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) August 4, 1998
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Paine Webber Qualified Plan Property Fund Four, LP
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(Exact name of registrant as specified in its charter)
Delaware 0-15036 04-2841746
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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 FOUR, LP
ITEM 2 - Disposition of Assets
Bell Forge Square Shopping Center, Nashville, Tennessee
Disposition Date - August 4, 1998
On August 4, 1998, Paine Webber Qualified Plan Property Fund Four, LP (the
"Partnership") sold its wholly-owned investment property, the Bell Forge Square
Shopping Center, located in Nashville, Tennessee, to an unrelated third party
for $9,600,000. After closing costs, expense prorations and adjustments, the
Partnership realized net proceeds of approximately $9,343,000. The Partnership
will distribute the net proceeds from the sale of Bell Forge Square on August
25, 1998 in a Special Distribution of $209 per original $1,000 investment to
unitholders of record as of August 4, 1998. Bell Forge Square was the final
asset owned by the Partnership. Consequently, a formal liquidation of the
Partnership is now underway. The Partnership expects an orderly liquidation of
the Partnership to be completed and a liquidating distribution of the
Partnership's remaining cash reserves, after paying all liquidation-related
expenses, of approximately $30 per original $1,000 investment to be made to the
Limited Partners by October 15, 1998.
As previously reported, the Partnership decided to explore potential
opportunities to sell the Bell Forge Square property during fiscal 1997 and
hired a Nashville-based real estate firm specializing in the sale of retail
properties to market the property for sale. As a result of this firm's marketing
efforts, the Partnership received offers from two prospective third-party
buyers. After reviewing the offers, the Partnership accepted an offer from one
of these potential buyers and negotiated a purchase and sale agreement which was
signed on January 5, 1998. On February 10, 1998, the Partnership received notice
that the potential buyer would not be proceeding with its efforts to close the
sale transaction upon the expiration of its due diligence period due to its
inability to secure a financing commitment. On March 20, 1998, the Partnership
executed a new brokerage agreement with another Nashville-based firm to
re-market the property. On May 20, 1998, the Partnership negotiated a purchase
and sale agreement with a new prospective buyer for the Bell Forge Square
property. The prospective buyer completed its due diligence work and made a
non-refundable deposit on June 11, 1998. On August 4, 1998, after an extension
of the due diligence period, the Partnership successfully closed the sale of
this property.
ITEM 7 - Financial Statements and Exhibits
Financial Statements: None
(b) Exhibits:
(1) Closing Statement by Bell Forge Square, L.L.C. from PaineWebber
Qualified Plan Property Fund Four, L.P., dated August 3, 1998.
(2) Purchase and Sale Agreement by and between PaineWebber Qualified
Plan Property Fund Four, L.P. and Clearview Investments, Ltd.,
dated May 20, 1998.
(3) First Amendment to Purchase and Sale Agreement by and between
PaineWebber Qualified Plan Property Fund Four, L.P. and Clearview
Investments, Ltd., dated June 11, 1998
(4) Second Amendment to Purchase and Sale Agreement by and between
PaineWebber Qualified Plan Property Fund Four, L.P. and Clearview
Investments, Ltd., dated June 26, 1998.
(5) Warranty Deed from PaineWebber Qualified Plan Property Fund Four,
L.P. to Bell Forge Square, L.L.C., dated August 3, 1998.
<PAGE>
FORM 8-K
CURRENT REPORT
(6) Quitclaim Bill of Sale by PaineWebber Qualified Plan Property Fund
Four, L.P. to Bell Forge Square, L.L.C., dated August 3, 1998.
(7) Assignment of Leases by PaineWebber Qualified Plan Property Fund
Four, L.P. to Bell Forge Square, L.L.C., dated August 3, 1998.
(8) Assignment of Contracts and Intangibles by PaineWebber Qualified
Plan Property Fund Four, L.P. to Bell Forge Square, L.L.C., dated
August 3, 1998.
<PAGE>
FORM 8-K
CURRENT REPORT
PAINE WEBBER QUALIFIED PLAN PROPERTY FUND FOUR, 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 FOUR, LP
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(Registrant)
By: Fourth Qualified Properties, Inc.
---------------------------------
Managing General Partner
By: /s/ Walter V. Arnold
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Walter V. Arnold
Senior Vice President and
Chief Financial Officer
Date: August 19, 1998
<PAGE>
Closing Statement
Bell Forge Square, L.L.C.
acquisition from
PaineWebber Qualified Plan Property Fund Four, L.P.
Bell Forge Shopping Center, Antioch, Tennessee
3-Aug-98
Funds Due to Seller
Purchase Price $9,600,000.00
Deductions
Deposits $125,000.00
Rent $42,752.04
Real Estate Taxes $70,339.49
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Total Deductions $238,091.53 ($238,091.53)
Additions
Security Deposits $12,770.50
Rent $5,349.11
Items Paid in Advance $0.00
Total Additions $18,119.61 $18,119.61
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Gross Funds Due To Seller $9,380,028.08
Seller's Disbursements
Seller's Closing Costs:
Transfer taxes $17,760.00
Recording charges $100.00
Broker's commission $144,000.00
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Total Seller's Disbursements $161,860.00 ($161,860.00)
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Net Funds Due To Seller $9,218,168.08
Deposits Released by Title Company to Seller $125,000.00
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Total Funds Due to Seller $9,343,168.08
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<PAGE>
Funds Due From Buyer
Purchase Price $9,600,000.00
Deductions
Deposits $125,000.00
Rent $42,752.04
Real Estate Taxes $70,339.49
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Total Deductions $238,091.53 ($238,091.53)
Additions
Security Deposits $12,770.50
Rent $5,349.11
Items Paid in Advance $0.00
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Total Additions $18,119.61 $18,119.61
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Net Funds Due From Buyer $9,380,028.08
Buyer's Disbursements
Buyer's Closing Costs $36,434.48
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Total Buyer's Disbursements $36,434.48 $36,434.48
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Gross Funds Due From Buyer $9,416,462.56
Deposits from Buyer Released by Title Company $125,000.00
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Total Funds Due from Buyer $9,541,462.56
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<PAGE>
<TABLE>
The undersigned hereby authorize Title Company to make the Disbursements as set
forth in Schedules 5 and 6 from the closing proceeds. Total Funds Due to Seller
shall be wired to Seller in accordance with the wiring instructions set forth on
Exhibit A.
<CAPTION>
SELLER: BUYER:
<S> <C>
PaineWebber Qualified Plan Property Bell Forge Square, L.L.C.
Fund Four, L.P.
By: CFH Realty Retail I, L.P.,
By: Fourth Qualified Properties, Inc. its general partner
its general partner By: CFH Realty Investors GP, .L.C.,
its general partner
By /s/ Rock M. D'Errico
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Name: Rock M. D'Errico By: Crow Holdings Managers,L.L.C.,
Title: Vice President Manager
By: /s/ Robert A. McClain
TITLE COMPANY: ---------------------
By /s/ Robert G. Soule
------------------- Name: Robert A. McClain
Name: Robert G. Soule Title: Vice President
</TABLE>
<PAGE>
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
PAINEWEBBER QUALIFIED PLAN PROPERTY FUND FOUR, L.P. ("SELLER")
AND
CLEARVIEW INVESTMENTS, LTD. ("BUYER")
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS 1
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ARTICLE 2 PURCHASE AND SALE 1
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ARTICLE 3 PURCHASE PRICE; DEPOSITS; ADJUSTMENTS 2
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ARTICLE 4 PRECLOSING OPERATION 4
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ARTICLE 5 ACCESS, INSPECTION, DILIGENCE 5
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ARTICLE 6 TITLE, SURVEY, CONDITIONS AND REPRESENTATIONS 8
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ARTICLE 7 CLOSING 10
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ARTICLE 8 CASUALTY AND CONDEMNATION 11
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ARTICLE 9 BROKERAGE COMMISSIONS 12
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ARTICLE 10 DEFAULT, TERMINATION AND REMEDIES 12
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ARTICLE 11 MISCELLANEOUS 13
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ARTICLE 12 IRS FORM 1099-S DESIGNATION 16
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<PAGE>
SCHEDULE A Description of the Real Property
SCHEDULE B Description of Personal Property and Intangible Property
SCHEDULE C Rent Roll
SCHEDULE D 1099 Designation Agreement
SCHEDULE E Form of Tenant Estoppel Certificate
<PAGE>
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (this "Agreement") is entered into as of the
20th day of May, 1998 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: Clearview Investments, Ltd., a Texas limited partnership.
