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) April 17, 1997
Paine Webber Qualified Plan Property Fund, LP
(Exact name of registrant as specified in its charter)
Delaware 0-17145 13-3069311
(State or other jurisdiction) (Commission (IRS Employer
of incorporation File Number) Identification No.)
265 Franklin Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (617) 439-8118
(Former name or address, if changed since last report)
<PAGE>
FORM 8-K
CURRENT REPORT
PAINE WEBBER QUALIFIED PLAN PROPERTY FUND, LP
ITEM 2 - Disposition of Assets
Harwood Village North Shopping Center, Bedford, Texas
Disposition Date - April 17, 1997
On April 17, 1997, Paine Webber Qualified Plan Property Fund, LP sold its
wholly-owned operating investment property held for sale, the Harwood Village
North Shopping Center (Harwood Village), located in Bedford, Texas, to an
unrelated third party for $4,245,000. The Partnership received net proceeds of
approximately $4,087,000 after deducting closing costs and other credits to the
buyer. This amount compares favorably to the Partnership's original net
investment in Harwood Village of $3,964,000. The Partnership acquired the
property through foreclosure proceedings under the terms of the mortgage loan
secured by Harwood Village on June 19, 1995. Since taking ownership title to
Harwood Village, management's goal has been to complete a sale of the property
and liquidate the Partnership. At the date of foreclosure, management believed
that the fair value of Harwood Village was approximately equal to the aggregate
carrying value of the Partnership's land and mortgage loan investments of
$3,918,000. Accordingly, the Partnership reclassified such carrying values to
investment property held for sale. During fiscal 1996, the Partnership purchased
an additional out-parcel of land adjacent to Harwood Village for $46,000 and
began to actively market the property for sale.
On January 2, 1997, a contract was executed to sell the property to a
prospective buyer for $4,300,000. Due to potential environmental concerns, the
sales contract was amended to allow the buyer additional time to complete due
diligence and to secure financing. As part of the amendment, the Partnership
agreed to remediate the two contaminated locations identified in a Phase II
environmental survey completed as part of the buyer's due diligence. In
addition, the Partnership agreed to reduce the purchase price to $4,245,000 in
consideration of certain repairs required to the roofs of the buildings on the
property. Despite the downward trend in values for retail shopping centers in
many markets due to certain consolidations and bankruptcies among retailers
which have led to an oversupply of space and the generally flat rate of growth
in retail sales, management believed that a sale of the property followed by a
liquidation of the Partnership was more favorable than the uncertainties and
risks associated with ownership of the property for an extended holding period
and was in the best interests of the Limited Partners. As soon as all
liquidation-related expenses are paid, the Partnership expects to make a final
distribution payment to the Limited Partners of approximately $4,000,000 or $214
per original $1,000 investment.
ITEM 7 - Financial Statements and Exhibits
(a) Financial Statements: None
(b) Exhibits:
(1) Purchase and Sale Agreement by and between Paine Webber Qualified
Plan Property Fund, LP and ORDA Corporation dated December 23,
1996 and effective January 2, 1997.
(2) Amendment to Purchase and Sale Agreement by and between Paine
Webber Qualified Plan Property Fund, LP and ORDA Corporation,
effective February 17, 1997.
(3) Assignment of Contract of Sale by and between ORDA Corporation and
Harwood Village Realty, LTD., dated April 14, 1997.
(4) Special Warranty Deed between Paine Webber Qualified Plan
Property Fund, LP and Harwood Village Realty, LTD., dated April
16, 1997.
<PAGE>
FORM 8-K
CURRENT REPORT
PAINE WEBBER QUALIFIED PLAN PROPERTY FUND, LP
(5) Bill of Sale by Paine Webber Qualified Plan Property Fund, LP for
the benefit of Harwood Village Realty, LTD., dated April 16, 1997.
(6) Assignment of Leases and Security Deposits by Paine Webber
Qualified Plan Property Fund, LP to Harwood Village Realty, LTD.,
dated April 16, 1997 and April 17, 1997.
(7) Assignment and Assumption of Intangible Property and Other Rights by
and between Paine Webber Qualified Plan Property Fund, LP and
Harwood Village Realty, LTD., dated April 17, 1997.
(8) Closing Statement by and between Paine Webber Qualified Plan
Property Fund, LP and Harwood Village Realty, LTD., dated April
17, 1997.
<PAGE>
FORM 8-K
CURRENT REPORT
PAINE WEBBER QUALIFIED PLAN PROPERTY FUND, LP
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
PAINE WEBBER QUALIFIED PLAN PROPERTY FUND, LP
(Registrant)
By: /s/ Walter V. Arnold
Walter V. Arnold
Senior Vice President and
Chief Financial Officer
Date: May 2, 1997
<PAGE>
AGREEMENT OF PURCHASE
AND SALE
dated as of December 23, 1996
between
PAINE WEBBER QUALIFIED PLAN PROPERTY FUND, LP.,
a Delaware limited partnership,
as Seller,
and
ORDA Corporation,
a Texas corporation,
as Purchaser
HARWOOD VILLAGE NORTH SHOPPING CENTER
BEDFORD, TEXAS
<PAGE>
TABLE OF CONTENTS
Page
ARTICLES:
I AGREEMENT; DEFINITIONS; RULES OF CONSTRUCTION 1
---------------------------------------------
1.1 Agreement 1
---------
1.2 Definitions 1
-----------
1.3 Rules of Construction 1
---------------------
II PURCHASE AND SALE;
PAYMENT OF PURCHASE PRICE 2
-------------------------
2.1 Purchase and Sale 2
-----------------
2.2 Deposit 2
-------
2.3 Payment of Purchase Price 3
-------------------------
2.4 Study Period 3
------------
(a) Term 3
----
(b) Property Information 4
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(c) Environmental Testing 4
---------------------
(d) Indemnity 4
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(e) Damages 4
-------
(f) Confidentiality as to Tests 5
---------------------------
(g) Repair not a Condition 5
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(h) AS IS 5
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(i) Title Examination 6
-----------------
(j) Cooperation. 7
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III SELLER'S REPRESENTATIONS AND COVENANT 7
-------------------------------------
3.1 Organization and Power 7
----------------------
3.2 Authorization and Execution 7
---------------------------
3.3 Noncontravention 7
----------------
3.4 Notices 8
-------
3.5 Status of Rent Roll and Leases 8
------------------------------
3.6 Litigation 8
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3.7 Bankruptcy 8
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3.8 Brokerage Commission 8
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3.9 Operating Covenants 9
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IV PURCHASER'S REPRESENTATIONS, WARRANTIES AND COVENANTS 9
-----------------------------------------------------
4.1 Organization and Power 9
----------------------
4.2 Authorization and Execution 9
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4.3 Noncontravention 10
----------------
4.4 Litigation 10
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4.5 Bankruptcy 10
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4.6 Brokerage Commission 10
--------------------
V CONDITIONS AND ADDITIONAL COVENANTS 10
-----------------------------------
5.1 Seller's Deliveries 10
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5.2 Representations 11
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5.3 Condition of Improvements 11
-------------------------
5.4 Status of Title 11
---------------
5.5 Title Insurance 11
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5.6 Possession 11
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VI CLOSING 11
6.1 Closing 11
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6.2 Seller's Deliveries 12
-------------------
6.3 Purchaser's Deliveries 13
----------------------
6.4 Closing Costs 14
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6.5 Income and Expense Allocations 14
------------------------------
6.6 Lease Deposits and Fees 15
-----------------------
VII CONDEMNATION; RISK OF LOSS 16
--------------------------
7.1 Condemnation 16
------------
7.2 Risk of Loss 16
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VIII TERMINATION RIGHTS 17
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8.1 Termination by Purchaser 17
------------------------
8.2 Termination by Seller 17
---------------------
8.3 Special Provision. 17
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IX ACKNOWLEDGMENTS OF PURCHASER 18
X MISCELLANEOUS PROVISIONS 18
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10.1 Completeness; Modification 18
--------------------------
10.2 Assignments 18
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10.3 Successors and Assigns 18
----------------------
10.4 Days18
10.5 Governing Law 19
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10.6 Counterparts 19
------------
10.7 Severability 19
------------
10.8 Costs 19
-----
10.9 Notices 19
-------
10.10 Incorporation by Reference 20
--------------------------
10.11 Survival 20
--------
10.12 No Partnership 21
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10.13 Time of Essence 21
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10.14 Confidentiality 21
---------------
10.15 Special Notices. 21
---------------
10.16 Binding Nature. 21
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10.17 Date of Agreement. 21
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<PAGE>
List of Exhibits
Exhibit A - Land Description
Exhibit B - Property Information
Exhibit C - Phase II Proposal
<PAGE>
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT, dated as of December 23, 1996 (the "Agreement"), between
PAINE WEBBER QUALIFIED PLAN PROPERTY FUND, LP, a Delaware limited partnership
(the "Seller"), and ORDA CORPORATION, a Texas corporation (the "Purchaser"),
provides:
ARTICLE I
AGREEMENT; DEFINITIONS; RULES OF CONSTRUCTION
1.1 Agreement. In consideration of the payment of the Initial Deposit, the
mutual promises herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Seller and the
Purchaser agree to the provisions of this Agreement.
1.2 Definitions. Except where otherwise indicated, capitalized terms used in
this Agreement shall have the indicated meanings set forth on Schedule 1.
1.3 Rules of Construction. The following rules shall apply to the
construction and interpretation of this Agreement:
(a) Singular words shall connote the plural number as well as the singular
and vice versa, and the masculine shall include the feminine and the neuter.
(b) All references herein to particular articles, sections, subsections,
clauses, schedules or exhibits are references to articles, sections,
subsections, clauses, schedules or exhibits of this Agreement.
(c) The table of contents and headings contained herein are solely for
convenience of reference and shall not constitute a part of this Agreement nor
shall they affect its meaning, construction or effect.
(d) The Seller and the Purchaser and their respective counsel have
reviewed and revised (or requested revisions of) this Agreement, and therefore
any usual rules of construction requiring that ambiguities are to be resolved
against a particular party shall not be applicable in the construction and
interpretation of this Agreement or any exhibits hereto or amendments hereof.
<PAGE>
ARTICLE II
PURCHASE AND SALE;
PAYMENT OF PURCHASE PRICE
2.1 Purchase and Sale. The Seller shall sell, and the Purchaser shall acquire,
the Property for the Purchase Price and in accordance with the provisions of
this Agreement.
2.2 Deposit.
(a) Purchaser shall within two business days after the date of this
Agreement deposit the Initial Deposit with Fidelity National Title Agency, Inc.,
5430 LBJ Freeway, Suite 260, Dallas, Texas 75240 (the "Title Company").
(b) The Initial Deposit (and the Supplemental Deposit, if any) shall be
deposited by the Title Company in an interest bearing account at a federally
insured depository institution in Dallas County, Texas, acceptable to the
Purchaser. Any interest accruing on such account shall be reported for tax
purposes under the tax identification number of the Purchaser. All interest
accruing on the Deposit shall be paid to the Purchaser at Closing or
contemporaneously with release of the Deposit in accordance with this Agreement.
If Closing occurs under this Agreement, the Deposit shall be applied toward the
cash payment due at Closing by the Purchaser to the Seller in accordance with
Section 2.3. If Closing does not occur under this Agreement, the Deposit shall
be disbursed by the Title Company to the Seller or Purchaser (as appropriate) in
accordance with this Agreement. If the Purchaser shall fail to timely deposit
the Initial Deposit (or if in the form of a check, the bank on whom such check
is drawn refuses to fully honor such check when negotiated and presented for
payment by the Title Company), this Agreement shall, effective with the giving
of notice from Seller to Purchaser, terminate, and neither party shall have any
further obligations or liabilities hereunder, except those that expressly
survive termination of this Agreement.
(c) If the Purchaser has terminated timely this Agreement under Section
2.4, the Initial Deposit shall be delivered to the Purchaser by the Title
Company upon receipt of a copy of the timely notice of termination from the
Purchaser to the Seller. Unless the Purchaser has terminated timely this
Agreement under Section 2.4 the Purchaser shall deliver the Supplemental Deposit
to the Title Company within two business days after the expiration of the Study
Period. If the Supplemental Deposit is not timely delivered and the Purchaser
has not terminated under Section 2.4, the Seller shall have the right to
terminate this Agreement upon notice to the Purchaser, and upon receipt of a
copy of such notice, the Title Company shall pay the Initial Deposit to the
Seller.
(d) In all other cases, except if this Agreement is terminated as a
consequence of the Seller's default, if this Agreement expires or terminates and
Closing does not occur hereunder, the Deposit shall be paid to the Seller upon
the date of such expiration or termination upon notice from the Seller to the
Title Company. If this Agreement is terminated as a consequence of the Seller
default, the Deposit shall be returned to the Purchaser.
2.3 Payment of Purchase Price. The Purchase Price, as adjusted in the manner
specified in Article , shall be paid to the Seller at Closing by Purchaser
causing the Title Company to make a wire transfer of immediately available funds
to the account of the Seller at a bank or trust company located in the
continental United States and specified in writing by the Seller.
