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) November 10, 1997
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Paine Webber Qualified Plan Property Fund Two, LP
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(Exact name of registrant as specified in its charter)
Delaware 0-17146 04-2752249
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(State or other jurisdiction) (Commission (IRS Employer
of incorporation File Number) Identification No.)
265 Franklin Street, Boston, Massachusetts 02110
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (617) 439-8118
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(Former name or address, if changed since last report)
<PAGE>
FORM 8-K
CURRENT REPORT
PAINE WEBBER QUALIFIED PLAN PROPERTY FUND TWO, LP
ITEM 2 - Disposition of Assets
Mercantile Tower Office Building, Kansas City, Missouri
Disposition Date - November 10, 1997
On November 10, 1997, Paine Webber Qualified Plan Property Fund Two, LP
(the "Partnership") sold its wholly-owned operating investment property, the
Mercantile Tower Office Building, located in Kansas City, Missouri, to an
unrelated third party for $7,283,000. After closing costs and adjustments and
the repayment of the outstanding line of credit borrowings, the Partnership
realized net proceeds of approximately $5,963,000. As a result of the sale of
the Mercantile Tower Office Building, a Special Distribution of the net
proceeds, along with an amount of excess cash reserves which has yet to be
determined, will be made on December 15, 1997 to unitholders of record as of
November 10, 1997.
The occupancy level at the wholly-owned Mercantile Tower Office Building
increased to 64% at August 31, 1997 as compared to 61% as of May 31, 1997 and
58% as of August 31, 1996. As previously reported, the pace of the lease-up at
Mercantile Tower has been well below management's expectations. With significant
competition in the downtown Kansas City office market, management has found it
difficult to obtain economically viable lease terms from the number of tenants
which are looking to lease space in the market. During the quarter ended
February 28, 1997, the Partnership received an unsolicited offer to purchase the
Mercantile Tower Office Building. In response to this unsolicited offer, the
Partnership initiated a sales program and selected a Kansas City firm to market
the property for sale. After reviewing the offers received as part of the
marketing process, the Partnership selected an offer from one of the potential
purchasers and, in August 1997, a purchase and sale agreement was signed. On
November 10, 1997, the sale was completed and the Mercantile Tower property was
sold for $7,283,000. While the net proceeds received from the sale of Mercantile
Tower were substantially less then the Partnership's original investment in the
property, of $10.5 million, management believes that the sale price was
reflective of the property's current fair market value, which is supported by
the most recent independent appraisal. Furthermore, management did not foresee
the potential for any significant near-term appreciation in the property's
market value. Accordingly, a current sale was deemed to be in the best interests
of the Limited Partners. A sale of the property at its current leasing level
yielded less proceeds than the sale of the property at a stabilized level, but
management concluded that the capital, time and risk associated with the
substantial leasing activity required to achieve stabilized operations
outweighed the possibility of receiving a higher sale price.
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 Two, LP and Chesapeake Atlantic Holdings,
Inc., dated July 22, 1997.
(2) First Amendment to Purchase and Sale Agreement by and between
Chesapeake Atlantic Holdings, Inc. and Paine Webber Qualified Plan
Property Fund Two, LP dated, November 7, 1997.
(3) Special Warranty Deed between Paine Webber Qualified Plan Property
Fund Two, LP and Chesapeake Atlantic Holdings, Inc., dated November
10, 1997.
(4) Assignment of Leases by Paine Webber Qualified Plan Property Fund
Two, LP to Chesapeake Atlantic Holdings, Inc., dated November 10,
1997.
(5) General Assignment by Paine Webber Qualified Plan Property Fund Two,
LP to Chesapeake Atlantic Holdings, Inc., dated November 10, 1997.
(6) Bill of Sale by Paine Webber Qualified Plan Property Fund Two, LP
for the benefit of Chesapeake Atlantic Holdings, Inc., dated
November 10, 1997.
<PAGE>
(7) Termination of Ground Lease by Paine Webber Qualified Plan Property
Fund Two, LP to Mercantile Tower Development Limited Partnership
dated November 10, 1997.
(8) Deed of Release by Paine Webber Qualified Plan Property Fund Two, LP
dated November 10, 1997.
(9) Settlement Statement by and between Paine Webber Qualified Plan
Property Fund Two, LP and Chesapeake Atlantic Holdings, Inc., dated
November 10, 1997.
<PAGE>
FORM 8-K
CURRENT REPORT
PAINE WEBBER QUALIFIED PLAN PROPERTY FUND TWO, 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 TWO, LP
(Registrant)
By: /s/ Walter V. Arnold
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Walter V. Arnold
Senior Vice President and
Chief Financial Officer
Date: November 25, 1997
<PAGE>
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
PAINEWEBBER QUALIFIED PLAN PROPERTY FUND TWO, L.P. ("SELLER")
AND
CHESAPEAKE ATLANTIC HOLDINGS, INC.("BUYER")
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS 3
ARTICLE 2 PURCHASE AND SALE 3
ARTICLE 3 PURCHASE PRICE; DEPOSIT; ADJUSTMENTS 4
ARTICLE 4 PRECLOSING OPERATION 6
ARTICLE 5 ACCESS, INSPECTION, DILIGENCE 7
ARTICLE 6 TITLE AND SURVEY CONDITIONS 10
ARTICLE 7 CLOSING 11
ARTICLE 8 CASUALTY AND CONDEMNATION 13
ARTICLE 9 BROKERAGE COMMISSIONS 13
ARTICLE 10 DEFAULT, TERMINATION AND REMEDIES 14
ARTICLE 11 REPRESENTATIONS AND WARRANTIES 15
ARTICLE 12 MISCELLANEOUS 17
ARTICLE 13 IRS FORM 1099-S DESIGNATION 21
SCHEDULE A Description of the Real Property
SCHEDULE B Description of Personal Property and Intangible Property
SCHEDULE C Rent Roll
SCHEDULE D Form of Lease
SCHEDULE E 1099 Designation Agreement
SCHEDULE F-1/F-2 Form of Tenant Estoppel Certificate
Schedule 4.2 Rental Rates and Other Concessions
<PAGE>
Purchase and Sale Agreement
This Purchase and Sale Agreement (this "Agreement") is entered into as of
the 22nd day of July, 1997 by and between Seller and Buyer, upon the following
terms and conditions:
ARTICLE 1
DEFINITIONS
References in this Agreement to the following terms shall have the
following meanings:
BUYER: Chesapeake Atlantic Holdings, Inc., a Florida corporation
SELLER: PaineWebber Qualified Plan Property Fund Two, L.P., a
Delaware limited partnership
PROPERTY: The Real Property and Personal Property constituting
Mercantile Tower and parking garage located at
1101 Walnut, in Kansas City, Missouri
REAL PROPERTY: The land and the buildings, structures, improvements and
fixtures (collectively the "Improvements") now located
thereon and the rights appurtenant thereto, all as more
particularly described in Schedule A attached hereto
PERSONAL PROPERTY: The personal and intangible Property, if any,
described in Schedule B attached hereto
PURCHASE PRICE: $7,500,000
TITLE COMPANY: Stewart Title Company
ARTICLE 2
PURCHASE AND SALE
2.1. In consideration of the undertakings and mutual covenants of the
parties set forth in this Agreement, and for other good and valuable
consideration, the receipt and legal sufficiency of which are hereby
acknowledged, Seller hereby agrees to sell and convey the Property to Buyer or
its nominee and Buyer hereby agrees to buy and pay the Purchase Price for the
Property on the terms and conditions contained herein.
ARTICLE 3
PURCHASE PRICE; DEPOSIT; ADJUSTMENTS
3.1 Purchase Price. The Purchase Price shall be as specified in Article 1
above and shall be paid on the Closing Date (as hereinafter defined) by wire
transfer of immediately available federal funds in the amount of Seven Million
Five Hundred Thousand Dollars ($7,500,000.00) subject to adjustment to reflect
application of the Escrowed Amount and such other
adjustments herein contained.
3.2 Deposit. Within five (5) days of the execution of this Agreement,
Buyer shall deposit in cash with the Title Company the sum of Fifty Thousand
Dollars ($50,000) (the "Deposit") to secure Buyer's obligations under this
Agreement. The Title Company shall hold the Deposit in a segregated interest
bearing money market account with an FDIC insured bank reasonably acceptable to
Buyer and Seller. The Deposit and all interest accrued on the Deposit
(collectively, the "Escrowed Amount") shall be maintained by the Title Company
in such account or accounts until the Title Company is required to cause the
Escrowed Amount to be disbursed pursuant to the terms and conditions of this
Agreement.
3.3 Proration. All rents, other amounts payable by the tenants under the
Leases, income, utilities and all other operating expenses with respect to the
Property for the month in which the Closing occurs, and real estate and personal
property taxes and other assessments with respect to the Property for the year
in which the Closing occurs, shall be prorated to the Closing Date in
immediately available funds with Seller receiving the benefits and burdens of
ownership on the Closing Date.
(a) If the Closing shall occur before rents and all other amounts payable
by the tenants under the Leases and all other income from the Property have
actually been paid for the month in which the Closing occurs, the apportionment
of such rents and other amounts and other income shall be upon the basis of such
rents, other amounts and other income actually received by Seller. Subsequent to
the Closing, if any such rents, other amounts and other income are actually
received by Buyer, all such amounts shall first be applied to balances due as of
the Closing and included in an itemized statement provided by Seller to Buyer at
or prior to the Closing. Thereafter, such amounts shall be applied to
post-closing rents due to Buyer which are past due, and the balance, if any,
shall be immediately paid by Buyer to Seller. Buyer shall make a good faith
effort and attempt to collect any such rents and other amounts and other income
not apportioned at the Closing for the benefit of Seller, however, Buyer shall
not be required to expend any funds or institute any litigation in its
collection efforts. At Closing, prepaid rents and refundable security deposits
in the possession or control of Seller (together with any interest accrued
thereon only if interest is specifically required to be paid thereon under
applicable law or under the terms of a specific Lease) at Seller's sole option
shall either be (i) transferred to Buyer at Closing and not subject to
adjustment, or (ii) adjusted by way of a credit in favor of Buyer.
(b) If the Closing shall occur before the tax rate or the assessed
valuation of the Property is fixed for the then current year, the apportionment
of taxes and assessments shall be upon the basis of the tax rate for the
preceding year applied to the latest assessed valuation. Subsequent to the
Closing, when the tax rate and the assessed valuation of the Property is fixed
for the year in which the Closing occurs, the parties agree to adjust the
proration of taxes and assessments and, if necessary, to refund or repay such
sums as shall be necessary to effect such adjustment. If, as of the Closing, the
Property is not being treated as a separate tax parcel, then within thirty (30)
days after the Closing, Buyer shall, at its sole cost and expense, have the
Property assessed separately for tax and assessment purposes. In the event the
Property has been assessed for property tax purposes at such rates as could
result in "roll-back" taxes upon changes in land usage or ownership of the
Property, Buyer agrees to pay all such taxes and indemnify and save Seller
harmless from and against any and all claims and liabilities for such taxes.
(c) Buyer and Seller shall use reasonable efforts to obtain meter readings
as of the date of the Closing. If the Closing shall occur before the actual
amount of utilities and all other operating expenses with respect to the
Property for the month in which the Closing occurs are determined, the
apportionment of such utilities and other operating expenses shall be upon the
basis of an estimate by Seller of such utilities and other operating expenses
for such month. Subsequent to the Closing, and within ninety (90) days following
the Closing, when the actual amount of such utilities and other operating
expenses with respect to the Property for the month in which the Closing occurs
are determined, the parties agree to adjust the proration of such utilities and
other operating expenses and, if necessary, to refund or repay such sums as
shall be necessary to effect such adjustment.
(d) Any tenant-improvement and/or leasing-commission costs (including,
without limitation, referral or locator fees) and all other out-of-pocket fees
and costs (including, without limitation, legal fees and costs) (collectively,
"New Tenant Costs") paid or incurred by Seller with respect to new Leases or
modifications to existing Leases executed in accordance with Section 4.2 below
shall be credited in favor of Seller at Closing. Seller shall supply invoices
and statements for all New Tenant Costs to Buyer on or prior to the Closing
Date. Buyer shall be solely responsible for the payment of all New Tenant Costs
in connection with any options, renewals, or extensions exercisable under the
Leases after the Closing Date and Buyer shall indemnify, protect, defend, save
and hold harmless Seller from and against any and all debts, duties,
obligations, liabilities, suits, claims, demands, causes of action, damages,
losses, fees and expenses (including, without limitation, attorneys' fees and
expenses and court costs) in any way relating to, or in connection with or
arising out of New Tenant Costs.