SELLER: PaineWebber Qualified Plan Property Fund Four, L.P.,
a Delaware limited partnership.
PROPERTY: The Real Property and Personal Property constituting
Bell Forge Square Shopping Center, Antioch, Tennessee.
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: $9,600,000
TITLE COMPANY: Lawyers Title Insurance 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, the Seller hereby agrees to sell and convey the Property to the
Buyer or its nominee and the Buyer hereby agrees to buy and pay the Purchase
Price for the Property on the terms and conditions contained herein.
ARTICLE 3
PURCHASE PRICE; DEPOSITS; ADJUSTMENTS
3.1 The Purchase Price shall be as specified in Article 1 above and shall
be paid on the Closing Date (as hereinafter defined) by wire transfer of
immediately available federal funds, subject to adjustment to reflect
application of the Escrowed Amount and such other adjustments herein contained.
3.2 Contemporaneously with the execution of this Agreement, the Buyer
shall deposit with the Title Company the sum of One Hundred Thousand Dollars
($100,000.00) (the "Initial Deposit") to secure the Buyer's obligations under
this Agreement. The Buyer may make one (1) additional nonrefundable deposit in
the sum of Twenty Five Thousand Dollars ($25,000.00) (the "Additional Deposit")
as described in Section 7.1 of this Agreement. The Title Company shall hold the
Initial Deposit and the Additional Deposit, if any, in a segregated interest
bearing money market account with an FDIC insured bank reasonably acceptable to
Buyer and Seller. The Initial Deposit, any Additional Deposit and all interest
accrued thereon (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 All due and payable real estate taxes, assessments, special taxes,
special assessments and any other tax or assessment attributable to the Property
through the Closing Date shall be prorated and adjusted as of the Closing Date.
If the tax statements for the fiscal year during which the Closing Date occurs
are not finally determined, then the tax figures for the immediately prior
fiscal year shall be used for the purposes of prorating taxes on the Closing
Date, with a further adjustment to be made after the Closing Date as soon as the
tax figures are finalized. Any tax refunds or proceeds (including interest
thereon) on account of a favorable determination resulting from a challenge,
protest, appeal or similar proceeding relating to taxes and assessments relating
to the Property (i) for all tax periods occurring prior to the applicable tax
period in which the Closing occurs shall be retained by and paid exclusively to
Seller and (ii) for the applicable tax period in which the Closing occurs shall
be prorated as of the Closing Date after reimbursement to Seller and Buyer, as
applicable, for all fees, costs and expenses (including reasonable attorneys'
and consultants' fees) incurred by Seller or Buyer, as applicable, in connection
with such proceedings such that Seller shall retain and be paid that portion of
such tax refunds or proceeds as is applicable to the portion of the applicable
tax period prior to the Closing Date and Buyer shall retain and be paid that
portion of such tax refunds or proceeds as is applicable to the portion of the
applicable tax period from and after the Closing Date. Neither Seller nor Buyer
shall settle any tax protests or proceedings in which taxes for the tax period
for which the other party is responsible are being adjudicated without the
consent of such party, which consent should shall not be unreasonably withheld,
conditioned or delayed. Buyer and Seller shall cooperate in pursuit of any such
proceedings and in responding to reasonable requests of the other for
information concerning the status of and otherwise relating to such proceedings;
provided, however, that neither party shall be obligated to incur any
out-of-pocket fees, costs or expenses in responding to the requests of the
other.
3.4 Prepaid or past due amounts under any Contracts (as hereinafter
defined) which are assigned to Buyer at Closing shall be prorated and adjusted
as of the Closing Date.
3.5 The Seller shall cause all meters for electricity, gas, water, sewer
or other utility usage at the Property to be read on the Closing Date, and the
Seller shall pay all charges for such utilities which have accrued on or prior
to the Closing Date; provided, however, that if and to the extent such charges
are paid directly by tenants, no such reading or payment shall be required. If
the utility companies are unable or refuse to read meters for which payment by
the Seller is required, all charges for such utilities to the extent unpaid
shall be prorated and adjusted as of the Closing Date based on the most recent
bills therefor. The Seller shall provide notice to the Buyer within five (5)
days of the Closing Date setting forth (i) whether utility meters will be read
as of the Closing Date and (ii) a copy of the most recent bill for any utility
charges which are to be prorated and adjusted as of the Closing Date. If the
meters cannot be read as of the Closing Date and, therefore, the most recent
bill is used to prorate and adjust as of the Closing Date, then to the extent
that the amount of such prior bill proves to be more or less than the actual
charges for the period in question, a further adjustment shall be made after the
Closing Date as soon as the actual charges for such utilities are available.
3.6 All rents, security deposits which have not been previously applied by
Seller, prepaid rentals, common area maintenance charges, promotional charges,
service charges, tax charges, and all other incidental expenses and charges
required to be paid by tenants shall be apportioned and full value shall be
adjusted as of the Closing Date, and the net amount thereof, if in favor of
Seller, shall be added to the Purchase Price, or if in favor of Buyer, shall be
deducted from the Purchase Price. From and after Closing all security deposits
credited to Buyer shall thereafter be deemed transferred to Buyer and Buyer
shall assume and be solely responsible for the payments of security deposits to
tenants in accordance with the Leases and applicable law. Seller shall be
entitled to retain and/or receive a credit for any utility deposits and any
deposits for third parties under any of the Contracts (as hereinafter defined).
In addition to the foregoing, at the Closing the following shall be apportioned
and the full value, as determined in good faith by Seller using best available
information, shall be adjusted as of the Closing Date, and the net amount
thereof, if in favor of the Seller, shall be added to the Purchase Price: all
rentals and other tenant charges payable in arrears and uncollected and all
other uncollected rents (including, but not limited to, percentage rents, common
area maintenance charges, real estate tax charges, and annual adjustments
thereto) for the current and prior rental periods, but only to the extent that
the tenant is not in default as of the Closing Date in the payment of such
rentals and tenant charges. In the event that Buyer eventually collects any
payments of rentals and tenant charges that were in default on the Closing Date,
said payments shall be paid to Seller at the time of collection. In the event
that on the Closing Date the precise figure for total percentage rents payable
in arrears and uncollected is not capable of determination, then Seller and
Buyer agree to use the total percentage rents paid for the prior year. There
shall be no further adjustment of any rents, security deposits, common area
maintenance charges, promotional charges, service charges, tax charges, or other
incidental expenses and charges required to be paid by tenants, whether
collected or payable in arrears and uncollected, after the Closing Date other
than as set forth herein. Buyer shall assume and be solely responsible for and
indemnifies Seller for any items that would be owed to tenants upon annual
reconciliation.
3.7 At the Closing, the Seller shall pay the amount due for (a) recording
charges for documents to clear title, evidence Seller's authority or enable
Seller to convey; and (b) Seller's attorneys' fees. At the Closing, the Buyer
shall pay for (c) charges to record the deed, and evidence of Buyer's existence
or authority; (d) all title insurance premiums and charges; and (f) Buyer's
attorney's fees and all costs related to the Buyer's due diligence.