2.4 Study Period.
a) Term. The Purchaser shall have the right, until the expiration of the
Study Period, upon reasonable notice and at reasonable times, to enter upon the
Real Property (subject to the rights of the Tenants and any others holding
rights as to the Property) and to perform, at the Purchaser's expense and
without interference or interruption of such tenancies or rights, such economic,
engineering, topographic and marketing tests and studies as the Purchaser may
deem reasonably appropriate. A "Phase II" environmental study shall be conducted
by the Seller in accordance with paragraph (c) below. The aforementioned tests
and studies, including the Phase II environmental study, shall be referred to
collectively as the "Tests." During the Study Period, the Purchaser also shall
determine the feasibility of obtaining mortgage financing for the acquisition of
the Property (the "Mortgage Financing"). If, in the Purchaser's sole and
absolute discretion, the Purchaser concludes that the results of the Tests, or
the feasibility or terms of the Mortgage Financing or the form of the Deed, the
Bill of Sale and Assignment or the FIRPTA Certificate are unsatisfactory to the
Purchaser, the Purchaser may elect to terminate this Agreement by notifying the
Seller not later than the expiration of the Study Period. If the Purchaser does
not timely notify the Seller of Purchaser's election to terminate, the Purchaser
shall be deemed to have waived any right to terminate under this Section 2.4. If
the Purchaser timely notifies the Seller of Purchaser's election to terminate
this Agreement under this Section 2.4, the Purchaser shall be entitled to an
immediate return of the Initial Deposit from the Title Company (less the cost of
the TLTA Survey referred to in Section 6.4 below, and the cost of the Phase II
environmental study referred to in Section 2.4(c) below), and neither party
shall have any further obligations hereunder, except those that expressly
survive termination of this Agreement. If the Purchaser duly terminates, the
Purchaser shall provide to the Seller copies of the results of all material
tests and studies made by the Purchaser upon return of the Initial Deposit.
(b) Property Information. Within five days after the initial
deposit is deposited with the Title Company, the Seller shall make available
to the Purchaser the Property Information.
(c) Environmental Testing. Purchaser acknowledges that it has received
from Seller and reviewed a copy of a draft Phase I environmental study of the
Real Property dated November 13, 1996 prepared by GZA GeoEnvironmental, Inc.,
("GZA") and that the Phase I study recommended additional testing of a portion
of the Real Property. Seller has received from GZA a proposal to conduct a Phase
II environmental study of the Real Property. A copy of the GZA Phase II proposal
is attached as Exhibit C. Promptly following the execution and delivery of this
Agreement, Seller will cause GZA to conduct a Phase II study in accordance with
the attached proposal. Seller will use reasonable efforts to cause GZA to
complete the Phase II environmental study on or before January 15, 1997, and
will deliver to the Purchaser a copy of the GZA Phase II report no later than
two weeks prior to the end of the Study Period.
(d) Indemnity. The Purchaser hereby assumes, and agrees to defend,
indemnify and save the Seller harmless from and against, any claim, damage,
liability, cost or expense (including attorneys' fees) arising from acts or
omissions of the Purchaser (and from the acts or omissions of the Purchaser's
agents, contractors or employees) in any way pertaining to any entry upon, or
inspection of, the Property (or any part hereof), including without limitation,
pertaining to the Tests. Such indemnification shall cover, without limitation,
any claim, damage, liability, cost or expense arising from any damage to or
destruction of any property (including any portion of the Property) or from any
personal injury to or death of any persons (including any agents, employees or
contractors of the Purchaser), unless such damage, destruction, injury or death
is caused solely by the Seller or its agents, contractors or employees
including, without limitation, agents or contractors conducting the Phase II
environmental study. The Purchaser agrees to do no act that would encumber title
to the Property.
(e) Damages. In addition to the indemnification provided under Section
2.4d, any physical damage to the Property resulting from the Purchaser's entry
onto the Property (including from any Tests) shall be repaired or corrected at
the Purchaser's sole cost if the transaction contemplated by this Agreement does
not close. If such transaction does not close, the Purchaser agrees to promptly
restore the Property to the condition that existed immediately prior to, and in
the absence of, such tests if caused by, or resulting from, the acts or
omissions of the Purchaser or any of its agents, contractors or employees. All
Tests and any other inspections as to the Property shall be done at the
Purchaser's sole risk, cost and expense.
(f) Confidentiality as to Tests. The Purchaser shall provide in any
contract, or bids, for any Test, a "confidentiality clause" limiting disclosure
of the Test results only to the Purchaser and the Seller, except as mandated by
applicable law. It shall be a condition precedent to conducting any of the Tests
that involves physical inspection or testing of the Real Property that the
Purchaser notifies the Seller in advance of the time and nature of each Test,
the Purchaser is accompanied by a representative of the Seller, who shall be
made available to the Purchaser after reasonable notice to the Seller of the
proposed inspection by no less than three business days, and such Test does not
unreasonably interfere with the operation, management and leasing of the
Property or the rights of the Tenants. Other than the Phase II inspection, no
other environmental test, environmental inspection or Test of similar type as to
the Property shall be undertaken without the Seller's prior written consent.
(g) Repair not a Condition. The Seller shall not be required to correct,
remedy or cure any condition or characteristic of the Property, including but
not limited to any title, structural, environmental or similar matter, that any
of the Tests or other investigations may reveal as a condition to settlement or
other performance hereunder or otherwise.
(h) AS IS. THE PURCHASER ACKNOWLEDGES AND AGREES THAT THE PROPERTY IS TO
BE CONVEYED BY THE SELLER TO THE PURCHASER "AS IS," "WITH ALL FAULTS," AND
SUBSTANTIALLY IN ITS CURRENT CONDITION. THE PURCHASER FURTHER ACKNOWLEDGES AND
AGREES THAT, EXCEPT AS EXPRESSLY CONTAINED HEREIN, NEITHER THE SELLER NOR ANY
AGENT, EMPLOYEE OR OTHER REPRESENTATIVE OF THE SELLER (OR PURPORTED AGENT,
EMPLOYEE OR OTHER REPRESENTATIVE OF THE SELLER) HAS MADE
ANY GUARANTEE, REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED (AND THE SELLER
SHALL NOT HAVE ANY LIABILITY WHATSOEVER) AS TO THE VALUE, USES, HABITABILITY,
CONDITION, DESIGN, OPERATION, FINANCIAL CONDITION OR PROSPECTS, OR FITNESS FOR
PURPOSE OR USE OF THE PROPERTY (OR ANY PART THEREOF) OR THE PROPERTY
INFORMATION, 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 PROPERTY INFORMATION. FURTHER, THE SELLER SHALL HAVE NO
LIABILITY FOR ANY LATENT, HIDDEN, OR PATENT DEFECT AS TO THE PROPERTY OR THE
FAILURE OF THE PROPERTY, OR ANY PART THEREOF, TO COMPLY WITH ANY APPLICABLE LAWS
AND REGULATIONS. IN PARTICULAR, THE PURCHASER ACKNOWLEDGES AND AGREES THAT THE
"PROPERTY INFORMATION" PROVIDED UNDER THIS AGREEMENT (AND ANY OTHER INFORMATION
THE PURCHASER MAY HAVE OBTAINED REGARDING IN ANY WAY ANY OF THE PROPERTY,
INCLUDING WITHOUT LIMITATION, ITS OPERATIONS OR ITS FINANCIAL HISTORY OR
PROSPECTS FROM THE SELLER OR ITS AGENTS, EMPLOYEES OR OTHER REPRESENTATIVES) IS
DELIVERED TO THE PURCHASER AS A COURTESY, WITHOUT REPRESENTATION OR WARRANTY AS
TO ITS ACCURACY OR COMPLETENESS, AND NOT AS AN INDUCEMENT TO ACQUIRE THE
PROPERTY; THAT NOTHING CONTAINED IN SUCH DELIVERIES SHALL CONSTITUTE OR BE
DEEMED TO BE A GUARANTEE, REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, IN ANY
REGARD AS TO ANY OF THE PROPERTY (EXCEPT AS EXPRESSLY PROVIDED HEREIN); AND THAT
THE PURCHASER 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.
(i) Title Examination. During the Study Period, the Purchaser shall have
the right to cause an examination of title to and a survey of the Property to be
made, and, at least ten days prior to the expiration of the Study Period, shall
notify the Seller of any objections (the "Title Objections") to title shown by
such examination, survey or otherwise that the Purchaser is unwilling to accept.
The Seller shall have five days after such notification to give notice (the
"Cure Notice") to the Purchaser as to whether the Seller elects to attempt to
cure any of the Title Objections. If the Seller is willing to attempt to cure
any of the Title Objections, the Seller shall act promptly to attempt such cure
at its expense. The Seller, regardless of any such election, however, shall have
no obligation to effect any cure. Moreover, if the Seller has not timely given
the Cure Notice, the Purchaser, prior to the expiration of the Study Period,
shall elect by notice given to the Seller either (1) to waive the Title
Objections and proceed to Closing without any abatement in the Purchase Price or
(2) to terminate this Agreement under Section 8.1. All title and survey matters
of record or discoverable by inspection of, or an accurate survey of, the Real
Property, as the case may be, as of the end of business on the business day (the
"Title Date") next preceding the tenth day prior to the expiration of the Study
Period, excepting those matters specified in the Cure Notice that the Seller
elects to attempt to cure, shall be deemed "Permitted Title Exceptions." If the
Purchaser is not satisfied with such Permitted Title Exceptions, the Purchaser,
prior to the expiration of the Study Period, shall elect by notice given to the
Seller either (1) to waive the Title Objections and proceed to Closing without
any abatement in the Purchase Price or (2) to terminate this Agreement under
Section 8.1. If Purchaser shall fail to examine title or timely notify the
Seller of any such title or survey objections, all such title and survey
exceptions existing as of the Title Date shall be deemed "Permitted Title
Exceptions."
(j) Cooperation. During the Study Period, the Seller shall authorize
Transwestern Property Company (or its applicable affiliate), the Seller's
property manager for the Property (the "Manager"), to cooperate with the
reasonable requests of the Purchaser to obtain reasonable estoppel certificates
from the Tenants under any Material Lease. The Purchaser shall only contact the
Tenants through or in connection with the Manager.
ARTICLE III
SELLER'S REPRESENTATIONS AND COVENANTS
The Seller hereby makes the following representations and covenant to the
Purchaser:
3.1 Organization and Power. The Seller is a limited partnership duly formed and
validly existing under the laws of the State of Delaware 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 the Seller.
3.2 Authorization and Execution. This Agreement has been duly authorized by all
necessary partnership action on the part of the Seller and has been duly
executed and delivered on behalf of the Seller by a duly authorized general
partner of the Seller. To the Seller's Knowledge, there is no governmental
action, litigation or investigation pending which would prohibit the Seller from
consummating the transaction contemplated by this Agreement and the sale of the
Property by the Seller under this Agreement does not violate any statutory laws
of Delaware or the jurisdiction where the Property is located.
3.3 Noncontravention. The execution and delivery of, and the performance by the
Seller of its obligations under, this Agreement and any documents executed on
behalf of the Seller in connection with this Agreement do not and will not
contravene, or constitute a default under the Seller's organizational documents
or any agreement, judgment, injunction, order, decree or other instrument
binding upon the Seller that could result in the creation of any lien or other
encumbrance on the Property that will encumber the Property after Closing.
3.4 Notices. To the Seller's Knowledge, the Seller has not received at the
Seller's Office written notice within the past six months, of any alleged
violation of any provision of any applicable building, zoning, subdivision,
environmental or other governmental ordinance, resolution, statute, rule, order
or regulation, including but not limited to those of environmental agencies.
3.5 Status of Rent Roll and Leases.
(a) The landlord's interest under each of the Leases (and any security
deposits actually received thereunder) are assignable by the Seller.
(b) To the Seller's Knowledge, except as is otherwise indicated on the
Manager's Certificate (which shall be delivered to the Purchaser with the
Property Information), the Seller has not received written notice alleging a
default on the part of the Seller under the applicable Lease, no written notice
alleging default has been sent to any Tenant by the Seller, and the Manager has
not advised the Seller in writing of the existence of any such tenant default.
(c) The Seller has the sole right to collect the rent under the
Leases.
(d) Except as is otherwise indicated on the Manager's Certificate, no
payment of rent more than 30 days in advance of the due date therefor has been
made to the Seller by a Tenant.
3.6 Litigation. To the Seller's Knowledge, there is no action, suit or
proceeding, pending or known to be threatened in writing, against or affecting
the Seller in any court or before any arbitrator or before any governmental body
which in any manner raises any question affecting the validity or enforceability
of this Agreement, (b) could adversely and materially affect any current zoning
or other statutory land use controls as to the Real Property, or (c) seeks to
affect a taking of the Real Property under eminent domain powers.
3.7 Bankruptcy. No Act of Bankruptcy has occurred with respect to the
Seller or any general partner thereof.
3.8 Brokerage Commission. The Seller shall pay the Broker all amounts due the
Broker as a result of the Closing under this Agreement. Except for the Broker,
the Seller represents and warrants to the Purchaser that the Seller has not
engaged the services of, nor has the Seller done or will it do anything that
will cause it or the Purchaser to become liable to, any real estate agent,
broker, finder or any other person or entity for any brokerage or finder's fee,
commission or other amount with respect to the transactions described herein.
The Seller agrees to indemnify the Purchaser for all loss, cost, claims and
expense (including reasonable attorneys' fees) arising on account of any breach
by the Seller of the foregoing representation and warranty. Such indemnification
shall survive settlement and Closing hereunder or the termination hereof, as the
case may be.