(e) If Leases contain obligations ("Lease Obligations") on the part of the
Tenants for: (i) CPI or similar adjustments, (ii) percentage rents, (iii)
escalation payments for taxes, labor or operations, or (iv) other expenses
including, without limitation, common area maintenance or any other operating
cost pass-throughs or retroactive charges payable by Tenants which have accrued
as of the Closing Date but are not then due and payable, the amount of such
Lease Obligations shall be prorated as of the Closing Date upon the basis of an
estimate by Seller of such Lease Obligations through the Closing Date.
Subsequent to the Closing, when the actual amount of such Lease Obligations with
respect to the Property through the Closing Date is determined, the parties
agree to adjust the proration of such Lease Obligations and, if necessary, to
refund or repay such sums as shall be necessary to effect such adjustment.
The agreements of Seller and Buyer set forth in this Section 3.3 shall survive
the Closing.
3.4 Closing Costs. Except as maybe otherwise provided herein to the
contrary, each party hereto shall pay its own legal fees and expenses. Seller
shall pay (a) the premium for Buyer's owner's title insurance policy (excluding
the cost of any endorsements for which an extra premium is charged), (b) the
cost of obtaining an update to Seller's existing survey of the Real Property,
(c) 50% of the escrow fees of the Escrow Agent, and (d) any documentary taxes
relating to the transfer of the Property to Buyer, if and to the extent such
costs are normally paid by Sellers in the State of Missouri. Buyer shall pay all
other costs in carrying out the transactions contemplated hereunder, including,
without limitation, (i) 50% of the escrow fees of the Escrow Agent, (ii) charges
to record the deed, and evidence of Buyer's existence or authority, (iii)
Buyer's own legal fees and expenses, (iv) all costs related to the Buyer's
inspection and due diligence, and (v) the cost of any endorsements to the
owner's title policy for which an extra premium is charged.
3.5 Survival. The provisions of this Article 3 shall survive the Closing.
ARTICLE 4
PRECLOSING OPERATION
4.1 Existing Leases. A Rent Roll containing a list of all current
occupants of the Property is attached hereto as Schedule C. The leases with the
occupants listed on the Rent Roll, together with leases entered into pursuant to
this Article 4 are collectively referred to herein as the "Leases".
4.2 New Leases. Seller will not enter into any new lease or renew any
lease on the Property (hereinafter a "New Lease") during the period between the
date hereof and the Closing Date, except (a) Seller may to lease and renew
leases on the Property using the lease form attached as Schedule D and at rental
rates and other concessions specified in Schedule 4.2., and (b) Seller may enter
into any lease on a form different to the one attached as Schedule D and at
rental rates and concessions different than those specified in Schedule 4.2 (an
"Alternative Lease") so long as Seller submits the Alternative Lease to the
Buyer for its consent, which consent shall not be unreasonably withheld, and
Buyer either grants such consent or fails to consent within five (5) business
days after submittal of the Alternative Lease to Buyer (such failure to respond
being deemed to be a consent). The responsibility for all lease obligations
under any New Lease arising subsequent to the execution of this Agreement shall
be prorated between Buyer and Seller based on the number of days in the term of
the New Lease and the number or days in such term that the Seller owns the
Property.
4.3 Conduct of Business. At all times prior to Closing, Seller shall
continue (a) to conduct business with respect to the Property in the same manner
in which said business has been heretofore conducted and (b) to insure the
Property substantially as currently insured.
4.4 Contracts. Within five (5) business days after execution of this
Agreement, Seller shall provide copies to Buyer of all service, supply,
equipment rental, management and leasing contracts (collectively, the
"Contracts") affecting the Property. On or before the Diligence Date (as defined
below), unless Buyer has provided written notice to Seller of Buyer's election
to terminate this Agreement, Buyer shall provide written notice to Seller of the
Contracts that Buyer desires to have terminated by Seller, and Seller will
terminate the Contracts so identified at or before Closing. At Closing, Seller
shall assign and Buyer shall assume the Contracts, except those Contracts which
Buyer has elected not to have terminated, as provided above. Buyer and Seller
shall indemnify, defend and hold the other harmless from and against any and all
claims under the Contracts which relate to its respective period of ownership.
4.5 Tenant Estoppel Certificates.
(a) Seller agrees to submit or cause its property manager to submit to each
tenant or lessee under a lease, an estoppel certificate, in form substantially
in accordance with Schedule F-1 attached hereto ("Tenant Estoppel"). Each
executed Tenant Estoppel (i) in the form of Schedule F-1 and containing
non-material exceptions, qualifications or modifications or (ii) substantially
in the form required pursuant to terms of the respective lease and containing
non-material exceptions, qualifications or modifications shall be deemed to be
substantially in compliance with Schedule F-1.
(b) In the event that Seller is unable to obtain and deliver to Buyer on
or before that day which is five (5) business days preceding the Closing Date
executed Tenant Estoppels that substantially comply with Schedule F-1 (or with
the form required pursuant to the terms of the respective Lease) from (i) eighty
percent (80%) of the tenants occupying premises in the Property less than 2,500
square feet in size under written Leases or occupancy agreements, and (ii) one
hundred percent (100%) of the tenants occupying premises in the Property in
excess of 2,500 square feet in size under written Leases or occupancy agreements
(the percentages referred to in (i) and (ii) above are hereinafter called the
"Aggregate Percentage"), Buyer shall give written notice to Seller, no later
than that day which is three (3) business days preceding the Closing Date, that
Buyer will require Seller to execute and deliver Tenant Estoppels on behalf of
tenants who will not have provided Tenant Estoppels prior to the Closing Date in
order to achieve the Aggregate Percentage. If Seller receives additional Tenant
Estoppels prior to the Closing Date and delivers the same to Buyer, Buyer shall
promptly review the same and notify Seller, on or before the later of two (2)
business days preceding the Closing Date or two (2) business days after Buyer's
receipt of the same, if any such Tenant Estoppel does not substantially comply
with Schedule F-1 (or with the form required pursuant to the terms of the
respective Lease). If Buyer shall have timely delivered such notice to Seller,
Seller shall, on or before the Closing Date, deliver to Buyer a Tenant Estoppel,
substantially in compliance with Schedule F-2, executed by Seller on behalf of
any tenant or tenants (at Seller's option) from whom Seller has been unable to
obtain a Tenant Estoppel prior to the Closing Date in order to achieve the
Aggregate Percentage; under no circumstances shall Seller be obligated to
execute any Tenant Estoppel which would exceed the Aggregate Percentage. If
Buyer shall not have given timely written notice as described in this paragraph,
Buyer shall be deemed for all purposes to be satisfied with the form and
substance of each Tenant Estoppel which Seller has delivered to Buyer and shall
have no further right to object thereto based on the response or lack thereof
with respect to the Tenant Estoppels.
ARTICLE 5
ACCESS, INSPECTION, DILIGENCE
5.1 Seller agrees that Buyer and its authorized agents or representatives
shall be entitled to enter upon the Real Property and the Improvements during
normal business hours upon advance written notice to Seller and make such
reasonable investigations, studies and tests including, without limitation,
surveys, engineering studies, soil and groundwater tests (including test borings
and pits) as Buyer deems necessary or advisable. Seller may require that Buyer
be accompanied by Seller or its designated agent during any such inspection or
entry. Seller may also require evidence of satisfactory insurance prior to any
physical inspection. Seller also agrees to make available to Buyer during normal
business hours upon advance written notice to Seller all books, records, plans,
building specifications, contracts, agreements, or other instruments or
documents contained in Seller's files relating to the construction, operation
and maintenance of the Property.
5.2 To the extent Seller has any studies, or site analyses in its
possession including, without limitation, existing title insurance policies,
existing surveys, existing zoning analyses, existing engineering reports, any
and all information available on the building's exterior glass and any related
architectural matters, existing code compliance reports and existing site
analyses with respect to oil, underground storage tanks or hazardous waste on
the Real Property, Seller agrees to make the same available for inspection by
Buyer or its agents within fifteen (15) days after execution of this Agreement.
Buyer acknowledges and agrees that any and all information, documents,
surveys, studies and reports provided to Buyer are provided for informational
purposes only and do not constitute representations or warranties of Seller of
any kind.
5.3 Buyer shall promptly commence and actively pursue the following due
diligence items:
(a) Review of title and survey matters;
(b) Review of Contracts and operating agreements;
(c) Obtain and review engineering reports on structural condition
of the mechanical systems;
(d) Obtain and review environmental reports on oil, hazardous
waste, and asbestos;
(e) Review of applicable zoning and other land use controls, and
other permits, licenses, permissions, approvals and consents;
and
(f) Review of all Leases affecting the Property.
Buyer shall complete its due diligence on or before the date which is
forty five (45) days from the date hereof (the "Diligence Date"). In the event
that Buyer's due diligence shall reveal any matters which are not acceptable to
Buyer, in Buyer's sole discretion, Buyer may elect, by written notice to Seller,
received by Seller on or before the Diligence Date, not to proceed with this
purchase, in which event this Agreement shall terminate, the Deposit shall be
returned and this Agreement shall be null and void without recourse to either
party hereto (except to the extent such recourse arises in connection with a
provision of this Agreement which is intended to survive termination).
If such diligence reveals any fact or condition unacceptable to Buyer, at
the option of Buyer, Buyer may in lieu of terminating the Agreement notify
Seller of such defect or condition in writing prior to the Diligence Date and
offer Seller the option of curing such defect or condition. If the Seller elects
to cure such defect or condition, Seller shall use its best efforts to cure such
defect or condition prior to Closing, but shall not be obligated to expend any
funds in doing so. Seller agrees to notify Buyer within five (5) business days
after receipt of such notice of the specific objectionable conditions it will
attempt to cure as well as the steps it proposes to take to accomplish such
cure, and Seller's cure of such condition shall be a condition to Buyer's
obligations to close under this Agreement. If Seller notifies Buyer that Seller
does not elect to exercise such cure option, then the Buyer shall have the right
to terminate this Agreement by written notice to Seller provided within two (2)
business days of receipt of Seller's notice, in which event the Deposit shall be
returned to Buyer in accordance with the provisions hereof and neither party
shall have any further liability to the other party under this Agreement.
Otherwise, such fact or condition shall be deemed acceptable to Buyer.
Buyer acknowledges that it has had an opportunity to conduct diligence on
the Property and is acquiring the Property in its current condition based on its
diligence. Buyer also acknowledges the following: (i) Seller has disclosed that
the windows and window systems in the property may need to be replaced; and (ii)
Seller has disclosed that the two (2) chillers currently utilize R-22 as the
refrigerant and that the chillers may need to be retrofitted to allow an
approved substitute refrigerant for R-22. Buyer agrees that the Purchase Price
will not be adjusted for the replacement costs mentioned in the immediately
preceding sentence. Buyer further acknowledges that neither Seller nor its
employees, agents or representatives have made any representation or warranty as
to the condition of the Property or the presence or absence of any hazardous
materials on, in, under or within the Property or a portion thereof. At Closing,
Seller shall deliver and Buyer shall accept the Property AS IS, WITH ALL FAULTS,
IF ANY, AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED,
INCLUDING FITNESS FOR A PARTICULAR PURPOSE. This immediately preceding sentence
shall survive Closing.
Buyer acknowledges that upon the expiration of the Diligence Date, if
Buyer elects to proceed towards Closing, and provided that the Seller performs
its obligations under Section 7.2 of this Agreement, the Deposit is
nonrefundable.
5.4 Return of Documents. If this Agreement is terminated for any reason
whatsoever, Buyer shall promptly deliver to Seller all documents, plans,
surveys, contracts, Leases and the like delivered to Buyer or Buyer's agents,
representatives or designees by Seller or Seller's agents, representatives or
employees pursuant to this Agreement. In addition, Buyer shall promptly deliver
to Seller copies of all materials obtained in connection with Buyer's diligence.
