
5.5.1 After termination of this Agreement and until Buyer fulfills
its obligations under Section 5.5, Twenty Five Thousand Dollars ($25,000)
of the Escrowed Amount shall remain in escrow with the Title Company
pursuant to the terms of the Escrow Agreement (the Remaining Escrowed
Amount), but the balance of the Escrowed Amount may be released to Buyer
pursuant to the terms of the Escrow Agreement. Buyer shall be deemed to
have fulfilled its obligations under Section 5.5 upon receipt by Seller of
a duly sworn original affidavit from an officer of the Buyer swearing that
Buyer has complied with the obligations under Section 5.5. Upon timely
receipt by Seller of such affidavit, Buyer shall be entitled to the return
of the Remaining Escrowed Amount. If Buyer does not deliver such an
affidavit to Seller within ninety (90) days of the termination of the
Agreement, the Remaining Escrowed Amount shall be distributed to the
Seller.
5.6 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, 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 until after the Diligence Date. 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 as to both timing and
content.
5.7 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, liens, claims, causes of action, liability, damages and out-of pocket
expenses, including, without limitation, reasonable attorneys fees incurred by
Seller as a result of any and all entry by or on behalf of Buyer or inspections,
tests or investigations of the Property conducted 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.
5.8 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 Buyer acknowledges that Seller has delivered to Buyer the
following:
(a) a copy of the ALTA as-built survey of the Real Property
prepared by Certified Survey Co., Order No. 862712, dated
October 24, 1999 (the Survey); and
(b) a commitment for a standard ALTA Owner's Policy of Title
Insurance issued by the Title Company Order No. 2000 000452475
STO with an effective date of December 6, 1999 (the Title
Commitment).
If (i) any matter disclosed on the Survey; or (ii) any matters listed as
exceptions in the Title Commitment are not each satisfactory to Buyer, it shall,
on or before the Diligence Date, provide Seller with written notice of such
objections and if Seller does not agree in writing to cure such objections, then
on or prior to the Diligence Date Buyer may terminate this Agreement as provided
in Section 5.3 above or waive such objection and proceed to Closing.
Notwithstanding the foregoing, Seller shall be obligated to remove all liens
voluntarily created to secure the payment of money at or prior to Closing. To
enable Seller to convey and/or in connection with the Seller's obligation in the
immediately preceding sentence, 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 Survey and are not objected
to by Buyer, other than any liens voluntarily created to secure the payment of
money, shall be the Permitted Encumbrances.
6.2 On the Closing Date, Seller, as beneficial owner of the Real Property,
shall cause American National Bank and Trust Company of Chicago, as trustee
under Trust No. 26711, the record title owner of the Real Property, to convey by
Trustee's Deed to Buyer, title to all of the Real Property free and clear of all
liens, encumbrances, conditions, easements, assessments, restrictions and other
conditions, except for the following:
(a) The lien, if any, for real estate taxes not yet due and
payable;
(b) All matters listed on the Title Commitment and Survey which
(i) Buyer has not objected to pursuant to Section 6.1 or (ii)
Buyer has objected to, but which Seller has not agreed to cure
pursuant to Section 6.1 above;
(c) All Leases;
(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 Seller's obligations thereunder from and after the Closing Date pursuant
to the assignments in the forms attached hereto as Schedules H and I and Seller
shall convey the Personal Property to Buyer by bill of sale in substantially the
form attached hereto as Schedule F.
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 general partnership validly
existing under the laws of the State of Illinois 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;
(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, valid and binding obligation of Seller enforceable against it
in accordance with its terms; and
(c) Third Party Notices. Seller has not received any written notice
from a government agency or other third party 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
or 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 Seller's 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 (i) delivered to
or made available to Buyer before the Diligence Date, and any other information
obtained by Buyer in connection with its diligence before the Diligence Date
(including but not limited to tenant estoppel certificates), or (ii) known by
Michigan-Ontario Limited, before the Diligence Date. For purposes of Section
6.4.1(c), actual knowledge of Seller without further inquiry shall mean the
actual awareness of Peter Sullivan, Vice President of PaineWebber Properties,
Inc., provided that such individual shall have no obligation to make further
inquiry of any persons other than reasonable inquiry of its property manager. No
representations or warranties made hereunder shall survive Closing.
6.4.3 Buyer hereby represents and warrants to Seller as of the date
of this Agreement as follows:
(a) Organization and Power. Golub-Landmark/625, LLC is a limited
liability company organized, existing and in good standing under the laws
of the State of Delaware 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 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.
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.
ARTICLE 7
CONDITIONS PRECEDENT AND CLOSING
7.1 In addition to any other conditions precedent in favor of Buyer as may
be set forth elsewhere in this Agreement, Buyer's obligations under this
Agreement are expressly subject to the timely fulfillment of the conditions set
forth in this Section 7.1 on or before the Closing Date, or such earlier date as
is set forth below. Each condition may be waived in whole or in part only by
written notice of such waiver from Buyer to Seller.
7.1.1 Seller performing and complying in all material respects with
all of the terms of Article 4 of this Agreement (other than Section 4.5
which is addressed in Section 7.1.2) to be performed and complied with by
Seller prior to or at the Closing.
7.1.2 Seller performing and complying with all of the terms of
Section 4.5 of this Agreement to be performed and complied with by Seller
prior to or at the Closing.
Notwithstanding the foregoing, if the conditions set forth in this Section
7.1 or any other condition of Closing (other than an obligation of Buyer under
Section 7.2 below) shall not have been fulfilled on or before the Closing Date,
Seller shall have the right (in its sole discretion), exercisable by written
notice to Buyer at or before the Closing, to extend the Closing Date for a
period of up to twenty-one (21) days to provide additional time for the
fulfillment of such conditions. If Buyer's conditions as set forth in this
Section 7.1 have not been met as of the Closing Date (as the same may be
extended as aforesaid) then, subject to the terms of Section 10.1, Buyer shall
have the right to terminate this Agreement by written notice to Seller, 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 any of the
Surviving Provisions).