3.9 Operating Covenants. The Seller agrees to operate or cause to be operated
the Property prior to the Closing in a reasonable manner consistent with its
current operating procedures. The Seller shall conduct its leasing activities
substantially consistent with its current leasing practice and shall execute no
new tenant leases other than on the form of lease currently used by the Seller
or such other form as may be approved by the Purchaser, which approval shall not
be unreasonably withheld. The Seller shall provide the Purchaser with three
business days prior written notice of any new tenant lease or an amendment to
any of the Leases affecting the Property entered into between the date of this
Agreement and the expiration of the Study Period. From and after the expiration
of the Study Period, and if the Purchaser has not elected to terminate this
Agreement under Section 2.4, the Seller shall not, without the prior written
consent of the Purchaser, which consent shall not be unreasonably withheld,
enter into any new tenant lease or amend any of the Leases which affect the
Property, which covenant shall expire at Closing or upon the Purchaser's or
Seller's termination of this Agreement.
ARTICLE IV
PURCHASER'S REPRESENTATIONS, WARRANTIES AND COVENANTS
The Purchaser hereby makes the following representations to the Seller:
4.1 Organization and Power. The Purchaser is a legal entity duly formed
and validly existing under the laws of the State of Texas with all necessary
legal power to enter into and perform its obligations under this Agreement and
any document or instrument required to be executed and delivered on behalf of
the Purchaser hereunder.
4.2 Authorization and Execution. This Agreement has been duly
authorized by all necessary entity action on the part of the Purchaser. This
Agreement has been duly executed and delivered by the Purchaser.
4.3 Noncontravention. The execution and delivery of and the performance by
the Purchaser of its obligations hereunder, and any documents executed on behalf
of the Purchaser in connection with this Agreement, do not and will not
contravene, or constitute a default under, the Purchaser's organizational
documents or any agreement, judgment, injunction, order, decree or other
instrument binding upon the Purchaser.
4.4. Litigation. There is no action, suit or proceeding, pending or known
to be threatened, against or affecting the Purchaser in any court or before any
arbitrator or before any governmental body which in any manner raises any
question affecting the validity or enforceability of this Agreement or any other
agreement or instrument to which the Purchaser is a party or by which it is
bound and that is to be used in connection with, or is contemplated by, this
Agreement, or could adversely and materially affect the ability of the Purchaser
to perform its obligations hereunder, or under any document to be delivered
pursuant hereto.
4.5 Bankruptcy. No Act of Bankruptcy has occurred with respect to
the Purchaser.
4.6 Brokerage Commission. The Purchaser represents and warrants to the
Seller that the Purchaser has not engaged the services of, nor has the Purchaser
done or will it do anything that will cause it or the Seller to become liable
to, any real estate agent, broker, finder or any other person or entity for any
brokerage or finder's fee, commission or other amount with respect to the
transactions described herein; provided, however, should this Agreement be duly
assigned by the Purchaser, the Purchaser (in its individual capacity or an
affiliate of the Purchaser) may earn a fee in connection with such assignment,
which fee will be payable only by such assignee. The Purchaser indemnifies the
Seller for all loss, cost, claims and expense (including reasonable attorneys'
fees) arising on account of any breach by the Purchaser of the foregoing
representation and warranty. Such indemnification shall survive settlement and
Closing hereunder or the termination hereof, as the case may be.
ARTICLE V
CONDITIONS AND ADDITIONAL COVENANTS
The Purchaser's obligations hereunder are subject to the satisfaction of
the following conditions precedent:
5.1 Seller's Deliveries. The Purchaser, on or before the date of
Closing, shall have received all of the documents and other information
required under Section 6.2.
5.2 Representations. All of the Seller's representations made in
this Agreement shall be true and correct in all material respects as of the
date of Closing as if then made.
5.3 Condition of Improvements. Subject to Section 7.1 and Section 7.2, the
Improvements and the Tangible Personal Property shall be in substantially the
same condition and working order in all material respects as existed as of the
expiration of the Study Period, normal wear and tear and effects of the
Purchaser's acts and the Tests excepted.
5.4 Status of Title. The title to the Property at Closing shall be
substantially the same as at the Title Date and such title shall be subject only
to Permitted Title Exceptions.
5.5 Title Insurance. The Purchaser shall have received evidence
satisfactory to it that the Purchaser, upon payment of the appropriate premium,
shall receive an Owner Policy of Title Insurance (the "Owner Policy"), in the
standard Texas form, issued by the Title Company in the Purchaser's favor in an
amount equal to the Purchase Price, insuring the Purchaser's fee simple title to
the Property subject only to the Permitted Title Exceptions, and the standard
printed exceptions; provided, however,
the exception for restrictive covenants shall, as applicable, be deleted or
shall list only those restrictive covenants as may be Permitted Title
Exceptions; any exception for parties in possession of the Property shall be
limited to the rights of tenants in possession, as tenants only, pursuant to
recorded or unrecorded leases; there shall be no general exception for visible
and apparent easements, roads and highways or any other matters that would be
disclosed by a current survey of the Property, unless the Purchaser has waived
receipt of the Survey in connection with Closing; and at Purchaser's option and
sole expense, the area and boundary lines, encroachments and overlapping of
improvements exception may be modified so as to refer only to "shortages in
area." The Purchaser agrees that the Title Company may deliver the Owner Policy
to the Purchaser following the Closing in accordance with the Title Company's
customary practices.
5.6 Possession. Possession of the Property, subject only to the
rights of the Tenants under the Leases and the Permitted Title Exceptions,
shall have been delivered to the Purchaser.
ARTICLE VI
CLOSING
6.1 Closing. Closing shall be held at the offices of the Title Company on
any business day following the expiration of the Study Period that shall occur
not less than 10 days after receipt by the Seller of notice from the Purchaser
specifying such business day, but in no event later than on the first business
day following the expiration of 30 days after the expiration of the Study
Period. Closing shall commence at 10:00 a.m. local time.
6.2 Seller's Deliveries.
(a) At Closing, the Seller shall deliver to the Purchaser all of
the following instruments, each of which shall have been duly executed and,
where applicable, acknowledged on behalf of the Seller and shall be dated as of
the date of Closing:
(1) The Deed.
(2) The Bill of Sale and Assignment.
(3) Transfer tax statements (or similar affidavits or forms), if
required of the Seller by local law to effect transfer of title or
recordation of the Deed.
(4) Form letters to the Tenants regarding the Property transfer
and future rent payments and to vendors and to guarantors and any similar
parties as to such transfer.
(5) A certificate signed by the Seller as to the Rent Roll, which
is to be produced by the Manager as of a date as proximate to the Closing
Date as reasonable under the circumstances, indicating, to the Seller's
Knowledge, that the Rent Roll is not inaccurate in any material and
adverse respect.
(6) Such customary affidavits as to mechanics' liens and parties
in possession as may be reasonably (and without expense to the Seller)
required by the applicable title insurance company.
(7) The FIRPTA Certificate.
(8) Any other document required hereby.
(b) At Closing, the Seller shall also deliver or cause to be
delivered to the Purchaser the following:
(1) Originals of the Leases and the Operating Agreements in the
Seller's or the Manager's possession or if the Seller does not have the
original, a true and complete copy thereof so certified, to the Seller's
Knowledge, by the Seller.
(2) True and complete copies of all warranties, if any, of
manufacturers, suppliers and installers possessed by the Seller and
relating to the Improvements and the Personal Property, or any part
thereof, in the Seller's possession or control.
(3) Appropriate resolutions of the board of directors of the
managing corporate general partner of the Seller, certified by an officer
of such corporate general partner evidencing authorization of
the execution on behalf of the Seller of this Agreement and the documents
to be executed and delivered by the Seller prior to, at or otherwise in
connection with Closing, and the performance by the Seller of its
obligations hereunder and under such documents.
(4) All keys for the Property in the Seller's possession or
control.
(5) All the Seller's files in the Seller's possession as to the
tenants under the Leases. The Seller shall direct the Manager to turn over
to the Purchaser any files owned or controlled by the Seller as to such
tenants in possession of the Manager.
6.3 Purchaser's Deliveries. At Closing, the Purchaser shall pay
or deliver to the Seller the following:
(1) The Purchase Price described in Section 2.3b.
(2) Appropriate resolutions and authorizations as to the Purchaser and any
constituent entity of the Purchaser, duly certified, authorizing the
execution on behalf of the Purchaser of this Agreement and the documents
to be executed and delivered by the Purchaser at Closing and the
performance by the Purchaser of its obligations hereunder and under such
documents.
(3) The Bill of Sale and Assignment.
(4) Any other document or instrument reasonably requested by the
Seller or required hereby.
6.4 Closing Costs. The Seller shall pay 100% of any reasonable closing escrow
fee and the commission due the Broker, together with the cost of the owner's
title insurance policy referred to in Section 5.5 above, and the cost of an TLTA
title insurance survey sufficient to issue the title insurance policy referred
to in Section 5.5 above. Except as is otherwise provided in Section 10.8, each
party hereto shall pay its own expenses, including without limitation, its legal
fees, accounting fees and the fees of other third party service providers. The
Purchaser shall pay all other fees, costs and expenses related to the
consummation of the transactions contemplated under this Agreement including any
costs as to additional title insurance coverages or endorsements, financing,
utility transfers, recording fees or taxes and transfer fees or taxes. The
Purchaser shall also pay the cost of the Phase II environmental study.
6.5 Income and Expense Allocations.
(a) At Closing, all income and expenses with respect to the Property, and
applicable to the period of time before and after the date of Closing,
determined in accordance with generally accepted accounting principles, shall be
allocated between the Seller and the Purchaser as of the Closing Date. The
Seller shall be entitled to all income and responsible for all expenses for the
period of time up to but not including the Closing Date, and the Purchaser shall
be entitled to all income and responsible for all expenses for the period of
time from, after and including the Closing Date. Such adjustments shall be shown
on the settlement statements (with such supporting documentation as the parties
hereto may reasonably require being attached as exhibits to the settlement
statements) and shall increase or decrease (as the case may be) the amount
payable by the Purchaser under Section 2.3. The Seller and the Purchaser shall
cooperate in the creation of such statements and each shall sign an appropriate
counterpart as to its transaction and delivery such signed counterpart statement
to the other party at Closing. Without limiting the generality of the foregoing,
the following items of income and expense shall be allocated at Closing:
(1) Current and prepaid rents, if any.
(2) Percentage rents (based on days), if any.
(3) Miscellaneous tenant income and tenant impounds (CAM, tax and
insurance escrows), if any.
(4) Real estate and personal property taxes.
(5) Amounts due under the Operating Agreements to be assigned to
and assumed by the Purchaser, if any.
(6) Utility charges (including but not limited to charges for
water, sewer, and electricity).
All deposits (other than tenant security deposits) shall remain with the Seller.
If accurate allocations cannot be made at Closing because current bills are not
obtainable (as, for example, in the case of percentage rents, utility bills,
etc.), the parties shall equitably allocate such income or expenses at Closing
on the best available information, subject to adjustment within a reasonable
period (not to exceed 30 days) upon receipt of the final accounting, bill or
other evidence of the applicable income or expense. Any income received or
expense incurred by the Seller or the Purchaser with respect to the Property
after the date of Closing shall be promptly allocated in the manner described
herein and the parties shall promptly pay or reimburse any amount due. The
initial post-closing reconciliation will be calculated 30 days after Closing and
payment (if any) as to adjustments shall be made by the appropriate party within
10 days.
(b) The provisions of Section 6.5(a) notwithstanding, as to each Lease for
which there is outstanding as of the date of Closing delinquent rent or other
payables, collections of any sums made after the date of Closing as to such
Leases shall first be applied to currently accruing rent and other charges and
then to any unpaid delinquencies. The Purchaser shall use reasonable efforts to
collect any such delinquencies for a period of 75 days after the date of
Closing. Upon the expiration of such 75-day period, if the applicable
delinquency has not been paid in full, the Seller, may exercise any legal or
equitable rights it may have against the applicable Tenant, including eviction
(but only if such action for eviction was commenced prior to the expiration of
the Study Period or with the Purchaser's consent), as a consequence of the
delinquency. Accordingly, the Seller reserves all its rights as to the Leases
and the applicable Tenants relating to such delinquencies, subject to this
provision. Therefore, the Purchaser may not compromise or settle any claim for a
delinquency without the Seller's written consent, which the Seller may withhold
in its sole discretion.
6.6 Lease Deposits and Fees. At Closing, the Seller shall transfer to the
Purchaser all refundable security deposits actually paid by the Tenants with
respect to the Leases and all interest required by law or by the Leases to be
accrued or paid thereon, and all of the Seller's right, title and interest in
and to such deposits and fees owed by the Tenants, but not paid by the
applicable Tenants to the Seller.
ARTICLE VII
CONDEMNATION; RISK OF LOSS
7.1 Condemnation. Upon any actual or threatened condemnation or taking, under
the power of eminent domain, of all or any portion of the Real Property, or any
proposed sale in lieu thereof, the Seller shall give written notice thereof to
the Purchaser promptly after the Seller learns thereof. If all or any part of
the Real Property is, or is to be, so condemned or sold, and the result is that
the Improvements would be a non-conforming structure or a "Material Taking," the
Purchaser and the Seller shall each have the right to terminate this Agreement
under the applicable Section of Article . If neither the Purchaser nor the
Seller elects to terminate this Agreement, all rights, claims, proceeds, awards
and other payments arising out of such condemnation or sale (actual or
threatened) shall be assigned by the Seller to the Purchaser at Closing and the
proceeds thereof shall be paid to the Purchaser at Closing or upon receipt by
the Seller (as applicable), there shall be no adjustment to the Purchase Price,
and the parties shall proceed to Closing hereunder. A "Material Taking" is any
taking under such power or sale in lieu thereof that has a material adverse
effect on (x) the use or value of the Improvements or (y) the roadways, access,
or parking areas serving the Real Property.