5.5 Confidentiality. Each party hereto agrees to maintain in confidence,
and not to discuss with or to disclose to any person or entity who is not a
party to this Agreement, the existence of this Agreement, any term of this
Agreement or any aspect of the transactions contemplated hereby, except as
provided in this Section. Each party hereto may discuss with and disclose to its
accountants, attorneys, existing or prospective lenders, investment bankers,
underwriters, rating agencies, partners, consultants and other advisors to the
extent such parties reasonably need to know such information and are bound by a
confidentiality obligation identical in all material respects to the one created
by this Section. Additionally, each party may discuss and disclose such matters
to the extent necessary to comply with any requirements of the SEC or in order
to comply with any securities law or interpretation thereof. This provision
shall survive termination of this Agreement but shall terminate upon Closing.
Any press release to be made regarding any matter which is the subject of the
confidentiality obligation created in this Section shall be subject to the
reasonable approval of Buyer and Seller, respectively both as to timing and
content.
5.6 Indemnity. If any inspection or test disturbs any of the Property,
Buyer will restore the Property to substantially the same condition as existed
prior to any such inspection or test. Buyer shall keep the Property free and
clear of any liens and will indemnify, defend, and hold Seller harmless from all
losses, costs and damages including reasonable attorneys' fees incurred by
Seller as a result of such entry or investigation by or on behalf of Buyer. This
indemnity obligation of Buyer shall survive the termination of this Agreement
for any reason.
ARTICLE 6
TITLE AND SURVEY CONDITIONS
6.1 Promptly following the execution of this Agreement, Seller shall
obtain:
(a) An ALTA as built, survey of the Real Property or an update of
Seller's survey (the "Survey"); and
(b) A commitment for an ALTA Owner's Policy of Title Insurance (the
"Title Commitment").
If the Survey, matters listed as exceptions in the Title Commitment or the
evidence of compliance with zoning are not satisfactory to Buyer, Buyer shall,
on or before the Diligence Date, provide Seller with written notice of such
objections which do not constitute Permitted Exceptions (as defined below), and
this Agreement shall terminate as provided in Section 5.3 above. For purposes of
this Agreement the term "Permitted Exceptions" means:
(i) All matters of public record as of the Diligence Date, other
than Monetary Encumbrances (as defined below);
(ii) All matters shown on an ALTA-ACSM survey of the Property on the
Diligence Date;
(iii) All Leases;
(iv) All zoning, building and other laws applicable to the Property;
and
(v) All matters which arise after the Diligence Date which are
agreed upon or consented to by Buyer.
For purposes of this Agreement the term "Monetary Encumbrance" means any
mortgage, or other voluntary lien granted or assumed by Seller encumbering the
Property and any mechanics or materialman's liens encumbering the Property
arising from work performed and materials furnished to or on behalf of Seller
(specifically excluding services performed by tenants).
6.2 On the Closing Date, Seller shall convey by good and sufficient
special warranty deed to Buyer or to Buyer's nominee good and clear record and
marketable fee simple title to all of the Real Property and the Improvements
free and clear of all liens, encumbrances, conditions, easements, assessments,
restrictions and other conditions, except for the following:
(a) The lien, if any, for real estate taxes not yet due and
payable; and
(b) The Permitted Exceptions.
6.4. At the Closing, Seller shall assign the Leases to Buyer and Buyer
shall assume Seller's obligations thereunder and Seller shall convey the
Personal Property to Buyer by quitclaim bill of sale.
ARTICLE 7
CLOSING
7.1 The consummation of the purchase and sale contemplated in this
Agreement (the "Closing") shall occur at the offices of the Escrow Agent as soon
as possible after the Diligence Date on a date (the "Closing Date") established
by Buyer by written notice to Seller given at least five (5) business days prior
to the proposed Closing Date; provided, however, that in no event shall such
notice establish a Closing Date which is later than the thirtieth (30th) day
after the Diligence Date; and if no such notice is given, the Closing Date shall
be on the thirtieth (30th) day after the Diligence Date unless such day is not a
day on which the registry of deeds in the county where the Property is located
is open for business, in which case, the Closing shall take place on the next
day on which such registry is open. It is agreed that time is of the essence in
this Agreement.
7.2 On the Closing Date, Seller shall deliver or cause to be delivered at
its expense each of the following items to Buyer:
(a) A duly executed and acknowledged special warranty deed or deeds
conveying the Real Property and the Improvements to Buyer;
(b) A duly executed quitclaim bill of sale conveying the Personal
Property to Buyer;
(c) A duly executed assignment and assumption of leases (the
"Assignment of Leases");
(d) A duly executed assignment and assumption of contracts,
licenses, guaranties, warranties, and intangible property (the "Assignment
of Contracts");
(e) A certificate or certificates of non-foreign status from Seller
reasonably acceptable to Buyer in form and substance;
(f) Customary affidavits and indemnities sufficient for the Title
Company to delete any exceptions for mechanic's or materialmen's liens
from Buyer's title policy and such other affidavits relating to such title
policy as the Title Company may reasonably request;
(g) Such other instruments as Buyer, Buyer's Lender or the Title
Company may reasonably request to effectuate the transactions contemplated
by this Agreement;
(h) A counterpart original of the closing statement setting forth
the Purchase Price, the closing adjustments and the application of the
Purchase Price as adjusted;
(i) Original tenant estoppel certificates to the extent required by
Section 4.5 of this Agreement; and
(j) A duly executed assignment and assumption of Seller's interest
in the ground lease on the parking garage.
7.3 On the Closing Date, Buyer shall deliver or cause to be delivered at
its expense each of the following to Seller:
(a) The Purchase Price for the Property, as such Purchase Price may
have been further adjusted pursuant to the provisions of this Agreement
and credited for any portion of the Escrowed Amount paid to Seller, in the
manner provided for in Article 3;
(b) Evidence in recordable form reasonably satisfactory to Seller of
Buyer's authority to purchase the Property;
(c) The Assignment of Leases;
(d) The Assignment of Contracts;
(e) Such other instruments as Seller may reasonably request to
effectuate the transactions contemplated by this Agreement; and
(f) A counterpart original of the closing statement setting forth
the Purchase Price, the closing adjustments and the application of such
amounts.
ARTICLE 8
CASUALTY AND CONDEMNATION
8.1 If the Improvements are materially damaged by fire or any other
casualty and are not substantially restored to the condition immediately prior
to such casualty before the Closing Date, Buyer shall have the following
elections:
(a) to purchase the Property in its then condition and pay the
Purchase Price, in which event Seller shall pay over or assign to Buyer as
the case may be, on the Closing Date, amounts recovered or recoverable by
Seller on account of any insurance as a result of such casualty up to the
amount of the Purchase Price, less any amounts reasonably expended by
Seller for partial restoration; or
(b) if any portion of the Improvements suffers damage in excess of
$1,000,000 from fire or any other casualty which Seller, in its sole
option, elects not to repair, to terminate this Agreement by giving notice
of termination to Seller on or before that date which is thirty (30) days
after the occurrence of the fire or other casualty or on the Closing Date,
whichever occurs first, in which event the Title Company shall return the
Escrowed Amount to Buyer, this Agreement shall terminate and neither
Seller nor Buyer shall have any recourse against the other (except to the
extent such recourse arises in connection with a provision of this
Agreement which is intended to survive termination).
8.2 If any portion of or interest in the Property shall be taken or is in
the process of being taken by exercise of the power of eminent domain or if any
governmental authority notifies Seller prior to the Closing Date of its intent
to take or acquire any portion of or interest in the Property (each an "Eminent
Domain Taking"), Seller shall give notice promptly to Buyer of such event and
Buyer shall have the option to terminate this Agreement by providing notice to
Seller to such effect on or before the date which is ten (10) days from Seller's
notice to Buyer of such Eminent Domain Taking or on the Closing Date, whichever
occurs first, in which event the Title Company shall return the Escrowed Amount
to Buyer, this Agreement shall terminate, and neither Seller nor Buyer shall
have any recourse against the other. If Buyer does not timely notify Seller of
its election to terminate this Agreement, Buyer shall purchase the Property and
pay the Purchase Price, and Seller shall pay over or assign to Buyer on delivery
of the deed awards recovered or recoverable by Seller on account of such Eminent
Domain Taking up to the amount of the Purchase Price, less any amounts
reasonably expended by Seller in obtaining such award.
ARTICLE 9
BROKERAGE COMMISSIONS
Seller and Buyer each mutually represent and warrant to the other that
they have not dealt with, and are not obligated to pay, any fees or commissions
to any broker in connection with the transaction contemplated by this Agreement
other than Cohen-Esrey Real Estate Services, Inc. (the "Seller's Broker") and
KOLL (the "Buyer's Broker"). Seller agrees to pay all commissions, payments and
fees due Cohen-Esrey Real Estate Services, Inc. Buyer agrees to pay all
commissions, payments and fees due KOLL. Buyer agrees to indemnify, defend and
hold Seller harmless from and against all liabilities, costs, damages and
expenses (including reasonable attorneys' fees) arising from any claims for
brokerage or finder's fees, commissions or other similar fees, including any
claim made by the Buyer's Broker, in connection with the transaction covered by
this Agreement insofar as such claims shall be based upon alleged arrangements
or agreements made by Buyer or on Buyer's behalf. Seller hereby agrees to
indemnify, defend and hold Buyer harmless from and against all liabilities,
costs, damages and expenses (including reasonable attorneys' fees) arising from
any claims for brokerage or finders' fees, commissions or other similar fees,
including any claim made by the Seller's Broker, in connection with the
transaction covered by this Agreement as such claims shall be based upon alleged
arrangements or agreements made by Seller or on Seller's behalf. The covenants
and agreements contained in this Article shall survive the termination of this
Agreement or the Closing of the transaction contemplated hereunder.
ARTICLE 10
DEFAULT, TERMINATION AND REMEDIES
10.1 Seller's Default. In the event that Seller shall have failed in any
material respect adverse to Buyer on the Closing Date to have performed any of
the covenants and agreements contained in this Agreement which are to be
performed by Seller on or before the Closing Date, Buyer shall have the
following remedies: (i) the right to take any and all legal actions necessary to
compel Seller's specific performance hereunder (it being acknowledged that
damages at law would be an inadequate remedy), and to consummate the transaction
contemplated by this Agreement in accordance with the provisions of this
Agreement (such conveyance shall be deemed to satisfy and waive any other
remedy) or (ii) the right to terminate this Agreement and receive the Escrowed
Amount, whereupon this Agreement shall terminate without further recourse. Buyer
hereby waives and relinquishes any right to sue Seller for any reason
whatsoever, except as expressly set forth in this Section 10.1, and agrees that
Seller shall not be liable to Buyer for any actual, punitive, speculative,
consequential or other damages for breach by Seller prior to the Closing, except
for payment of the Escrowed Amount.
10.2 Buyer's Default. In the event that Buyer shall have failed in any
material respect adverse to Seller on the Closing Date to have performed any of
the covenants and agreements contained in this Agreement which are to be
performed by Buyer on or before the Closing Date, or if Buyer defaults in its
obligation to close hereunder, Seller has the right to take any and all legal
actions necessary to compel Buyer's specific performance hereunder (it being
acknowledged that damages at law would be an inadequate remedy), and to
consummate the transaction contemplated by this Agreement in accordance with the
provisions of this Agreement (such conveyance shall be deemed to satisfy and
waive any other remedy), or Seller shall be entitled to receive the Escrowed
Amount as liquidated damages, in lieu of all other remedies available to Seller
at law or in equity for such default, and Buyer shall direct the Title Company
to release the Escrowed Amount to Seller. Seller and Buyer agree that the
damages resulting to Seller as a result of such default by Buyer as of the date
of this Agreement are difficult or impossible to ascertain and the liquidated
damages set forth in the preceding sentence constitute Buyer's and Seller's
reasonable estimate of such damages.