3.8 At the Closing, the Seller and the Buyer shall each pay for half of
the amount due for (a) state and county transfer tax (or any tax substituted
therefor) imposed in connection with the consummation of the transaction
contemplated hereby (the "Transfer Tax"); and (b) any mortgage tax.
3.9 The provisions of this Article 3 shall survive the Closing for a
period of one (1) year.
ARTICLE 4
PRECLOSING OPERATION
4.1 A Rent Roll (the "Rent Roll") containing a list of all current
occupants of the Property is attached hereto as Schedule C. The leases listed on
the Rent Roll, together with leases entered into pursuant to this Article 4 are
collectively referred to herein as the "Leases." A copy of the Leases will be
delivered to Buyer for review within three (3) business days of the date of this
Agreement.
4.2 From the date of execution of this Agreement through the Closing Date,
Seller will notify Buyer if it intends to enter into any new lease of any
portion of the Property or modify any existing Lease covering any portion of the
Property.
4.3 At all times prior to Closing, Seller shall continue (a) to conduct
business with respect to the Property in the same manner in which said business
has been heretofore conducted, (b) to insure the Property substantially as
currently insured, and (c) to maintain the Property in its condition as of the
date of this Agreement, subject to casualty and ordinary wear and tear.
4.4 Seller shall within three (3) business days after the date of this
Agreement provide copies to Buyer of all service, supply, equipment rental,
management and leasing contracts affecting the Property to which Seller is a
party and shall promptly instruct the third party property manager to make all
such contracts in its possession available to Buyer for its review
(collectively, the "Contracts"). Buyer shall, by written notice to Seller, on or
before the Diligence Date identify any Contracts which it requires to be
terminated. Buyer shall assume any Contracts which are not identified as to be
terminated (the "Assigned Contracts"). Seller shall terminate any Contracts at
Closing which are identified by Buyer as specified in this section as to be
terminated at Closing.
4.5 Seller shall use commercially reasonable efforts to obtain tenant
estoppel certificates, from all tenants currently occupying their space under
the Lease in the form required under the applicable Lease or if no such form is
required under the applicable Lease, in the form attached hereto as Schedule E.
Seller shall not be obligated to expend funds or commence litigation in pursuit
of such estoppel certificates. Except as provided in Section 7.2(h) hereof, the
receipt of tenant estoppel certificates shall not be a condition precedent to
Closing.
ARTICLE 5
ACCESS, INSPECTION, DILIGENCE
5.1 The Seller agrees that the 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
(in each case subject to the rights of tenants under the Leases) to make such
reasonable investigations, studies and tests as the Buyer deems necessary or
advisable; provided, however, that Buyer shall not be permitted to conduct
physical testing without Seller's prior written approval which approval shall
not be unreasonably withheld, conditioned or delayed. Seller may require that
Buyer be accompanied by Seller or its designated agent during any such
inspection or entry. Seller's prior written approval for physical inspections
may be conditioned on receipt of a detailed description of the proposed physical
inspection, a list of the contractors who will be performing the physical
inspection, evidence of insurance satisfactory to Seller, and such other
information as Seller reasonably requires in connection with such proposed
inspection. Seller also agrees to make available to the Buyer during normal
business hours upon advance written notice to Seller all its books and records
contained in the Seller's files relating to the construction, operation and
maintenance of the Property.
5.2 Seller shall provide Buyer, promptly after Seller's execution of this
Agreement, with copies of all the Leases and Contracts and shall instruct its
property manager to deliver copies of such Leases and Contracts to Buyer for
inspection. To the extent Seller has in its possession any site analyses, title
insurance policies, existing surveys, existing zoning analyses, existing
engineering reports, existing code compliance reports, tax bills and assessment
notices, insurance policies, plans and specifications, certificates of
occupancy, licenses and permits, warranty agreements, reciprocal easement
agreements, construction contracts, financial statements regarding the Property,
financial statements regarding the tenants, sales history, and existing site
analyses with respect to asbestos, 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 at the request of Buyer. Seller makes no
representation or warranty whatsoever regarding the existence or availability of
the foregoing and Seller shall not be obligated to create or obtain any of the
foregoing which are not available to Seller.
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.
Without limiting the foregoing, Buyer acknowledges and agrees that in
order to facilitate Buyer's reasonable investigation of the Property (A)(i)
Seller has caused an environmental Phase 1 report (the "Environmental Report")
with respect to the Property to be completed by Dames and Moore, Inc. (the
"Environmental Engineers") and to be delivered to Buyer as of the date of this
Agreement, (ii) Seller has caused the Environmental Engineers to allow Buyer to
rely on the Environmental Report, and (iii) the Environmental Report is
delivered to Buyer for informational purposes only and does not constitute
representations or warranties of Seller of any kind, and (B) (x) Seller has
caused an ALTA survey (the "Survey") of the Property to be completed by Barge,
Waggoner, Sumner and Cannon, Inc. (the "Surveyor") and to be delivered to Buyer
within seven (7) days of the date of this Agreement, (y) Seller has caused the
Surveyor to allow Buyer to rely on the Survey, and (z) the Survey will be
delivered to Buyer for informational purposes only and does not constitute
representation or warranties of Seller of any kind.
5.3 The Buyer shall promptly commence and actively pursue its due
diligence on the Property, including, but not limited to the following items:
(a) Review of title matters;
(b) Review of the Survey;
(c) Review of Contracts and operating agreements;
(d) Obtain and review engineering reports on structural condition
of the mechanical systems;
(e) Review of the Environmental Report;
(f) Review of applicable zoning and other land use controls, and
other permits, licenses, permissions, approvals and consents;
and
(g) Review of all Leases affecting the Property.
Buyer shall complete its due diligence including, but not limited to the
foregoing, no later than June 4, 1998 (the "Diligence Date"). In the event that
Buyer's due diligence shall reveal any matters which are not acceptable to
Buyer, 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 Initial 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). In the event Buyer does not
terminate this Agreement on or before the Diligence Date, the Initial Deposit
shall become nonrefundable on the Diligence Date, except with respect to any
breach of this Agreement by Seller.