7.2 Risk of Loss. (a) Upon damage by fire, Act of God or other casualty to the
Improvements prior to the Closing Date, which would cost $100,000 or less to
repair, this Agreement shall remain in full force and effect. In such event, the
Seller shall assign to the Purchaser at Closing all insurance proceeds (up to
$100,000) relating to such casualty under any policies of insurance.
(b) If such damage is in excess of $100,000, then the Seller and the
Purchaser shall each have the right to terminate this Agreement under Article .
If neither elects to so terminate, this Agreement shall remain in full force and
effect, and the Seller shall, at Closing, pay to the Purchaser all deductible
amounts relating to such casualty under any policies of insurance, pay to the
Purchaser any sums collected under any such policies because of such casualty,
assign to the Purchaser all rights to collect such sums relating to such
casualty as may then be uncollected and
proceed to Closing hereunder without adjustment to the Purchase Price.
ARTICLE VIII
TERMINATION RIGHTS
8.1 Termination by Purchaser. If (x) the Purchaser timely exercises its right to
terminate prior to the expiration of the Study Period under Section 2.4(a) or
Section 2.4(b)(3)(ii), or (y) if any condition for the benefit of the Purchaser
set forth in Article cannot or will not be satisfied prior to Closing, or (z)
upon the occurrence of any other event that would entitle the Purchaser to
terminate this Agreement and its obligations hereunder, the Purchaser, at its
option, may elect to terminate this Agreement, in which event, subject to the
next sentences, all other rights and obligations of the Seller and the Purchaser
hereunder shall terminate immediately, or to waive such right to terminate and,
instead, to proceed to Closing, or if the Purchaser has the right to terminate
this Agreement as a consequence of a breach of a covenant by the Seller, to seek
specific performance of this Agreement. Notwithstanding any termination hereof,
the parties shall nevertheless remain liable under Section 2.4(b), Section
2.3(e), Section 3.8, Section 4.6 and Section 10.8, which sections shall survive
termination of this Agreement and remain in full force and effect. In no event,
however, shall the Seller be liable to the Purchaser for any punitive,
speculative, consequential or other damages under, or as to, this Agreement and
the Purchaser waives any right to claim, or commence an action for, any such
damages. The Deposit shall be disbursed as specified in this Agreement.
8.2 Termination by Seller. If the Purchaser defaults in performing any of its
obligations under this Agreement (including its obligation to purchase the
Property), the Seller's sole remedy, subject to the last sentence of this
section, for such default shall be to terminate this Agreement and retain the
Initial Deposit and the Supplemental Deposit, as applicable. The Seller and the
Purchaser agree that, in the event of such a default, the damages that the
Seller would sustain as a result thereof would be difficult if not impossible to
ascertain. Therefore, subject to Section 8.3, the Seller and the Purchaser agree
that the Seller shall retain the Initial Deposit and the Supplemental Deposit,
as applicable, as full and complete liquidated damages and as the Seller's sole
remedy. Notwithstanding any such termination, the parties' obligations under
Section 2.4(b), Section 2.4(e), Section 3.8, Section 4.6 and Section 10.8, shall
survive termination of this Agreement and remain in full force and effect.
8.3 Special Provision. Notwithstanding any termination of this Agreement, if
there occurs a breach under Section 2.4(b), Section 2.4(e), Section 3.8, Section
4.6 and Section 10.8, the non-breaching party shall have an independent cause of
action for damages accruing as a consequence of such breach.
ARTICLE XI
ACKNOWLEDGMENTS OF PURCHASER
In entering into this Agreement, the Purchaser has not been induced by and
has not relied upon any representations, warranties or statements, whether
express or implied, made by the Seller or any agent, employee or other
representative of the Seller or by any broker or any other person representing
or purporting to represent the Seller, which are not expressly set forth herein.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1 Completeness; Modification. This Agreement constitutes the entire agreement
between the parties hereto with respect to the transactions contemplated hereby
and supersedes all prior and contemporaneous discussions, understandings,
agreements and negotiations (oral or in writing) between the parties hereto.
This Agreement may be modified only by a written instrument duly executed by the
parties hereto.
10.2 Assignments. With the Seller's prior consent, which may not be unreasonably
withheld or delayed, the Purchaser may assign its rights, but not its
obligations, under this Agreement to an entity that is controlled by the
Purchaser or is under common control with the Purchaser, or to an entity in
which the Purchaser or David Salomon is either a general partner or a limited
partner having at least a 25% interest in the profits of the entity. In all
other cases, the Purchaser may not assign its rights hereunder without the
consent of the Seller, which consent the Seller may withhold or condition in its
sole and absolute discretion.
10.3 Successors and Assigns. This Agreement shall bind and inure to the benefit
of the parties hereto and their respective permitted successors and assigns.
10.4 Days. If any action is required to be performed, or if any notice, consent
or other communication is given, on a day that is a Saturday or Sunday or a
legal holiday in the jurisdiction in which the action is required to be
performed or in which is located the intended recipient of such notice, consent
or other communication, such performance shall be deemed to be required, and
such notice, consent or other communication shall be deemed to be given, on the
first business day following such Saturday, Sunday or legal holiday. Unless
otherwise specified herein, all references herein to a "day" or "days" shall
refer to calendar days and not business days.
10.5 Governing Law. This Agreement and all documents referred to herein
shall be governed by and construed and interpreted in accordance with the
laws of the State of Texas.
10.6 Counterparts. To facilitate execution, this Agreement may be executed in as
many counterparts as may be required. It shall not be necessary that the
signature on behalf of both parties hereto appear on each counterpart hereof so
long as each party signs at least one counterpart. All counterparts hereof shall
collectively constitute a single agreement.
10.7 Severability. If any term, covenant or condition of this Agreement shall to
any extent be invalid or unenforceable, the remainder of this Agreement, shall
not be affected thereby, and each term, covenant or condition of this Agreement
shall be valid and enforceable to the fullest extent permitted by law; provided,
however, if the remaining provisions of this Agreement do not substantially
reflect the intent of the parties, this Agreement shall terminate.
10.8 Costs. Regardless of whether Closing occurs hereunder, and except as
otherwise expressly provided herein, each party hereto shall be responsible for
its own costs in connection with this Agreement and the transactions
contemplated hereby, including without limitation fees of attorneys, engineers
and accountants. If litigation between the Seller and the Purchaser arises out
of this Agreement, the prevailing party (i.e., the party as to which the
judgment or decision is more favorable on all significant issues and is
materially more favorable than any settlement offer rejected by such party) will
be entitled to recover from the other party the reasonable attorneys' fees,
court costs and disbursements incurred by the prevailing party, through appeals
(if any), and the same will be assessed as costs payable by the non-prevailing
party in the litigation.
10.9 Notices. All notices, requests, demands and other communications hereunder
shall be in writing and shall be delivered by hand, sent prepaid by Federal
Express (or a comparable overnight delivery service), or sent by the United
States mail, certified, postage prepaid, return receipt requested, at the
addresses and with such copies as designated below. Any notice, request, demand
or other communication delivered or sent in the manner aforesaid shall be deemed
given or made (as the case may be) when delivered as specified herein.
For the Seller: c/o PaineWebber Properties
265 Franklin Street - 16th Floor
Boston, MA 02110
Attn.: Mr. Peter Sullivan
with a copy to: Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 02109
Attn.: Alexander A. Randall, Esq.
For the Purchaser: ORDA Corp.
David Salomon
15400 Knoll Trail, Suite 350
Dallas, TX 75248
with a copy to: Graham, Bright & Smith, P.C.
Two Lincoln Centre, Suite 300
5420 LBJ Freeway
Dallas, TX 75240
Attn.: Thomas J. Colven, III, Esq.
Any party hereto may change its address or designate different or other persons
or entities to receive copies by notifying the other party in a manner described
in this Section at least ten days prior to the date such change or designation
is to become effective.
10.10 Incorporation by Reference. All of the exhibits and schedules attached
hereto are by this reference incorporated herein and made a part hereof.
10.11. Survival. Except as specified in the last two sentences of this section,
each of the representations, warranties, covenants and agreements of the Seller
and the Purchaser made in, or pursuant to, this Agreement shall survive the
Closing, but each shall merge into the Deed or any other document or instrument
executed and delivered in connection herewith, on the date that is 60 days after
the date of Closing. As a condition precedent to any claim based on a breach of
any such representations or other above-listed matters, the applicable party
must first deliver to the other party prior to the date that is 60 days after
the date of Closing, a written notice specifying the alleged breach and
thereafter commence a legal proceeding as to the claim within 180 days after the
date of Closing. The preceding sentences of this section notwithstanding, the
provisions of Section 2.4(c), Section 3.8, Section 4.6 and Section 6.5 shall
survive the Closing and remain in full force and effect.
10.12 No Partnership. This Agreement does not and shall not be construed to
create a partnership, joint venture or any other relationship between the
parties hereto except the relationship of seller and purchaser specifically
established hereby.
10.13 Time of Essence. Time is of the essence with respect to every
provision hereof.
10.14 Confidentiality. The Purchaser hereby agrees that it shall use all
commercially reasonable efforts to ensure that all information related to or
obtained about the Property by the Purchaser and its officers, employees, agents
and contractors pursuant to this Agreement is kept confidential prior to Closing
unless the applicable information has been made public by parties other than the
Purchaser or its officers, etc., specified above; provided, however, that the
Purchaser may reveal such information to prospective tenants, title companies,
lenders, engineers, accountants, attorneys, brokers and the like and shall
request that such information be kept confidential. Prior to the consummation of
Closing, the Purchaser shall not issue any press release or other information or
give any publicity of any kind to the general public, related to or concerning
this Agreement, the purposes thereof and/or the Property, without the prior
written consent of the Seller. Any material violation of this provision shall
constitute a material breach of this Agreement.
10.15 Special Notices. If the Real Property is situated within a utility
district or flood control district subject to ss.50.301, Texas Water Code, the
Seller shall give to the Purchaser the required written notice prior to the
expiration of the Study Period and the Purchaser shall timely acknowledge
receipt of such notice. The Purchaser agrees to investigate promptly upon the
consummation of the Study Period whether the Real Property is within any such
district and advise the Seller accordingly.
10.16 Binding Nature. This Agreement shall not be binding on the parties hereto
until it is executed and delivered by the Purchaser and the Seller. The delivery
or distribution of a draft or counterpart of this Agreement does not constitute
an offer of sale and should not be deemed to be a meeting of the minds with
respect to any of the terms or provisions contained herein until this Agreement
is executed and delivered by the Seller and the Purchaser.
10.17 Date of Agreement. All references to the "date of this Agreement" or
similar references as used herein shall be deemed to mean the later of the two
dates on which this Agreement is signed by the Seller or the Purchaser as
indicated by their signatures below, which later date shall be the date of final
execution and agreement by the parties hereto.
IN WITNESS WHEREOF, the Seller and the Purchaser have caused this
Agreement to be executed in their names by their respective duly-authorized
representatives.
[Signatures on behalf of the Seller and
the Purchaser contained on following pages.]
<PAGE>
Signature Page of the Seller for
Agreement of Purchase and Sale
dated as of December 23, 1996, between
PaineWebber Qualified Plan Property Fund, LP,
and ORDA Corporation
SELLER:
PAINE WEBBER QUALIFIED PLAN PROPERTY FUND, LP,
a Delaware limited partnership
By: First Qualified Properties, Inc.,
its managing general partner
By: /s/ Peter F. Sullivan
---------------------
Its: Vice President
Date of execution: 12/31/96
<PAGE>
Signature Page of the Purchaser for
Agreement of Purchase and Sale
dated as of December 23, 1996, between
PaineWebber Qualified Plan Property Fund, LP,
and ORDA Corporation
PURCHASER:
ORDA CORPORATION, a
Texas corporation
By: /s/ David Salomon
-----------------
Name: David Salomon
Its: President
Date of execution: 1/2/97
<PAGE>
Fidelity National Title Agency, Inc. (the "Title Company") hereby
acknowledges receipt of the following:
(a) one fully executed copy of this Agreement; and
(b) the Initial Deposit in the amount of $50,000.00.
The Title Company hereby agrees to hold the Initial Deposit and any Supplemental
Deposit as contemplated by this Agreement and to dispose of it in strict
accordance with this Agreement.
FIDELITY NATIONAL TITLE AGENCY, INC.
By: /s/ Maggie Vogler
-----------------
Name: Maggie Vogler
Its: Vice President
Date of execution: 1/2/97
<PAGE>
SCHEDULE 1
"Act of Bankruptcy" shall mean if a party hereto or any general partner
thereof shall (a) apply for or consent to the appointment of, or the taking of
possession by, a receiver, custodian, trustee or liquidator of itself or of all
or a substantial part of its property, (b) admit in writing its inability to pay
its debts as they become due, (c) make a general assignment for the benefit of
its creditors, (d) file a voluntary petition or commence a voluntary case or
proceeding under the Federal Bankruptcy Code (as now or hereafter in effect),
(e) be adjudicated a bankrupt or insolvent, (f) file a petition seeking to take
advantage of any other law relating to bankruptcy, insolvency, reorganization,
winding-up or composition or adjustment of debts, (g) fail to controvert in a
timely and appropriate manner (not to exceed 60 days), or acquiesce in writing
to, any petition filed against it in an involuntary case or proceeding under the
Federal Bankruptcy Code (as now or hereafter in effect), or (h) take any action
for the purpose of effecting any of the foregoing; or if a proceeding or case
shall be commenced, without the application or consent of a party hereto or any
general partner thereof, in any court of competent jurisdiction seeking (x) the
liquidation, reorganization, dissolution or winding-up, or the composition or
readjustment of debts, of such party or general partner, (y) the appointment of
a receiver, custodian, trustee or liquidator or such party or general partner or
of all or any substantial part of its assets, or (z) other similar relief under
any law relating to bankruptcy, insolvency, reorganization, winding-up or
composition or adjustment of debts, and (1) such proceeding or case shall
continue undismissed, or (2) an order (including an order for relief entered in
an involuntary case under the Federal Bankruptcy Code, as now or hereafter in
effect), judgment or decree approving or ordering any of the foregoing shall be
entered and continue unstayed and in effect, in either case for a period of 60
consecutive days.