ARTICLE 11
REPRESENTATIONS AND WARRANTIES
11.1 Buyer's Representations and Warranties. Buyer represents and warrants
to Seller that:
(a) Buyer is a corporation, duly organized and in good standing
under the laws of the State of Florida, is qualified to do business in the State
of Missouri and has the power to enter into this Agreement and to execute and
deliver this Agreement and to perform all duties and obligations imposed upon it
hereunder, and Buyer has obtained all necessary corporate, partnership or other
organizational authorizations required in connection with the execution,
delivery and performance of this Agreement and the transaction contemplated
herein and has obtained the consent of all entities and parties (whether private
or governmental) necessary to bind Buyer to this Agreement;
(b) neither the execution nor the delivery of this Agreement, nor
the consummation of the purchase and sale transaction contemplated hereby, nor
the fulfillment of or compliance with the terms and conditions of this Agreement
conflict with or will result in the breach of any of the terms, conditions or
provisions of any agreement or instrument to which Buyer, or any shareholder,
partner or related entity or affiliate of Buyer, is a party or by which Buyer,
any shareholder, partner or related entity or affiliate of Buyer, or any of
Buyer's assets is bound;
(c) Buyer has the financial resources to timely consummate the
purchase and sale transaction contemplated by this Agreement;
(d) neither Buyer nor any shareholder, partner, related entity or
affiliate of Buyer is in any way affiliated with Seller, any of Seller's
partners, or any affiliate of any of the foregoing;
(e) Buyer is not an "employee benefit plan" as defined in Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), which is subject to Title 1 of ERISA and (b) the assets of Buyer do
not constitute "plan assets" of one or more such plans within the meaning of 29
C.F.R. Section 2510.3-101.
(f) Buyer is not a "governmental plan" within the meaning of Section
3(32) of ERISA or a "plan" within the meaning of Section 4975(e)(1) of the
Internal Revenue Code (the "Code").
(g) One or more of the following circumstances is true:
(i) Equity interests in Buyer are publicly offered securities,
within the meaning of 29 C.F.R. Section 2510.2-101(b)(2).
(ii) Less than 25 percent of all equity interests in Buyer are
held by "benefit plan investors" within the meaning of 29 C.F.R. Section
2510.3-101(f)(2); or
(iii) Buyer is a corporation that qualifies as either an
"operating company" or a "real estate operating company" within the meaning of
29 C.F.R. Section 2510.3-101(c) and (e).
(h) With respect to Seller, and with respect to any shareholder,
partner, related entity or affiliate of Seller, Buyer is neither (i) a party in
interest as defined in Section 3(14) of ERISA, nor (ii) a disqualified person as
defined in Section 4975(e)(2) of the Code.
(i) that prior to the Diligence Date, Buyer will have examined and
investigated to Buyer's full satisfaction the physical, economic and legal
condition of the Property and made all other inquiries Buyer deemed necessary in
connection with the transaction herein contemplated; and
(j) except to the limited extent, if any, specifically and expressly
set forth in this Agreement, Buyer shall accept the Property "AS IS" and "WHERE
IS" at Closing, and Buyer has not relied upon and will not rely upon, and Seller
is not liable for or bound by any, express or implied, warranties, guarantees,
statements, representations or information pertaining to the Property or
relating thereto made or furnished by Seller or any of its advisors, or any of
their agents, representatives, contractors, employees, attorneys or brokers, to
whomever made or given, directly or indirectly, verbally or in writing, unless
specifically and expressly set forth herein.
Buyer's representations and warranties set forth in this Section 11.1 shall
survive for a period of six (6) months following the Closing or termination of
this Agreement. As a condition precedent to Seller's obligation to close the
purchase and sale transaction contemplated in this Agreement, Buyer's
representations and warranties contained herein must remain and be true and
correct as of the Closing Date. Prior to the Closing Date, Buyer shall notify
Seller in writing of any facts, conditions or circumstances which render any of
the representations and warranties set forth in this Section 11.1 in any way
inaccurate, incomplete, incorrect or misleading.
11.2 Seller's Representations and Warranties. Seller represents and
warrants to Buyer that:
(a) Seller has the full right, power, and authority, without the
joinder of any other person or entity, to enter into, execute and deliver this
Agreement, and to perform all duties and obligations imposed on Seller under
this Agreement, except to the limited extent, if any, specifically and expressly
set forth in this Agreement; and
(b) neither the execution nor the delivery of this Agreement, nor
the consummation of the purchase and sale contemplated hereby, nor the
fulfillment of or compliance with the terms and conditions of this Agreement
conflict with or will result in the breach of any of the terms, conditions, or
provisions of any agreement or instrument to which Seller is a party or by which
Seller or any of Seller's assets is bound.
Seller's representations and warranties set forth in this Section 11.2
shall survive the Closing or earlier termination of this Agreement for a period
of six (6) months, and no such breach shall be deemed to exist unless Buyer
provides Seller with notice of an alleged breach prior to the expiration of the
six month period.
As a condition precedent to Buyer's obligation to close the purchase and
sale transaction contemplated in this Agreement, Seller's representations and
warranties contained herein must remain and be true and correct as of the
Closing Date. Prior to the Closing Date, Seller shall notify Buyer in writing of
any facts, conditions or circumstances which render any of the representations
and warranties set forth in this Section 11.2 in any way inaccurate, incomplete,
incorrect or misleading.
ARTICLE 12
MISCELLANEOUS
12.1 Permitted Successors and Assigns. Buyer may assign or transfer its
rights under this Agreement to an entity owned or controlled by Buyer or which
owns or controls Buyer, or to any entity which acquires all or substantially all
of the Buyer's assets, provided that Buyer obtains the prior written consent of
Seller to such assignment or transfer, which shall not be unreasonably withheld.
The covenants and agreements contained in this Agreement shall extend to and be
obligatory upon the permitted successors and assigns of the respective parties
to this Agreement.
12.2 Notices. Except as otherwise specifically provided herein, any notice
required or permitted to be delivered under this Agreement shall be in writing
and shall be deemed given if (i) delivered by hand during regular business
hours, (ii) sent by United States Postal Service, registered or certified mail,
postage prepaid, return receipt requested, or (iii) sent by a reputable
overnight express mail service that provides tracing and proof of receipt or
refusal of items mailed, addressed to Seller or Buyer, as the case may be, at
the address or addresses set forth below or such other addresses as the parties
may designate in a notice similarly sent. Any notice given by a party to Title
Company shall be simultaneously given to the other party. Any notice given by a
party to the other party relating to its entitlement to the Escrowed Amount
shall be simultaneously given to the Title Company.
(1) If to Seller:
PaineWebber Qualified Plan Property Fund Two, LP
c/o PaineWebber Properties
265 Franklin Street
Boston, MA 02110
Attn: Portfolio Group
with a copy to:
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 02109
Attn: Susan Hall Mygatt, Esq.
(2) If to Buyer:
Chesapeake Atlantic Holdings, Inc.
220 East Madison Street
Suite 1200
Tampa, FL 33602
Attn: Gregory L. Hughes, President
(3) If to the Title Company:
Stewart Title Company
1220 Washington, Suite 100
Kansas City, MO 64105
Attn: Patricia Jennings, Commercial Escrow Officer
12.3 Construction. Words of any gender used in this Agreement shall be
held and construed to include any other gender, and words of a singular number
shall be held to include the plural and vice versa, unless the context requires
otherwise.
12.4 Captions. The captions used in connection with the Articles of this
Agreement are for convenience only and shall not be deemed to extend, limit or
otherwise define or construe the meaning of the language of this Agreement.
12.5 No Other Parties. Nothing in this Agreement, express or implied, is
intended to confer upon any person, other than the parties hereto and their
respective successors and assigns, any rights or remedies under or by reason of
this Agreement.
12.6 Amendments. This Agreement may be amended only by a written
instrument executed by Seller and Buyer (or Buyer's assignee or transferee).
12.7 Entire Agreement. This Agreement embodies the entire agreement
between Seller and Buyer with respect to the transaction contemplated in this
Agreement, and there have been and are no covenants, agreements,
representations, warranties or restrictions between Seller and Buyer with regard
thereto other than those set forth or provided for in this Agreement.
12.8 Applicable Law. This Agreement shall be construed under and in
accordance with the laws of The State of Missouri.
12.9 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be an original but such counterparts together
shall constitute one and the same instrument notwithstanding that both Buyer and
Seller are not signatory to the same counterpart.
12.10 Title Company. The Title Company has executed this Agreement only
for the purpose of agreeing to perform the duties assigned to it under this
Agreement. The Title Company shall, upon receiving a copy of a notice given by a
party in accordance with this Agreement claiming entitlement to all or a portion
of the Escrowed Amount, give a notice to the other party that such claim of
entitlement has been made. The Title Company shall not cause or permit any
portion of the Escrowed Amount to be disbursed until the expiration of five (5)
days of giving such notice whereupon, if the party to whom such notice was given
has not given the Title Company notice of its objection to a disbursement in
accordance with the claim of entitlement, the Title Company shall cause a
disbursement of the Escrowed Amount as requested. If such party timely objects,
however, the Title Company shall retain the Escrowed Amount and not disburse any
portion of the same unless directed by the mutual written direction of the
parties. The Title Company shall at all times disburse the Escrowed Amount as
required in a mutual written direction of the parties.
12.11 Title Company, Continued. In the event of any disagreement between
the parties, the Title Company shall retain all deposits pending instructions
mutually agreed to by Seller and Buyer. In the event there is no mutual
agreement by Seller and Buyer for disbursements, the Title Company shall hold
said deposits pending a court order to disburse. The Title Company may
conclusively rely on the authenticity, validity and effectiveness of any writing
delivered to it, and Title Company shall not be obligated to make any
investigation or determination, except as provided in the case of disputes as to
the truth and accuracy of any information contained therein. Buyer and Seller
agree to defend, indemnify and hold Title Company harmless from any liabilities,
suits, claims, or expenses arising from or out of or in connection with Title
Company's acts or failure to act hereunder, unless caused or created as a result
of Title Company's negligence, and Title Company shall be entitled to
reimbursement by Buyer and/or Seller for all reasonable costs and expenses
incurred in the performance of its duties hereunder including, without
limitation, all out-of-pocket expenses and reasonable attorneys fees of counsel
retained by Title Company. Any such costs and expenses not paid by the parties
after billing and supporting documentation by Title Company may be paid by Title
Company out of the Escrowed Amount. If there is a settlement by Buyer and Seller
prior to a court order, Buyer and Seller will share equally in the expenses
incurred by the Title Company. Otherwise, the non-prevailing party shall assume
full responsibility for the Title Company's expenses. Title Company is not
required to advance or expend or risk its own funds or otherwise incur personal
liability in performance of its duties hereunder and it may require advancement
of funds by the parties. Title Company will hold the Deposit in Bank Boston,
N.A., State Street Bank and Trust Company or Fleet Bank, N.A. (each, an
"Acceptable Bank") in an account as required by Section 3.2 above. Except for
any claim, action or proceeding resulting in a final determination that the
Title Company acted in bad faith, negligently or engaged in any type of willful
misconduct the Title Company shall not be responsible for any loss or delay
occasioned by the closure or insolvency of the institution in which any funds
are invested in accordance with this Agreement; provided that Title Company
deposits the Deposit in an Acceptable Bank as required herein. The Title Company
shall have no liability for interest on such funds provided that the Title
Company deposits the Deposit as required herein.
12.12 Financial Information. At Buyer's request after the Closing Date,
Seller agrees to make available to Buyer or Buyer's designated representative,
at no cost to Seller, upon reasonable request within six (6) months after the
Closing, such books, accounts and records as are in Seller's possession and
which are necessary for Buyer to conduct an audit of the Property's preceding
fiscal year, and agrees to sign an appropriate disclosure letter prepared by the
auditors. Such audit is to be conducted solely at Buyer's expense for the
purpose of satisfying its requirements as a publicly held entity. The use of any
such information by Buyer or Buyer's designated representative shall be subject
to the confidentiality requirements of Section 5.5, except to the extent such
information is included in statements required by the SEC Regulations.
12.13 Time of the Essence. Time is expressly declared to be of the essence
of this Agreement.