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 further acknowledges that neither Seller nor its employees,
agents or representatives have made any representation or warranty as to the
condition of the Property or the presence or absence of any hazardous materials
on, in, under or within the Property or a portion thereof which survive closing
hereunder. THE PURCHASER ACKNOWLEDGES AND AGREES THAT THE PROPERTY IS TO BE
CONVEYED BY THE SELLER TO THE PURCHASER "AS IS," "WITH ALL FAULTS," AND
SUBSTANTIALLY IN ITS CURRENT CONDITION. THE PURCHASER FURTHER ACKNOWLEDGES AND
AGREES THAT, EXCEPT AS EXPRESSLY CONTAINED HEREIN, NEITHER THE SELLER NOR ANY
AGENT, EMPLOYEE OR OTHER REPRESENTATIVE OF THE SELLER (OR PURPORTED AGENT,
EMPLOYEE OR OTHER REPRESENTATIVE OF THE SELLER) HAS MADE ANY GUARANTEE,
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED (AND THE SELLER SHALL NOT HAVE
ANY LIABILITY WHATSOEVER) AS TO THE VALUE, USES, HABITABILITY, CONDITION,
DESIGN, OPERATION, FINANCIAL CONDITION OR PROSPECTS, OR FITNESS FOR PURPOSE OR
USE OF THE PROPERTY (OR ANY PART THEREOF) OR THE PROPERTY INFORMATION, OR ANY
OTHER GUARANTEE, REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH
RESPECT TO ANY PORTION OF THE PROPERTY (OR ANY PART THEREOF) OR THE PROPERTY
INFORMATION. FURTHER, THE SELLER SHALL HAVE NO LIABILITY FOR ANY LATENT, HIDDEN,
OR PATENT DEFECT AS TO THE PROPERTY OR THE FAILURE OF THE PROPERTY, OR ANY PART
THEREOF, TO COMPLY WITH ANY APPLICABLE LAWS AND REGULATIONS. IN PARTICULAR, THE
PURCHASER ACKNOWLEDGES AND AGREES THAT THE "PROPERTY INFORMATION," INCLUDING BUT
NOT LIMITED TO THE ENVIRONMENTAL REPORT AND THE SURVEY, PROVIDED UNDER THIS
AGREEMENT (AND ANY OTHER INFORMATION THE PURCHASER MAY HAVE OBTAINED REGARDING
IN ANY WAY ANY OF THE PROPERTY, INCLUDING WITHOUT LIMITATION, ITS OPERATIONS OR
ITS FINANCIAL HISTORY OR PROSPECTS FROM THE SELLER OR ITS AGENTS, EMPLOYEES OR
OTHER REPRESENTATIVES) IS DELIVERED TO THE PURCHASER AS A COURTESY, WITHOUT
REPRESENTATION OR WARRANTY AS TO ITS ACCURACY OR COMPLETENESS, AND NOT AS AN
INDUCEMENT TO ACQUIRE THE PROPERTY; THAT NOTHING CONTAINED IN SUCH DELIVERIES
SHALL CONSTITUTE OR BE DEEMED TO BE A GUARANTEE, REPRESENTATION OR WARRANTY,
EXPRESS OR IMPLIED, IN ANY REGARD AS TO ANY OF THE PROPERTY (EXCEPT AS EXPRESSLY
PROVIDED HEREIN); AND THAT THE PURCHASER IS RELYING ONLY UPON THE PROVISIONS OF
THIS AGREEMENT AND ITS OWN INDEPENDENT ASSESSMENT OF THE PROPERTY AND ITS
PROSPECTS IN DETERMINING WHETHER TO ACQUIRE THE PROPERTY. The provisions of this
paragraph shall survive Closing.
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 from third-parties, other than
accountants and legal advisors, 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, any material term of this Agreement or any aspect of
the transactions contemplated hereby, except as provided in this Section. Seller
may publicly disclose the existence of this Agreement provided that the identity
of Buyer is not disclosed. Each party hereto may discuss with and disclose to
its 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.
Buyer and Seller do not contemplate issuing a press release until after the
Diligence Date. Any press release to be made regarding any matter which is the
subject of the confidentiality obligation created in this Section shall be
subject to the reasonable approval of Buyer and the Seller, respectively both as
to timing and content. Buyer agrees that neither it nor any affiliate will
acquire or enter into any agreement to acquire, either directly or indirectly
any interest in Seller.
5.6 Indemnity. If any inspection or test disturbs any of the Property,
Buyer will restore the Property to substantially the same condition as existed
prior to any such inspection or test. Buyer shall keep the Property free and
clear of any liens and will indemnify, defend, and hold Seller harmless from all
losses, costs and damages including reasonable attorneys' fees incurred by
Seller as a result of such entry or investigation by or on behalf of Buyer
(other than losses, costs and damages incurred by or as a result of preexisting
conditions). This indemnity obligation of Buyer shall survive the termination of
this Agreement for any reason.
ARTICLE 6
TITLE, SURVEY, CONDITIONS AND REPRESENTATIONS
6.1 Promptly following the execution of this Agreement, Buyer shall, at
its sole cost and expense, obtain:
(a) A commitment for an ALTA Owner's Policy of Title Insurance (the
"Title Commitment"); and
(b) Evidence that the Property complies with applicable zoning of
the land use laws (the "Zoning Diligence").
Buyer shall provide Seller with copies of the Title Commitment and the
Zoning Diligence immediately upon receipt of the same.
If (i) any matter disclosed on the Survey, (ii) matters listed as
exceptions in the Title Commitment or (iii) the Zoning Diligence are not each
satisfactory to Buyer, it shall, at least seven (7) days before the Diligence
Date provide Seller with written notice of such objections and if Seller is
unable or unwilling to cure such objections, prior to the Diligence Date, Buyer
may terminate this Agreement as provided in Section 5.3 above.
6.2 On the Closing Date, the Seller shall convey by general warranty deed
to the Buyer or to the 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;
(b) All matters listed on the Title Commitment and Survey and not
objected to pursuant to Section 6.1 above;
(c) All Leases;
(d) All zoning, building and other laws applicable to the Property;
and
(e) All matters which arise after the effective date of the Title
Commitment which are agreed upon or consented to by Buyer.
6.3 At the Closing, the Seller shall assign the Leases, the Assigned
Contracts and warranties, if any, to Buyer and Buyer shall assume Seller's
obligations thereunder and Seller shall convey the Personal Property to the
Buyer by quitclaim bill of sale.
6.4 The Seller hereby represents and warrants to the Buyer as of the date
of this Agreement and on and as of the Closing Date as follows:
(a) Organization and Power. The Seller is a limited partnership duly
formed and validly existing under the laws of the State of Delaware with
all necessary legal power to enter into and perform its obligations
hereunder and under any document or instrument required hereunder to be
executed and delivered on behalf of the Seller.
(b) Authorization and Execution. This Agreement has been duly
authorized by all necessary partnership action on the part of the Seller
and has been duly executed and delivered on behalf of the Seller by a duly
authorized general partner of the Seller.
(c) Notice of Violations; Defaults. Seller has received no notice of
zoning violations and has no actual knowledge of material inaccuracies in
tenants' financial reports.
(d) Pending Litigation. To the best of Rock D'Errico's knowledge, as
of the date of this Agreement no notices have been received by the
Seller's property manager regarding actions, suits, or proceedings pending
with respect to the Property, at law or in equity, or before or by any
federal, state, municipal, or other governmental court, department,
commission, board, bureau, agency, or instrumentality, domestic or
foreign.
6.5 The obligations of the Buyer to consummate the transaction
contemplated by this Agreement are subject to the representations and warranties
made by Seller in this Agreement being true and correct in all material respects
on and as of the Closing Date with the same force and effect as though such
representations and warranties had been made as of the Closing Date.
ARTICLE 7
CLOSING
7.1 The consummation of the purchase and sale contemplated in this
Agreement (the "Closing") shall occur at the offices of Goodwin, Procter & Hoar
LLP, Exchange Place, Boston, Massachusetts 02109 on the later of (i) July 2,
1998, or (ii) the Extended Closing Date, as hereinafter defined (the "Closing
Date"). Buyer may, by written notice to Seller at least three (3) business days
prior to July 2, 1998, extend the date on which the Closing shall occur to
August 3, 1998 (the "Extended Closing Date") provided that Buyer makes the
Additional Deposit to Title Company on or before July 2, 1998. The Additional
Deposit shall be nonrefundable immediately upon deposit with the Title Company,
and shall be applied toward the Purchase Price. It is agreed that time is of the
essence in this Agreement.
7.2 On the Closing Date the Seller shall deliver or cause to be delivered
each of the following items to the Buyer:
(a) A duly executed and acknowledged warranty deed or deeds
conveying the Real Property and the Improvements to the Buyer;
(b) A duly executed quitclaim bill of sale conveying the Personal
Property to the Buyer;
(c) A duly executed assignment and assumption of leases (the
"Assignment of Leases") together with originals of all leases;
(d) A duly executed assignment and assumption of the Assigned
Contracts, licenses, guaranties, warranties, and intangible property (the
"Assignment of Contracts");
(e) A certificate or certificates of non-foreign status from the
Seller reasonably acceptable to the 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 the Buyer's title policy and such other affidavits relating to such
title policy as the Title Company may reasonably request;
(g) A counterpart original of the closing statement setting forth
the Purchase Price, the closing adjustments and the application of the
Purchase Price as adjusted;
(h) Original tenant estoppel certificates for the following Leases:
Newton Buying Corp. (TJ Maxx), Kmart Corporation, Russell's Shoe (Shoe
Carnival), Blockbuster Children's Amusement, and Michaels Stores, Inc.