"Bill of Sale and Assignment" shall mean that certain bill of sale
and assignment conveying title to the Tangible Personal Property from the Seller
to the Purchaser and assigning to the Purchaser all of the Seller's right, title
and interest in and to the Intangible Personal Property without recourse,
warranty or representation. Such instrument shall be drafted by counsel to the
Seller, shall be in conformity with the provisions hereof, and subject to
Section 2.4(a), shall be otherwise in form and substance satisfactory to the
Purchaser. If required by local law or otherwise prudent, this term shall also
mean an assignment instrument in recordable form for recordation among the land
records as to the assignment of any recorded instruments.
"Broker" shall mean Transwestern Property Company and Dunhill
Partners who collectively shall be paid a commission upon Closing as set forth
in a separate agreement that has been executed between such parties.
"Closing" shall mean the closing of the purchase and sale of the
Property, which shall occur as specified in Section 6.1.
"Deed" shall mean that certain deed with special or limited
warranty against grantor's acts) conveying title to the Real Property to the
Purchaser, subject only to Permitted Title Exceptions. Such instrument shall be
drafted by the Seller's counsel and shall be otherwise reasonably satisfactory
to the Purchaser.
"Deposit" shall mean the Initial Deposit and the Supplemental
Deposit, as the context may require.
"FIRPTA Certificate" shall mean the affidavit of the Seller under
Section 1445 of the Internal Revenue Code certifying that the Seller is not a
foreign corporation, foreign partnership, foreign trust, foreign estate or
foreign person (as those terms are defined in the Internal Revenue Code and the
Income Tax Regulations drafted by Seller's counsel and in form and substance
reasonably satisfactory to the Purchaser.
"Improvements" shall mean all buildings, improvements, fixtures,
parking facilities, and other items of real estate located on the Land.
"Initial Deposit" shall mean the $50,000 earnest money deposit
delivered to the Title Company in connection herewith and all interest earned
thereon. The Initial Deposit shall be invested in a manner reasonably acceptable
to the Purchaser and shall be held and disbursed in strict accordance with this
Agreement.
"Intangible Personal Property" shall mean the Seller's rights, if
any, in the name "Harwood Village North Shopping Center," the Seller's rights to
the landlord's interest under all the Leases and all the right, title and
interest of the Seller, if any (and only to the extent transfer able by the
Seller without consent or the payment of any sum), in, to and under any and all
the Operating Agreements, and the Seller's licenses, permits, guarantees,
warranties, and approvals with respect to the construction, ownership,
operation, leasing, occupancy or maintenance of the Property.
"Land" shall mean that certain parcel of real estate lying and
being in Bedford, Texas, as more particularly described on Exhibit A attached
hereto, together with all easements, rights, privileges.
"Leases" shall mean all of the leases, as amended, now in effect
with respect to the Property, as indicated on the Rent Roll.
"Manager's Certificate" shall mean the certificate of Transwestern
Property Company certifying as to the status of any defaults and advance rents
under the Leases to be issued in accordance with Section 3.5 and again as of
Closing.
"Material Lease" shall mean any lease at the Property covering
more than 2,500 square feet of space, including without limitation, the
leases with Minyards Food Stores, Inc. and Ekards Drug Store.
"Operating Agreements" shall mean the management agreements,
maintenance agreements, service contracts and other agreements to which the
Seller is a party, if any, in effect with respect to the construction,
ownership, operation, leasing, occupancy or maintenance of the Property
delivered with the Property Information.
"Permitted Title Exceptions" shall have the meaning set forth
in Section 2.4(b)(3)(ii).
"Personal Property" shall mean the Tangible Personal Property
and the Intangible Personal Property together.
"Property" shall mean collectively the Real Property, the
Tangible Personal Property and the Intangible Personal Property.
"Property Information" shall mean that certain information
relative to the Property listed on Exhibit B.
"Purchase Price" shall mean $4,300,000, payable in the manner
described in Section 2.3.
"Real Property" shall mean the Land and the Improvements.
"Rent Roll" shall mean that certain rent roll, dated as of
December 15, 1996, delivered with the Property Information.
"Seller's Knowledge" shall mean the actual knowledge, without
inquiry, of Peter Sullivan. For the purposes of this Agreement, no act,
omission, knowledge, receipt or other similar factual matter as to the Manager
shall be imputed to the Seller.
"Seller's Office" shall mean the business office of the Seller at
265 Franklin Street, 17th Floor, Boston, Massachusetts.
"Study Period" shall mean the period commencing with the date
hereof and expiring at 5:00 p.m. EDT on the first business day following the
expiration of 45 days after the date hereof.
"Supplemental Deposit" shall mean the $50,000 supplemental earnest
money deposit to be delivered to the Title Company at or prior to the expiration
of the Study Period. The Supplemental Deposit shall be invested in the same
manner as the Initial Deposit.
"Tangible Personal Property" shall mean the items of personal
property owned by the Seller used in connection with the Property and listed on
an exhibit delivered with the Property Information.
"Tenants" shall mean the tenants under the Leases.
<PAGE>
EXHIBIT B
Property Information
1. Rent Roll
2. The Leases
3. The Operating Agreements
4. List of Tangible Personal Property
5. Such written financial statements as to the Property and its
operations over the past three years as the Seller may have in its
possession or under its direct control.
<PAGE>
December 19, 1996
Proposal No. 18-96-224a
Mr. Alex Randall, Esq.
Goodwin, Proctor and Hoar
Exchange Place
Boston, Massachusetts 02109
Re: Revised Proposal for Services
Phase II Site Assessment
Harwood Village North Shopping Center
Bedford, Texas
Dear Mr. Randall:
GZA GeoEnvironmental, Inc. (GZA) is pleased to submit this revised proposal to
Goodwin, Proctor and Hoar to complete a Phase II Assessment at the above
referenced property in Bedford, Texas.
BACKGROUND
GZA completed a Phase I Environmental Assessment at the site and submitted our
report on November 13, 1996. This report indicated that there was a low risk of
environmental contamination from a dry cleaning and photo developing operation
on-site, and a moderate risk of contamination arising from a leaking underground
storage tank (LUST) site abutting the southwest corner of the property
(Citgo/7-11). Data from recent investigations at the Citgo site have not been
submitted to the TNRCC, and therefore unavailable.
SCOPE OF WORK
GZA's tasks will be two-fold: (1) to install up to three soil borings in the
vicinity of the southwest corner of the property to evaluate the presence of
impacted soil or groundwater beneath the site arising from the Citgo/7-11 LUST
site and (2) drilling of 2-3 shallow soil probes in the vicinity of the dry
cleaners/photo shop. The three borings will be drilled either to 20 feet, or at
least five feet below the top of the water table, whichever is encountered
first, and will be converted into groundwater monitoring wells. The wells will
be surveyed in order to establish the direction of groundwater flow in the area
of the LUST facility. The shallow probes will extend to depths of 2-4 feet below
concrete slabs or paving to assess areas of potential spills or leaks from these
two operations which use hazardous chemicals.
The attached plans depict the approximate locations for the proposed
borings/wells adjoining the Citgo/7-11 facility (MW-1, MW-2, and MW-3), and the
shallow probes at the two tenant spaces (P-1, P-2, P-3, etc.). Actual locations
may vary in the field based upon visual review of conditions in each area,
clearance of utilities and drains, or other factors. All holes will be capped or
filled with concrete to match pre-existing conditions.
All soil samples will be screened for the presence of volatile organic
compounds, which would include gasoline constituents and dry cleaning solvents.
Soil samples representing the most highly impacted zone from each boring along
with groundwater samples will be submitted for analysis for TPH by EPA Method
418.1 and BTEX by EPA Method 8020. Soils from the probes will be analyzed for
relevant organic compounds and heavy metals by EPA Methods.
A report will be prepared summarizing the work performed and will include a
description of the hydrologic setting, soil boring logs, depth to groundwater
data and direction of flow, and analytical results along with our conclusions
and recommendations.
COSTS
The costs to complete this assessment are estimated at $6,600.00 as detailed on
Schedule A, attached. This estimate is based upon our present judgement
regarding the effort required, including depth of wells, site access, etc. We
will notify you of any conditions which may require an adjustment in our budget
as soon as they become evident.
SCHEDULE
GZA is prepared to mobilize to the site during the week of January 6, 1997 if we
receive notice to proceed by Friday, December 20th. We will have our report
completed by January 15, 1997.
TERMS & CONDITIONS
GZA's Standard Terms & Conditions of Engagement are included as Schedule B.
GZA appreciates the opportunity to be of service to Goodwin, Proctor and Hoar
and is looking forward to working with you on this project. If you have any
questions, or require additional information, please do not hesitate to contact
us at (972) 444-8444.
Sincerely,
GZA GEOENVIRONMENTAL, INC.
/s/ Frank W. Clark
-------------------
Ron Rounsaville, R.G. Frank W. Clark, P.E.
Environmental Geologist Principal
<PAGE>
HARWOOD VILLAGE NORTH SHOPPING CENTER
AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS AMENDMENT, dated as of February 13, 1997 by and between Paine Webber
Qualified Plan Property Fund, LP a Delaware limited partnership ("Seller") and
ORDA Corporation, a Texas corporation ("Purchaser").
Reference is made herein to the AGREEMENT OF PURCHASE AND SALE dated as of
December 23, 1996 (the "Agreement") between Seller and Purchaser relating to the
premises known as Harwood Village North Shopping Center, Bedford, Texas (the
"Property"). All capitalized terms not specifically defined herein shall have
the meaning ascribed to them in the Agreement.
For consideration paid, and in full consideration of the mutual covenants and
agreements set forth herein, Purchaser and Seller agree that the Agreement is
hereby amended as follows:
1. Purchase Price Reduction. In consideration of certain repairs required
to the roofs of the buildings on the Property, the Purchase Price shall
be reduced to Four Million Two Hundred Forty Five Thousand Dollars
($4,245,000).
2. Extension of Study Period. The Study Period (Section 2.4) shall expire
on February 18, 1997. Notwithstanding the foregoing, (i) the Purchaser
shall have a period of 50 days following February 18, 1997 to obtain a
commitment for Mortgage Financing, provided that Purchaser shall have
submitted a completed application to an institutional lender with all
supporting materials and paid application fees within seven (7) days
after the execution of this Agreement (with evidence of payment of such
application fees provided to Seller), and (ii) the Purchaser shall have
until February 18, 1997 to submit the Title Objections to Seller. If
(a) the Purchaser is, despite its best efforts, unable to obtain a
commitment for Mortgage Financing of the Property and estoppel
certificates required by the mortgage lender within 50 days following
February 18, 1997 (the "Mortgage Commitment Deadline"), or (b) the
Purchaser timely notifies the Seller of all Title Objections on or
before February 18, 1997 and Seller fails, within 10 days thereafter,
to agree to cure all such Title Objections prior to the Closing, then
in either event, within three (3) business days following the
expiration of the 50 day period or the 10 day period, as the case may
be, Purchaser may terminate the Agreement pursuant to Section 8.1
thereof.
3. Supplemental Deposit. The Supplemental Deposit shall be paid on or
before February 18, 1997.
4. Environmental Remediation. Seller has agreed to remediate certain
hazardous materials and contamination of the soil in the vicinity of
Debonair Cleaners, as identified in the report dated February 7, 1997
prepared by GZA GeoEnvironmental, Inc. ("GZA"). Such remediation (the
"Remediation") shall be done at Seller's expense in accordance with the
proposal of GZA dated February 11, 1997, a copy of which is attached
hereto. Within seven (7) days after completion of the remediation,
Seller shall provide Purchaser with a letter from GZA indicating that
no further remediation action is required. In the event that Seller
determines, at any time, in its sole discretion, that the costs of the
Remediation will exceed $50,000, Seller shall notify the Purchaser of
such fact whereupon the Purchaser may elect within three (3) business
days thereafter to either (i) terminate the Agreement in accordance
with Section 8.1 (in which case Seller shall pay for the Phase II
environmental assessment), or (ii) pay all costs of the Remediation in
excess of $50,000 at the Closing. Purchaser's failure to notify Seller
of its election hereunder shall be deemed an election to terminate the
Agreement in accordance with Section 8.1.
5. The Closing Date. The Closing shall occur on any business day selected
by Purchaser following the later of (i) the Mortgage Commitment
Deadline or (ii) the date of Seller's notice to Purchaser of completion
of the Remediation described in Paragraph 4 above, provided that the
Closing shall not occur sooner than (a) 10 days after Purchaser
notifies Seller of the Closing Date and (b) 30 days following the
completion of the Remediation, whichever of (a) and (b) shall occur
later.