7.2 In addition to any other conditions precedent in favor of Seller as
may be set forth elsewhere in this Agreement, Seller's obligations under this
Agreement are expressly subject to the timely fulfillment of the conditions set
forth in this Section 7.2 on or before the Closing Date, or such earlier date as
is set forth below. Each condition may be waived in whole or part only by
written notice of such waiver from Seller to Buyer.
7.2.1 Buyer performing and complying in all material respects with
all of the terms of Section 7.5 of this Agreement to be performed and
complied with by Buyer prior to or at the Closing, including, without
limitation, payment by the Buyer of the Purchase Price (as adjusted as
otherwise provided herein).
7.3 The consummation of the purchase and sale contemplated in this
Agreement (the Closing) shall occur at the offices of the Title Company pursuant
to an escrow closing arrangement as described in Schedule M at 2:00 p.m. Eastern
Time on March 21, 2000 (the Closing Date). Buyer may extend the Closing Date by
up to fifteen days, provided such date is a business day, by (a) providing
Seller with written notice on or before March 16, 2000 (the Extension Notice
Date) of its election to so extend the Closing Date and (b) depositing an
additional Two Hundred Fifty Thousand Dollars ($250,000.00) on or before the
Extension Notice Date (the Extension Deposit) with the Title Company to be held
as part of the Deposit. It is agreed that time is of the essence in this
Agreement. Notwithstanding the time for performance provided for in the
immediately preceding sentence, if the Buyer wires the Purchase Price, as it may
be adjusted pursuant to this Agreement, to the Title Company so that it is
received before 2:00 p.m. Eastern Time but at such an hour that the Title
Company is not able to transfer the mortgage loan payoff amount to the Seller's
mortgage lender before the Seller's mortgage lender's deadline and the Seller's
mortgage lender charges the Seller for interest accruing on the Closing Date,
Buyer shall be responsible for paying the interest accruing on the mortgage loan
on and from the Closing Date until the next business day after the Closing Date.
7.4 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 Trustee's Deed conveying the
Real Property, including the Improvements to Buyer in the form attached
hereto as Schedule G;
(b) A duly executed quitclaim bill of sale conveying the Personal
Property to Buyer in the form attached hereto as Schedule F;
(c) Two duly executed assignment and assumption of Leases (the
Assignment of Leases) in the form attached hereto as Schedule H;
(d) Two duly executed assignment and assumption of Contracts, and
intangible property (the Assignment of Contracts) in the form attached
hereto as Schedule I;
(e) Transfer tax statements (or similar affidavits or forms),
if required of the Seller by local law to effect transfer or
recordation of the Trustee's Deed;
(f) Certificate or certificates of non-foreign status from
Seller in the form attached hereto as Schedule J;
(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 (such closing
statement may be faxed) 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 to the extent required
pursuant to Section 4.5. Seller's failure to provide all or any tenant
estoppel certificates shall not constitute a default under this Agreement,
however, if Seller fails to satisfy the condition precedent set forth in
Section 4.5, Buyer shall have the rights set forth in Section 7.1 subject
to the terms of Section 7.1;
(j) All business and accounting records pertaining to the operation
of the Property in Seller's possession. Such records are deemed delivered
for the purposes of this Section 7.4 by virtue of the fact that they are
in Golub & Company's, , an Illinois corporation, possession;
(k) All original Leases and tenant correspondence. Such Leases and
tenant correspondence are deemed delivered for the purposes of this
Section 7.4 by virtue of the fact that they are in Golub & Company's
possession;
(l) Keys to all locks which manager or Seller has in its
possession. Such keys are deemed delivered for the purposes of this
Section 7.4 by virtue of the fact that they are in Golub & Company's
possession;
(m) Notice letters from Seller to tenants of the sale of the
Property and assignment of the Leases;
(n) All documents customarily and reasonably required by Title
Company confirming Seller's authority to sell the Property;
(o) Three duly executed 1099 Designation Agreements as
provided for in Article 12 (the Designation Agreements);
(p) An updated Rent Roll certified by the Seller as true and
correct as of the business day immediately preceding the Closing Date;
(q) An IRPTA Disclosure Document; and
(r) Such governmental approvals, certificates and licenses
relating to the use or occupancy of the Property which are in
Seller's possession or control. Such governmental approvals,
certificates and licenses are deemed delivered for the
purposes of this Section 7.4 by virtue of the fact that they
are in Golub & Company's possession.
7.5 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 any portion of the Escrowed Amount paid to Seller, in the
manner provided for in Article 3;
(b) Two duly executed Assignment of Leases;
(c) Two duly executed Assignment of Contracts;
(d) Counterpart original of the Closing Statement (such
closing statement may be faxed);
(e) Three duly executed Designation Agreements;
(f) Evidence in form and substance reasonably satisfactory to
Title Company of Buyer's authority to purchase the Property; and
(g) 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 damaged by fire or any other casualty and are
not substantially restored to the condition immediately prior to such casualty
before the Closing Date, Buyer shall have the following elections:
(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 any of the Surviving Provisions). For
purposes of this subparagraph (b), substantially destroyed shall mean
damage for which Buyer and Seller reasonably agree that the cost of
restoration is greater than Five Hundred Thousand Dollars ($500,000.00).
If Buyer and Seller cannot reasonably agree upon the cost of restoration
for the purposes of the immediately preceding sentence, Buyer and Seller
shall jointly appoint an independent third-party adjuster to determine the
cost of restoration. The costs associated with such third-party adjuster
shall be evenly borne by Buyer and Seller.