12.14 No Personal Liability. The obligations of Seller hereunder shall be
binding only on the Property and neither Buyer nor anyone claiming by, through
or under Buyer shall be entitled to obtain any judgment extending liability
beyond the Property or creating personal liability on the part of the officers,
directors, shareholders, or agents of Seller or any of their successors. The
obligations of Buyer hereunder shall be binding only on the assets of Buyer and
neither Seller nor anyone claiming by, through or under Seller shall be entitled
to obtain any judgment creating personal liability on the part of the partners,
officers, shareholders, or agents of Buyer or any of their successors.
12.15 Survival. All of the representations, warranties, covenants and
agreements of Seller and Buyer made in or pursuant to this Agreement shall not
survive the Closing, and shall merge into the deed or other document or
instrument executed and delivered in connection herewith, except as expressly
set forth to the contrary. Notwithstanding the foregoing, (a) the
representations and warranties that survive the Closing of Seller shall survive
the Closing for a period of not more than six (6) months from the date thereof,
provided that the party alleging a breach of any of the other parties'
representations and warranties delivers real notice to the alleged breaching
party within such period.
12.16 Full Force and Effect. Both Seller and Buyer agree that this
Agreement is binding and of full force and effect only upon the execution of
this Agreement by Seller and Buyer no later than Tuesday, August 12, 1997.
ARTICLE 13
IRS FORM 1099-S DESIGNATION
13.1 In order to comply with information reporting requirements of Section
6045(e) of the Internal Revenue Code of 1986, as amended, and the Treasury
Regulations thereunder, the parties agree (1) to execute an IRS Form 1099-S
Designation Agreement in the form attached hereto as Schedule F at or prior to
the Closing to designate the Title Company (the "Designee") as the party who
shall be responsible for reporting the contemplated sale of the Property to the
Internal Revenue Service (the "IRS") on IRS Form 1099-S; (2) to provide the
Designee with the information necessary to complete Form 1099-S; (3) that the
Designee shall not be liable for the actions taken under this Agreement, or for
the consequences of those actions, except as they may be the result of gross
negligence or willful misconduct on the part of the Designee; and (4) that the
Designee shall be indemnified by the parties for any costs or expenses incurred
as a result of the actions taken hereunder, except as they may be the result of
gross negligence or willful misconduct on the part of the Designee. The Designee
shall provide all parties to this transaction with copies of the IRS Forms
1099-S filed with the IRS and with any other documents used to complete IRS Form
1099-S.
IN WITNESS WHEREOF, the parties have executed this instrument as of the day and
year first set forth above.
SELLER:
PaineWebber Qualified Plan Property Fund Two, LP
a Delaware limited partnership
By: Second Qualified Properties, Inc.
Managing Partner
By: /s/ Celia R. Deluga
-------------------
Celia R. Deluga
Vice President
BUYER:
Chesapeake Atlantic Holdings, Inc.
By: /s/ Gregory L. Hughes
---------------------
Gregory L. Hughes
President
TITLE COMPANY:
Stewart Title of Kansas City
By: /s/ Patricia Jennings
---------------------
Patricia Jennings
Commercial Escrow Officer
<PAGE>
SCHEDULE A
TRACT I:
All of Lots 44, 45 and 46, except that part thereof in Walnut Street, SWOPE'S
ADDITION, a subdivision in Kansas City, Jackson County, Missouri, according to
the recorded plat thereof recorded in Plat Book A-1, Page 28 of the Office of
the Recorder of Deeds, Jackson County, Missouri.
TRACT II:
All of Lots 82 and 83, and all that part of Lot 81 lying South of a line drawn
East and West through the center of the South wall of the 6 1/2 story building
now situated on Lot 81 and extending to the East and West boundary lines of said
Lot, as said wall is described in the Party Wall Agreement filed for record on
January 15, 1910, as Document Number 740232, and recorded in Book B-1264, Page
438, all in SWOPE'S ADDITION, a subdivision in Kansas City, Jackson County,
Missouri, according to the plat thereof recorded in Plat Book A-1, Page 28 in
the Office of the Recorder of Deeds, Jackson County, Missouri.
TRACT III:
The leasehold estate created by that certain lease dated January 26, 1972 by and
between Sara Realty Company, a Missouri Corporation, as lessor and Allright
Kansas City, Inc., a Missouri Corporation, as lessee, a memorandum of said Lease
having been filed in the Office of the Recorder of Deeds for Jackson County,
Missouri, on August 24, 1973, as Document Number K-205022 in Book K-463 at Page
1140, as amended by Lease Amendment dated as of November 30, 1973, and filed in
the Office of the aforesaid Recorder of Deeds July 30, 1974, as Document Number
K-235838 in Book K-538 at page 1026, and the Assignment of Lease, dated April
22, 1983, notice of which is given by Special Warranty Deed filed April 12,
1993, under Document No. K-1075191 in Book K-2375 at Page 1795 affecting the
property described as follows:
All of Lot 84, SWOPE'S ADDITION, a subdivision in Kansas City, Jackson
County, Missouri, according to the recorded plat thereof recorded in Plat Book
A-1, Page 28, in the Office of the Recorder of Deeds, Jackson County, Missouri.
<PAGE>
First Amendment to Purchase and Sale Agreement
This First Amendment to Purchase and Sale Agreement (the "Purchase
Agreement") is made this 7th day of November, 1997 by and between Chesapeake
Atlantic Holdings, Inc. (the "Buyer") and Paine Webber Qualified Plan Property
Fund Two, L.P. (the "Seller").
WHEREAS, on August 14, 1997, Buyer and Seller entered into the Purchase
Agreement and desire to amend the Purchase Agreement in the manner hereinafter
set forth:
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Seller and Buyer agree as follows:
1. The Purchase Price is hereby amended to be Seven Million Two
Hundred Eighty Three Thousand Four Hundred and 00/100 Dollars
($7,283,400.00).
2. Buyer hereby agrees to indemnify and hold Seller harmless from
and against any claims related to that certain Lease between Seller and
Grant Thornton dated on or about March, 1994, including, but not limited
to, any claims arising either before or after the date first above written
and any claims relating to any overpayment of rent or charges or future
reduction in rent.
3. Except as expressly modified herein, the Purchase Agreement
remains in full force and effect and is hereby ratified and confirmed.
PAINE WEBBER QUALIFIED PLAN
PROPERTY FUND TWO, L.P.
By: Second Qualified Properties, Inc.
Managing Partner
/s/ Celia R. Deluga
-------------------
By: Celia R. Deluga, Vice President
CHESAPEAKE ATLANTIC HOLDINGS, INC.
/s/ Gregory L. Hughes
---------------------
By: Gregory L. Hughes, President
<PAGE>
SPECIAL WARRANTY DEED
As of November 10, 1997
This deed witnesseth, that PaineWebber Qualified Plan Property Fund Two,
LP, a Delaware limited partnership ("Grantor"), for and in consideration of the
sum of Ten Dollars ($10.00) and other good and valuable consideration, does by
these presents, sell and convey unto Chesapeake Atlantic Holdings, Inc., a
Florida corporation with an address of 220 East Madison Street, Suite 1200,
Tampa, FL 33602 ("Grantee"), its successors, heirs and assigns the following
land and leasehold interest situated in Jackson County, Missouri known as
Mercantile Tower and parking garage, as more particularly described in Exhibit A
(the "Property").
To have and to hold the Property aforesaid, with all and singular rights,
privileges, appurtenances and immunities thereto belonging or in anywise
appertaining unto said Grantee, and unto heirs and assigns forever; Grantor
hereby covenanting that the Property is free and clear from any incumbrance done
or suffered by Grantor; and that Grantor will warrant and defend the title to
said premises unto said Grantee and unto Grantee's heirs and assigns forever
against the lawful claims and demands of all persons claiming under Grantor but
none other, subject to easements, covenants and restrictions of record.
Executed as a sealed instrument this 10th day of November 1997.
GRANTOR:
PaineWebber Qualified Plan Property Fund
Two, L.P., a Delaware limited partnership
By: Second Qualified Properties, Inc.,
a Delaware corporation,
Managing General Partner
By: /s/ Celia R. Deluga
-------------------
Name: Celia R. Deluga
Title: Vice President
<PAGE>
In the Commonwealth of Massachusetts, County of Suffolk, on this 10th day
of November 1997, before me, the undersigned a Notary Public in and for said
County and State, Celia R. Deluga personally appeared to me known to be the
person described in and who executed the foregoing instrument, and acknowledged
that she executed the same as her free act and deed, and as the free act and
deed of said limited partnership.
Witness my hand and Notarial Seal subscribed
and affixed in said County and State the day
and year in this certificate above
written.
(N.P. Seal) Rufina Garay
Notary Public
My term expires:
<PAGE>
"EXHIBIT A"
TRACT I:
All of Lots 44, 45 and 46, except that part thereof in Walnut Street, SWOPE'S
ADDITION, a subdivision in Kansas City, Jackson County, Missouri, according to
the recorded plat thereof recorded in Plat Book A-1, Page 28 of the Office of
the Recorder of Deeds, Jackson County, Missouri.
TRACT II:
All of Lots 82 and 83, and all that part of Lot 81 lying South of a line drawn
East and West through the center of the South wall of the 6 1/2 story building
now situated on Lot 81 and extending to the East and West boundary lines of said
Lot, as said wall is described in the Party Wall Agreement filed for record on
January 15, 1910, as Document Number 740232, and recorded in Book B-1264, Page
438, all in SWOPE'S ADDITION, a subdivision in Kansas City, Jackson County,
Missouri, according to the plat thereof recorded in Plat Book A-1, Page 28 in
the Office of the Recorder of Deeds, Jackson County, Missouri.
TRACT III:
The leasehold estate created by that certain lease dated January 26, 1972 by and
between Sara Realty Company, a Missouri Corporation, as lessor and Allright
Kansas City, Inc., a Missouri Corporation, as lessee, a memorandum of said Lease
having been filed in the Office of the Recorder of Deeds for Jackson County,
Missouri, on August 24, 1973, as Document Number K-205022 in Book K-463 at Page
1140, as amended by Lease Amendment dated as of November 30, 1973, and filed in
the Office of the aforesaid Recorder of Deeds July 30, 1974, as Document Number
K-235838 in Book K-538 at page 1026, and the Assignment of Lease, dated April
22, 1983, notice of which is given by Special Warranty Deed filed April 12,
1993, under Document No. K-1075191 in Book K-2375 at Page 1795 affecting the
property described as follows:
All of Lot 84, SWOPE'S ADDITION, a subdivision in Kansas City, Jackson
County, Missouri, according to the recorded plat thereof recorded in Plat Book
A-1, Page 28, in the Office of the Recorder of Deeds, Jackson County, Missouri.
<PAGE>
ASSIGNMENT OF LEASES
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby
acknowledged, PAINEWEBBER QUALIFIED PLAN PROPERTY FUND TWO, L.P., a Delaware
limited partnership ("Assignor"), hereby assigns, sells, transfers, sets over
and delivers unto CHESAPEAKE ATLANTIC HOLDINGS, INC., a Florida corporation
("Assignee"), all of Assignor's estate, right, title and interest in and to the
following:
A. all leases, licenses, tenancy agreements or occupancy agreements relative to
the real property known as the Mercantile Tower and parking garage, located at
1101 Walnut and in the 11th hundred block of Grand, respectively, in Kansas
City, Missouri ("Property") described in Exhibit "A" attached hereto, together
with all rents, issues and profits thereunder (collectively, "Leases"); and
A. all security deposits, prepaid rentals, cleaning fees and
other deposits paid by tenants of the Property to Assignor or any agent of
Assignor ("Deposits").
Assignee hereby assumes the performance of all of the terms, covenants and
conditions imposed upon Assignor under the Leases accruing or arising on or
after the date of delivery of this Agreement.
Assignor agrees to timely keep, perform and discharge all of the
obligations of landlord under the Leases that have accrued and/or were to have
been performed prior to the date of delivery of this Assignment. Assignor shall
indemnify, defend and hold Assignee harmless from and against any and all
claims, demands, liabilities and obligations of landlord under the Leases
arising out of or relating to the period prior to the date of delivery of this
Assignment. Assignee agrees to timely keep, perform and discharge all of the
obligations of landlord under the Leases that shall accrue and/or are to be
performed after the date of delivery of this Assignment. Assignee shall
indemnify, defend and hold Assignor harmless from and against any and all
claims, demands, liabilities and obligations of landlord under the Leases
arising out of or relating to the period after the date of delivery of this
Assignment.