Purchaser acknowledges to Seller that, except as expressly amended hereby, the
Agreement is and shall remain in full force and effect in accordance with its
terms, and that no default by either Seller or Purchaser has occurred hereunder.
<PAGE>
IN WITNESS WHEREOF, Seller and Purchaser have executed this Amendment to
Purchase and Sale Agreement as a sealed instrument as the date and year first
written above.
SELLER:
PAINE WEBBER QUALIFIED PROPERTY
FUND, LP, a Delaware limited partnership
By: First Qualified Properties, Inc.,
its managing general partner
By: /s/ Peter F. Sullivan
---------------------
Its: Vice President
Date of execution: 2/13/97
<PAGE>
PURCHASER:
ORDA CORPORATION, a Texas corporation
By: /s/ David Salomon
-----------------
Name: David Salomon
Its: President
Date of execution: 2/17/97
<PAGE>
ASSIGNMENT OF CONTRACT OF SALE
STATE OF TEXAS }
}
COUNTY OF TARRANT }
THIS ASSIGNMENT OF CONTRACT OF SALE (the "Assignment") is made and entered
into effective this 14th day of April 1997, by and between ORDA CORP., a Texas
corporation ("Assignor") and HARWOOD VILLAGE REALTY, LTD., a Texas limited
partnership ("Assignee").
WITNESSETH:
WHEREAS, Assignor, a purchaser, and PAINE WEBBER QUALIFIED PLAN PROPERTY
FUND, LP, a Delaware limited partnership, as seller ("Seller"), entered into
that certain Purchase and Sale Agreement dated to be effective December 23,
1996, as amended by that certain Amendment to Purchase and Sale Agreement dated
February 13, 1997 (collectively, the "Contract'), whereby Assignor agreed to
purchase, and Seller agreed to sell and convey to Assignor, certain real
property and improvements located in Tarrant County, Texas, and begin more
particularly described on Exhibit "A" attached hereto and incorporated herein
for all purposes; and
WHEREAS, Assignor desires to assign to Assignee all of its right, title
and interest in and to the Contract and Assignee desires to accept such
assignment.
NOW, THEREFORE, for and in consideration of the foregoing premises, the
sum of Ten Dollars ($10.00), the mutual convenants and agreements herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Assignor and Assignee hereby agree
as follows:
1. Assignor hereby assigns, transfers and conveys to Assignee all of its
right, title and interest in and to the Contract [including, without
limitation, all of Assignor's right, title and interest in and to the
Earnest Money (herein so called) held pursuant to the Contract], and
Assignee hereby accepts such assignment, and assumes all of Assignor's
obligations under and pursuant to the Contract.
2. Assignor authorizes and empowers Assignee, upon its performance of the
terms and conditions contained in the Contract to be performed by the
purchaser thereunder, to enforce performance of the terms and
conditions of the Contract against the Seller and to demand and receive
of the Seller the deed and all other items and documents covenanted to
be given in the Contract to the purchaser thereunder in the same manner
and with the same effect as Assignor might or would do had this
Assignment not been made.
3. Assignor hereby releases any and all claims to the Earnest Money held
by Fidelity National Title Agency, Inc., Three Lincoln Center, 5430 LBJ
Freeway, Suite 260, Dallas, Texas 75240 (the "Title Company") pursuant
to the terms of the Contract. Assignee agrees to reimburse Assignor for
the full amount of the Earnest Money.
4. This Assignment contains the entire agreement between the parties
hereto with respect to the subject matter hereof. This Assignment may
be altered, amended, or terminated only by a written instrument
executed by both parties hereto.
5. This Assignment shall be binding upon and inure to the benefit of the
parties hereto and their respective successors, assigns, heirs,
executors, administrators and legal representatives.
6. This Assignment shall be governed by and construed in accordance with
the laws of the State of Texas.
IN WITNESS WHEREOF the parties have executed this Assignment on the date
and year first above written.
ASSIGNOR:
ORDA CORP.
a Texas corporation
By: /s/ David Salomon
-----------------
President
ASSIGNEE:
HARWOOD VILLAGE REALTY, LTD.
a Texas limited partnership
By: 601 Harwood Inc.,
a Delaware corporation,
general partner
By: /s/ David Salomon
-----------------
President
<PAGE>
SPECIAL WARRANTY DEED
(with Vendor's Lien)
THE STATE OF TEXAS }
COUNTY OF TARRANT } KNOW ALL MEN BY THESE PRESENTS:
That PAINE WEBBER QUALIFIED PROPERTY FUND, LP, a Delaware limited partnership,
whose mailing address is 100 Federal Street, Boston, Massachusetts 02101, (the
"Grantor") for and in consideration of the sum of Ten Dollars ($10.00) and other
valuable consideration to the undersigned paid by the Grantee herein named, the
receipt of which is hereby acknowledged, and in further consideration of the
execution and delivery by the grantee herein named to Lehman Brothers Holdings,
Inc. d/b/a Lehman Capital, a division of Lehman Brothers Holdings, Inc. (the
"Lender") of one (1) promissory note in the original principal amount of not
more than $3,300,000.00, the promissory note being secured by a Mortgage and
Security Agreement of even date therewith, have GRANTED, SOLD AND CONVEYED, and
by these presents do GRANT, SELL AND CONVEY unto Harwood Village Realty, Ltd., a
Texas limited partnership whose mailing address is 15400 Knoll Trail, Suite 350,
Dallas, TX 75248, all of the following described real property in the City of
Bedford, Tarrant County, Texas, to-wit:
All that certain plot, piece of parcel of land, with the buildings and
improvements thereon erected, described as follows:
(See Exhibit A attached hereto)
TOGETHER WITH all right, title and interest, if any, of Grantor in and to
any land lying in the bed of any street, avenue or alley adjoining to said plot
and parcel of land above described to the center line thereof.
TOGETHER WITH the appurtenances and all the estates and rights of the
Grantor in and to said premises.
SUBJECT, HOWEVER, to all matters set forth of record (collectively
"Permitted Encumbrances").
TO HAVE AND TO HOLD the above described premises together with all and
singular the rights and appurtenances thereto in anywise belonging, unto the
said Grantee, its successors and assigns forever (subject to the permitted
encumbrances) and Grantor does hereby bind itself, its heirs, executors and
administrators to WARRANT AND FOREVER DEFEND all and singular the said premises
unto the said Grantee, its successors and assigns against every person
whomsoever lawfully claiming or to claim the same or any part thereof, by,
through and under, Grantor, but not otherwise,
<PAGE>
Grantee hereby assumes the payment of all taxes for the current year and
all subsequent years.
Lender has advanced and paid to the Grantor in cash that portion of the
purchase price evidenced by the promissory note referred to above. In
consideration of that payment, Grantor retains a first vendor's lien and
superior title against and superior title to the property referred to above, and
transfers them to the Lender without recourse.
PAINE WEBBER QUALIFIED PROPERTY FUND, LP,
a Delaware limited partnership
By: First Qualified Properties, Inc.,
its managing general partner
By: /s/ Peter F. Sullivan
---------------------
Name: Peter F. Sullivan
Its: Vice President
ACKNOWLEDGMENT
COMMONWEALTH OF MASSACHUSETTS )
) ss.
COUNTY OF SUFFOLK )
BEFORE ME, the undersigned, a Notary Public in and for said County and
State, on this day personally appeared Peter F. Sullivan, Vice President of
First Qualified Properties, Inc., the managing general partner of Paine Webber
Qualified Property Fund, LP, a Delaware limited partnership, whose name is
subscribed to the foregoing instrument and acknowledged to me that the same was
the act of the said limited partnership, and that he executed the same as the
free act of such limited partnership for the purposes and consideration therein
expressed, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE
this the 16 day of April A.D. 1997
/s/ Linda S. Blake
-------------------
Notary Public in and for Suffolk County,
Massachusetts
My Commission Expires: 8/10/2001
<PAGE>
GF No. 1228-42-T-34
EXHIBIT "A"
BEING situated in the A. ALLEN SURVEY, ABSTRACT NO. 11, in the City of Bedford,
Tarrant County, Texas, and described as being LOT 1 in BLOCK 1 of HARWOOD
VILLAGE NORTH, an Addition to the City of Bedford, Texas, according to the Plat
thereof recorded in Volume 388-134, Page 3 of the Plat Records of Tarrant
County, Texas, and being the same property conveyed to Paine Webber Qualified
Property Fund, LP, as recorded in Volume 7364, Page 2036 of the Deed Records of
Tarrant County, Texas, and being more particularly described by metes and bounds
as follows:
BEGINNING at a 1/2 inch iron rod found for the Northeast corner of said Lot 1 in
Block 1 of Harwood Village North, said point being in the West line of Spring
Valley Drive (50 foot right-of-way), said point also being the Southeast corner
of Lot 12 in Block 2 of Spring Brook Estates, an Addition to the City of
Bedford, Texas, according to the Plat thereof as recorded in Volume 388-196,
Page 24 of the Deed Records of Tarrant County, Texas:
THENCE South 04 degrees 36 minutes 40 seconds East, along the West line of
Spring Valley Drive, a distance of 277.86 feet to a 1/2 inch iron rod found for
the Southeast corner of Lot 1 in Block 1 of Harwood Village North and being in
the North right-of-way line of Harwood Drive (variable width right-of-way);
THENCE South 79 degrees 34 minutes 05 seconds West, along the North right-of-way
line of Harwood Drive, a distance of 203.05 feet to a 1/2 inch iron rod found
for corner, said point being the beginning of a curve to the left having a
central angle of 5 degrees 01 minute 03 seconds and a radius of 2100.00 feet
whose center bears South 10 degrees 25 minutes 55 seconds East and whose chord
bears South 77 degrees 03 minutes 34 seconds West, at 183.84 feet;
THENCE Southwesterly along said curve to the left, an arc distance of 183.90
feet to a 1/2 inch iron rod found for corner;
THENCE South 74 degrees 32 minutes 59 seconds West, and continuing along the
North line of Harwood Drive, a distance of 11.47 feet to a 1/2 inch iron rod
found for corner;
THENCE North 0 degrees 07 minutes 01 second West, a distance of 104.19 feet to
an "x" found in concrete for corner;
THENCE South 88 degrees 27 minutes 45 seconds West, a distance of 100.00 feet to
an "x" found in concrete for corner;
THENCE South 02 degrees 24 minutes 14 seconds East, a distance of 127.83 feet to
an 1/2 inch iron rod found for corner in the North line of Bedford Drive;
THENCE South 74 degrees 32 minutes 59 seconds West, a distance of 187.37 feet to
an "x" found in concrete for corner;
THENCE North 29 degrees 30 minutes 12 seconds West, a distance of 49.26 feet to
an "x" found in concrete for corner;
THENCE North, a distance of 82.10 feet to an "x" found in concrete for corner;
THENCE West, a distance of 88.63 feet to an "x" found in concrete for corner;
THENCE South, a distance of 22.10 feet to a 1/2 inch iron rod found for corner,
said point being the Northeast corner of Lot 1 in Block 1 of Citco Addition, an
Addition to the City of Bedford, Texas, according to the Plat thereof as
recorded in the Plat Records of Tarrant County, Texas;
THENCE West, along the common line of Citco Addition and Lot 1 in Block 1 of
Harwood Village North, a distance of 130.00 feet to a 1/2 inch iron rod found
for the most Westerly Southwest corner of said Harwood Village North, said point
being in the East right-of-way line of Brown Trail (80 foot right-of-way);
THENCE North along the East right-of-way line of Brown Trail for a distance of
333.95 feet to a 1/2 inch iron rod found at the Northwest corner of Lot 1 in
Block 1 of Harwood Village North, said point also being the Southwest corner of
Lot 1 of the aforesaid Spring Brook Estates Addition;
THENCE South 89 degrees 49 minutes 21 seconds East, along the common line of
Harwood Village North and Spring Brook Estates for a distance of 885.89 feet to
the PLACE OF BEGINNING and containing 6.8616 acres of land, more of less.
NOTE: THE COMPANY DOES NOT REPRESENT THAT THE ACREAGE AND/OR SQUARE FOOTAGE
CALCULATIONS ARE CORRECT.
TOGETHER with easements for parking, vehicular ingress and egress, utilities,
pedestrian traffic, comfort and convenience, temporary construction activity and
minor encroachments granted pursuant to Grand of Reciprocal Easements and
Declaration of Covenants Running with the Land dated September 24, 1982, filed
September 28, 1982 and recorded in Volume 7394, Page 2093, Deed Records of
Tarrant County, Texas, as amended by First Amendment to Grant of Reciprocal
Easements and Declaration of Covenants Running with the Land, filed July 17,
1984 and recorded in Volume 7892, Page 211, Deed Records, Tarrant County, Texas.
<PAGE>
D197067715
FIDELITY NATL TITLE INS CO
5430 LBJ FRWY #260
DALLAS, TX 75240
W A R N I N G - THIS IS PART OF THE OFFICIAL RECORD - D O N O T D E S T R O Y
I N D E X E D -- T A R R A N T C O U N T Y T E X A S
S U Z A N N E H E N D E R S O N -- COUNTY CLERK
O F F I C I A L R E C E I P T
TO: F I D E L I T Y N A T I O N A L T I T L E A G E N C Y
RECEIPT NO REGISTER RECD-BY PRINTED DATE TIME
- ---------- -------- ------- ------------ ----
197168093 DR96 T000224 4/17/97 15:45
INSTRUMENT FEECD INDEXED TIME
- ---------------- ------- ----
1 D197067715 WD 970417 15:45 CK 14845
T O T A L: DOCUMENTS: 01 F E E S: 15.00
BY: __________________
ANY PROVISION WHICH RESTRICTS THE SALE RENTAL OR USE OF THE DESCRIBED REAL
PROPERTY BECAUSE OF COLOR OR RACE IS INVALID AND UNENFORCEABLE UNDER FEDERAL
LAW.