8.2 If any portion of or interest in the Property shall be taken or is in
the process of being taken by exercise of the power of eminent domain or if any
governmental authority notifies Seller prior to the Closing Date of its intent
to take or acquire any portion of or interest in the Property (each an Eminent
Domain Taking), Seller shall give notice promptly to Buyer of such event and
Buyer shall have the option to terminate this Agreement by providing notice to
Seller to such effect on or before the date which is ten (10) business 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
Cushman Realty Corporation (Seller's Agent). Seller will indemnify, defend and
hold Buyer harmless from and against any claims of Seller's Agent for any
commission, finder's fee, or other compensation in connection with the
transactions contemplated by this Agreement. Seller agrees to pay Seller's Agent
its commission in accordance with a separate agreement between Seller and
Seller's 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 attorney's fees) of any kind or
character which arise as a result of breach of their respective foregoing
representation and warranty. This Article 9 shall survive the Closing or earlier
termination of the Agreement.
ARTICLE 10
DEFAULT, TERMINATION AND REMEDIES
10.1 In the event that Seller defaults with respect to its closing
obligations pursuant to Sections 6.2 or 7.4, and except as Buyer's rights are
affected by Section 10.3 below, Buyer may, as its sole and exclusive remedy at
law and equity, at Buyer's election by written notice to Seller (the Remedy
Election Notice) to be delivered on or prior to the Closing Date, as it may be
extended pursuant to the provisions of this Agreement, (i) terminate this
Agreement and the Title Company shall return the Escrowed Amount to the Buyer,
whereupon this Agreement shall be null and void without recourse to either party
hereto (except to the extent such recourse arises in connection with any of the
Surviving Provisions), (ii) sue for specific performance, provided that Buyer is
ready, willing and able to perform under this Agreement at the Closing on the
Closing Date, as it may be extended pursuant to the provisions of this
Agreement, but for Buyer's inability to perform due to Seller's default, and
further provided that in the event of such suit, Seller shall not be obligated
to expend more than Seventy Five Thousand Dollars ($75,000) to cure such
default, except to the extent required to remove any lien voluntarily created to
secure the payment of money, (and conveyance of the Property shall be deemed to
satisfy and waive any other remedy), or (iii) waive such default and proceed to
Closing on the Closing Date, as it may be extended pursuant to the provisions of
this Agreement. In the event Buyer fails to timely deliver the Remedy Election
Notice, Buyer shall be deemed to have elected option (iii) as set forth in the
immediately preceding sentence and shall be obligated to accept conveyance of
the Property on the Closing Date, as it may be extended pursuant to the
provisions of this Agreement, subject to the default without a reduction in the
Purchase Price (provided that if Seller fails to remove any lien voluntarily
created to secure the payment of money at or prior to Closing, the Purchase
Price shall be reduced by the amount required to remove such lien and Buyer
shall be required to remove such lien at Closing). Except as set forth in this
Section 10.1, Buyer hereby waives and relinquishes any right to sue Seller for
any reason whatsoever, except for return of the Escrowed Amount, and agrees that
Seller shall not be liable to Buyer for any actual, punitive, speculative,
consequential or other damages for breach by Seller prior to the Closing.
Notwithstanding the foregoing, in the event Seller defaults under any
obligations under this Agreement or fails to satisfy the conditions precedent to
the Buyer's obligations to proceed to Closing pursuant to Sections 4.1, 4.3(a),
4.3(c), 4.4 and 4.5 and such default or failure to satisfy is the result of any
act or omission of Michigan-Ontario Limited, as partner of the Seller, or Golub
& Company, as Seller's property manager, excluding any defaults which
PaineWebber Equity Partners One Limited Partnership and/or PaineWebber Equity
Partners Two Limited Partnership approved, consented to, required or jointly
caused with Michigan-Ontario Limited and/or Golub & Company, then such default
shall not be deemed a default and such condition precedent shall be deemed
satisfied.
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 Notwithstanding the provisions of Section 10.1 or any other provision
of this Agreement to the contrary, if by 11:00 a.m. Eastern Time on the Closing
Date, Seller is in default under Section 6.2 or Section 7.4, then Buyer may
elect, by written notice to Seller delivered on or prior to the Closing Date,
(i) to extend the Closing Date with respect to the Property for a period of
twenty-one (21) days, (the Extension Period), and in such event Seller shall use
reasonable efforts to cure such default, subject to the dollar limitations set
forth below, or (ii) to waive the default and proceed to Closing on the Closing
Date without a reduction in the Purchase Price (provided that if Seller fails to
remove any lien voluntarily created to secure the payment of money at or prior
to Closing, the Purchase Price shall be reduced by the amount required to remove
such lien and Buyer shall be required to remove such lien at Closing). Seller
shall use reasonable efforts to cure such default or make conveyance or
otherwise deliver possession as herein provided; provided that in the exercise
of such reasonable efforts, Seller shall not be obligated to expend more than
Seventy Five Thousand Dollars ($75,000]), except to the extent required to
remove any lien voluntarily created to secure the payment of money. If on the
Closing Date, Buyer fails to timely deliver a notice as set forth in the first
sentence of this Section 10.3, then Buyer shall be deemed to have waived the
default and shall be obligated to accept conveyance of the Property in its then
existing condition on the Closing Date subject to any defaults without a
reduction in the Purchase Price (provided that if Seller fails to remove any
lien voluntarily created to secure the payment of money at or prior to Closing,
the Purchase Price shall be reduced by the amount required to remove such lien
and Buyer shall be required to remove such lien at Closing). If (i)
notwithstanding Buyer's election to extend the Closing Date, Seller reasonably
determines that Seller will not be able to cure any such default notwithstanding
Seller's reasonable efforts, subject to the dollar limitations set forth above,
or (ii) the time of Closing is extended as provided in this Section and Seller,
exercising reasonable efforts, subject to the dollar limitations set forth
above, is unable to cure any such default by the expiration of the Extension
Period, then Buyer shall have the remedies set forth in Section 10.1 hereof.