(the "Anchor Leases"), together with original tenant estoppel certificates
for Leases which in the aggregate equal 75% of the gross leasable area of
the Property, exclusive of the gross leasable area included in the Anchor
Leases.
(i) A duly executed affidavit of consideration; and
(j) A duly executed Tennessee withholding tax affidavit.
7.3 On the Closing Date the Buyer shall deliver or cause to be delivered
at its expense each of the following to the 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 the Seller, in
the manner provided for in Article 3;
(b) Assignment of Leases;
(c) The Assignment of Contracts;
(d) A duly executed affidavit of consideration;
(e) A duly executed Tennessee withholding tax affidavit;
(f) Such other instruments as the Seller may reasonably request to
effectuate the transaction contemplated by this Agreement; and
(g) 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, the Buyer shall have the following
elections:
(a) to purchase the Property in its then condition and pay the
Purchase Price, in which event the Seller shall pay over or assign to the
Buyer as the case may be, on the Closing Date, all amounts recovered or
recoverable by the Seller on account of any insurance as a result of such
casualty, less any amounts reasonably expended by the Seller for partial
restoration; or
(b) if any portion of the Improvements shall have been substantially
destroyed (in Buyer's sole and absolute discretion), to terminate this
Agreement by giving notice of termination to the 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 the Buyer, this
Agreement shall terminate and neither the Seller nor the 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 the 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"), the Seller shall give notice promptly to the Buyer of
such event and the Buyer shall have the option to terminate this Agreement by
providing notice to the Seller to such effect on or before the date which is ten
(10) days from the Seller's notice to the 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 the Buyer, this Agreement shall terminate,
and neither the Seller nor the Buyer shall have any recourse against the other.
If the Buyer does not timely notify the Seller of its election to terminate this
Agreement, the Buyer shall purchase the Property and pay the Purchase Price, and
the Seller shall pay over or assign to the Buyer on delivery of the deed all
awards recovered or recoverable by the Seller on account of such Eminent Domain
Taking, less any amounts reasonably expended by the Seller in obtaining such
award.
ARTICLE 9
BROKERAGE COMMISSIONS
The Seller and the 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 Trammell Crow SE, Inc. (the "Broker"), whose fees
shall be paid by Seller. The Seller and Buyer acknowledge that the Broker has
entered into an agreement with S. L. Nusbaum Realty Co., to which Seller and
Buyer are not parties and by which Broker agrees to pay any and all commissions
and fees due to S.L. Nusbaum Realty Co. in connection with this transaction.
Buyer and Seller each hereby agree to indemnify, defend and hold the other
harmless from and against any and all loss, costs, claims and expenses
(including reasonable attorney's fees) which arise as a result of breach of the
foregoing representation and warranty. The indemnification contained in this
Article 9 shall survive Closing hereunder or termination hereof, as the case may
be.
ARTICLE 10
DEFAULT, TERMINATION AND REMEDIES
10.1 In the event that Seller shall have failed in any material respect
adverse to the Buyer on the Closing Date to have performed any of the covenants
and agreements contained in this Agreement which are to be performed by the
Seller on or before the Closing Date, the Buyer shall have the following
remedies, (i) the right to take any and all legal actions necessary to compel
the 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.
10.2 In the event that the Buyer shall have failed in any material respect
adverse to the Seller on the Closing Date to have performed any of the covenants
and agreements contained in this Agreement which are to be performed by the
Buyer on or before the Closing Date, or if the Buyer defaults in its obligation
to close hereunder, the Seller shall be entitled to receive the Escrowed Amount
as liquidated damages, in lieu of all other remedies available to the Seller at
law or in equity for such default, and Buyer shall direct the Title Company to
release the Escrowed Amount to the Seller. The Seller and the Buyer agree that
the damages resulting to the Seller as a result of such default by the 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 the Buyer's
and the Seller's reasonable estimate of such damages.
ARTICLE 11
MISCELLANEOUS
11.1 The Buyer may only assign or transfer its rights under this Agreement
to an entity owned, or controlled by Buyer or which owns or controls Buyer. The
covenants and agreements contained in this Agreement shall extend to and be
obligatory upon the permitted successors and assigns of the respective parties
to this Agreement.
11.2 Except as otherwise specifically provided herein, any notice required
or permitted to be delivered under this Agreement shall be in writing and shall
be deemed given if (i) delivered by hand during regular business hours, (ii)
sent by United States Postal Service, registered or certified mail, postage
prepaid, return receipt requested, or (iii) sent by a reputable overnight
express courier service that provides tracing and proof of receipt or refusal of
items mailed, addressed to the Seller or the Buyer, as the case may be, at the
address or addresses set forth below or such other addresses as the parties may
designate in a notice similarly sent. Any notice given by a party to Title
Company shall be simultaneously given to the other party. Any notice given by a
party to the other party relating to its entitlement to the Escrowed Amount
shall be simultaneously given to the Title Company.
(1) If to Buyer:
Clearview Investments, Ltd.
2000 East Lamar Boulevard, Suite 150
Arlington, TX 70006
Attention: Jessica Ellis
with a copy to:
Fielder Nelms, Esq.
Meadows, Owens, Collier, Reed, Cousins & Blau LLP
3700 Nationsbank Plaza
901 Main Street
Dallas, TX 75202
(2) If to Seller:
PaineWebber Qualified Plan Property Fund Four, L.P.
c/o PaineWebber Properties Incorporated
265 Franklin Street - 16th Floor
Boston, MA 02110
Attention: Rock D'Errico
with a copy to:
Goodwin, Procter and Hoar LLP
Exchange Place
Boston, Massachusetts 02109
Attention: Andrew C. Sucoff, Esq.
(3) If to the Title Company:
Lawyers Title Insurance Company
225 Franklin Street
Boston, Massachusetts 02110
Attention: Robert G. Soule, Esq.
11.3 Words of any gender used in this Agreement shall be held and
construed to include any other gender, and words of a singular number shall be
held to include the plural and vice versa, unless the context requires
otherwise.
11.4 The captions used in connection with the Articles of this Agreement
are for convenience only and shall not be deemed to extend, limit or otherwise
define or construe the meaning of the language of this Agreement.
11.5 Nothing in this Agreement, express or implied, is intended to confer
upon any person, other than the parties hereto and their respective successors
and assigns, any rights or remedies under or by reason of this Agreement.
11.6 This Agreement may be amended only by a written instrument executed
by the Seller and the Buyer (or Buyer's assignee or transferee).
11.7 This Agreement embodies the entire agreement between the Seller and
the Buyer with respect to the transaction contemplated in this Agreement, and
there have been and are no covenants, agreements, representations, warranties or
restrictions between the Seller and the Buyer with regard thereto other than
those set forth or provided for in this Agreement.
11.8 This Agreement shall be construed under and in accordance with the
laws of the State of Tennessee.
11.9 This Agreement may be executed in two (2) or more counterparts, each
of which shall be an original but such counterparts together shall constitute
one and the same instrument notwithstanding that both the Buyer and Seller are
not signatory to the same counterpart.
11.10 The Title Company has executed this Agreement only for the purpose
of agreeing to perform the duties assigned to it under this Agreement. 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.