<PAGE>
BILL OF SALE
THIS INSTRUMENT made and executed as of the 16th day of April, 1997 by
Paine Webber Qualified Plan Property Fund, LP, a Delaware limited partnership,
("Seller") for the benefit of Harwood Village Realty, Ltd., a Texas limited
partnership, ("Buyer").
WHEREAS, Seller and Buyer are parties to that Purchase and Sale Agreement
(the "Agreement") relating to the shopping center in Bedford, Texas known as
Harwood Village North Shopping Center, and more fully described on Exhibit "A"
attached hereto (the "Property"); and
WHEREAS, the Agreement requires the delivery by Seller to Buyer of a Bill
of Sale conveying personal property owned by Seller located at, or relating to,
the Property.
NOW, THEREFORE, in consideration of the premises, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, it is agreed:
1. Seller hereby bargains, sells, transfers, assigns and conveys to Buyer
all of the tangible personal property owned by Seller located on, and relating
to the Property (the "Personal Property"). The Personal Property is conveyed
strictly "as is", "where is" and "with all faults", without warranties of any
kind or nature whatsoever, express or implied. Without limiting the generality
of the foregoing, no warranty of merchantability or fitness for a particular
purpose is made with respect to any of the Personal Property.
The provisions of this Bill of Sale shall inure to the benefit of and be
binding upon the successors and assigns of Seller and Buyer.
<PAGE>
IN WITNESS WHEREOF, Seller has executed this Bill of Sale as of the date
first above written.
PAINE WEBBER QUALIFIED
PLAN PROPERTY FUND, LP
By: First Qualified Properties, Inc.,
its managing general partner
By: /s/Peter F. Sullivan
--------------------
Name: Peter F. Sullivan
Title: Vice President
<PAGE>
GF No. 1228-42-T-34
EXHIBIT "A"
BEING situated in the A. ALLEN SURVEY, ABSTRACT NO. 11, in the City of Bedford,
Tarrant County, Texas, and described as being LOT 1 in BLOCK 1 of HARWOOD
VILLAGE NORTH, an Addition to the City of Bedford, Texas, according to the Plat
thereof recorded in Volume 388-134, Page 3 of the Plat Records of Tarrant
County, Texas, and being the same property conveyed to Paine Webber Qualified
Property Fund, LP, as recorded in Volume 7364, Page 2036 of the Deed Records of
Tarrant County, Texas, and being more particularly described by metes and bounds
as follows:
BEGINNING at a 1/2 inch iron rod found for the Northeast corner of said Lot 1 in
Block 1 of Harwood Village North, said point being in the West line of Spring
Valley Drive (50 foot right-of-way), said point also being the Southeast corner
of Lot 12 in Block 2 of Spring Brook Estates, an Addition to the City of
Bedford, Texas, according to the Plat thereof as recorded in Volume 388-196,
Page 24 of the Deed Records of Tarrant County, Texas:
THENCE South 04 degrees 36 minutes 40 seconds East, along the West line of
Spring Valley Drive, a distance of 277.86 feet to a 1/2 inch iron rod found for
the Southeast corner of Lot 1 in Block 1 of Harwood Village North and being in
the North right-of-way line of Harwood Drive (variable width right-of-way);
THENCE South 79 degrees 34 minutes 05 seconds West, along the North right-of-way
line of Harwood Drive, a distance of 203.05 feet to a 1/2 inch iron rod found
for corner, said point being the beginning of a curve to the left having a
central angle of 5 degrees 01 minute 03 seconds and a radius of 2100.00 feet
whose center bears South 10 degrees 25 minutes 55 seconds East and whose chord
bears South 77 degrees 03 minutes 34 seconds West, at 183.84 feet;
THENCE Southwesterly along said curve to the left, an arc distance of 183.90
feet to a 1/2 inch iron rod found for corner;
THENCE South 74 degrees 32 minutes 59 seconds West, and continuing along the
North line of Harwood Drive, a distance of 11.47 feet to a 1/2 inch iron rod
found for corner;
THENCE North 0 degrees 07 minutes 01 second West, a distance of 104.19 feet to
an "x" found in concrete for corner;
THENCE South 88 degrees 27 minutes 45 seconds West, a distance of 100.00 feet to
an "x" found in concrete for corner;
THENCE South 02 degrees 24 minutes 14 seconds East, a distance of 127.83 feet to
an 1/2 inch iron rod found for corner in the North line of Bedford Drive;
THENCE South 74 degrees 32 minutes 59 seconds West, a distance of 187.37 feet to
an "x" found in concrete for corner;
THENCE North 29 degrees 30 minutes 12 seconds West, a distance of 49.26 feet to
an "x" found in concrete for corner;
THENCE North, a distance of 82.10 feet to an "x" found in concrete for corner;
THENCE West, a distance of 88.63 feet to an "x" found in concrete for corner;
THENCE South, a distance of 22.10 feet to a 1/2 inch iron rod found for corner,
said point being the Northeast corner of Lot 1 in Block 1 of Citco Addition, an
Addition to the City of Bedford, Texas, according to the Plat thereof as
recorded in the Plat Records of Tarrant County, Texas;
THENCE West, along the common line of Citco Addition and Lot 1 in Block 1 of
Harwood Village North, a distance of 130.00 feet to a 1/2 inch iron rod found
for the most Westerly Southwest corner of said Harwood Village North, said point
being in the East right-of-way line of Brown Trail (80 foot right-of-way);
THENCE North along the East right-of-way line of Brown Trail for a distance of
333.95 feet to a 1/2 inch iron rod found at the Northwest corner of Lot 1 in
Block 1 of Harwood Village North, said point also being the Southwest corner of
Lot 1 of the aforesaid Spring Brook Estates Addition;
THENCE South 89 degrees 49 minutes 21 seconds East, along the common line of
Harwood Village North and Spring Brook Estates for a distance of 885.89 feet to
the PLACE OF BEGINNING and containing 6.8616 acres of land, more of less.
NOTE: THE COMPANY DOES NOT REPRESENT THAT THE ACREAGE AND/OR SQUARE FOOTAGE
CALCULATIONS ARE CORRECT.
TOGETHER with easements for parking, vehicular ingress and egress, utilities,
pedestrian traffic, comfort and convenience, temporary construction activity and
minor encroachments granted pursuant to Grand of Reciprocal Easements and
Declaration of Covenants Running with the Land dated September 24, 1982, filed
September 28, 1982 and recorded in Volume 7394, Page 2093, Deed Records of
Tarrant County, Texas, as amended by First Amendment to Grant of Reciprocal
Easements and Declaration of Covenants Running with the Land, filed July 17,
1984 and recorded in Volume 7892, Page 211, Deed Records, Tarrant County, Texas.
<PAGE>
ASSIGNMENT OF LEASES AND SECURITY DEPOSITS
Paine Webber Qualified Plan Property Fund, LP, a Delaware limited
partnership ("Assignor"), in consideration of the sum of Ten and No/100 Dollars
($10.00) in hand paid and other good and valuable consideration, the receipt of
which is hereby acknowledged, hereby assigns, transfers, sets over and conveys
to Harwood Village Realty, Ltd., a Texas limited partnership, ("Assignee"), all
interest as Lessor in and to all leases in effect at the real property described
on Exhibit A attached hereto, commonly known as Harwood Village North Shopping
Center, Bedford, Texas ("Existing Leases").
Assignee hereby accepts the foregoing Assignment and agrees to assume
fulfill, perform and discharge all the various commitments, obligations and
liabilities of Assignor under and by virtue of the Existing Leases hereby
assigned, which arise on or after the effective date hereof, including the
return of security deposits (actually received from Assignor), and does hereby
agree to defend, indemnify and hold harmless Assignor from any and all claims or
losses incurred by Assignor by reason of the failure of Assignee from and after
the effective date hereof to fulfill, perform and discharge all of the various
commitments, obligations and liabilities of Assignor under and by virtue of the
Existing Leases assigned hereunder, including the return of security deposits
(actually received from Assignor), which arise on or after the date hereof,
including losses relating to reasonable attorney's fees and expenses incurred to
resolve such claims or losses. Assignor shall remain liable for performing and
discharging all obligations and liabilities relating to Existing Leases for
which it was responsible and which arose prior to the date hereof, with the
exception of obligations or liabilities related to the payment of money for
which a proration credit has been given to Assignee (in which instance such
payment obligation shall be Assignee's and is hereby assumed by Assignee) and
Assignor shall defend, indemnify and hold harmless Assignee and its Lender from
any and all claims or losses arising on or before the effective date hereof
being related to its obligations under the Existing Leases, including losses
relating to reasonable attorney's fees and expenses incurred to resolve such
claims or losses.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment as
of the 17 th day of April, 1997, which Assignment is effective on that date.
ASSIGNOR:
PAINE WEBBER QUALIFIED PLAN PROPERTY FUND, LP
By: First Qualified Properties, Inc.,
its managing general partner
By: /s/ Peter F. Sullivan
----------------------
Name: Peter F. Sullivan
Title: Vice President
<PAGE>
ACKNOWLEDGMENT
COMMONWEALTH OF MASSACHUSETTS )
) SS
COUNTY OF SUFFOLK )
Before me, the undersigned, a Notary Public in and for said County and
State, on this day personally appeared Peter F. Sullivan, Vice President of
First Qualified Properties, Inc., the managing general partner of Paine Webber
Qualified Plan Property Fund, LP, whose name is subscribed to the foregoing
instrument and acknowledged to me that the same was the act of the said limited
partnership, and that he executed the same as the free act of such limited
partnership for the purposes and consideration therein expressed, and in the
capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 16th day of April, 1997.
/s/ Linda S. Blake
------------------
Notary Public
My Commission Expires: 8/10/2001
<PAGE>
ASSIGNEE:
HARWOOD VILLAGE REALTY, LTD.,
a Texas limited partnership
By: 601 Harwood, Inc., a Delaware corporation
By: /s/ David Salomon
-----------------
Name: David Salomon
Its: President
ACKNOWLEDGMENT
STATE OF TEXAS
COUNTY OF DALLAS
Before me, the undersigned, a Notary Public in and for said County and
State, on this day personally appeared David Salomon, President of 601 Harwood,
Inc., a Delaware corporation, general partner of Harwood Village Realty, Ltd., a
Texas limited partnership whose name is subscribed to the foregoing instrument
and acknowledged to me that the same was the act of the said limited partnership
and that he executed the same as the free act of such limited partnership for
the purposes and consideration therein expressed, and in the capacity therein
stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 17th day of April, 1997.
/s/ Margaret Vogeler
--------------------
Margaret Vogeler
Notary Public
My Commission Expires: 11/24/97
<PAGE>
GF No. 1228-42-T-34
EXHIBIT "A"
BEING situated in the A. ALLEN SURVEY, ABSTRACT NO. 11, in the City of Bedford,
Tarrant County, Texas, and described as being LOT 1 in BLOCK 1 of HARWOOD
VILLAGE NORTH, an Addition to the City of Bedford, Texas, according to the Plat
thereof recorded in Volume 388-134, Page 3 of the Plat Records of Tarrant
County, Texas, and being the same property conveyed to Paine Webber Qualified
Property Fund, LP, as recorded in Volume 7364, Page 2036 of the Deed Records of
Tarrant County, Texas, and being more particularly described by metes and bounds
as follows:
BEGINNING at a 1/2 inch iron rod found for the Northeast corner of said Lot 1 in
Block 1 of Harwood Village North, said point being in the West line of Spring
Valley Drive (50 foot right-of-way), said point also being the Southeast corner
of Lot 12 in Block 2 of Spring Brook Estates, an Addition to the City of
Bedford, Texas, according to the Plat thereof as recorded in Volume 388-196,
Page 24 of the Deed Records of Tarrant County, Texas:
THENCE South 04 degrees 36 minutes 40 seconds East, along the West line of
Spring Valley Drive, a distance of 277.86 feet to a 1/2 inch iron rod found for
the Southeast corner of Lot 1 in Block 1 of Harwood Village North and being in
the North right-of-way line of Harwood Drive (variable width right-of-way);
THENCE South 79 degrees 34 minutes 05 seconds West, along the North right-of-way
line of Harwood Drive, a distance of 203.05 feet to a 1/2 inch iron rod found
for corner, said point being the beginning of a curve to the left having a
central angle of 5 degrees 01 minute 03 seconds and a radius of 2100.00 feet
whose center bears South 10 degrees 25 minutes 55 seconds East and whose chord
bears South 77 degrees 03 minutes 34 seconds West, at 183.84 feet;
THENCE Southwesterly along said curve to the left, an arc distance of 183.90
feet to a 1/2 inch iron rod found for corner;
THENCE South 74 degrees 32 minutes 59 seconds West, and continuing along the
North line of Harwood Drive, a distance of 11.47 feet to a 1/2 inch iron rod
found for corner;
THENCE North 0 degrees 07 minutes 01 second West, a distance of 104.19 feet to
an "x" found in concrete for corner;
THENCE South 88 degrees 27 minutes 45 seconds West, a distance of 100.00 feet to
an "x" found in concrete for corner;
THENCE South 02 degrees 24 minutes 14 seconds East, a distance of 127.83 feet to
an 1/2 inch iron rod found for corner in the North line of Bedford Drive;
THENCE South 74 degrees 32 minutes 59 seconds West, a distance of 187.37 feet to
an "x" found in concrete for corner;
THENCE North 29 degrees 30 minutes 12 seconds West, a distance of 49.26 feet to
an "x" found in concrete for corner;
THENCE North, a distance of 82.10 feet to an "x" found in concrete for corner;
THENCE West, a distance of 88.63 feet to an "x" found in concrete for corner;
THENCE South, a distance of 22.10 feet to a 1/2 inch iron rod found for corner,
said point being the Northeast corner of Lot 1 in Block 1 of Citco Addition, an
Addition to the City of Bedford, Texas, according to the Plat thereof as
recorded in the Plat Records of Tarrant County, Texas;
THENCE West, along the common line of Citco Addition and Lot 1 in Block 1 of
Harwood Village North, a distance of 130.00 feet to a 1/2 inch iron rod found
for the most Westerly Southwest corner of said Harwood Village North, said point
being in the East right-of-way line of Brown Trail (80 foot right-of-way);
THENCE North along the East right-of-way line of Brown Trail for a distance of
333.95 feet to a 1/2 inch iron rod found at the Northwest corner of Lot 1 in
Block 1 of Harwood Village North, said point also being the Southwest corner of
Lot 1 of the aforesaid Spring Brook Estates Addition;
THENCE South 89 degrees 49 minutes 21 seconds East, along the common line of
Harwood Village North and Spring Brook Estates for a distance of 885.89 feet to
the PLACE OF BEGINNING and containing 6.8616 acres of land, more of less.