ARTICLE 11
MISCELLANEOUS
11.1 Buyer may only assign or transfer its rights under this Agreement to
an entity (i) wholly owned or controlled (directly or indirectly) by (a) Golub
Real Estate Corp. and/or Landmark Equity Trust VII (Landmark), or (b) any entity
or individual which wholly owns or controls (directly or indirectly) Golub Real
Estate Corp. or Landmark or (ii) which owns or controls (directly or indirectly)
Golub Real Estate Corp. or Landmark. Buyer shall give notice of any such
assignment at least five (5) business days prior to the Closing Date. No such
assignment shall relieve the Buyer of its obligations hereunder, require
estoppel certificates to be reissued in a different name or change or extend the
Closing Date. All 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 (i) when delivered, if delivered by hand during regular business
hours, (ii) three (3) days after being sent, if sent by United States Postal
Service, registered or certified mail, postage prepaid, return receipt
requested, (iii) the next business day, when sent by a reputable overnight
express mail service that provides tracing and proof of receipt or refusal of
items mailed, or (iv) when received, if sent by telecopier or facsimile
transmission on a business day from 8:00 a.m. to 5:00 p.m. Eastern Time (as
confirmed by a facsimile confirmation receipt), or if sent after 5:00 p.m.
Eastern Time (as confirmed by a facsimile confirmation receipt), the next
business day after receipt, in both cases 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.
(1) If to Buyer:
c/o Golub & Company
625 North Michigan Avenue
Ste. 2000
Chicago, IL 60611
Attn: Michael Newman
Telecopy: (312) 440-0809
and
Landmark Equity Trust VII
c/o Landmark Realty Advisors, LLC
760 Hopmeadow Street
Simsbury, CT 06070
Attn: Robert J. Dombi
Telecopy: (860) 651-8890
with a copy to:
Piper Marbury Rudnick & Wolfe
203 North LaSalle Street
Ste. 1800
Chicago, IL 60601
Attn: David Glickstein, Esq.
Telecopy: (312) 236-7516
and
Clifford Chance Rogers & Wells LLP
200 Park Avenue
New York, NY 10166
Attn: Robert E. King, Jr.
Telecopy: (212) 878-8375
(2) If to Seller:
Chicago-625 Partnership
c/o PaineWebber Properties, Incorporated
265 Franklin Street, 15th Floor
Boston, MA 02110
Attention: Peter F. Sullivan, Vice President
Telecopy: (617) 345-8725
with a copy to:
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 02109
Attention: Andrew C. Sucoff, Esq.
Telecopy: (617) 227-8591
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 Illinois.
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 This Agreement is intended solely for the benefit of Buyer and
Seller and is not intended to benefit any third parties.
11.11 Time is expressly declared to be of the essence of this
Agreement.
11.12 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, partners or agents of Seller or any of their successors. 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.
11.13 As used herein, the term business day shall mean any day other than
on Saturday, Sunday, or federal holiday.
11.14 Buyer hereby acknowledges that for the purposes of this Agreement,
the Seller's sole representatives are PaineWebber Equity Partners One Limited
Partnership and PaineWebber Equity Partners Two Limited Partnership and that
Buyer may not rely on any consent, approval or action signed or undertaken
solely by any other partner of the Seller on behalf of Seller.
11.15 Property Conveyed "AS IS".
(a) NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, IT IS
UNDERSTOOD AND AGREED THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, SELLER AND ITS
PROPERTY MANAGER HAVE NOT MADE AND ARE NOT NOW MAKING, AND THEY SPECIFICALLY
DISCLAIM, ANY OTHER WARRANTIES, REPRESENTATIONS OR GUARANTIES OF ANY KIND OR
CHARACTER, EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, WITH
RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES,
REPRESENTATIONS OR GUARANTIES AS TO (I) MATTERS OF TITLE (OTHER THAN SELLER'S
WARRANTY OF TITLE SET FORTH IN THE DEED (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 SELLER'S OR ITS PROPERTY MANAGER'S SKILL OR
JUDGMENT TO SELECT OR FURNISH THE PROPERTY FOR ANY PARTICULAR PURPOSE, AND THAT
SELLER MAKES NO WARRANTY THAT THE PROPERTY IS FIT FOR ANY PARTICULAR PURPOSE),
OR (XIX) TAX CONSEQUENCES.
(b) BUYER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER
DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR ITS PROPERTY
MANAGER OR ANY OF THEIR RESPECTIVE AGENTS, EXPECT AS EXPRESSLY SET FORTH HEREIN,
AND ACKNOWLEDGES THAT NO OTHER SUCH REPRESENTATIONS HAVE BEEN MADE. BUYER
REPRESENTS THAT IT IS A KNOWLEDGEABLE, EXPERIENCED AND SOPHISTICATED BUYER OF
REAL ESTATE AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF
BUYER'S CONSULTANTS IN PURCHASING THE PROPERTY. BUYER WILL CONDUCT SUCH
INSPECTIONS AND INVESTIGATIONS OF THE PROPERTY AS BUYER DEEMS NECESSARY,
INCLUDING, BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS
THEREOF, AND SHALL RELY UPON SAME. UPON CLOSING, BUYER SHALL ASSUME THE RISK
THAT ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO, ADVERSE PHYSICAL AND
ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY BUYER'S INSPECTIONS AND
INVESTIGATIONS. 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 11.15(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.
<PAGE>
ARTICLE 12
IRS FORM 1099-S DESIGNATION
12.1 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 L 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.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
<PAGE>
IN WITNESS WHEREOF, the parties have executed this instrument as of the
day and year first set forth above.
SELLER:
CHICAGO - 625 PARTNERSHIP,
an Illinois general partnership
By: PaineWebber Equity Partners One
Limited Partnership, its partner
By: First Equity Partners, Inc.,
its general partner
By: /s/ Peter F. Sullivan
---------------------
Name: Peter F. Sullivan
Title: Vice President
By: PaineWebber Equity Partners Two
Limited Partnership, its partner
By: Second Equity Partners, Inc.,
its general partner
By: /s/ Peter F. Sullivan
---------------------
Name: Peter F. Sullivan
Title: Vice President
By: Michigan-Ontario Limited, an Illinois
limited partnership, its partner
By: /s/ Eugene Golub
----------------
Name: Eugene Golub
Title: General Partner
[Signatures continue on the following page]
<PAGE>
BUYER:
GOLUB-LANDMARK/625, LLC
By: Landmark Equity Trust VII,
its managing member
By: U.S. Trust Company, National
Association, solely in its capacity
as trustee
By: /s/ Otis A. Sinnot, Jr.
----------------------
Otis A. Sinnot, Jr.
Vice President
<PAGE>
March 16, 2000
Chicago - 625 Partnership
c/o PaineWebber Properties, Incorporated
265 Franklin Street, 15th Floor
Boston, MA 02110
Attn: Mark W. Dunne, Senior Vice President
RE: Purchase and Sale Agreement by and between Chicago-625 Partnership
(the Seller) and Golub - Landmark/625, LLC (the Buyer) dated as of
January 21, 2000 (the Sale Agreement)
------------------
Ladies and Gentlemen:
This letter constitutes Buyers notice pursuant to Section 7.3 of the Sale
Agreement that Buyer is exercising its election to extend the Closing Date from
March 21, 2000 to April 5, 2000. Buyer and Seller hereby agree that the
Extension Deposit will not be required to be delivered until 5:00 pm central
time March 23, 2000 (unless the Closing has occurred before such time)
notwithstanding the terms of Section 7.3 of the Sale Agreement. Seller
acknowledges that Buyer may wish to accelerate the Closing Date as extended
hereby, therefore, Buyer and Seller agree that Buyer may accelerate the Closing
Date by providing Seller with written notice of its election to accelerate the
Closing Date no later than two business days in advance of Buyers proposed
Closing Date. It is agreed that time is of the essence.
This letter agreement may be executed in counterparts each of which will
constitute an original.
Seller and Buyer each (a) has agreed to permit use of telecopied
signatures in order to expedite the transaction contemplated by this letter
agreement, (b) intends to be bound by its respective telecopied signature(s),
(c) is aware that the other party will rely on the telecopied signature(s), and
(d) acknowledges such reliance and waives any defenses to the enforcement of
this letter agreement and the documents effecting the transaction contemplated
by this letter agreement based on the fact that a signature was sent by telecopy
only.
Any inconsistency between the provisions of this letter agreement and the
Sale Agreement shall be governed by the provisions of this letter agreement.
Except as otherwise specifically defined in this letter agreement, all
capitalized terms used herein shall have the same meaning as ascribed to such
terms in the Sale Agreement. Except as specifically modified by the provisions
of this letter agreement, the Sale Agreement shall remain in full force and
effect and is hereby ratified by the parties hereto.
BUYER:
GOLUB-LANDMARK/625, LLC
By: Landmark Equity Trust VII,
its managing member
By: U.S. Trust Company, National
Association, solely in its capacity
as trustee
By: /s/ Otis A. Sinnott, Jr.
-----------------------
Otis A. Sinnott, Jr.
Vice President
<PAGE>
ACKNOWLEDGED AND AGREED:
SELLER:
CHICAGO - 625 PARTNERSHIP,
an Illinois general partnership
By: PaineWebber Equity Partners One
Limited Partnership, its partner
By: First Equity Partners, Inc.,
its general partner
By: /s/ Walter V. Arnold
--------------------
Name: Walter V. Arnold
Title: SVP & CFO
<PAGE>
By: PaineWebber Equity Partners Two
Limited Partnership, its partner
By: Second Equity Partners, Inc.,
its general partner
By: /s/ Walter V. Arnold
--------------------
Name: Walter V. Arnold
Title: SVP & CFO
By: Michigan-Ontario Limited,
an Illinois limited partnership, its partner
By: /s/ Eugene Golub
----------------
Name: Eugene Golub
Title: General Partner
cc: David Glickstein, Esq.
Mr. Robert E. King, Jr.
Andrew C. Sucoff, Esq.
<PAGE>
March 23, 2000
Chicago - 625 Partnership
c/o PaineWebber Properties, Incorporated
265 Franklin Street, 15th Floor
Boston, MA 02110
Attn: Mark W. Dunne, Senior Vice President
RE: Purchase and Sale Agreement by and between Chicago-625 Partnership
(the Seller) and Golub - Landmark/625, LLC (the Buyer) dated as of
January 21, 2000, as amended by letter agreement dated March 16,
2000 (the Sale Agreement)
------------------
Ladies and Gentlemen:
Buyer and Seller hereby agree that the Closing Date will be March 24,
2000. It is agreed that time is of the essence. Contemporaneously with the
execution of this letter agreement, Buyer is depositing the Extension Deposit
with the Title Company. Buyer acknowledges that Buyer has no further extension
rights under the Sale Agreement.
Buyer and Seller hereby agree that notwithstanding the provisions of the
Sale Agreement, the Closing Statement will be final and no post-closing
adjustments, re-prorations or reconciliations shall be made.
Buyer agrees that Buyer shall pay to the respective issuer all fees, and
shall reimburse Seller for any costs incurred, as a result of the transfer or
assignment of any of the letters of credit serving as security deposits for any
of the tenants of the Property. Buyers obligation in the preceding sentence
shall survive closing.
This letter agreement may be executed in counterparts each of which will
constitute an original.
Seller and Buyer each (a) has agreed to permit use of telecopied
signatures in order to expedite the transaction contemplated by this letter
agreement, (b) intends to be bound by its respective telecopied signature(s),
(c) is aware that the other party will rely on the telecopied signature(s), and
(d) acknowledges such reliance and waives any defenses to the enforcement of
this letter agreement and the documents effecting the transaction contemplated
by this letter agreement based on the fact that a signature was sent by telecopy
only.
Any inconsistency between the provisions of this letter agreement and the
Sale Agreement shall be governed by the provisions of this letter agreement.
Except as otherwise specifically defined in this letter agreement, all
capitalized terms used herein shall have the same meaning as ascribed to such
terms in the Sale Agreement. Except as specifically modified by the provisions
of this letter agreement, the Sale Agreement shall remain in full force and
effect and is hereby ratified by the parties hereto.
BUYER:
GOLUB-LANDMARK/625, LLC
By: Landmark Equity Trust VII,
its managing member
By: U.S. Trust Company, National
Association, solely in its capacity
as trustee
By: /s/ Otis A. Sinnott, Jr.
------------------------
Otis A. Sinnott, Jr.
Vice President
<PAGE>
ACKNOWLEDGED AND AGREED:
SELLER:
CHICAGO - 625 PARTNERSHIP,
an Illinois general partnership
By: PaineWebber Equity Partners One
Limited Partnership, its partner
By: First Equity Partners, Inc.,
its general partner
By: /s/ Walter V. Arnold
--------------------
Name: Walter V. Arnold
Title: SVP & CFO
By: PaineWebber Equity Partners Two
Limited Partnership, its partner
By: Second Equity Partners, Inc.,
its general partner
By: /s/ Walter V. Arnold
--------------------
Name: Walter V. Arnold
Title: SVP & CFO
By: Michigan-Ontario Limited,
an Illinois limited partnership, its partner
By: /s/ Eugene Golub
----------------
Name: Eugene Golub
Title: General Partner
cc: David Glickstein, Esq.
Merle Cowin, Esq.
Robert E. King, Jr. Esq.
Gregory Shanklin, Esq.
Maureen Ryan, Esq.
Andrew C. Sucoff, Esq.
<PAGE>
BILL OF SALE
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Chicago-625 Partnership, an Illinois general
partnership (Seller), with a place of business at c/o PaineWebber Properties,
Incorporated, 265 Franklin Street, Floor Fifteen, Boston, Massachusetts 02110
hereby grants, bargains, conveys, sets over, transfers, assigns and delivers
unto 625 NMA Associates LLC, a Delaware limited liability company (Purchaser),
with an address c/o Golub & Company, 625 North Michigan Avenue, Ste. 2000,
Chicago, Illinois 60611, its successors and assigns, all of Sellers right, title
and interest in and to all personal property (the Personalty) of every kind and
nature now or hereafter installed, located, attached or used in connection with
the operation of the parcel of land, with the buildings and improvements thereof
erected, situate, lying and being in the City of Chicago, Cook County, Illinois,
now known and numbered as 625 North Michigan Avenue, and more particularly
bounded and described as set forth on the attached Schedule 1 (collectively, the
Premises), to have and to hold the same unto Purchaser, its successors and
assigns forever, subject to the Permitted Exceptions set forth in Schedule 2
attached hereto and made a part hereof and the rights, if any, of tenants of the
Premises in and to any of said Personalty.
ASSIGNOR MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR PURPOSE IN
RESPECT OF THE ASSIGNED PROPERTY, AND THE SAME IS SOLD IN AN AS IS, WHERE IS
CONDITION, WITH ALL FAULTS. BY ACCEPTANCE OF DELIVERY ASSIGNEE AFFIRMS THAT
ASSIGNEE HAS INSPECTED THE ASSIGNED PROPERTY AND IS SATISFIED WITH ITS
CONDITION, AND THAT IT HAS NOT RELIED ON ASSIGNORS SKILL OR JUDGMENT TO SELECT
OR FURNISH THE ASSIGNED PROPERTY FOR ANY PARTICULAR PURPOSE, AND THAT ASSIGNOR
MAKES NO WARRANTY THAT THE ASSIGNED PROPERTY IS FIT FOR ANY PARTICULAR PURPOSE
AND THAT THERE ARE NO REPRESENTATIONS AND WARRANTIES, EXPRESSED, IMPLIED, OR
STATUTORY WITH RESPECT THERETO.
<PAGE>
EXECUTED as a sealed instrument as of the 24th day of March, 2000.
SELLER:
CHICAGO - 625 PARTNERSHIP,
an Illinois general partnership
By: PaineWebber Equity Partners One Limited
Partnership
By: First Equity Partners, Inc.
By: /s/ Walter V. Arnold
--------------------
Name: Walter V. Arnold
Title: SVP & CFO
By: PaineWebber Equity Partners Two Limited
Partnership
By: Second Equity Partners, Inc.
By: /s/ Walter V. Arnold
--------------------
Name: Walter V. Arnold
Title: SVP & CFO
<PAGE>
ASSIGNMENT AND ASSUMPTION OF CONTRACTS AND INTANGIBLES
This Assignment and Assumption of Contracts and Intangibles (the
Assignment) is made as of March 24, 2000 by and between Chicago-625 Partnership,
an Illinois general partnership (Assignor), with a place of business at c/o
PaineWebber Properties, Incorporated, 265 Franklin Street, Floor Fifteen,
Boston, Massachusetts 02110 and 625 NMA Associates LLC, a Delaware limited
liability company (Assignee), with an address c/o Golub & Company, 625 North
Michigan Avenue, Ste. 2000, Chicago, Illinois 60611.
WITNESSETH THAT:
WHEREAS, Assignor is the beneficial owner of the real estate described in
Exhibit A attached hereto and made a part hereof, and the improvements located
thereon (hereinafter referred to collectively as the Property);
WHEREAS, Assignor possesses right, title and interest in, to and under
certain contracts and other intangibles obtained or entered into by Assignor
with respect to the operation of the Property, including, without limitation,
service, operating and construction contracts, granted or used in connection
with the ownership, operation, management, maintenance or otherwise with respect
to the Property as listed in Exhibit B attached hereto (the Contracts);
WHEREAS, said Property has been conveyed this day by Assignor to Assignee;
WHEREAS, Assignee desires to acquire from Assignor and assume, and
Assignor desires to transfer and assign to Assignee, the Contracts;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants hereinafter contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by Assignor and
Assignee, the parties hereto agree as follows:
1. Assignment. Assignor hereby unconditionally ASSIGNS, TRANSFERS, SETS
OVER AND DELIVERS unto Assignee all of Assignors right, title and interest in,
to and under the Contracts, and all of the rights, interests, benefits and
privileges of Assignor thereunder, but subject to all terms, conditions,
obligations, liabilities, reservations and limitations set forth in the
Contracts. Assignee shall indemnify, defend and hold Assignor harmless from and
against any loss, cost or expense including, but not limited to, reasonable
attorneys fees and court costs, resulting from any failure of Assignee to
perform and fulfill any and all of Assignors obligations as beneficial owner of
the Property under the Contracts arising or to be performed from and after the
date of the Assignment.
2. Acceptance. Assignee hereby accepts the foregoing assignment from
Assignor of the Contracts and hereby assumes and agrees to abide by all of the
obligations of Assignor under the Contracts arising and to be performed from and
after the date of the Assignment. Assignee shall indemnify, defend and hold
Assignor harmless from and against any loss, cost or expense including, but not
limited to, reasonable attorneys fees and court costs, resulting from any
failure of Assignee to perform and fulfill any and all of the owners obligations
under the Contracts arising or to be performed on or after the date of this
Agreement.
3. Amendments. 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.
4. Governing Law; Waiver of Trial By Jury. This Agreement shall be
interpreted and enforced in accordance with the laws of the State of Illinois,
without reference to principles of conflict of laws. Each of Assignor and
Assignee agree to submit to jurisdiction in the State of Illinois with respect
to any dispute under or arising out of this Agreement and agree that any such
dispute shall be brought either in the courts of the State of Illinois or in the
applicable federal district court located in Illinois. 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. Assignor and Assignee
hereby each waive trial by jury in any action, proceeding or counterclaim
brought by either against the other, on or in respect of any matter whatsoever
arising out of or in any way connected with this Agreement or the relationship
of Assignor and Assignee.
5. Successors and 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.
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 shall constitute a waiver of any other or further
right or condition 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.
7. Exhibits. Each of the Exhibits referred to herein is attached
hereto, made a part hereof and is incorporated in this Agreement by this
reference as though fully set forth herein.
8. Section Headings. The section 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.
9. Recording and Binding Effect. This Agreement shall not be
recorded or registered by or for the benefit of Assignee and any recordation or
registration by or for the benefit of Assignee hereof shall be void and shall
constitute a default by Assignee hereunder.
10. Counterparts. This Agreement may be executed in one or more
counterparts, each of which when so executed and delivered shall be deemed an
original, but all of which taken together shall constitute but one and the same
instrument. All signatures need not appear on any single counterpart.
[Remainder of this page intentionally left blank]
<PAGE>
IN WITNESS WHEREOF, this Assignment is executed as of the date first
written above.
ASSIGNOR:
CHICAGO - 625 PARTNERSHIP,
an Illinois general partnership
By: PaineWebber Equity Partners One Limited
Partnership
By: First Equity Partners, Inc.
By: /s/ Walter V. Arnold
--------------------
Name: Walter V. Arnold
Title: SVP & CFO
By: PaineWebber Equity Partners Two Limited
Partnership
By: Second Equity Partners, Inc.
By: /s/ Walter V. Arnold
--------------------
Name: Walter V. Arnold
Title: SVP & CFO
[Signatures continue on the following page]
<PAGE>
ASSIGNEE:
625 NMA Associates LLC, a Delaware limited
liability company
By: Landmark-Golub 625, LLC, a Delaware
limited liability company, sole member
By: L-G 625 Holdings, LLC, a Delaware
limited liability company,
managing member
By: Landmark Equity Trust VII, sole
member
By: U.S. Trust Company, National
Association, not
individually, but solely in
its capacity as a trustee
under a certain Agreement
and Declaration of Trust
dated as of September 4,
1998, as Amended known as
Landmark Equity Trust VII
By: /s/ Robert J. Dombi
-------------------
Name: Robert J. Dombi
Title: Vice President
<PAGE>
ASSIGNMENT AND ASSUMPTION OF LEASES AND SECURITY DEPOSITS
This Assignment and Assumption of Leases (the Assignment) is made as of
March 24, 2000, 2000 by and between Chicago-625 Partnership, an Illinois general
partnership (Assignor), with a place of business at c/o PaineWebber Properties,
Incorporated, 265 Franklin Street, Floor Fifteen, Boston, Massachusetts 02110
and 625 NMA Associates LLC, a Delaware limited liability company (Assignee),
with an address c/o Golub & Company, 625 North Michigan Avenue, Ste. 2000,
Chicago, Illinois 60611.
WITNESSETH THAT:
WHEREAS, Assignor is the lessor under those certain leases (Leases) listed
on Schedule 1 hereto, by and between Assignor, as landlord, and those tenants
listed on Schedule 1 hereto, as lessees, covering certain land (Land) located in
the City of Chicago, Cook County, Illinois, which Land is more particularly
described in Schedule 2, attached hereto and made a part hereof, and the
improvements (Improvements) erected on the Land.
WHEREAS, said Land and Improvements have been conveyed this day by
Assignor to Assignee.
WHEREAS, Assignee desires to acquire from Assignor and assume, and
Assignor desires to transfer and assign to Assignee, the Leases.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants hereinafter contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by Assignor and
Assignee, the parties hereto agree as follows:
1. Assignor hereby unconditionally ASSIGNS, TRANSFERS, SETS OVER AND
DELIVERS unto Assignee all of the landlord's right, title and interest under the
Leases and the leasehold estates created thereby, including, without limitation,
any and all security deposits, and all of the rights, benefits and privileges of
the landlord thereunder, but subject to all terms, conditions, reservations and
limitations set forth in the Leases.
2. Assignee hereby accepts the foregoing assignment from Assignor of the
Leases and hereby assumes and agrees to abide by all of the obligations of the
landlord under the Leases arising and to be performed from and after the date of
the Assignment. Assignee shall indemnify, defend and hold Assignor harmless from
and against any loss, cost or expense including, but not limited to, reasonable
attorneys?fees and court costs, resulting from any failure of Assignee to
perform and fulfill any and all of the landlord's obligations under the Leases
arising or to be performed on or after the date of the Assignment.
3. This Assignment may be executed in one or more counterparts, each of
which when so executed and delivered shall be deemed an original, but all of
which taken together shall constitute but one and the same instrument. All
signatures need not appear on any single counterpart.
[Remainder of this page intentionally left blank]
<PAGE>
IN WITNESS WHEREOF, this Assignment is executed as of the date first written
above.
ASSIGNOR:
CHICAGO - 625 PARTNERSHIP,
an Illinois general partnership
By: PaineWebber Equity Partners One Limited
Partnership
By: First Equity Partners, Inc.
By: /s/ Walter V. Arnold
--------------------
Name: Walter V. Arnold
Title: SVP & CFO
By: PaineWebber Equity Partners Two Limited
Partnership
By: Second Equity Partners, Inc.
By: /s/ Walter V. Arnold
--------------------
Name: Walter V. Arnold
Title: SVP & CFO
[Signatures continue on the following page]
<PAGE>
ASSIGNEE:
625 NMA Associates LLC, a Delaware limited
liability company
By: Landmark-Golub 625, LLC, a Delaware
limited liability company, sole member
By: L-G 625 Holdings, LLC, a Delaware
limited liability company,
managing member
By: Landmark Equity Trust VII, sole
member
By: U.S. Trust Company, National
Association, not
individually, but solely in
its capacity as a trustee
under a certain Agreement
and Declaration of Trust
dated as of September 4,
1998, as Amended known as
Landmark Equity Trust VII
By: /s/ Robert J. Dombi
-------------------
Name: Robert J. Dombi
Title: Vice President
<PAGE>
DISBURSEMENT STATEMENT
Disburse: 3/24/00 Bank Number: 11
Property: 625 North Michigan Avenue
Chicago, IL
Borrower: 625 NMA Associates LLC Seller: Chicago-625 Partnership
I. To be accounted for:
Purchase Price $ 40,750,000.00
Less: Net proration credit to purchaser (1,782,298.09)
---------------
38,967,701.91
Less: Cushman Realty Corporation (real
estate commission) (214,000.00)
Golub and Company (termination fee) (407,500.00)
American National Bank and Trust
Company of Chicago (land trust fees 26711) (125.00)
Cook County Recorder of Deeds (transfer taxes) (61,125.00)
Prudential Life Insurance Co.
(payoff Mtg. 88185413) (14,662,123.89)
Less: Near North National Title Corporation
a. Seller's1/2owner policy (7,031.00)
b Seller's1/2sale closing fee (1,250.00)
c. Seller's1/2GAP fee (100.00)
d. Est. recording release deeds (250.00)
---------------
Subtotal sale proceeds 23,614,197.02
Plus: Cash Balance on Hand:
a. Operating Account $146,094.48
b Money Market Account 16,314.63
c. Security Deposit Account 211,299.63 373,708.74
---------------
Net amount to seller at closing $ 23,987,905.76
===============
II. Disbursements:
PaineWebber Equity Partners I Ltd Partnership
(40.82% proceeds & cash escrows) $ 9,791,863.13
PaineWebber Equity Partners II
Ltd. Partnership (59.18% proceeds -
cash escrows) 14,196,042.63
---------------
$ 23,987,905.76
===============
<PAGE>
Buyer's Representative
/s/ Michael Goldman
---------------
Michael Goldman
SELLER:
CHICAGO - 625 PARTNERSHIP,
an Illinois general partnership
By: PaineWebber Equity Partners One
Limited Partnership, its partner
By: /s/ Walter V. Arnold
---------------------
Name: Walter V. Arnold
Title: SVP & CFO
By: PaineWebber Equity Partners Two
Limited Partnership, its partner
By: /s/ Walter V. Arnold
--------------------
Name: Walter V. Arnold
Title: SVP & CFO
By: Michigan-Ontario Limited,
an Illinois limited partnership, its partner
By: /s/ Eugene Golub
----------------
Name: Eugene Golub
Title: General Partner