11.11 In the event of any disagreement between the parties, the Title
Company shall retain all deposits pending instructions mutually agreed to by the
Seller and Buyer. In the event there is no mutual agreement by Seller and Buyer
for disbursements, the Title Company shall hold said deposits pending a court
order to disburse. The Title Company may conclusively rely on the authenticity,
validity and effectiveness of any writing delivered to it, and Title Company
shall not be obligated to make any investigation or determination, except as
provided in the case of disputes as to the truth and accuracy of any information
contained therein. Buyer and Seller agree to defend, indemnify and hold Title
Company harmless from any liabilities, suits, claims, or expenses arising from
or out of or in connection with Title Company's acts or failure to act
hereunder, unless caused or created as a result of Title Company's gross
negligence, and Title Company shall be entitled to reimbursement by Buyer and/or
Seller for all reasonable costs and expenses incurred in the performance of its
duties hereunder including, without limitation, all out-of-pocket expenses and
reasonable attorneys fees of counsel retained by Title Company. Any such costs
and expenses not paid by the parties after billing and supporting documentation
by Title Company may be paid by Title Company out of the Escrowed Amount. If
there is a settlement by Buyer and Seller prior to a court order, the 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 Initial Deposit and any Additional Deposit in State Street
Bank (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 Initial Deposit and any Additional 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 Initial Deposit and
any Additional Deposit as required herein.
11.12 Time is expressly declared to be of the essence of this Agreement.
11.13 The obligations of Seller hereunder shall be binding only on the
Property and neither the Buyer nor anyone claiming by, through or under the
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 the
Seller nor anyone claiming by, through or under the 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.
ARTICLE 12
IRS FORM 1099-S DESIGNATION
12.1 In order to comply with information reporting requirements of Section
6045(e) of the Internal Revenue Code of 1986, as amended, and the Treasury
Regulations thereunder, the parties agree (1) to execute an IRS Form 1099-S
Designation Agreement in the form attached hereto as Schedule D at or prior to
the Closing to designate the Title Company (the "Designee") as the party who
shall be responsible for reporting the contemplated sale of the Property to the
Internal Revenue Service (the "IRS") on IRS Form 1099-S; (2) to provide the
Designee with the information necessary to complete Form 1099-S; (3) that the
Designee shall not be liable for the actions taken under this Agreement, or for
the consequences of those actions, except as they may be the result of gross
negligence or willful misconduct on the part of the Designee; and (4) that the
Designee shall be indemnified by the parties for any costs or expenses incurred
as a result of the actions taken hereunder, except as they may be the result of
gross negligence or willful misconduct on the part of the Designee. The Designee
shall provide all parties to this transaction with copies of the IRS Forms
1099-S filed with the IRS and with any other documents used to complete IRS Form
1099-S.
[Remainder Of This Page Intentionally Left Blank]
<PAGE>
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
FOUR, L.P., a Delaware limited partnership
By: Fourth Qualified Properties, Inc.,
its managing general partner
By: /s/ Rock M. D'Errico
--------------------
Name: Rock M. D'Errico
Title: Vice President
BUYER:
CLEARVIEW INVESTMENTS, LTD., a Texas
limited partnership
By: Redbud Capital, Inc., a Texas
corporation, its general partner
By: /s/ Carl B. Fulton
-------------------
Name: Carl B. Fulton
Title: Vice President
TITLE COMPANY:
Lawyers Title Insurance Corporation
By: /s/ Robert G. Soule
-------------------
Vice President
<PAGE>
SCHEDULE A
Description of Real Property
A certain tract or parcel of land in Davidson County, State of Tennessee,
described as follows, to-wit:
TRACT I:
A parcel of land in the First Civil District of Davidson County,
Nashville, Tennessee, being Lot No. 3 as shown on the plan of the
Resubdivision of Lot No. 3 of Bell Forge West of record in Book 6250, page
737, and more fully described as follows:
Beginning at a point located S 80 deg. 11 min. 43 sec. E, 11.00 feet
from a concrete monument, said monument being the common property line
of Belle Forge West, and Prudential Insurance Company of America, said
point being 464.71 feet west of the westerly margin of Mt. View Road;
thence, N 80 deg. 11 min. 43 sec. W, 11.00 feet to a concrete monument;
thence N 84 deg. 03 min. 53 sec. W, 461.24 feet; thence, N 83 deg. 38
min. 40 sec. W, 325.04 feet; thence, N 25 deg. 10 min. 00 sec. E, 642.34
feet; thence, S 65 deg. 45 min. E, 170.00 feet; thence, S 84 deg. 45
min. E, 146.10 feet; thence, with a curve to the left having a central
angle of 29 deg. 09 min. 14 sec., a radius of 250.00 feet and a length
of 127.21 feet; thence, with a curve to the right having a central angle
of 15 deg. 15 min. 53 sec., a radius of 200 feet and a length of 53.46
feet; thence, S 88 deg. 10 min. 00 sec E, 119.80 feet; thence S 01 deg.
50 min. 00 sec. W, 329.00 feet; thence, N 88 deg. 10 min. 00 sec. W,
58.53 feet; thence, S 01 deg. 50 min. 00 sec. W, 278.91 feet to the
point of beginning, containing 9.39 acres, more or less.
TRACT II:
Being a parcel of land in the First Civil District, Nashville, Davidson
County, Tennessee, and being Lot No. 4 as shown on the Plan of the
Resubdivision of Lot No. 3 on the Plan of Bell Forge West of record in
Book 6250, page 737, more particularly described as follows:
Beginning at a point in the westerly margin of Mt. View Road, located
approximately 345 feet north of the centerline of Bell Forge Lane East
extended; thence, with said margin, S 01 deg. 17 min. 40 sec. W, 56.00
feet; thence, with a curve to the left having a central angle of 27 deg.
38 min. 09 sec., a radius of 805.74 feet and a length of 388.64 feet;
thence, S 26 deg. 20 min. 31 sec. E, 250.75; thence, with a curve to the
left having a central angle of 02 deg. 47 min. 42 sec., a radius of
515.52 feet and a length of 25.15 feet; thence, leaving said margin, N
80 deg. 11 min. 43 sec. W, 464.71 feet; thence, N 01 deg. 50 min. 00
sec. E, 278.91 feet; thence, S 88 deg. 10 min. 00 sec. E, 58.53 feet;
thence, N 01 deg. 50 min. 00 sec. E, 329.00 feet; thence, S 88 deg. 10
min. 00 sec. E, 176.00 feet to the point of beginning, containing 4.012
acres, more or less.
Being the same property conveyed to Paine Webber Qualified Plan Property
Fund Four, L.P. by Deed from Bell Forge Square Associates, Ltd., a
Tennessee limited partnership, of record in Book 6844, page 523, and by
Quitclaim Deed of record in Book 8461, page 77, Register's Office for
Davidson County, Tennessee.
together with all improvements constructed thereon and all hereditaments and
appurtenances relating to the property.
<PAGE>
KATHRYN L. LINK
(6I7) 570-8l8l
[email protected]
KATHRYN L. LINK
(6I7) 570-8l8l
[email protected]
June 11, 1998
BY FAX AND FEDERAL EXPRESS
Mr. Shawn Todd
Clearview Investments, Ltd.
2000 East Lamar Boulevard, Suite 150
Arlington, TX 70006
Clifford L. Friedman, Esq.
Smith, Stern & Friedman, P.C.
8144 Walnut Hill Lane
Suite 1100
Dallas, TX 75231
Re: Amendment to the Purchase and Sale Agreement dated May 20, 1998,
as amended, (the "Agreement") by and between PaineWebber
Qualified Plan Property Fund Four, L.P. ("Seller") and Clearview
Investments, Ltd. ("Buyer")
Dear Messrs. Todd and Friedman:
Buyer and Seller have agreed to amend the Agreement as provided herein
(all capitalized terms not defined herein shall have the meanings ascribed to
them in the Agreement):
1. If, and only if, the Closing occurs on or before July 2, 1998, then One
Hundred Thousand Dollars ($100,000) shall be credited toward the Purchase
Price (in addition to any sums which shall be credited to the Purchase
Price pursuant to Article 3);
2. Buyer has completed and is satisfied with the results of its diligence
and the Initial Deposit is nonrefundable pursuant to Section 5.3 of the
Agreement; and
3. The Agreement otherwise remains unmodified and is in full force and
effect.