NOTE: THE COMPANY DOES NOT REPRESENT THAT THE ACREAGE AND/OR SQUARE FOOTAGE
CALCULATIONS ARE CORRECT.
TOGETHER with easements for parking, vehicular ingress and egress, utilities,
pedestrian traffic, comfort and convenience, temporary construction activity and
minor encroachments granted pursuant to Grand of Reciprocal Easements and
Declaration of Covenants Running with the Land dated September 24, 1982, filed
September 28, 1982 and recorded in Volume 7394, Page 2093, Deed Records of
Tarrant County, Texas, as amended by First Amendment to Grant of Reciprocal
Easements and Declaration of Covenants Running with the Land, filed July 17,
1984 and recorded in Volume 7892, Page 211, Deed Records, Tarrant County, Texas.
<PAGE>
ASSIGNMENT AND ASSUMPTION OF INTANGIBLE PROPERTY
AND OTHER RIGHTS
FOR VALUE RECEIVED, Paine Webber Qualified Plan Property Fund LP, a
Delaware limited partnership ("Assignor") hereby conveys, assigns, transfers,
and sets over unto Harwood Village Realty, Ltd., a Texas limited partnership
("Assignee"), all of its right, title and interest, in and to any and all
intangible property used in conjunction with the real estate described on
Exhibit A attached hereto and made a part hereof, and the buildings and
improvements located thereon ("Property"), including without limitation, the
right to use the name "Harwood Village North Shopping Center," all plans and
specifications in the possession of, or available without cost to, Assignor
which were prepared in connection with any of the Property, all hereditaments,
privileges, tenements and appurtenances belong to the Property, all of its
right, title and interest, if any, in and to all open or proposed highways,
streets, roads, avenues, alleys, easements, strips, gores and rights-of-way in,
on, across in front of, contiguous to, abutting or adjoining the Property, all
licenses, permits, warranties, contracts and commitments now in effect with
respect to the Property, all equipment leases, if any, and all rights of
Assignor thereunder relating to equipment located on the Property, but excluding
cash on hand and in bank and escrow accounts, and further excluding any
furniture, furnishings, fixtures, business equipment or articles of personal
property belonging to tenants occupying the Property.
Assignee does hereby accept the foregoing Assignment subject to the terms
and conditions herein contained, and does hereby assume as of the date hereof
and become responsible for and agree to perform, discharge, fulfill and observe
all obligations, covenants, conditions and provisions accruing or arising or
required from and after the date hereof with respect to the above-described
property, and does hereby agree to defend, indemnify and hold harmless Assignor
from any and all claims or losses relating to the failure of Assignee to
fulfill, perform, discharge and observe all of the various obligations,
covenants, conditions and provisions with respect to the Property which arise
from and after the effective date hereof, including reasonable attorney's fees
and expenses and other reasonable expenses incurred to resolve such claims or
losses. Assignor shall remain liable for performing, discharging, fulfilling and
observing all obligations, covenants, conditions and provisions accruing or
arising or required prior to the date hereof with respect to the above-described
property, and does hereby agree to defend, indemnify and hold harmless Assignee
and its Lender from any and all claims or losses relating to the failure of
Assignor to fulfill, perform, discharge and observe all of the various
obligations, covenants, conditions, provisions, with respect to the Property
which arise prior to the date hereof, including reasonable attorneys' fees and
expenses incurred to resolve such claims or losses.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Agreement and
Assumption of Intangible Property and other rights as of the 17th day of April,
1997, which instrument is effective on that date.
ASSIGNOR:
PAINE WEBBER QUALIFIED PLAN PROPERTY FUND, LP
By: First Qualified Properties, Inc.,
its managing general partner
By: /s/ Peter F. Sullivan
-----------------------
Name: Peter F. Sullivan
Title: Vice President
<PAGE>
ASSIGNEE:
HARWOOD VILLAGE REALTY, LTD.,
a Texas limited partnership
By: 601 Harwood, Inc., a Delaware
corporation, its general partner
By: /s/ David Salomon
-----------------
Name: David Salomon
Title: President
<PAGE>
EXHIBIT A
GF No. 1228-42-T-34
BEING situated in the A. ALLEN SURVEY, ABSTRACT NO. 11, in the City of Bedford,
Tarrant County, Texas, and described as being LOT 1 in BLOCK 1 of HARWOOD
VILLAGE NORTH, an Addition to the City of Bedford, Texas, according to the Plat
thereof recorded in Volume 388-134, Page 3 of the Plat Records of Tarrant
County, Texas, and being the same property conveyed to Paine Webber Qualified
Property Fund, LP, as recorded in Volume 7364, Page 2036 of the Deed Records of
Tarrant County, Texas, and being more particularly described by metes and bounds
as follows:
BEGINNING at a 1/2 inch iron rod found for the Northeast corner of said Lot 1 in
Block 1 of Harwood Village North, said point being in the West line of Spring
Valley Drive (50 foot right-of-way), said point also being the Southeast corner
of Lot 12 in Block 2 of Spring Brook Estates, an Addition to the City of
Bedford, Texas, according to the Plat thereof as recorded in Volume 388-196,
Page 24 of the Deed Records of Tarrant County, Texas:
THENCE South 04 degrees 36 minutes 40 seconds East, along the West line of
Spring Valley Drive, a distance of 277.86 feet to a 1/2 inch iron rod found for
the Southeast corner of Lot 1 in Block 1 of Harwood Village North and being in
the North right-of-way line of Harwood Drive (variable width right-of-way);
THENCE South 79 degrees 34 minutes 05 seconds West, along the North right-of-way
line of Harwood Drive, a distance of 203.05 feet to a 1/2 inch iron rod found
for corner, said point being the beginning of a curve to the left having a
central angle of 5 degrees 01 minute 03 seconds and a radius of 2100.00 feet
whose center bears South 10 degrees 25 minutes 55 seconds East and whose chord
bears South 77 degrees 03 minutes 34 seconds West, at 183.84 feet;
THENCE Southwesterly along said curve to the left, an arc distance of 183.90
feet to a 1/2 inch iron rod found for corner;
THENCE South 74 degrees 32 minutes 59 seconds West, and continuing along the
North line of Harwood Drive, a distance of 11.47 feet to a 1/2 inch iron rod
found for corner;
THENCE North 0 degrees 07 minutes 01 second West, a distance of 104.19 feet to
an "x" found in concrete for corner;
THENCE South 88 degrees 27 minutes 45 seconds West, a distance of 100.00 feet to
an "x" found in concrete for corner;
THENCE South 02 degrees 24 minutes 14 seconds East, a distance of 127.83 feet to
an 1/2 inch iron rod found for corner in the North line of Bedford Drive;
THENCE South 74 degrees 32 minutes 59 seconds West, a distance of 187.37 feet to
an "x" found in concrete for corner;
THENCE North 29 degrees 30 minutes 12 seconds West, a distance of 49.26 feet to
an "x" found in concrete for corner;
THENCE North, a distance of 82.10 feet to an "x" found in concrete for corner;
THENCE West, a distance of 88.63 feet to an "x" found in concrete for corner;
THENCE South, a distance of 22.10 feet to a 1/2 inch iron rod found for corner,
said point being the Northeast corner of Lot 1 in Block 1 of Citco Addition, an
Addition to the City of Bedford, Texas, according to the Plat thereof as
recorded in the Plat Records of Tarrant County, Texas;
THENCE West, along the common line of Citco Addition and Lot 1 in Block 1 of
Harwood Village North, a distance of 130.00 feet to a 1/2 inch iron rod found
for the most Westerly Southwest corner of said Harwood Village North, said point
being in the East right-of-way line of Brown Trail (80 foot right-of-way);
THENCE North along the East right-of-way line of Brown Trail for a distance of
333.95 feet to a 1/2 inch iron rod found at the Northwest corner of Lot 1 in
Block 1 of Harwood Village North, said point also being the Southwest corner of
Lot 1 of the aforesaid Spring Brook Estates Addition;
THENCE South 89 degrees 49 minutes 21 seconds East, along the common line of
Harwood Village North and Spring Brook Estates for a distance of 885.89 feet to
the PLACE OF BEGINNING and containing 6.8616 acres of land, more of less.
NOTE: THE COMPANY DOES NOT REPRESENT THAT THE ACREAGE AND/OR SQUARE FOOTAGE
CALCULATIONS ARE CORRECT.
TOGETHER with easements for parking, vehicular ingress and egress, utilities,
pedestrian traffic, comfort and convenience, temporary construction activity and
minor encroachments granted pursuant to Grand of Reciprocal Easements and
Declaration of Covenants Running with the Land dated September 24, 1982, filed
September 28, 1982 and recorded in Volume 7394, Page 2093, Deed Records of
Tarrant County, Texas, as amended by First Amendment to Grant of Reciprocal
Easements and Declaration of Covenants Running with the Land, filed July 17,
1984 and recorded in Volume 7892, Page 211, Deed Records, Tarrant County, Texas.
<PAGE>
CLOSING STATEMENT
PAINE WEBBER QUALIFIED PLAN PROPERTY FUND, LP
sale to
HARWOOD VILLAGE REALTY, LTD.
Harwood Village North Shopping Center
Bedford, Texas
April 17, 1997
Funds Due to Seller
Purchase Price
$4,245,000.00
Deductions
Deposit (held by Title Company) $100,000.00
Rent (see Schedule 1) $26,899.04
Security Deposits (see Schedule 2) $18,450.50
Real Estate Taxes (see Schedule 4) $33,276.48
Total Deductions $178,626.02 ($178,626.02)
Additions
Service Contracts (see Schedule 3) $683.47
Phase II (GZA GeoEnvironmental) $7,067.67
Remediation Costs (see Schedule 8) $5,000.00
Accounts Receivable $17,500.00
Total Additions $30,251.14 $30,251.14
Gross Funds Due To Seller $4,096,625.12
Seller's Disbursements
Brokers' Commission (see Schedule 5)$84,900.00
Closing Fees (see Schedule 6) $24,955.96
Total Seller's Disbursements $109,855.96 ($109,855.96)
Net Funds Due To Seller (less Deposit) $3,986,769.16
Plus deposit held by Fidelity Title 100,000.00
Funds Due Seller At Closing $4,086,769.16
<PAGE>
Funds Due From Buyer
Purchase Price $4,245,000.00
Deductions
Deposit (held by Title Company) $100,000.00
Rent (see Schedule 1) $26,899.04
Security Deposits (see Schedule 2) $18,450.50
Real Estate Taxes (see Schedule 4) $33,276.48
Total Deductions $178,626.02 ($178,626.02)
Additions
Service Contracts (see Schedule 3) $683.47
Accounts Receivable $17,500.00
Remediation Costs (see Schedule 8) $5,000.00
Total Additions $23,183.47 $23,183.47
Net Funds Due From Buyer $4,089,557.45
Buyer's Disbursements
Closing Fees (see Schedule 6) $7,067.67
Total Buyer's Disbursements $7,067.67 $7,067.67
Gross Funds Due From Buyer $4,096,625.12
The undersigned hereby authorize Fidelity National Title Agency Inc. to make the
Disbursements as set forth in Schedules 5 and 6 from the closing proceeds. Net
Funds Due to Seller shall be wired to Seller in accordance with the wiring
instructions set forth on Exhibit A. The Deposit held by Fidelity National shall
be added to the Net Funds Due to Seller and wired in accordance with Exhibit A.
SELLER: BUYER:
PAINE WEBBER QUALIFIED HARWOOD VILLAGE REALTY, LTD.
PLAN PROPERTY FUND, LP
By: First Qualified Properties, Inc. By: 601 Harwood, Inc.
By: /s/ Peter F. Sullivan By: /s/ David Salomon
--------------------- -----------------
Name: Peter F. Sullivan Name: David Salomon
Title: Vice President Title: President