Assignee agrees that notwithstanding Assignor's warranties in the Special
Warranty Deed (the "Deed") with respect to the Property from Assignor to
Assignee recorded of even date herewith, none of the Leases assigned under this
Assignment of Leases shall be a breach of said Deed.
This Assignment of Leases may be executed in one or more counterparts,
each of which shall be deemed an original, and all of such counterparts, taken
together, shall constitute one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment as
of the 10th day of November, 1997, which Assignment is effective on that date.
ASSIGNOR
PAINEWEBBER QUALIFIED PLAN PROPERTY FUND
TWO, L.P., a Delaware limited partnership
By: Second Qualified Properties, Inc.,
a Delaware corporation,
Managing General Partner
By: /s/ Celia R. Deluga
-------------------
Celia R. Deluga, Vice President
ASSIGNEE
CHESAPEAKE ATLANTIC HOLDINGS, INC., a Florida
corporation
By: /s/ Gregory L. Hughes
---------------------
Gregory L. Hughes, President
<PAGE>
STATE OF MASSACHUSETTS )
) ss.
COUNTY OF SUFFOLK )
On this 10th day of November, 1997, before me, Rufina Garay, a Notary
Public, State of Massachusetts, duly commissioned and sworn, personally appeared
Celia R. Deluga, known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that she executed the same in her authorized
capacity as Vice President of PaineWebber Qualified Plan Property Fund Two,
L.P., and is duly authorized in that capacity to execute the foregoing
instrument for and in the name of and on behalf of its general partner Second
Qualified Partners, Inc., and that by her signature on the instrument the person
or the entity upon behalf of which person acted, executed the instrument.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this
10th day of November, 1997.
Rufina Garay
Notary Public:
My Commission Expires:
<PAGE>
STATE OF _______________ )
) ss.
COUNTY OF ____________ )
On this ___ day of November, 1997, before me, ____________, a Notary
Public, State of __________________, duly commissioned and sworn, personally
appeared Gregory L. Hughes, known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he executed the same in his
authorized capacity as President of Chesapeake Atlantic Holdings, Inc., and that
by his signature on the instrument the person or the entity upon behalf of which
person acted, executed the instrument.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this
___ day of November, 1997.
------------------------------
Notary Public:
My Commission Expires:
<PAGE>
"EXHIBIT A"
TRACT I:
All of Lots 44, 45 and 46, except that part thereof in Walnut Street, SWOPE'S
ADDITION, a subdivision in Kansas City, Jackson County, Missouri, according to
the recorded plat thereof recorded in Plat Book A-1, Page 28 of the Office of
the Recorder of Deeds, Jackson County, Missouri.
TRACT II:
All of Lots 82 and 83, and all that part of Lot 81 lying South of a line drawn
East and West through the center of the South wall of the 6 1/2 story building
now situated on Lot 81 and extending to the East and West boundary lines of said
Lot, as said wall is described in the Party Wall Agreement filed for record on
January 15, 1910, as Document Number 740232, and recorded in Book B-1264, Page
438, all in SWOPE'S ADDITION, a subdivision in Kansas City, Jackson County,
Missouri, according to the plat thereof recorded in Plat Book A-1, Page 28 in
the Office of the Recorder of Deeds, Jackson County, Missouri.
TRACT III:
The leasehold estate created by that certain lease dated January 26, 1972 by and
between Sara Realty Company, a Missouri Corporation, as lessor and Allright
Kansas City, Inc., a Missouri Corporation, as lessee, a memorandum of said Lease
having been filed in the Office of the Recorder of Deeds for Jackson County,
Missouri, on August 24, 1973, as Document Number K-205022 in Book K-463 at Page
1140, as amended by Lease Amendment dated as of November 30, 1973, and filed in
the Office of the aforesaid Recorder of Deeds July 30, 1974, as Document Number
K-235838 in Book K-538 at page 1026, and the Assignment of Lease, dated April
22, 1983, notice of which is given by Special Warranty Deed filed April 12,
1993, under Document No. K-1075191 in Book K-2375 at Page 1795 affecting the
property described as follows:
All of Lot 84, SWOPE'S ADDITION, a subdivision in Kansas City, Jackson
County, Missouri, according to the recorded plat thereof recorded in Plat Book
A-1, Page 28, in the Office of the Recorder of Deeds, Jackson County, Missouri.
<PAGE>
GENERAL ASSIGNMENT
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby
acknowledged, PAINEWEBBER QUALIFIED PLAN PROPERTY FUND TWO, L.P., a Delaware
limited partnership ("Assignor"), hereby assigns, sells, transfers, sets over
and delivers unto CHESAPEAKE ATLANTIC HOLDINGS, INC., a Florida corporation
("Assignee"), all of Assignor's estate, right, title and interest in and to the
following:
A. all licenses, permits, certificates of occupancy, approvals, entitlement,
dedications, and subdivision maps issued, approved or granted by any
governmental authorities or otherwise in connection with the real property known
as the Mercantile Tower and parking garage, located at 1101 Walnut and 11th
hundred block of Grand, respectively, Kansas City, Missouri ("Property")
described in Exhibit "A" attached hereto; the use of the name "Mercantile Tower"
and any other trade names, trademarks, and logos used by Assignor in the
operation and identification of the Property; all development rights and other
intangible rights, titles, interests, privileges and appurtenances of Assignor
related to or used in connection with the Property and its operation; and all
licenses, consents, easements, rights of way and approvals issued, approved or
granted by any private parties to make use of utilities and to insure vehicular
and pedestrian ingress and egress to the Property (collectively, "Licenses and
Permits"); and
A. all plans and specifications respecting any buildings or improvements located
on the Property; and all building inspection reports pertaining to the Property
which are owned by and within the possession or control of Assignor
(collectively, "Records and Plans").
Assignor makes no warranties of any kind or nature, express or implied,
regarding the Licenses and Permits and Records and Plans.
Assignee hereby assumes the performance of all of the terms, covenants and
conditions imposed upon Assignor under the Licenses and Permits and Records and
Plans accruing or arising on or after the date of delivery of this Assignment.
Assignor shall be responsible for the performance of all of the terms, covenants
and conditions imposed upon Assignor under the Licenses and Permits and Records
and Plans accruing or arising prior to the date of delivery of this Assignment.
This Assignment may be executed in one or more counterparts, each of which
shall be deemed an original, and all of such counterparts, taken together, shall
constitute one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment as
of the 10th day of November, 1997, which Assignment is effective on that date.
ASSIGNOR
PAINEWEBBER QUALIFIED PLAN PROPERTY FUND TWO, a
Delaware limited partnership
By: Second Qualified Properties, Inc.,
a Delaware corporation,
Managing General Partner
By: /s/ Celia R. Deluga
-------------------
Celia R. Deluga, Vice President
ASSIGNEE
CHESAPEAKE ATLANTIC HOLDINGS, INC., a Florida
corporation
By: /s/ Gregory L. Hughes
---------------------
Gregory L. Hughes, President
<PAGE>
STATE OF MASSACHUSETTS )
) ss.
COUNTY OF SUFFOLK )
On this 10th day of November, 1997, before me, Rufina Garay, a Notary
Public, State of Massachusetts, duly commissioned and sworn, personally appeared
Celia R. Deluga, known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that she executed the same in her authorized
capacity as Vice President of PaineWebber Qualified Plan Property Fund Two,
L.P., and that she is duly authorized in that capacity to execute the foregoing
instrument for and in the name of and on behalf of its general partner Second
Qualified Partners, Inc., and that by her signature on the instrument the person
or the entity upon behalf of which person acted, executed the instrument.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this
10th day of November, 1997.
Rufina Garay
Notary Public:
My Commission Expires:
<PAGE>
STATE OF ______________ )
) ss.
COUNTY OF ___________ )
On this ___ day of November, 1997, before me, ____________, a Notary
Public, State of _______________, duly commissioned and sworn, personally
appeared Gregory L. Hughes, known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he executed the same in his
authorized capacity as President of Chesapeake Atlantic Holdings, Inc., and that
by his signature on the instrument the person or the entity upon behalf of which
person acted, executed the instrument.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this
___ day of November, 1997.
------------------------------
Notary Public:
My Commission Expires:
<PAGE>
"EXHIBIT A"
TRACT I:
All of Lots 44, 45 and 46, except that part thereof in Walnut Street, SWOPE'S
ADDITION, a subdivision in Kansas City, Jackson County, Missouri, according to
the recorded plat thereof recorded in Plat Book A-1, Page 28 of the Office of
the Recorder of Deeds, Jackson County, Missouri.
TRACT II:
All of Lots 82 and 83, and all that part of Lot 81 lying South of a line drawn
East and West through the center of the South wall of the 6 1/2 story building
now situated on Lot 81 and extending to the East and West boundary lines of said
Lot, as said wall is described in the Party Wall Agreement filed for record on
January 15, 1910, as Document Number 740232, and recorded in Book B-1264, Page
438, all in SWOPE'S ADDITION, a subdivision in Kansas City, Jackson County,
Missouri, according to the plat thereof recorded in Plat Book A-1, Page 28 in
the Office of the Recorder of Deeds, Jackson County, Missouri.
TRACT III:
The leasehold estate created by that certain lease dated January 26, 1972 by and
between Sara Realty Company, a Missouri Corporation, as lessor and Allright
Kansas City, Inc., a Missouri Corporation, as lessee, a memorandum of said Lease
having been filed in the Office of the Recorder of Deeds for Jackson County,
Missouri, on August 24, 1973, as Document Number K-205022 in Book K-463 at Page
1140, as amended by Lease Amendment dated as of November 30, 1973, and filed in
the Office of the aforesaid Recorder of Deeds July 30, 1974, as Document Number
K-235838 in Book K-538 at page 1026, and the Assignment of Lease, dated April
22, 1983, notice of which is given by Special Warranty Deed filed April 12,
1993, under Document No. K-1075191 in Book K-2375 at Page 1795 affecting the
property described as follows:
All of Lot 84, SWOPE'S ADDITION, a subdivision in Kansas City, Jackson
County, Missouri, according to the recorded plat thereof recorded in Plat Book
A-1, Page 28, in the Office of the Recorder of Deeds, Jackson County, Missouri.
<PAGE>
BILL OF SALE
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby
acknowledged, PAINEWEBBER QUALIFIED PLAN PROPERTY FUND TWO, L.P., a Delaware
limited partnership ("Seller") does hereby grant, sell, transfer, and deliver to
CHESAPEAKE ATLANTIC HOLDINGS, INC., a Florida corporation ("Buyer"), all of the
furnishings, fixtures, equipment and other personal property, including, without
limitation, the personal property, which personal property is, as of the date
hereof, owned by Seller and located at the real property known as the Mercantile
Tower and parking garage, located at 1101 Walnut and 11th hundred block of
Grand, respectively, Kansas City, Missouri, which real property is described in
Exhibit A attached hereto.
Buyer purchases such personal property "AS IS" and "WHERE IS" and solely
in reliance upon Buyer's personal inspection and knowledge of such personal
property. Seller does hereby warrant that all such personal property is free
from encumbrances created or suffered thereon by Seller and that Seller will
warrant and defend the same in favor of Buyer against the lawful claims of all
persons claiming by, through or under Seller.
<PAGE>
IN WITNESS WHEREOF, this document is executed as a sealed instrument as of
this 10th day of 1997.
SELLER:
PAINEWEBBER QUALIFIED PLAN PROPERTY FUND
TWO, L.P., a Delaware limited partnership
By: Second Qualified Properties, Inc.,
a Delaware corporation,
Managing General Partner
By: /s/ Celia R. Deluga
-------------------
Celia R. Deluga, Vice President
<PAGE>
"EXHIBIT A"
TRACT I:
All of Lots 44, 45 and 46, except that part thereof in Walnut Street, SWOPE'S
ADDITION, a subdivision in Kansas City, Jackson County, Missouri, according to
the recorded plat thereof recorded in Plat Book A-1, Page 28 of the Office of
the Recorder of Deeds, Jackson County, Missouri.
TRACT II:
All of Lots 82 and 83, and all that part of Lot 81 lying South of a line drawn
East and West through the center of the South wall of the 6 1/2 story building
now situated on Lot 81 and extending to the East and West boundary lines of said
Lot, as said wall is described in the Party Wall Agreement filed for record on
January 15, 1910, as Document Number 740232, and recorded in Book B-1264, Page
438, all in SWOPE'S ADDITION, a subdivision in Kansas City, Jackson County,
Missouri, according to the plat thereof recorded in Plat Book A-1, Page 28 in
the Office of the Recorder of Deeds, Jackson County, Missouri.
TRACT III:
The leasehold estate created by that certain lease dated January 26, 1972 by and
between Sara Realty Company, a Missouri Corporation, as lessor and Allright
Kansas City, Inc., a Missouri Corporation, as lessee, a memorandum of said Lease
having been filed in the Office of the Recorder of Deeds for Jackson County,
Missouri, on August 24, 1973, as Document Number K-205022 in Book K-463 at Page
1140, as amended by Lease Amendment dated as of November 30, 1973, and filed in
the Office of the aforesaid Recorder of Deeds July 30, 1974, as Document Number
K-235838 in Book K-538 at page 1026, and the Assignment of Lease, dated April
22, 1983, notice of which is given by Special Warranty Deed filed April 12,
1993, under Document No. K-1075191 in Book K-2375 at Page 1795 affecting the
property described as follows:
All of Lot 84, SWOPE'S ADDITION, a subdivision in Kansas City, Jackson
County, Missouri, according to the recorded plat thereof recorded in Plat Book
A-1, Page 28, in the Office of the Recorder of Deeds, Jackson County, Missouri.
<PAGE>
TERMINATION OF GROUND LEASE
Reference is made to that certain Ground Lease between PaineWebber
Qualified Plan Property Fund Two, LP ("PaineWebber"), as lessor, to Mercantile
Tower Development Limited Partnership, a Missouri general partnership (the
"Lessee"), dated April 28, 1983 (the "Lease"), public notice of which is given
by Notice of Ground Lease dated April 28, 1983 as Document No. K-558741,
recorded in the official records in Jackson County, Missouri in Book K-1210 at
Page 1194, affecting Tracts I, II and III as more particularly described in
Exhibit A attached hereto, with such Lessee's interest assigned to Assignor by
Special Warranty Deed recorded April 12, 1993 in the official records in Jackson
County, Missouri as Document No. K-1075191 in Book K-2375 at Page 1795.
PaineWebber, holder of both the lessor's interest in the Lease and the
Lessee's interest in the Lease, hereby terminates the same.
[Intentionally left blank]
<PAGE>
EXECUTED as a sealed instrument this 10th day of November, 1997.
PAINEWEBBER QUALIFIED PLAN
PROPERTY FUND TWO, LP, a Delaware
limited partnership
By: Second Qualified Properties,Inc.,
Its Managing General Partner
By: /s/ Celia R. Deluga
-------------------
Celia R. Deluga
Vice President
STATE OF MASSACHUSETTS )
) ss.
COUNTY OF SUFFOLK )
On this 10th day of November, 1997, before me, Rufina Garay, a Notary
Public, State of Massachusetts, duly commissioned and sworn, personally appeared
Celia R. Deluga, known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that she executed the same in her authorized
capacity as Vice President of PaineWebber Qualified Plan Property Fund Two,
L.P., and is duly authorized in that capacity to execute the foregoing
instrument for and in the name of and on behalf of its general partner Second
Qualified Partners, Inc., and that by her signature on the instrument the person
or the entity upon behalf of which person acted, executed the instrument.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this
10th day of November, 1997.
Rufina Garay
Notary Public:
My Commission Expires:
<PAGE>
"EXHIBIT A"
TRACT I:
All of Lots 44, 45 and 46, except that part thereof in Walnut Street, SWOPE'S
ADDITION, a subdivision in Kansas City, Jackson County, Missouri, according to
the recorded plat thereof recorded in Plat Book A-1, Page 28 of the Office of
the Recorder of Deeds, Jackson County, Missouri.
TRACT II:
All of Lots 82 and 83, and all that part of Lot 81 lying South of a line drawn
East and West through the center of the South wall of the 6 1/2 story building
now situated on Lot 81 and extending to the East and West boundary lines of said
Lot, as said wall is described in the Party Wall Agreement filed for record on
January 15, 1910, as Document Number 740232, and recorded in Book B-1264, Page
438, all in SWOPE'S ADDITION, a subdivision in Kansas City, Jackson County,
Missouri, according to the plat thereof recorded in Plat Book A-1, Page 28 in
the Office of the Recorder of Deeds, Jackson County, Missouri.
TRACT III:
The leasehold estate created by that certain lease dated January 26, 1972 by and
between Sara Realty Company, a Missouri Corporation, as lessor and Allright
Kansas City, Inc., a Missouri Corporation, as lessee, a memorandum of said Lease
having been filed in the Office of the Recorder of Deeds for Jackson County,
Missouri, on August 24, 1973, as Document Number K-205022 in Book K-463 at Page
1140, as amended by Lease Amendment dated as of November 30, 1973, and filed in
the Office of the aforesaid Recorder of Deeds July 30, 1974, as Document Number
K-235838 in Book K-538 at page 1026, and the Assignment of Lease, dated April
22, 1983, notice of which is given by Special Warranty Deed filed April 12,
1993, under Document No. K-1075191 in Book K-2375 at Page 1795 affecting the
property described as follows:
All of Lot 84, SWOPE'S ADDITION, a subdivision in Kansas City, Jackson
County, Missouri, according to the recorded plat thereof recorded in Plat Book
A-1, Page 28, in the Office of the Recorder of Deeds, Jackson County, Missouri.
<PAGE>
DEED OF RELEASE
PaineWebber Qualified Plan Property Fund Two, LP, a Delaware limited
partnership having its home office and principal place of business at 265
Franklin Street, Boston, Massachusetts 02110, is holder of the following
documents:
A. Deed of Trust from Mercantile Tower Development Co. to PaineWebber Qualified
Plan Property Fund Two, LP, a Delaware limited partnership in the principal
amount of Nine Million Five Hundred Thousand Dollars ($9,500,000) dated April
28, 1983 and recorded April 29, 1983 in the office of the Recorder of Deeds for
Jackson County, Missouri as Document No.
K-558740 in Book K-1210 at Page 1153.
A. Assignment of Leases and Rents from Mercantile Tower Development Co. to
PaineWebber Qualified Plan Property Fund Two, LP, recorded on April 29, 1983 in
the office of the Recorder of Deeds for Jackson County, Missouri as Document No.
K-558742 in Book K-1210 at Page 1207.
For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, PaineWebber Qualified Plan Property Fund Two, LP, does
hereby release and discharge of record the foregoing instruments.
Executed as a sealed instrument this 10th day of November, 1997.
PaineWebber Qualified Plan Property
Fund Two, LP
By: Second Qualified Properties, Inc.,
Managing Partner
By: /s/ Celia R. Deluga
-------------------
Celia R. Deluga
Vice President
<PAGE>
COMMONWEALTH OF MASSACHUSETTS
____________, ss. November 10, 1997
Then personally appeared the above-named , Celia R. Deluga of PaineWebber
Qualified Plan Property Fund Two, LP, and acknowledged the foregoing to be ___
free act and deed and the free act and deed of corporation, before me,
Rufina Garay
Notary Public
My Commission expires:
<PAGE>
<TABLE>
<S> <C>
A. U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
-------------------------------------------------
FINAL
B. TYPE OF LOAN
1. [ ] FHA 2. [ ] FMHA 3. [ ] CONV. UNINS.
4. [ ] VA 5. [ ] CONV. INS.
----------------------------------------------------
6. FILE NUMBER: 7. LOAN NUMBER:
97060242
----------------------------------------------------
8. MIG. INS. CASE NO.:
----------------------------------------------------
C. NOTE: This form is furnished to give you a statement
of actual settlement costs. Amounts paid to and by
the settlement agent are shown. Items marked
("p.o.c.") were paid outside the closing; they are
shown here for information purposes and are not
included in the totals.
----------------------------------------------------
D. NAME OF BORROWER: CHESAPEAKE ATLANTIC HOLDINGS, INC.
A FLORIDA CORPORATION
ADDRESS:
----------------------------------------------------
E. NAME OF SELLER: PAINE WEBBER QUALIFIED PLAN PROPERTY
FUND TWO, L.P.
ADDRESS: SELLER TIN:
----------------------------------------------------
F. NAME OF LENDER: MIDLAND BANK
ADDRESS:
----------------------------------------------------
G. PROPERTY LOCATION: Lot
1101 WALNUT KANSAS CITY MO
----------------------------------------------------
H. SETTLEMENT AGENT: STEWART TITLE INC.
ADDRESS: SETTLEMENT AGENT TIN: 43-1622646
----------------------------------------------------
PLACE OF SETTLEMENT: STEWART TITLE INCORPORATED I. SETTLEMENT DATE
ADDRESS: 1220 WASHINGTON SUITE 100 Closing date: 11/10/97
KANSAS CITY, MO 64105 Proration date: 11/10/97
- ------------------------------------------------------- ------------------------------------------------------------
J. SUMMARY OF BORROWER'S TRANSACTION K. SUMMARY OF SELLER'S TRANSACTION
- ------------------------------------------------------- ------------------------------------------------------------
100. GROSS AMOUNT DUE FROM BORROWER: 400. GROSS AMOUNT DUE TO SELLER:
- ------------------------------------------------------- ------------------------------------------------------------
101. Contract sales price 7,283,400.00 401. Contract sales price 7,283,400.00
- ------------------------------------------------------- ------------------------------------------------------------
102. Personal property 402. Personal property
- ------------------------------------------------------- ------------------------------------------------------------
103. Settlement charges to 122,987.60 403.
borrower (line 1400)
- ------------------------------------------------------- ------------------------------------------------------------
104. NEW TENANT COSTS 69,320.57 404. NEW TENANT COSTS 69,320.57
- ------------------------------------------------------- ------------------------------------------------------------
105. OPERATING EXPENSE 7,721.72 405. OPERATING EXPENSE 7,721.72
- ------------------------------------------------------- ------------------------------------------------------------
Adjustments for items paid by seller in advance: Adjustments for items paid for seller in advance:
- ------------------------------------------------------- ------------------------------------------------------------
106. City/town taxes 406. City/town taxes
to to
- ------------------------------------------------------- ------------------------------------------------------------
107. County taxes 407. County taxes
to to
- ------------------------------------------------------- ------------------------------------------------------------
108. Assessments 408. Assessments
to to
- ------------------------------------------------------- ------------------------------------------------------------
109. 409.
- ------------------------------------------------------- ------------------------------------------------------------
110. 410.
- ------------------------------------------------------- ------------------------------------------------------------
111. 411.
- ------------------------------------------------------- ------------------------------------------------------------
112. 412.
- ------------------------------------------------------- ------------------------------------------------------------
120. GROSS AMOUNT DUE FROM 7,483,429.89 420. GROSS AMOUNT DUE TO SELLER: 7,360,442.29
BORROWER:
- ------------------------------------------------------- ------------------------------------------------------------
200. AMOUNTS PAID BY OR IN BEHALF OF BORROWER: 500. REDUCTIONS IN AMOUNT DUE TO SELLER:
- ------------------------------------------------------- ------------------------------------------------------------
201. Deposit or earnest money 50,000.00 501. Excess deposit (see instructions)
- ------------------------------------------------------- ------------------------------------------------------------
202. Principal amount of new loan(s) 6,000,000.00 502. Settlement charges to seller (line 1400) 156,528.20
- ------------------------------------------------------- ------------------------------------------------------------
203. Existing loan(s) taken subject to 503. Existing loan(s) taken subject to
- ------------------------------------------------------- ------------------------------------------------------------
204. 504. Payoff of first mortgage loan
- ------------------------------------------------------- ------------------------------------------------------------
205. 505. Payoff of second mortgage loan
- ------------------------------------------------------- ------------------------------------------------------------
206. 506. MERCANTILE BANK OF KC PAY-OFF 858,492.31
- ------------------------------------------------------- ------------------------------------------------------------
207. SECURITY DEPOSITS 66,559.83 507. SECURITY DEPOSITS 66,559.83
- ------------------------------------------------------- ------------------------------------------------------------
208. RENTS 11/10/97 to 12/1/97 121,545.84 508. RENTS 11/10/97 TO 12/1/97 121,545.84
- ------------------------------------------------------- ------------------------------------------------------------
209. 509.
- ------------------------------------------------------- ------------------------------------------------------------
Adjustments for items unpaid by seller: Adjustments for items unpaid by seller:
- ------------------------------------------------------- ------------------------------------------------------------
210. City/town taxes 510. City/town taxes
to to
- ------------------------------------------------------- ------------------------------------------------------------
211. County taxes 511. County taxes
to to
- ------------------------------------------------------- ------------------------------------------------------------
212. Assessments 512. Assessments
to to
- ------------------------------------------------------- ------------------------------------------------------------
213. ALL TAXES 01/01/97 TO 11/10/97 194,015.94 513. ALL TAXES 01/01/97 TO 11/10/97 194,015.94
- ------------------------------------------------------- ------------------------------------------------------------
214. 514.
- ------------------------------------------------------- ------------------------------------------------------------
215. 515.
- ------------------------------------------------------- ------------------------------------------------------------
216. 516.
- ------------------------------------------------------- ------------------------------------------------------------
217. 517.
- ------------------------------------------------------- ------------------------------------------------------------
218. 518.
- ------------------------------------------------------- ------------------------------------------------------------
219. 519.
- ------------------------------------------------------- ------------------------------------------------------------
220. TOTAL PAID BY/FOR BORROWER: 6,432,121.61 520. TOTAL REDUCTION IN AMOUNT: 1,397,142.12
- ------------------------------------------------------- ------------------------------------------------------------
300. CASH AT SETTLEMENT FROM/TO BORROWER: 600. CASH AT SETTLEMENT TO/FROM SELLER:
- ------------------------------------------------------- ------------------------------------------------------------
301. Gross amount due from 7,483,429.89 601. Gross amount due to 7,360,442.29
borrower (line 120) seller (line 420)
- ------------------------------------------------------- ------------------------------------------------------------
302. Less amounts paid by/for 6,432,121.61 602. Less total reductions in 1,397,142.12
borrower (line 220) amount due seller (line 520)
- ------------------------------------------------------- ------------------------------------------------------------
303. CASH [X FROM] [ TO] 1,051,308.28 603. CASH [X TO] [ FROM] 5,963,300.17
BORROWER: SELLER:
- ------------------------------------------------------- ------------------------------------------------------------
SUBSTITUTE FORM 1099 SELLER STATEMENT. The information
contained in Blocks E, G, H and I and on line 401 (or,
if line 401 is asterisked, lines 403 and 404) is
important tax information and is being furnished
to the Internal Revenue Service. If you are required
to file a return, a negligence penalty or other
sanction will be imposed on you if this item is
required to be reported and the IRS determines that it
has not been reported.
SELLER INSTRUCTION. If this real estate was your
principal residence, file Form 2119, Sale or
Exchange of Principal Residence, for any gain,
with your income tax return; for other transactions,
complete the applicable parts of Form 4797, Form 6252
and/or Schedule D (Form 1040). You are required by law to
provide__________________________________________________
with your correct taxpayer identification number. If you
do not provide___________________________________________
with your correct taxpayer identification number,
you may be subject to civil or criminal penalties.
Under penalties of perjury, I certify that the number
shown on this statement is my correct taxpayer
identification number.
_________________________________________________________ PAINEWEBBER QUALIFIED PLAN PROPERTY FUND TWO, L.P.
Seller: Celia R. Deluga, Vice President By: Second Qualified Properties, Inc.,
Managing Partner
</TABLE>
<PAGE>
<TABLE>
<S> <C>
Final 97060242 Paid From Paid From
Final Borrower's Seller's
Funds At Funds At
L. SETTLEMENT CHARGES Settlement Settlement
- --------------------------------------------------------------------------------- ---------- ----------
700. TOTAL SALES/BROKER'S COMMISSION Based on $7,283,400.00 @ 2.50% = 182,085.00
- --------------------------------------------------------------------------------- ---------- ----------
Division of Commission (line 700) as follows:
- --------------------------------------------------------------------------------- ---------- ----------
701. $145,668.00 to COHEN-ESREY REAL ESTATE SERVICES
- --------------------------------------------------------------------------------- ---------- ----------
702. $36,417.00 to CB COMMERCIAL
- --------------------------------------------------------------------------------- ---------- ----------
703. Commission paid at settlement 6,417.00 145,668.00
- --------------------------------------------------------------------------------- ---------- ----------
704. 1/2 SUNGARD LEASE COMMISSION to KESSINGER HUNTER 2,270.60 5,541.20
- --------------------------------------------------------------------------------- ---------- ----------
800. ITEMS PAYABLE IN CONNECTION WITH LOAN
- --------------------------------------------------------------------------------- ---------- ----------
801. Loan Origination fee %
- -------------------------------------------------------------------------------- ---------- ----------
802. Loan Discount %
- --------------------------------------------------------------------------------- ---------- ----------
803. Appraisal fee to KEVIN NUNINK & ASSOCIATES 3,750.00
- --------------------------------------------------------------------------------- ---------- ----------
804. Credit Report to
- --------------------------------------------------------------------------------- ---------- ----------
805. Lender's inspection fee to
- --------------------------------------------------------------------------------- ---------- ----------
806. Mortgage Insurance application fee to
- --------------------------------------------------------------------------------- ---------- ----------
807. Assumption Fee to
- --------------------------------------------------------------------------------- ---------- ----------
808. COMMITMENT FEE to MIDLAND BANK 60,000.00
- --------------------------------------------------------------------------------- ---------- ----------
809. BANK DOCUMENT FEE to MIDLAND BANK 500.00
- --------------------------------------------------------------------------------- ---------- ----------
810. to
- --------------------------------------------------------------------------------- ---------- ----------
811. to
- --------------------------------------------------------------------------------- ---------- ----------
812. to
- --------------------------------------------------------------------------------- ---------- ----------
900. ITEMS REQUIRED BY LENDER TO BE PAID IN ADVANCE
- --------------------------------------------------------------------------------- ---------- ----------
901. Interest from to @ $_________/day
- --------------------------------------------------------------------------------- ---------- ----------
902. Mortgage insurance premium for mo. to
- --------------------------------------------------------------------------------- ---------- ----------
903. Hazard insurance premium for yrs. to
- --------------------------------------------------------------------------------- ---------- ----------
904. yrs. to
- --------------------------------------------------------------------------------- ---------- ----------
905.
- --------------------------------------------------------------------------------- ---------- ----------
1000. RESERVES DEPOSITED WITH LENDER
- --------------------------------------------------------------------------------- ---------- ----------
1001. Hazard Insurance mo. @ $_______ per mo.
- --------------------------------------------------------------------------------- ---------- ----------
1002. Mortgage insurance mo. @ $_______ per mo.
- --------------------------------------------------------------------------------- ---------- ----------
1003. City property taxes mo. @ $_______ per mo.
- --------------------------------------------------------------------------------- ---------- ----------
1004. County property taxes mo. @ $_______ per mo.
- --------------------------------------------------------------------------------- ---------- ----------
1005. Annual assessments (Maint.) mo. @ $_______ per mo.
- --------------------------------------------------------------------------------- ---------- ----------
1006. mo. @ $_______ per mo.
- --------------------------------------------------------------------------------- ---------- ----------
1007. mo. @ $_______ per mo.
- --------------------------------------------------------------------------------- ---------- ----------
1008. mo. @ $_______ per mo.
- --------------------------------------------------------------------------------- ---------- ----------
- --------------------------------------------------------------------------------- ---------- ----------
1100. TITLE CHARGES:
- ---------------------------------------------------------------------------------
1101. Settlement or closing fee to STEWART TITLE INCORPORATED 300.00 300.00
- --------------------------------------------------------------------------------- ---------- ----------
1102. Abstract or title search to
- --------------------------------------------------------------------------------- ---------- ----------
1103. Title examination to
- --------------------------------------------------------------------------------- ---------- ----------
1104. Title insurance binder to
- --------------------------------------------------------------------------------- ---------- ----------
1105. Document preparation to BLACKWELL SANDERS 5,000.00
- --------------------------------------------------------------------------------- ---------- ----------
1106. Notary fee to
- --------------------------------------------------------------------------------- ---------- ----------
1107. Attorney's fee to to SHUGHART, THOMSON & KILROY 13,500.00
- --------------------------------------------------------------------------------- ---------- ----------
(includes above items No.: )
- --------------------------------------------------------------------------------- ---------- ----------
1108. Title insurance to STEWART TITLE INCORPORATED 250.00 4,669.00
- --------------------------------------------------------------------------------- ---------- ----------
(includes above items No.: )
- --------------------------------------------------------------------------------- ---------- ----------
1109. Lender's coverage 6,000,000.00 $250.00
- --------------------------------------------------------------------------------- ---------- ----------
1110. Owner's coverage 7,323,400.00 $44,669.00
- --------------------------------------------------------------------------------- ---------- ----------
1111. ESCROW FEE to STEWART TITLE CORPORATION 200.00 200.00
- --------------------------------------------------------------------------------- ---------- ----------
1112. COPIES to STEWART TITLE CORPORATION 100.00
- --------------------------------------------------------------------------------- ---------- ----------
1113. MESSENGER FEES to STEWART TITLE CORPORATION 150.00
- --------------------------------------------------------------------------------- ---------- ----------
1114. ENDORSEMENTS to STEWART TITLE CORPORATION 400.00
- --------------------------------------------------------------------------------- ---------- ----------
1200. GOVERNMENT RECORDING AND TRANSFER CHARGES
- --------------------------------------------------------------------------------- ---------- ----------
1201. Recording Fees: Deed $ Mrtg $ Rel.$ EST. 150.00 150.00
300.00
- --------------------------------------------------------------------------------- ---------- ----------
1202. City/county tax/stamps: Deed $ Mrtg $
- --------------------------------------------------------------------------------- ---------- ----------
1203. State tax/stamps: Deed $ Mrtg $
- --------------------------------------------------------------------------------- ---------- ----------
1204. to
- --------------------------------------------------------------------------------- ---------- ----------
1205. to
- --------------------------------------------------------------------------------- ---------- ----------
1206. to
- --------------------------------------------------------------------------------- ---------- ----------
1300. ADDITIONAL SETTLEMENT CHARGES
- --------------------------------------------------------------------------------- ---------- ----------
1301. Survey to
- --------------------------------------------------------------------------------- ---------- ----------
1302. Pest inspection to
- --------------------------------------------------------------------------------- ---------- ----------
1303. to
- --------------------------------------------------------------------------------- ---------- ----------
1304. to
- --------------------------------------------------------------------------------- ---------- ----------
1305. to
- --------------------------------------------------------------------------------- ---------- ----------
1400. TOTAL SETTLEMENT CHARGES 122,987.60 156,528.20
(entered on lines 103, Section J and 502, Section K
- --------------------------------------------------------------------------------- ---------- ----------
</TABLE>
<PAGE>
<TABLE>
<S> <C>
CERTIFICATION: I have carefully reviewed the HUD-1 Settlement Statement and to
the best of my knowledge and belief, it is a true and accurate statement of all
receipts and disbursements made on my account or by me in this transaction. I
further certify that I have received a copy of HUD-1 Settlement Statement.
- --------------------------------------------------------------- -------------------------
- --------------------------------------------------------------- -------------------------
Borrowers Sellers
The HUD-1 Settlement Statement which I have prepared is a true and accurate
account of this transaction. I have caused or will cause the funds to be
disbursed in accordance with this statement.
PAINEWEBBER QUALIFIED PLAN PROPERTY
FUND TWO, L.P.
By: Second Qualified Properties, Inc.,
Managing Partner
- --------------------------------------------------------------- --------------------------------------
- --------------------------------------------------------------- --------------------------------------
Settlement Agent Date
WARNING: It is a crime to knowingly make false statements to the United States
on this or any other similar form. Penalties upon conviction can include a fine
and imprisonment. For details see: Title 18: U.S. Code Section 1001 and
Section 1010.
</TABLE>