<PAGE>
If an executed counterpart of this letter is not received by this office
by facsimile by 7:00 p.m.(EST) today, June 11, 1998, followed by an original,
executed counterpart received by this office by 12:00 p.m.(EST) on Friday, June
12, 1998, then this offer is revoked and the Agreement shall remain in full
force and effect without any modifications or amendments thereto.
Sincerely,
Kathryn L. Link
Agreed:
Clearview Investments, Ltd. PaineWebber Qualified Plan Property
Fund Four, L.P.
By: Redbud Capital, Inc., its general By: Fourth Qualified Properties, Inc.,
partner its managing general partner
By:/s/ Carl B. Fulton By: /s/ Rock M. D'Errico
------------------- ---------------------
Name: Carl B. Fulton Vice President
Title: Vice President
KLL
Enclosures
cc: Rock M. D'Errico
Bruce Rubin
Andrew C. Sucoff, Esq.
<PAGE>
KATHRYN L. LINK
(6I7) 570-8l8l
[email protected]
KATHRYN L. LINK
(6I7) 570-8l8l
[email protected]
June 26, 1998
BY FAX AND FEDERAL EXPRESS
Mr. Shawn Todd
Clearview Investments, Ltd.
2000 East Lamar Boulevard, Suite 150
Arlington, TX 70006
Clifford L. Friedman, Esq.
Smith, Stern & Friedman, P.C.
8144 Walnut Hill Lane
Suite 1100
Dallas, TX 75231
Re: Second Amendment to the Purchase and Sale Agreement dated May 20,
1998, as amended by that certain First Amendment dated June 11,
1998, (the "Agreement") by and between PaineWebber Qualified Plan
Property Fund Four, L.P. ("Seller") and Clearview Investments,
Ltd. ("Buyer")
Dear Messrs. Todd and Friedman:
Buyer and Seller have agreed to amend the Agreement as provided herein
(all capitalized terms not defined herein shall have the meanings ascribed to
them in the Agreement):
Notwithstanding Section 11.1 of the Agreement, Seller agrees that Seller
will not unreasonably withhold consent to an assignment of the Agreement
from Buyer to an assignee ("Assignee") provided that (i) Assignee assumes
all of Buyer's obligations set forth in the Agreement, (ii) Buyer remains
obligated under the terms of the Agreement, (iii) a copy of the executed
assignment is received at this office no later than the date and time of
the business day that is at least 72 hours prior to 10 a.m.(EST) on the
Closing Date, and (iv) Buyer has complied with all other terms of the
Agreement.
This Second Amendment shall supercede the agreement set forth in that
certain letter from this office to Mr. Friedman dated June 25, 1998.
<PAGE>
If an executed counterpart of this letter is not received by this office
by facsimile by 5:00 p.m.(EST) today, June 26, 1998, followed by an original,
executed counterpart received by this office by 10 a.m.(EST) on Monday, June 29,
1998, then this offer is revoked and the Agreement shall remain in full force
and effect without any modifications or amendments thereto.
Sincerely,
Kathryn L. Link
Agreed:
Clearview Investments, Ltd. PaineWebber Qualified Plan Property
Fund Four, L.P.
By: Redbud Capital, Inc., its general By: Fourth Qualified Properties, Inc.,
partner its managing general partner
By:/s/ Carl B. Fulton By: /s/ Rock M. D'Errico
------------------ ---------------------
Name: Carl B. Fulton Vice President
Title: Vice President
KLL
Enclosures
cc: Rock M. D'Errico
Bruce Rubin
Andrew C. Sucoff, Esq.
<PAGE>
This Instrument Prepared by
Goodwin, Procter & Hoar LLP.
Return this Instrument to the following address after recording:
Stuart Jones, Esq.
Lawyers Title Insurance Corporation
424 Church Street, Suite 200
Nashville, TN 37219
WARRANTY DEED
FROM: Paine Webber Qualified Plan Property Fund
Four, L.P., a Delaware limited partnership
(Grantor)
TO: Bell Forge Square, L.L.C.,
A Delaware limited liability company (Grantee)
Name and Address of the Person or Entity Responsible for the Payment of Real
Property Taxes:
Bell Forge Square, L.L.C.
3200 Trammell Crow Center
Ross Avenue
Dallas, Texas 75201-2997
Attn: Linda Lillard
Map-Parcel Numbers:
Map 163
Parcels 170 and 315
Field Book Numbers
02DU-70698
02DU-17375
FOR AND IN CONSIDERATION OF the sum of Ten Dollars ($10.00), cash in hand paid,
and other good and valuable consideration the receipt and sufficiency of which
are hereby acknowledged, PaineWebber Qualified Plan Property Fund Four, L.P., a
Delaware limited partnership has bargained and sold, and does hereby bargain,
sell, convey and confirm unto the said Bell Forge Square, L.L.C , a Delaware
limited liability company, its successors and assigns, all of Grantor's rights,
title and interest in and to a certain tract or parcel of land in Davidson
County State of Tennessee, described as follows, to wit:
TRACT I:
A parcel of land in the First Civil District of Davidson County,
Nashville, Tennessee, being Lot No. 3 as shown on the plan of the
Resubdivision of Lot No. 3 of Bell Forge West of record in Book 6250, page
737, and more fully described as follows:
Beginning at a point located S 80 deg. 11 min. 43 sec. E, 11.00 feet from a
concrete monument, said monument being the common property line of Belle Forge
West, and Prudential Insurance Company of America, said point being 464.71 feet
west of the westerly margin of Mt. View Road; thence, N 80 deg. 11 min. 43 sec.
W, 11.00 feet to a concrete monument; thence N 84 deg. 03 min. 53 sec. W, 461.24
feet; thence, N 83 deg. 38 min. 40 sec. W, 325.04 feet; thence, N 25 deg. 10
min. 00 sec. E, 642.34 feet; thence, S 65 deg. 45 min. E, 170.00 feet; thence, S
84 deg. 45 min. E, 146.10 feet; thence, with a curve to the left having a
central angle of 29 deg. 09 min. 14 sec., a radius of 250.00 feet and a length
of 127.21 feet; thence, with a curve to the right having a central angle of 15
deg. 15 min. 53 sec., a radius of 200 feet and a length of 53.46 feet; thence, S
88 deg. 10 min. 00 sec E, 119.80 feet; thence S 01 deg. 50 min. 00 sec. W,
329.00 feet; thence, N 88 deg. 10 min. 00 sec. W, 58.53 feet; thence, S 01 deg.
50 min. 00 sec. W, 278.91 feet to the point of beginning, containing 9.39 acres,
more or less.
<PAGE>
TRACT II:
Being a parcel of land in the First Civil District, Nashville, Davidson
County, Tennessee, and being Lot No. 4 as shown on the Plan of the
Resubdivision of Lot No. 3 on the Plan of Bell Forge West of record in
Book 6250, page 737, more particularly described as follows:
Beginning at a point in the westerly margin of Mt. View Road, located
approximately 345 feet north of the centerline of Bell Forge Lane East extended;
thence, with said margin, S 01 deg. 17 min. 40 sec. W, 56.00 feet; thence, with
a curve to the left having a central angle of 27 deg. 38 min. 09 sec., a radius
of 805.74 feet and a length of 388.64 feet; thence, S 26 deg. 20 min. 31 sec. E,
250.75; thence, with a curve to the left having a central angle of 02 deg. 47
min. 42 sec., a radius of 515.52 feet and a length of 25.15 feet; thence,
leaving said margin, N 80 deg. 11 min. 43 sec. W, 464.71 feet; thence, N 01 deg.
50 min. 00 sec. E, 278.91 feet; thence, S 88 deg. 10 min. 00 sec. E, 58.53 feet;
thence, N 01 deg. 50 min. 00 sec. E, 329.00 feet; thence, S 88 deg. 10 min. 00
sec. E, 176.00 feet to the point of beginning, containing 4.012 acres, more or
less.
Being the same property conveyed to Paine Webber Qualified Plan Property
Fund Four, L.P. by Deed from Bell Forge Square Associates, Ltd., a
Tennessee limited partnership, of record in Book 6844, page 523, and by
Quitclaim Deed of record in Book 8461, page 77, Register's Office for
Davidson County, Tennessee.
together with all improvements constructed thereon and all hereditaments and
appurtenances relating to the property.
This is improved property, known as Bell Forge Square shopping center,
5336 Mt. View Road, Antioch, Tennessee 37013.
The said party of the first part does hereby covenant with the said party
of the second part that it is lawfully seized in fee of the aforedescribed real
estate; that it has a good right to sell and convey the same; that the same is
unencumbered except for the encumberances listed in Schedule A, attached hereto
and incorporated herein, and that the title and quiet possession thereto it will
warrant and forever defend against the lawful claims of all persons.
Whenever the word "party" is used herein, it shall mean "parties" if there
are more than one person referred to and whenever pronouns occur herein, they
shall be construed according to their proper gender and number according to the
context of this instrument.
<PAGE>
IN WITNESS WHEREOF, party of the first part has caused this instrument to
be executed by and through its duly authorized officers this 3rd day of August,
1998.
PaineWebber Qualified Plan Property
Fund Four, L.P.
By: Fourth Qualified Properties, Inc.,
its managing general partner
By: /s/ Peter F. Sullivan
---------------------
Name: Peter F. Sullivan
Title: Vice President
<PAGE>
COMMONWEALTH OF MASSACHUSETTS
County of Suffolk, ss. July 30, 1998
Before me, Joyce J. Dwyer of the state and county aforesaid, personally
appeared Peter F. Sullivan, with whom I am personally acquainted (or proved to
me on the basis of satisfactory evidence), and who upon oath acknowledges
himself to be Vice President of Fourth Qualified Properties, Inc., a corporation
which is the managing General Partner of PaineWebber Qualified Plan Property
Fund Four, L.P., the within named bargainor, a Delaware partnership, and that he
as such Vice President of the General Partner, executed the foregoing instrument
for the purpose therein contained, by signing the name of the corporation (as
General Partner) by himself as Vice President.
Witness my and seal this 30th day of July 1998.
Notary Public: /s/ Joyce J. Dwyer
------------------
My Commission Expires: 2/8/2002
<PAGE>
QUITCLAIM BILL OF SALE
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby
acknowledged, PaineWebber Qualified Plan Property Fund Four, L.P., a Delaware
limited partnership ("Seller") does hereby grant, sell, transfer, and deliver to
Bell Forge Square, L.L.C., a Delaware limited liability company ("Buyer"), all
of the furnishing, 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 Bell
Forge Shopping Center, located at 5336 Mt. View Road, Antioch, Tennessee 37013
as more particularly 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.
<PAGE>
IN WITNESS WHEREOF, this document is executed as a sealed instrument as of this
3rd day of August, 1998.
SELLER
PAINEWEBBER QUALIFIED PLAN PROPERTY
FUND FOUR, L.P., a Delaware limited partnership
By: Fourth Qualified Properties, Inc., its
managing general partner
By: /s/ Rock M. D'Errico
--------------------
Name: Rock M. D'Errico
Title: Vice President
BUYER
BELL FORGE SQUARE, L.L.C., a Delaware limited
liability company
By: /s/ Crow Holdings Managers, LLP, Manager
----------------------------------------
By: /s/ Robert A. McClain
---------------------
Name: Vice President
Title:
<PAGE>
ASSIGNMENT OF LEASES
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby
acknowledged, PaineWebber Qualified Plan Property Fund Four, L.P., a Delaware
limited partnership ("Assignor"), hereby assigns, sells, transfers, sets over
and delivers unto Bell Forge Square, L.L.C., a Delaware limited liability
company ("Assignee"), all of Assignor's estate, right, title and interest in and
to the following:
(a) all leases, licenses, tenancy agreements or occupancy agreements and
all data, correspondence and records pertaining thereto relative to the real
property known as Bell Forge Shopping Center, located at 5336 Mt. View Road,
Antioch, Tennessee 37013 ("Property") described in Exhibit "A" attached hereto,
together with all rents, issues and profits thereunder (collectively, "Leases")
including, without limitation, those leases identified in Exhibit "B" attached
hereto; and
(b) those security deposits, prepaid rentals, cleaning fees and other
deposits paid by tenants of the Property to Assignor or any agent of Assignor
and delivered to Assignee contemporaneously herewith which are specifically
identified in Exhibit "C" attached hereto ("Deposits").
Assignee hereby assumes the performance of all of the terms, covenants and
conditions imposed upon Assignor under the Leases 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 arising 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 arising 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.
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.
The terms and provisions of this Assignment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
<PAGE>
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment as
of the 3rd day of August, 1998, which Assignment is effective on that date.
ASSIGNOR
PAINEWEBBER QUALIFIED PLAN PROPERTY
FUND FOUR, L.P., a Delaware limited partnership
By: Fourth Qualified Properties, Inc., its
managing general partner
By: /s/ Peter F. Sullivan
---------------------
Name: Peter F. Sullivan
Title: Vice President
<PAGE>
ASSIGNEE
BELL FORGE SQUARE, L.L.C., a Delaware limited
liability company
By: /s/ Crow Holdings Managers, LLP, Manager
----------------------------------------
By: /s/ Robert A. McClain
----------------------
Name: Vice President
Title:
<PAGE>
ASSIGNMENT OF CONTRACTS AND INTANGIBLES
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby
acknowledged, PaineWebber Qualified Plan Property Fund Four, L.P., a Delaware
limited partnership ("Assignor"), hereby assigns, sells, transfers, sets over
and delivers unto Bell Forge Square, L.L.C., a Delaware limited liability
company ("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 Bell Forge Shopping Center, located at 5336 Mt. View Road, Antioch,
Tennessee 37013 ("Property") described in Exhibit "A" attached hereto; the use
of the name "Bell Forge Shopping Center" and "Bell Forge Square Shopping Center"
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");
(b) 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");
(c) all warranties and guaranties in effect with respect to the Property
and all contracts for services and all operating agreements currently in effect
with respect to the Property (the "Contracts"); and
(d) the interest of Assignor in all other intangible personalty relating
to the use and operation of the Property including good will if any (the
"Intangibles").
Assignor makes no warranties of any kind or nature, express or implied,
regarding the Licenses and Permits, Records and Plans and Contracts and
Intangibles.
Assignee hereby assumes the performance of all of the terms, convents and
conditions imposed upon Assignor under the Licenses and Permits, Records and
Plans and Contracts 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, Records and
Plans and Contracts 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.
The terms and provisions of this Assignment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
[Signatures are on the next page]
<PAGE>
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment as
of the 3rd day of August, 1998, which Assignment is effective on that date.
ASSIGNOR
PAINEWEBBER QUALIFIED PLAN PROPERTY
FUND FOUR, L.P., a Delaware limited partnership
By: Fourth Qualified Properties, Inc., its
managing general partner
By: /s/ Peter F. Sullivan
---------------------
Name: Peter F. Sullivan
Title: Vice President
<PAGE>
ASSIGNEE
BELL FORGE SQUARE, L.L.C., a Delaware limited company
By: /s/ Crow Holdings Managers, LLP, Manager
----------------------------------------
By: /s/ Robert A. McClain
---------------------
Name: Vice President
Title:
