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 25, 1997
PaineWebber Mortgage Partners Five, L.P.
-----------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 0-17149 04-2889712
- ----------------------------- ----------- -----------------
(State or other jurisdiction) (Commission (IRS Employer
of incorporation File Number) Identification No.)
265 Franklin Street, Boston, Massachusetts 02110
- ------------------------------------------ --------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (617) 439-8118
--------------
(Former name or address, if changed since last report)
<PAGE>
FORM 8-K
CURRENT REPORT
PAINEWEBBER MORTGAGE PARTNERS FIVE, L.P.
ITEM 2 - Disposition of Assets
Spartan Place Shopping Center, Spartanburg, South Carolina
Disposition Date - August 25, 1997
On August 25, 1997, PaineWebber Mortgage Partners Five, L.P. (the
"Partnership") sold one of its wholly-owned operating investment properties, the
Spartan Place Shopping Center, located in Spartanburg, South Carolina, to an
unrelated third party for $4,450,000. After closing costs and adjustments, the
Partnership realized net proceeds of approximately $4,381,000. As a result of
the sale of the Spartan Place Shopping Center, a Special Distribution will be
made on October 15, 1997 to unit holders of record as of August 25, 1997. The
Special Distribution will include the net proceeds from the sale of the Spartan
Place Shopping Center as well as substantially all of the proceeds of the $1.5
million letter of credit that was collected from the Spartan Place borrower at
the time of the original default and foreclosure on February 12, 1991.
As previously reported, during fiscal 1996 the Partnership entered into a
preliminary agreement to sell the Spartan Place property to a third party.
Subsequent to the buyer's due diligence period, however, the offer was
withdrawn. Subsequent to the termination of this sales contract, the Partnership
remarketed the property to other interested parties while at the same time
examining potential financing strategies for the capital and tenant improvement
costs to be incurred should the Partnership decide to hold the property through
the required re-leasing period. The property, which was 33% occupied as of May
31, 1997, lost two of its three anchor tenants during fiscal 1995. Management of
the Partnership determined that it was in the best interest of the unit holders
to sell the property in an "as-is" condition rather than to continue to search
for replacement anchor tenants and fund the required re-leasing costs. It should
be noted that due to the Spartan Place Special Distribution, it is anticipated
that the Partnership's annualized distribution rate will be adjusted from 2% to
1% beginning with the distribution for the quarter ended November 30, 1997,
which will be made on January 15, 1998.
ITEM 7 - Financial Statements and Exhibits
(a) Financial Statements: None
(b) Exhibits:
(1) Closing Statement by and between PaineWebber Mortgage Partners Five,
L.P. and CBL\GPII, Inc. dated August 25, 1997.
(2) Purchase and Sale Agreement by and between PaineWebber Mortgage
Partners Five, L.P. and CBL\GPII, Inc., dated April 30, 1997.
(3) Special Warranty Deed between PaineWebber Mortgage Partners Five, L.P.
and Westgate Crossing Limited Partnership, dated August 22, 1997.
(4) Assignment of Leases by PaineWebber Mortgage Partners Five, L.P. to
Westgate Crossing Limited Partnership, dated August 22, 1997.
(5) Quit Claim Bill of Sale by PaineWebber Mortgage Partners Five, L.P. for
the benefit of Westgate Crossing Limited Partnership, dated August 22,
1997.
(6) Assignment of Contracts and Intangiblies by PaineWebber Mortgage
Partners Five, L.P. to Westgate Crossing Limited Partnership, dated
August 22, 1997.
(7) Statement of Seller by PaineWebber Mortgage Partners Five, L.P. dated
August 22, 1997.
<PAGE>
FORM 8-K
CURRENT REPORT
PAINEWEBBER MORTGAGE PARTNERS FIVE, L.P.
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.
PAINEWEBBER MORTGAGE PARTNERS FIVE, L.P.
(Registrant)
By:/s/ Walter V. Arnold
---------------------
Walter V. Arnold
Senior Vice President and
Chief Financial Officer
Date: September 8, 1997
<PAGE>
Closing Statement
CBL/GP II, Inc.
acquisition from
PaineWebber Mortgage Partners Five, L.P.
Spartan Place, Spartanburg, South Carolina
25-Aug-97
Funds Due to Seller
- --------------------------------------------------------------------------------
Purchase Price $4,450,000.00
Deductions
Deposit $0.00
Rent (see Schedule 1) $8,629.84
Security Deposits (see Schedule 2) $250.00
Prorated Service Agreements
(see Schedule 3) $1,322.58
Real Estate Taxes (see Schedule 4) $42,392.53
----------
Total Deductions $52,594.95 ($52,594.95)
Gross Funds Due To Seller $4,397,405.05
Seller's Disbursements
Seller's Closing Costs (see $16,500.00
Schedule 5)
Total Seller's Disbursements $16,500.00 ($16,500.00)
Net Funds Due To Seller $4,380,905.05
Funds Due From Buyer
- --------------------------------------------------------------------------------
Purchase Price $4,450,000.00
Deductions
Deposit $0.00
Rent (see Schedule 1) $8,629.84
Security Deposits (see Schedule 2) $250.00
Prorated Service Agreements (see $1,322.58
Schedule 3)
Real Estate Taxes (see Schedule 4) $42,392.53
----------
Total Deductions $52,594.95 ($52,594.95)
Net Funds Due From Buyer $4,397,405.05
Buyer's Disbursements
Buyer's Closing Costs (see $8,300.00
Schedule 6)
Total Buyer's Disbursements $8,300.00 $8,300.00
Gross Funds Due From Buyer $4,405,705.05
The undersigned hereby authorize Title Company to make the Disbursements as set
forth in Schedules 5 and 6 from the closing proceeds. Net Funds Due to Seller
shall be wired to Seller in accordance with the wiring instructions set forth on
Exhibit A.
SELLER: BUYER:
PaineWebber Mortgage Partners Five, CBL/GP II, Inc.
L.P.
By: /s/ Rock M. D'Errico By: /s/ Charles W. A. Willett, Jr.
--------------------- ------------------------------
Name: Rock M. D'Errico Name: Charles W. A. Willette, Jr.
Title: Vice President Title: Vice President
<PAGE>
EXHIBIT A
Bank: State Street Bank and
Trust Co. , Inc.
ACCT: XXXX-XXX-X
ABA Number YYYYYYYYY
<PAGE>
SCHEDULE 1
Rent Adjustment
Tenants Base Rent CAM *
- ------- --------- -----
Toys"R"Us $26,130.93 $1,553.37
Circuit City $9,368.46 $900.00
African Express $250.00 $15.09
TOTAL $35,749.39 $2,468.46 $38,217.85
==========
Adjust from 8/25/97 to 8/31/976 = 7 days at
1232.833871 per diem $ 8,629.84
==========
* The 1997 CAM proration is estimated. The 1996 reconciliation has been
billed to tenant ($25,000) but not yet received.
Buyer shall pay to Seller the amounts received from tenants within 30
business days of collection.
Buyer and Seller agree to pro rate the final 1997 reconciliation and Buyer
agrees to provide Seller with monthly accounting back-up for amounts due Seller.
Invoices for CAM, taxes, and insurance should be rendered by Buyer as soon
as reasonably possible in a manner consistent with Buyer's customary practice.
Buyer shall pay to Seller the amounts received from tenants within 30 business
days of collection.
<PAGE>
SCHEDULE 2
Security Deposits
Tenants Amount
------- ------
Toys"R"Us $0.00
Circuit City $0.00
African Express $250.00
TOTAL $250.00
=======
<PAGE>
SCHEDULE 3
Prorated Service Agreements
Credits to Seller
- -----------------
Vendors Service Amount
- ------- ------- ------
Don Corbin Lawn Maintenance (credit seller $500.00
25 days)
Greenville Maintenance Sweeping (credit $500.00
seller 25 days)
TOTAL Credit to Seller $1,000.00
Adjust from 8/25/97 to 8/31/97 = 7 days
at a per diem of 32.2580645 $225.81
Debits to Seller
- ----------------
Vendor Service Amount
- ------ ------- ------
Edens & Avant Management (debit seller 25 $2,000.00
days)*
TOTAL Debit to Seller $2,000.00
Adjust from 8/1/97 to 8/24/97 = 24 days
at a per diem of 64.5161 $1,548.38
*Buyer agrees to pay the management contract fee for August 1997 which
is due 8/31.
TOTAL Net Debit to Seller $1,322.58
<PAGE>
SCHEDULE 4
Real Estate Tax Adjustment
Real Estate Taxes for 1996 total $65288.08.
Adjust from 1/1/97 to 8/25/97
237 days with a per diem of $178.87 $42,392.53
==========
1997 Real Estate Taxes not yet known, therefore adjustments are being
made based on 1996 taxes and there will be a reconciliation once the
actual tax is known. Seller shall be entitled to reimbursement for
the prorata reimbursement received from tenants for its period of
ownership within 30 days of receipt applicable tenant. thereof from
the applicable tenant
Buyer agrees to provide Seller with monthly accounting back-ups for
amounts due Seller.
<PAGE>
SCHEDULE 5
Seller's Closing Fees
Transfer Taxes $16,500
(check to taxing
authority or to
title co as
reimbursement)
Outstanding leasing $0.00
commissions
TOTAL $16,500.00
==========
<PAGE>
SCHEDULE 6
Buyer's Closing Costs
1. Title Insurance Fees, Premium, Escrow $8,100.00
Charges
(Check payable to: Commonwealth Land Title
Insurance Company) (see invoice attached)
2. Recording Fees $200.00
(Check payable to: Commonwealth Land
Title Insurance Company)
Total Closing Fees $8,300.00
<PAGE>
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
PAINEWEBBER MORTGAGE PARTNERS FIVE, L.P. ("SELLER")
AND
CBL/GP II, INC. (BUYER)
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS 1
ARTICLE 2 PURCHASE AND SALE 1
ARTICLE 3 PURCHASE PRICE; DEPOSIT; ADJUSTMENTS 2
ARTICLE 4 PRECLOSING OPERATION 4
ARTICLE 5 ACCESS, INSPECTION, DILIGENCE 5
ARTICLE 6 TITLE, SURVEY, CONDITIONS AND REPRESENTATIONS 8
ARTICLE 7 CLOSING 11
ARTICLE 8 CASUALTY AND CONDEMNATION 13
ARTICLE 9 BROKERAGE COMMISSIONS 13
ARTICLE 10 DEFAULT, TERMINATION AND REMEDIES 14
ARTICLE 11 MISCELLANEOUS 14
ARTICLE 12 IRS FORM 1099-S DESIGNATION 17
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 30th day of April, 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: CBL/GP II, Inc., a Wyoming corporation
SELLER: PaineWebber Mortgage Partners Five, L.P., a Delaware
limited partnership
PROPERTY: The Real Property and Personal Property constituting
Spartan Place, Spartanburg, South Carolina
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: $5,000,000
TITLE COMPANY: Commonwealth Land 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; DEPOSIT; 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 an irrevocable Letter of Credit in the face
amount of One Hundred Fifty Thousand Dollars ($150,000.00) with an expiration
date not earlier than ten (10) business days after the Closing Date, issued by a
financial institution and in form as may be acceptable to Seller, in its sole
and absolute discretion (the Escrowed Amount) to secure the Buyer's obligations
under this Agreement.
3.3 All real estate taxes, assessments, special taxes, special assessments
and any other tax or assessment attributable to the Property through the Closing
Date shall be prorated and adjusted as of the Closing Date unless such items are
paid directly by tenants to the applicable taxing authority, in which case no
adjustment or proration shall be made for the items paid directly by the
tenants. If the tax statements for the fiscal year during which the Closing Date
occurs are not finally determined, then the tax figures for the immediately
prior fiscal year shall be used for the purposes of prorating taxes on the
Closing Date, 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. In no event shall any such proceeding be commenced by Seller
following the Closing Date without Buyer's prior written consent; provided,
however, that Seller shall be entitled to continue its existing proceeding.
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 Collected rents for the then current period; security deposits which
have not been previously applied by Seller; prepaid rentals; collected or
prepaid common area maintenance charges; collected or prepaid promotional
charges; collected or prepaid service charges; collected or prepaid tax charges,
and all other collected or prepaid incidental expenses and charges paid by
tenants shall be apportioned and full value shall be adjusted as of the Closing
Date, and the net amount thereof, if in favor of Seller, shall be added to the
Purchase Price, or if in favor of Buyer, shall be deducted from the Purchase
Price. From and after Closing all security deposits credited to Buyer shall
thereafter be deemed transferred to Buyer and Buyer shall assume and be solely
responsible for the payments of security deposits (for which Buyer was credited
at closing) to tenants in accordance with the Leases and applicable law. Seller
shall be entitled to retain and/or receive a credit for any utility deposits and
any deposits for third parties under any of the Contracts (as hereinafter
defined).
3.6.1 All rentals and other tenant charges payable in arrears and
uncollected and all other uncollected rents (including, but not limited
to, percentage rents, common area maintenance charges and real estate tax
charge annual adjustments thereto) for the current and prior rental
periods, less the reasonable expenses of collection thereof, shall be
apportioned (if and when collected by either party); provided, however,
that Buyer shall proceed in a commercially reasonable manner consistent
with Buyer's customary practice for tenants owing past due rent to it to
collect such uncollected rents from existing tenants listed on the rent
roll; provided that Buyer shall not be obligated to commence suit against
any Tenant and Buyer shall first apply rents subsequently received to rent
due and owing for rental periods accruing after the Closing Date. Buyer
shall not settle or release (i) Tenants from any obligations for such
uncollected rents or (ii) rights under any claims listed in Section 3.6.2
below, in each case, without Seller's prior written approval. Buyer shall
provide Seller with written evidence of its collection efforts, such
evidence shall include, but not be limited to providing copies of letters
and invoices to tenants, copies of reports regarding follow-up efforts and
cash receipts and aged delinquency reports. Buyer shall provide such
written evidence of its collection efforts within fifteen (15) days of
demand therefor provided that Seller may request such evidence no more
than on a quarterly basis. Seller shall agree not to commence suit against
tenants listed on the rent roll for obligations owed to it unless Buyer
fails to fulfill its obligations under this '3.6.1.
3.6.2 Seller shall retain all rights to all refunds, receivables,
past due rent and claims, including, but not limited to, termination fees
or damages from all former tenants or occupants of the Property which are
not listed on the Rent Roll, causes of action and rights of reimbursement
from third parties, bonds, accounts receivable and any other claims for
payments Seller may have to the extent arising or relating to the period
prior to the Closing.
3.6.3 In the event, on the Closing Date, the precise figures
necessary for any of the foregoing adjustments are not capable of
determination, then, at Buyer's option, those adjustments shall be made
either (i) on the basis of good faith estimates of Seller and Buyer using
currently available information, and final adjustments shall be made
promptly after precise figures are determined or available or (ii) when
all information for all final adjustments are determined or available.
3.7 At the Closing, the Seller shall pay the amount due for (a) state and
county transfer tax (or any tax substituted therefor) imposed in connection with
the consummation of the transaction contemplated hereby (the Transfer Tax); (b)
recording charges for documents to clear title, evidence Seller's authority or
enable Seller to convey; (c) Seller's attorneys fees; and (d) all leasing
commissions due or to become due pursuant to any lease of any part of the
Property or any renewal or extension right thereof in existence on the date
hereof whether or not exercised.
3.8 At the Closing, the Buyer shall pay for (a) any local tax or mortgage
tax other than the Transfer Tax; (b) charges to record the deed, and evidence of
Buyer's existence or authority; (c) survey charges; (d) all title insurance
premiums and charges; and (e) Buyer's attorney's fees and all costs related to
the Buyer's due diligence.
3.9 The provisions of this Article 3 shall survive the Closing.
ARTICLE 4
PRECLOSING OPERATION
4.1 A Rent Roll certified by Seller (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.
4.2 Seller shall not, after the date hereof; (i) enter into any new Leases
or materially amend or terminate any existing Leases, (ii) enter into or modify
any service contracts, operating agreements, or reciprocal easement agreements,
(iii) alter the zoning classification of the Property or (iv) materially alter
any Improvements, without the written consent of Buyer in any such instance,
which consent shall not be unreasonably withheld or delayed. If Buyer does not
notify Seller in writing of its consent within five (5) days after written
notice thereof from Seller, Buyer shall be deemed to have denied its consent to
such requested action. Buyer shall specify its reasons for denying consent upon
request of Seller.
4.3 At all times prior to Closing, Seller shall continue (a) to conduct
business with respect to the Property in the same manner in which said business
has been heretofore conducted and (b) to insure the Property substantially as
currently insured.
4.4 Seller shall promptly after the execution of this Agreement provide
copies to Buyer of all service, supply, equipment rental, management and leasing
contracts (collectively, the Contracts) affecting the Property which Seller has
in its possession and shall promptly instruct the third party property manager
to make all such Contracts available to Buyer for its review. Buyer shall, by
written notice to Seller, on or before the Diligence Date identify any Contracts
which it elects to have assigned to it and therefore will assume. Buyer shall be
deemed to have elected not to assume any Contracts which are not identified as
to be assigned and assumed. Seller shall terminate any Contracts at Closing
which are not identified by Buyer as specified in this section as to be assigned
and assumed at Closing.
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 attached hereto as Schedule E. Seller shall not be
obligated to expend more than nominal funds or commence litigation in pursuit of
such estoppel certificates and receipt of such estoppel certificates shall not
be a condition precedent to Closing; provided, that if such estoppels are not
provided by Seller prior to the Diligence Date, Buyer shall have the right to
attempt to obtain such estoppel certificates for a period of up to thirty (30)
days, and the Closing Date shall be so extended if necessary; provided, that
Buyer diligently attempts to obtain such estoppel certificates and if such
estoppel certificates are not obtained during such extension Buyer may elect to
close or to terminate this Agreement under Section 5.3.
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 after three (3) days 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 or conduct interviews with tenants without
Seller's prior written approval, which approval shall not be unreasonably
withheld, conditioned or delayed. Seller shall use its commercially reasonable
efforts to make its personnel available for such inspections or interviews upon
three (3) days prior written notice. If personnel is not made available within
that period of time, Buyer may enter upon the Real Property to conduct
inspections; however, Buyer must be accompanied by Seller or its designated
agent during any interview with tenants. 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 books,
records, plans, building specifications, contracts, agreements or other
instruments or documents contained in the Seller's files relating to the
construction, operation and maintenance of the Property and the files of the
current manager of the Property that relate to the Property.
5.2 Seller shall provide Buyer, promptly after Seller's execution of this
Agreement, with copies of all the Leases and Contracts which it has in its files
and shall instruct its property manager to make such Leases and Contracts
available to Buyer for inspection. To the extent Seller has any of the following
in its possession or control, Seller agrees to make the same available for
inspection by Buyer or its agents:
(a) Copies of property tax bills and assessment notices for the past
three years.
(b) Copies of insurance policies and premiums.
(c) Two copies of as-built plans and specifications and soil reports
as well as two
additional site plans.
(d) Current ALTA title report from Chicago Title including full
copies of all
exceptions.
(e) Legal description and current ALTA survey showing the locations
of all improvements and easements, if available.
(f) Architectural plan showing interior measurements of individual
tenant spaces and interior wall space.
(g) Copies of Certificate(s) of Occupancy and other licenses and
permits.
(h) Copies of all warranty agreements which Borrower may have
concerning all real and personal property to be conveyed.
(i) Copies of all leases and amendments and letter agreements
relating thereto.
Copies of all operating covenants. Copies of all reciprocal
easement agreements and construction contracts related to the anchor
tenants including correspondence and other related items.
(j) Copies of audited financial and operating statements for the
past five (5) years and reasonable back-up, as requested by Buyer.
(k) Engineering and physical inspection reports which Seller may
have on the Property.
(l) Financial statements and credit conditions of all tenants, if
available.
(m) Five year sales history on all tenants, if available.
(n) Copies of all existing mortgage information.
(o) Copies of all correspondence related to the expansion or
relocation of any existing tenants.
(p) Copies of all environmental reports, correspondence or
information pertaining to the Property as well as any adjoining property
or properties in the area(s) that have or are suspected of having
environmental problems.
(q) Listing of tenants security deposits.
(r) Copies of maintenance and service contracts.
(s) Information regarding any pending litigation.
(t) Copies of any prior or pending tax appeals.
(u) Copies of market research reports.
(v) Copies of Marketing Plans.
(w) List of all tenants in default as well as all tenants that have
been in default over the past 12 months.
(x) Historical tenant billing statements.
(y) ADA compliance study.
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 in existence and available
to Seller. To the extent that any of these items do not exist or are not in the
Seller's possession or at its reasonable disposal, Seller will send a side
letter to Buyer so stating. 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 The Buyer shall have the right to promptly commence and actively
pursue its due diligence on the Property, including, but not limited to the
following items:
(a) Review of title and survey matters;
(b) Review of Contracts and 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;
(f) Conduct Tenant interviews, subject to Section 5.1 above; and
(g) Review of all Leases affecting the Property.
Buyer shall complete its due diligence including, but not limited to the
foregoing, no later than sixty (60) days from the date of this Agreement (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 and absolute
discretion for any reason or for no reason, 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 Escrowed
Amount shall be returned to the Buyer and this Agreement shall be null and void
without recourse to either party hereto (except to the extent such recourse
arises in connection with a provision of this Agreement which is intended to
survive termination). In the event Buyer does not terminate this Agreement on or
before the Diligence Date, the Escrowed Amount shall become nonrefundable.
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 will further acknowledge 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. 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, EXCEPT AS
SPECIFICALLY PROVIDED IN THIS AGREEMENT. This immediately preceding sentence
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 in connection with Buyer's diligence
if Seller is willing to reimburse Buyer for bona fide third-party out-of-pocket
costs and expenses actually incurred in the preparation of such materials.
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 loss, cost or damage which is discovered (and not caused) by such
investigation as a result of pre-existing conditions. This indemnity obligation
of Buyer shall survive the termination of this Agreement for any reason.
ARTICLE 6
TITLE, SURVEY, CONDITIONS AND REPRESENTATIONS
6.1 Promptly following the execution of this Agreement, Buyer shall
obtain:
(a) An ALTA as built, survey of the Real Property (the Survey);
and
(b) A commitment for an ALTA Owner's Policy of Title Insurance (the
Title Commitment).
If (i) any matter disclosed on the Survey or (ii) matters listed as
exceptions in the Title Commitment are not each satisfactory to Buyer, it shall,
within forty-five (45) days following the effective date of this Agreement,
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. Seller shall in all
events be obligated to cure all objections constituting mortgages or other
voluntary encumbrances securing the repayment of money on or before the Closing
Date. To enable Seller to convey, Seller may, at the Closing use the Purchase
Price or any portion thereof to clear title; provided, that all instruments to
clear title are either recorded simultaneously with the delivery of the deed or
arrangements satisfactory to the Title Company have been made for the delivery
of such instruments.
6.2 On the Closing Date, the Seller shall convey by good and sufficient
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 disclosed to Buyer;
(d) All zoning, building and other laws applicable to the Property;
and
(e) All matters which arise after the effective date of the Title
Commitment which are agreed upon or consented to by Buyer in writing.
6.3 At the Closing, the Seller shall assign the Leases, Contracts which
are not to be terminated and warranties, if any, to Buyer and Buyer shall assume
Seller's obligations thereunder from and after the date of Closing and Seller
shall convey the Personal Property to the Buyer by quitclaim bill of sale.
6.4 Representations and Warranties
6.4.1 The Seller hereby represents and warrants to the Buyer as of
the date of this Agreement as follows:
(a) Organization and Power. The Seller is a limited partnership
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) Fifth Mortgage Partners, Inc. (General Partner) is a corporation
organized, existing and in good standing under the laws of the State of
Delaware and has the requisite power and authority to act in all respects
on behalf of the Seller to enter into and perform the terms of this
Agreement as General Partner of the Seller; the execution and delivery of
this Agreement and the consummation of the transaction contemplated hereby
have been duly authorized by all necessary parties and no other
proceedings on the part of Seller are necessary in order to permit them to
consummate the transaction contemplated hereby. This Agreement has been
duly executed and delivered by Seller and General Partner and (assuming
valid execution and delivery by the Buyer) is a legal, valid and binding
obligation of Seller enforceable against it in accordance with its terms.
(d) The rent roll attached hereto as Schedule C has been prepared by
Seller's property manager based on the Leases and is true accurate and
complete in all material respects.
(e) There is no condemnation proceeding pending with regard to all
or any part of the Property.
(f) (1) Definitions. The term Hazardous Materials means any product,
substance, chemical, material or waste whose presence, nature, quantity
and/or intensity of existence, use, manufacture, processing, treatment,
storage, disposal, transportation, spill release or effect, either by
itself or in combination with other materials on or expected to be on the
Property, is either (A) potentially injurious to public health, safety,
welfare, or the environment, or to the Property (B) regulated, monitored,
or subject to reporting by any governmental authority; or (C) a basis for
potential liability to any governmental agency or a third party under any
applicable statute or common law theory. Without limiting the foregoing,
the term Hazardous Materials includes, but is not limited to,
hydrocarbons, petroleum, gasoline, crude oil or any products or byproducts
thereof. The term Environmental Laws means all federal, state and local
laws, ordinances, rules, regulations, codes or orders, including, without
limitation, any requirement imposed under any permits, licenses,
judgments, decrees, agreements or recorded covenants, conditions,
restrictions or easements, the purpose of which is to protect the
environment, human health, public safety or welfare, or which pertain to
Hazardous Materials.
(g) (2) Presence, Use and Compliance. Except as disclosed in the
environmental reports provided by Seller to Buyer pursuant to paragraph
5.2 above, and except for those amounts and uses of Hazardous Materials
normally and customarily associated with the construction, occupancy and
maintenance of the Property as a retail shopping center, Seller has no
knowledge of use, generation, storage, release of any Hazardous Materials
on the Property, or the transportation of Hazardous Materials to or from
the Property, or the Compliance of the Property with Environmental Laws.
(h) Neither Seller nor General Partner is subject to any bankruptcy,
reorganization, insolvency or similar proceedings.
(i) The Leases delivered pursuant to Section 5.2 are complete and
correct copies of existing Leases for any portion of the Property in
effect as of the date of this Agreement, including any amendments,
modifications or supplements thereto.
6.4.2 The representations and warranties contained in Section
6.4.1(e) and (g) are hereby qualified to Seller's actual knowledge without
further inquiry, except as provided below. Each representation or warranty
contained in Section 6.4.1 is subject to being updated by Seller in writing on
or before the Diligence Date and shall be deemed to have been amended and
updated by any information delivered to or made available to Buyer and any other
information obtained by Buyer in connection with its diligence. For purposes of
Section 6.4.1 actual knowledge of Seller without further inquiry shall mean the
actual awareness of Bruce J. Rubin, Mark W. Dunne and David Carlson provided
that such individuals have no obligation to make further inquiry of any persons
other than the inquiry of the Property Manager. No current employee of Seller
has greater knowledge of the matters herein than the foregoing individuals.
6.4.3 The Buyer hereby represents and warrants to the Seller as of
the date of this Agreement as follows:
(a) Organization and Power. The Buyer is a corporation organized,
existing and in good standing under the laws of the State of Wyoming and
has the requisite power and authority to enter into and perform the terms
of this Agreement.
(b) The execution and delivery of this Agreement and the
consummation of the transaction contemplated hereby have been duly
authorized by all necessary parties and no other proceedings on the part
of Buyer are necessary in order to permit it to consummate the transaction
contemplated hereby. This Agreement has been duly executed and delivered
by Buyer and (assuming valid execution and delivery by Seller) is a legal,
valid and binding obligation of Buyer enforceable against it in accordance
with its terms.
6.4.4 The representations and warranties of Seller contained in
Section 6.4.1 shall survive Closing for a period of six (6) months.
6.5 The obligations of the Buyer to consummate the transaction
contemplated by this Agreement are subject to:
(a) The representations and warranties made by Seller in this
Agreement being true and correct in all material respects on and as of the
Closing Date with the same force and effect as though such representations
and warranties had been made as of the Closing Date;
(b) There shall have been no material adverse change in the
environmental, physical or economic characteristics of the property since
the Diligence Date; and
(c) Neither Seller nor any tenant shall be a party to any
bankruptcy, insolvency, receivership or other like proceeding after the
Diligence 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 fifth business day after
the Diligence Date (the Closing 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 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");
(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 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, to the extent received;
(i) A duly executed affidavit of consideration;
(j) A duly executed South Carolina withholding tax affidavit;
(k) all business and accounting records pertaining to the operation
of the Property;
(l) all original Leases and Tenant correspondence in each case, if
in Seller's possession;
(m) keys to all locks which manager has in its possession;
(n) notice letters from Seller to tenants of the sale of the
Property and assignment of the Leases; and
(o) a statement that to the best of Seller's actual knowledge,
without independent investigation, the conditions precedent to Closing
have been satisfied or waived.
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 South Carolina 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.
<PAGE>
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 plus the amount of any applicable deductible, 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. 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, and in connection with the intentional breach of a representation,
warranty, covenant or agreement contained in this Agreement an amount equal to
the Buyer's bona fide third-party out-of-pocket costs and expenses actually
incurred in connection with the proposed acquisition up to a maximum of Ten
Thousand Dollars ($10,000.00) whereupon this Agreement shall terminate without
further recourse.
<PAGE>
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 mail 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:
CBL/GP II, Inc.
c/o CBL & Associates Properties
One Park Place
6148 Lee Highway
Chattanooga, Tennessee 37421-2931
Attn: Steve Arnsdorf, Director of Acquisitions and
Mary Ann Okrasinski, Finance Counsel
(2) If to Seller:
PaineWebber Mortgage Partners Five, L.P.
c/o PaineWebber Properties Incorporated
265 Franklin Street - 16th Floor
Boston, MA 02110
Attn: David Carlson
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:
Commonwealth Land Title Insurance Company
3350 Cumberland Circle, Suite 1895
Atlanta, Georgia 30339
Attention: Sally French Tyler
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 South Carolina.
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. Prior to
the Diligence Date, Title Company is hereby authorized and directed to release
the Escrowed Amount to Buyer promptly upon Buyer's written request, without
joinder by Seller and not withstanding any objection interposed by Seller. This
Agreement shall terminate upon any such request from Buyer pursuant to Section
5.3 above. From and after the Due Diligence Date the Title Company shall, upon
receiving a copy of a notice given by a party in accordance with this Agreement
claiming entitlement to all or a portion of the Escrowed Amount, give a notice
to the other party that such claim of entitlement has been made. If the Escrowed
Amount is in the form of a letter of credit and the expiry thereof has not been
extended, Title Company shall cause the letter of credit to be drawn upon and
hold the proceeds as the Escrowed Amount. The Title Company shall not cause or
permit any portion of the Escrowed Amount to be disbursed until the expiration
of five (5) 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.
<PAGE>
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.
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 or any
affiliated entities.
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.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this instrument as of the
day and year first set forth above.
SELLER:
PAINEWEBBER MORTGAGE PARTNERS FIVE,
L.P., a Delaware limited partnership
By: Fifth Mortgage Partners, Inc., its
managing general partner
By: /s/ Rock M. D'Errico
----------------------
Name: Rock M. D'Errico
Title: Vice President
BUYER:
CBL/GP II, INC., a Wyoming corporation
By: /s/ Charles W. A. Willett, Jr.
------------------------------
Name: Charles W. A. Willett, Jr.
Title: Vice President
TITLE COMPANY:
COMMONWEALTH LAND TITLE INSURANCE COMPANY
By: __________________________________
<PAGE>
SCHEDULE A
Description of Real Property
<PAGE>
SCHEDULE B
Description of Personal Property and Intangible Property
All equipment, fixtures, mechanical systems and other personal property
owned by Seller and located on or affixed to the Property.
<PAGE>
SCHEDULE C
Rent Roll
<PAGE>
SCHEDULE D
1099 Designation Agreement
This AGREEMENT is made this 30th day of April, 1997 by and between the
TRANSFEROR, PaineWebber Mortgage Partners Five, L.P., a Delaware limited
partnership with a address c/o PaineWebber Properties Incorporated, 265 Franklin
Street, 16th Floor, Boston, Massachusetts 02110, the TRANSFEREE, CBL/GP II,
Inc., a Wyoming corporation with an address of One Park Place, 6148 Lee Highway,
Chattanooga, Tennessee 37421-2931 and the DESIGNEE, Commonwealth Land Title
Insurance Company, located at 3350 Cumberland Circle, Suite 1895, Atlanta,
Georgia 30339.
The TRANSFEROR is the present owner of certain property (the "Premises")
located in Spartanburg, South Carolina as more particularly described in a
Purchase and Sale Agreement (the "Agreement") dated April 30, 1997, by and
between the TRANSFEROR and the TRANSFEREE.
In order to comply with information reporting requirements provided by
Section 6045(e) of the Internal Revenue Code of 1986, as amended, and the
Treasury Regulations thereunder, the parties hereby agree as follows:
(1) to designate DESIGNEE as the party who shall be responsible for
reporting to the Internal Revenue Service (the "IRS") the sale of
the Premises on IRS form 1099-S;
(2) to provide DESIGNEE with the information necessary to complete
Form 1099-S;
(3) that DESIGNEE shall provide all parties to this transaction with a
copy of the IRS Form 1099-S filed with the IRS and with any
documentation used to complete IRS Form 1099-S;
(4) that 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;
(5) that the parties shall indemnify DESIGNEE for any costs and
expenses incurred as a consequence of the actions taken under this
Agreement, except as they may be the result of gross negligence or
willful misconduct on the part of the DESIGNEE; and
<PAGE>
(6) that the Designee will retain this Agreement for four (4) years
following December 31 of the calendar year in which the date of
closing occurs.
SELLER:
PAINEWEBBER MORTGAGE PARTNERS FIVE,
L.P., a Delaware limited partnership
By: Fifth Mortgage Partners, Inc.,
its managing general partner
By: /s/ Rock M. D'Errico
--------------------
Name: Rock M. D'Errico
Title: Vice President
BUYER:
CBL/GP II, INC., a Wyoming corporation
By: /s/ Charles W. A. Willett, Jr.
-----------------------------
Name: Charles W. A. Willett, Jr.
Title: Vice President
DESIGNEE:
COMMONWEALTH LAND TITLE INSURANCE COMPANY
By: ____________________________________
<PAGE>
SCHEDULE E
Form of Tenant Estoppel Certificate
Tenant:
Lease and all amendments:
Premises including square footage:
Landlord and Tenant are parties to the Lease as defined above and pursuant
thereto, Tenant hereby agrees and certifies as follows:
1 That said Lease is the only lease between the undersigned
affecting said premises and has not been amended, modified,
changed, altered or supplemented, except as specified above.
2 That said Lease is in full force and effect and that there are no
defaults thereunder or any conditions which with the passage of
time or giving of notice or both would become a default under the
terms of said Lease.
3 That no rents have been prepaid except as provided by said Lease,
but in no event have rents been paid more than thirty (30) days in
advance and that there are no set-offs or credits against future
accruing rents.
4 That Tenant is open and operating and in full and complete
possession of the premises demised pursuant to the terms of said
Lease and that the initial lease term commenced on
____________________ and will terminate on
_______________________. [Not to be included in Circuit City
Estoppel]
5 That the demised premises, including all improvements,
appurtenances, common areas and parking to be constructed by
Landlord pursuant to the Lease satisfy the requirements of said
Lease and have been accepted and approved in all respects by
Tenant and are open for the use of Tenant, its customers,
employees and invitees.
6 That all duties of an inducement nature and all inducement clauses
have been fulfilled by Landlord in all respects.
7 Tenant has not, and will not, generate, store, handle or otherwise
deal with any hazardous or toxic waste or material, radioactive
materials, or other contaminants, the removal of which is required
or the maintenance of which is prohibited, regulated or penalized
by any local, state or federal agency, authority or governmental
unit.
<PAGE>
8 Tenant acknowledges that the address to which notices shall be
given pursuant to the Lease, and a designated contact person, are:
Executed to be effective this ____ day of ___________________, 1997.
Tenant
By:
- --------------------------
President
<PAGE>
SPECIAL WARRANTY DEED
STATE OF SOUTH CAROLINA )
) ss. KNOW ALL MEN BY THESE PRESENTS
THAT:
COUNTY OF SPARTANBURG )
PAINEWEBBER MORTGAGE PARTNERS FIVE, L.P., a Delaware limited partnership
("Grantor"), for and in consideration of the sum of TEN AND NO/100 DOLLARS
($10.00) and other good an valuable consideration paid in hand to Grantor by
WESTGATE CROSSING LIMITED PARTNERSHIP, a South Carolina limited partnership
("Grantee"), whose mailing address is 6148 Lee Highway, Suite 300, Chattanooga,
Tennessee 37421, the receipt and sufficiency of which is hereby acknowledged,
has GRANTED, BARGAINED, SOLD, CONVEYED, and RELEASED, and by these presents does
GRANT, BARGAIN, SELL , CONVEY and RELEASE unto Grantee that certain tract of
land located in Spartanburg County, South Carolina more particularly described
in EXHIBIT A attached hereto and incorporated herein by this reference, together
with all buildings, improvements and fixtures located thereon and owned by
Grantor as of the date hereof and all rights, privileges and appurtenances
pertaining thereto including all of Grantor's right, title and interest in and
to all rights-of-way, open or proposed streets, alleys, easements, strips or
gores of land adjacent thereto (herein collectively called the "Real Property").
This conveyance is made by Grantor and accepted by Grantee subject to the
matters set forth in EXHIBIT B attached hereto and incorporated herein by this
reference ("Permitted Exceptions").
TO HAVE AND TO HOLD the Real Property together with all improvements
located thereon all and singular the rights appurtenances thereto in anywise
belonging, subject to the Permitted Exceptions, unto Grantee, its legal
representatives, successors and assigns, and Grantor does hereby bind itself,
its legal representatives, successors and assigns, to WARRANT and FOREVER DEFEND
all and singular the Real Property unto the Grantee, its legal representatives,
successors and assigns, against Grantor and every person whomsoever lawfully
claiming or to claim the same or any part thereof, by, through or under Grantor,
but not otherwise, subject to the Permitted Exceptions.
Grantee's address is Westgate Crossing Limited Partnership, 6148 Lee
Highway, Suite 300, Chattanooga, Tennessee 37421, Attention:
Charles W.A. Willett, Vice President.
EXECUTED this 22 day of August, 1997, TO BE EFFECTIVE as of the 25th day
of August, 1997.
<PAGE>
PAINEWEBBER MORTGAGE PARTNERS FIVE, L.P.,
a Delaware limited partnership
Signed, Sealed and Delivered
in the presence of By: Fifth Mortgage Partners, Inc.
its managing general partner
/s/ Barbara E. Tutt
- -------------------
1st WITNESS By: /s/ C. David Carlson
--------------------
Name: C. David Carlson
/s/ Kristen Sosnosky Title: Vice President, Fifth Mortgage
- -------------------- Partners, Inc.
2nd WITNESS
/s/ Jennifer C. Ryan
- --------------------
COMMONWEALTH OF MASSACHUSETTS )
) PROBATE
COUNTY OF SUFFOLK )
Personally appeared before me, the undersigned witness and made oath that
he/she saw the within named FIFTH MORTGAGE PARTNERS, INC., general partner of
PAINEWEBBER MORTGAGE PARTNERS FIVE, L.P. by its Vice President C. David Carlson,
Sign, Seal and as its Act and Deed, deliver the within written Deed for the uses
and purposes herein mentioned; and that he/she with the other witness subscribed
above witnessed the execution thereof.
/s/ Jennifer C. Ryan
--------------------
/s/ Barbara E. Tutt
--------------------
1st WITNESS
Sworn to before me this 22nd day of
August, 1997.
/s/ Barbara E. Tutt (L.S.)
- --------------------------
Notary Public For Massachusetts
My commission expires: 3/6/98
<PAGE>
EXHIBIT "A"
All that certain piece, parcel or tract of land, containing 13.90 acres, more or
less, situate, lying and being on the Southwestern side of S. C. Highway 295, in
the County of Spartanburg, State of South Carolina, and being shown and
designated on plat entitled As-Built Survey for The Centre at Westgate, Ltd.,
dated January 19, 1988, prepared by Blackwood Associates, Inc., Engineers, and
recorded in the RMC Office for Spartanburg County, S. C. in Plat Book 103, at
Page 794, and having, according to said plat, the following courses and
distances:
BEGINNING at an iron pin at the corner of the property herein described
and property now or formerly of Spartan Mills, said iron pin being located
approximately 324.6 feet from an iron pin at Lowe's property corner
(Lowe's southeast property corner), on the west right-of-way line for S.
C. Highway 295, and running thence along the west right-of-way line for S.
C. Highway 295, the following courses and distances: S. 32-54-40 E. 101.08
feet to an iron pin; thence S. 35-05-37 E. 225.95 feet to an iron pin;
thence S. 35-51-07 E. 157.61 feet to an iron pin; thence turning and
running, 57-54-00 W. 46.54 feet to an iron pin; thence turning and
running, S. 09-57-03 W. 194.85 feet to an iron pin; thence turning and
running, S. 57-54-00 W. 862.94 feet to an iron pin at the corner of
property now or formerly of Spartan Mills; thence with the line of
property now or formerly of Spartan Mills, the following courses and
distances: N. 35-25-23 W. 360.00 feet to an iron pin; thence N. 7-24-22 E.
333.87 feet to an iron pin; thence N. 57-05-44 E. 825.23 feet to the point
of beginning.
TOGETHER WITH a perpetual, non-exclusive easement appurtenant to and running
with the land referred to hereinabove for ingress and egress to and from S. C.
Highway 295 over and across property now or formerly of Spartan Mills, which
lies adjacent to the property described hereinabove and additional property of
The Centre at Westgate, Ltd., along the southern boundaries, said easement being
approximately 70 feet in width and 1100 feet in length. This easement shall be
expanded hereafter to include any and all property over which a boulevard style
driveway is to be constructed under the license granted to The Centre at
Westgate, Ltd. (whether shown on a survey referred to hereinabove, or not). (For
a more accurate description of the location of the easement, reference is hereby
made to the area designated as such on the survey referred to hereinabove and
shown as a cross-hatched area of the survey entitled Survey for The Centre at
Westgate, Ltd.@, prepared by Blackwood Associates, Inc., Engineers, dated June
25, 1985.)
This being the same property conveyed to PAINEWEBBER MORTGAGE PARTNERS FIVE,
L.P., a Delaware limited partnership by deed of The Centre at Westgate Ltd., a
Tennessee limited partnership dated March 25, 1988 and recorded April 28, 1988
in Deed Book 54-D, at Page 772, RMC Office for Spartanburg County, South
Carolina. TOGETHER with all improvements;
<PAGE>
EXHIBIT "B"
Page 1 of 2
1. Rights of tenants in possession under unrecorded leases as shown in Exhibit
1.
2. Taxes for the year 1997 and subsequent years, a lien not yet due and payable.
3. Survey prepared for CBL/GP II, Inc. by Johnson Surveying, Inc. dated
August 12, 1997 discloses the following:
(a) A 25 foot Spartan Sanitary Sewer District right of way along
southeaster and northeastern portion of property, connected to
a 16 foot Spartanburg Sanitary Sewer District right of way to
the north.
(b) A power transformer at the western edge of Toys-R-Us; at the
northwestern corner of the "Shops"; at the southwestern corner
of Circuit City; at the western side of Phar-More; and the
northwestern corner of the "Shops" between Phar-More and
Toys-R-Us.
(c) 24 Inch storm drain lines crossing through property.
These begin on the western property line (SC Hwy 295
road right of way) and running south, then northwest
through the main body of the parking lot to a drop inlet
in front of the Toys "R" Us building, thence an 18 inch
storm sewer pipe runs southwest to a drop inlet on the
northwestern corner of the shopping center. Another 24
inch storm drain line runs along the northwestern side
of the back side of the shopping center.
(d) Building setback lines: 30 foot along the front (Spartan
Blvd.); 15 foot along the western property lines; and 20 foot
along the rear; no violations.
(e) A 5 foot concrete box culvert shown under the old Phar-More
building (at northern corner of property.)
4. Covenants, conditions and restrictions filed for record in that deed
from Spartan Mills to Toys "R" Us recorded in Book 51-K, page 795,
Spartanburg County Records.
5. Easements to Duke Power Company recorded in Deed Books 26-M, page 441;
49-X, page 407; 51-X, page 076; 53-J, and page 761, RMC Office for
Spartanburg County.
6. A right of way to Piedmont Natural Gas in Deed Book 49-T, page 580, RMC
Office for Spartanburg County.
7. Southern Bell right of ways recorded in Deed Books 51-U, page 226;
51-W, page 549 and 52-C, page 280, RMC Office for Spartanburg County.
<PAGE>
EXHIBIT "B"
Page 2 of 2
8. Spartanburg Water System rights of way recorded in Deed Books 41-D,
page 797; 51-R, page 472 and 51-T, page 217, RMC Office for Spartanburg
County.
9. General easements and right of ways to the Commissioner of Public Works
and the Spartanburg Sanitary Sewer District recorded in Deed Books
37-L, page 560; 39-N, page 209; 41-Y, page 669; 42-N, page 53; 43-Q,
page 206; 50-K, page 032; 51-R, page 467; 51-V, page 933; 52-M, page
778; 53-L, page 502 and 62-C, page 540, RMC Office for Spartanburg
County.
NOTE: A partial release of the easement recorded in 43-Q, page 206 was
recorded in Deed Book 62-C, page 883, RMC Office for Spartanburg
County.
10. General Utility Easements recorded in Deed Books 51-P, 52-Z, page 960,
and Numbered Paragraph 4-(a) only of 51-X, page 322, RMC Office for
Spartanburg County.
11. Easement and Right of Way Agreement between Spartan Mall Associates,
the Yeomans and Spartan Mills recorded in Deed Book 49-Q, page 645, RMC
Office for Spartanburg County.
12. Reciprocal Easement Agreement between The Centre at Westgate, Ltd., and
Service Merchandise Company, Inc. recorded in Deed Book 51-P, page 221,
RMC Office for Spartanburg County.
13. Assignment and Cancellation Agreement between Service Merchandise
Company, Inc. and The Centre at Westgate, Ltd. recorded in Deed Book
53-B, page 801, RMC Office for Spartanburg County.
14. Memorandum of Lease between The Centre at Westgate, Ltd., a Tennessee
limited partnership (Landlord) and Toys "R" Us, a Delaware corporation
(Tenant) recorded August 23, 1985 in Deed Book 51-P, page 246, RMC
Office for Spartanburg County.
NOTE: The aforementioned lease was the subject of a Subordination and
Non-Disturbance Agreement between Toys "R" Us, Inc. a Delaware
corporation ("Tenant") and PaineWebber Mortgage Partners Five, LP, a
Delaware Limited Partnership ("Mortgagee") dated April 6, 1988 and
recorded August 9, 1989 in Book 1336, Page 635, Spartanburg County
Records, under which Toys "R" Us had certain obligations to PaineWebber
as Landlord within the terms and conditions of said instrument.
15. Memorandum of Lease between The Centre at Westgate, Ltd., a Tennessee
limited partnership (Landlord) and Circuit City Stores, Inc., a
Virginia corporation (Tenant) recorded November 6, 1987 in Deed Book
53-S, page 487, RMC Office for Spartanburg County.
16. All zoning, building and other laws applicable to the Property.
<PAGE>
ASSIGNMENT OF LEASES
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby
acknowledged, PaineWebber Mortgage Partners Five, L.P., a Delaware limited
partnership (Assignor), hereby assigns, sells, transfers, sets over and
delivers unto Westgate Crossing Limited Partnership, a South Carolina limited
Partnership (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 Spartan Place, located at 660 Spartan Boulevard, Spartanburg,
South Carolina 29301 (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.
<PAGE>
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.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment as
of the 22 day of August, 1997, which Assignment is effective on that date.
ASSIGNOR
PaineWebber Mortgage Partners Five, L.P.,
a Delaware limited partnership
By: Fifth Mortgage Partners, Inc., a
Delaware corporation, its Managing
General Partner
By: /s/ C. David Carlson
----------------------
Name: C. David Carlson
Title: Vice President
/s/ Kristen Sosnosky
- --------------------
Witness
/s/ Jennifer C. Ryan
- --------------------
Witness
ASSIGNEE
WESTGATE CROSSING LIMITED PARTNERSHIP, a South
Carolina limited partnership
By: CBL/GP II, Inc., a Wyoming corporation
By: /s/ Ben S. Landress
-------------------
Name: Ben S. Landress
Title: Executive Vice President
<PAGE>
COMMONWEALTH OF MASSACHUSETTS )
) PROBATE
COUNTY OF SUFFOLK )
Personally appeared before me, the undersigned witness and made oath that
he/she saw the within named FIFTH MORTGAGE PARTNERS, INC., general partner of
PAINEWEBBER MORTGAGE PARTNERS FIVE, L.P. by its Vice President, C. David
Carlson, Sign, Seal and as its Act and Deed, deliver the within written
Assignment of Leases for the uses and purposes herein mentioned; and that he/she
with the other witness subscribed above witnessed the execution thereof.
/s/ Kristen Sosnosky
--------------------
1st WITNESS
Sworn to before me this 22nd day of
August, 1997.
/s/ Barbara E. Tutt (L.S.)
- --------------------------
Notary Public For Massachusetts
My commission expires: 3/6/98
<PAGE>
STATE OF TENNESSEE )
) PROBATE
COUNTY OF HAMILTON )
Personally appeared before me, the undersigned witness and made oath that
he/she saw the within named CBL/GP II, INC., general partner of WESTGATE
CROSSING LIMITED PARTNERSHIP, by its Executive Vice President and Mary Ann
Okrasinski, Sign, Seal and as its Act and Deed, deliver the within written
Assignment of Leases for the uses and purposes herein mentioned; and that he/she
with the other witness subscribed above witnessed the execution thereof.
/s/ Don Sewell
--------------
1st WITNESS
Sworn to before me this 22nd day of
August, 1997.
/s/ Karen R. Benson (L.S.)
- --------------------------
Notary Public For Hamilton County
My commission expires: 3/21/2000
<PAGE>
EXHIBIT A
Property
All that certain piece, parcel or tract of land, containing 13.90 acres, more or
less, situate, lying and being on the Southwestern side of S. C. Highway 295, in
the County of Spartanburg, State of South Carolina, and being shown and
designated on plat entitled "As-Built" Survey for The Centre at Westgate, Ltd.,
dated January 19, 1988, prepared by Blackwood Associates, Inc., Engineers, and
recorded in the RMC Office for Spartanburg County, S. C. in Plat Book 103, at
Page 794, and having, according to said plat, the following courses and
distances:
BEGINNING at an iron pin at the corner of the property herein described and
property now or formerly of Spartan Mills, said iron pin being located
approximately 324.6 feet from an iron pin at Lowe's property corner (Lowe's
southeast property corner), on the west right of way line for S C Highway 295,
and running thence along the west right of way line for S C Highway 295, the
following courses and distances: S 32-54-40 E 101.08 feet to an iron pin; thence
S 35-05-37 E 225.95 feet to an iron pin; thence S 35-51-07 E 157.61 feet to an
iron pin; thence turning and running, 57-54-00 W 46.54 feet to an iron pin;
thence turning and running, S 09-57-03 W. 194.85 feet to an iron pin; thence
turning and running, S 57-54-00 W 862.94 feet to an iron pin at the corner of
property now or formerly of Spartan Mills; thence with the line of property now
or formerly of Spartan Mills, the following courses and distances: N 35-25-23 W
360.00 feet to an iron pin; thence N 7-24-22 E 333.87 feet to an iron pin;
thence N 57-05-44 . 825.23 feet to the point of beginning.
TOGETHER WITH a perpetual, non-exclusive easement appurtenant to and running
with the land referred to hereinabove for ingress and egress to and from S. C.
Highway 295 over and across property now or formerly of Spartan Mills, which
lies adjacent to the property described hereinabove and additional property of
The Centre at Westgate, Ltd., along the southern boundaries, said easement being
approximately 70 feet in width and 1100 feet in length. This easement shall be
expanded hereafter to include any and all property over which a boulevard style
driveway is to be constructed under the license granted to The Centre at
Westgate, Ltd. (whether shown on a survey referred to hereinabove, or not). (For
a more accurate description of the location of the easement, reference is hereby
made to the area designated as such on the survey referred to hereinabove and
shown as a cross-hatched area of the survey entitled Survey for The Centre at
Westgate, Ltd.@, prepared by Blackwood Associates, Inc., Engineers, dated June
25, 1985.)
<PAGE>
EXHIBIT "B"
Page 1 of 2
TERM
SQ. FT. ---------------------
TENANT UNIT REF NO. OCCUPIED FROM TO
- ------ ------------ -------- ---- --
CIRCUIT CITY 500-10 16412 11/06/87 1/31/08
VACANT 500-20 5000
VACANT 500-30 1400
VACANT 500-40 3200
VACANT 500-50 1400
VACANT 500-60 1050
AFRICAN EXPRESS 500-70 630 12/01/92 12/31/93
VACANT 500-80 1200
VACANT 500-90 963
VACANT 500-100 1105
VACANT 500-110 1400
VACANT 500-120 1400
VACANT 500-130 2000
VACANT 500-140 2000
VACANT 500-150 2000
VACANT 500-160 2000
VACANT 500-170 1600
VACANT 500-180 1400
VACANT 500-190 3000
TOYS "R" US, INC.
STORE #882 500-200 48729 11/1/85 1/31/11
VACANT 500-210 3600
<PAGE>
EXHIBIT "B"
Page 2 of 2
TERM
SQ. FT. ---------------------
TENANT UNIT REF NO. OCCUPIED FROM TO
- ------ ------------ -------- ---- --
VACANT 500-230 1600
VACANT 500-240 6400
VACANT 500-250 2000
VACANT 500-260 40000
- -------------------------------------------------------------------------------
TOTALS: 151489
Total Occupied Square Feet: 65771
Total Vacant Square Feet 85718
- -------------------------------------------------------------------------------
GRAND TOTALS: 151489
Total Occupied Square Feet: 65771
Total Vacant Square Feet 85718
<PAGE>
EXHIBIT "C"
SECURITY DEPOSITS
SQUARE SECURITY
TENANT NAME SPACE NUMBER FOOTAGE DEPOSIT
- ----------- ------------ ------- -------
AFRICAN EXPRESS 500-70 630 $250.00
<PAGE>
QUITCLAIM BILL OF SALE
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby
acknowledged, PaineWebber Mortgage Partners Five, L.P., a Delaware limited
partnership (Seller) does hereby grant, sell, transfer, and deliver to Westgate
Crossing Limited Partnership, a South Carolina limited partnership (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 Spartan
Place, located at 660 Spartan Boulevard, Spartanburg, South Carolina 29301
including such real property as 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 22nd day of August, 1997.
SELLER:
PAINEWEBBER MORTGAGE PARTNERS FIVE, L.P.,
a Delaware limited partnership
By: Fifth Mortgage Partners, Inc.,
its General Partner
By: /s/ C. David Carlson
----------------------
Name: C. David Carlson
Title: Vice President
<PAGE>
EXHIBIT A
Property
All that certain piece, parcel or tract of land, containing 13.90 acres, more or
less, situate, lying and being on the Southwestern side of S. C. Highway 295, in
the County of Spartanburg, State of South Carolina, and being shown and
designated on plat entitled As-Built Survey for The Centre at Westgate, Ltd.,
dated January 19, 1988, prepared by Blackwood Associates, Inc., Engineers, and
recorded in the RMC Office for Spartanburg County, S. C. in Plat Book 103, at
Page 794, and having, according to said plat, the following courses and
distances:
BEGINNING at an iron pin at the corner of the property herein described
and property now or formerly of Spartan Mills, said iron pin being located
approximately 324.6 feet from an iron pin at Lowe's property corner
(Lowe's southeast property corner), on the west right-of-way line for S.
C. Highway 295, and running thence along the west right-of-way line for S.
C. Highway 295, the following courses and distances: S. 32-54-40 E. 101.08
feet to an iron pin; thence S. 35-05-37 E. 225.95 feet to an iron pin;
thence S. 35-51-07 E. 157.61 feet to an iron pin; thence turning and
running, 57-54-00 W. 46.54 feet to an iron pin; thence turning and
running, S. 09-57-03 W. 194.85 feet to an iron pin; thence turning and
running, S. 57-54-00 W. 862.94 feet to an iron pin at the corner of
property now or formerly of Spartan Mills; thence with the line of
property now or formerly of Spartan Mills, the following courses and
distances: N. 35-25-23 W. 360.00 feet to an iron pin; thence N. 7-24-22 E.
333.87 feet to an iron pin; thence N. 57-05-44 E. 825.23 feet to the point
of beginning.
TOGETHER WITH a perpetual, non-exclusive easement appurtenant to and running
with the land referred to hereinabove for ingress and egress to and from S. C.
Highway 295 over and across property now or formerly of Spartan Mills, which
lies adjacent to the property described hereinabove and additional property of
The Centre at Westgate, Ltd., along the southern boundaries, said easement being
approximately 70 feet in width and 1100 feet in length. This easement shall be
expanded hereafter to include any and all property over which a boulevard style
driveway is to be constructed under the license granted to The Centre at
Westgate, Ltd. (whether shown on a survey referred to hereinabove, or not). (For
a more accurate description of the location of the easement, reference is hereby
made to the area designated as such on the survey referred to hereinabove and
shown as a cross-hatched area of the survey entitled Survey for The Centre at
Westgate, Ltd.@, prepared by Blackwood Associates, Inc., Engineers, dated June
25, 1985.)
<PAGE>
ASSIGNMENT OF CONTRACTS AND INTANGIBLES
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby
acknowledged, PaineWebber Mortgage Partners Five, L.P., a Delaware limited
partnership ("Assignor"), hereby assigns, sells, transfers, sets over and
delivers unto Westgate Crossing Limited Partnership, a South Carolina limited
partnership ("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 Spartan Place, located at 660 Spartan Boulevard, Spartanburg, South
Carolina 29301 ("Property") described in Exhibit "A" attached hereto; the use of
the name "Spartan Place" 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 personality 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.
<PAGE>
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.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment as
of the 22nd day of August, 1997, which Assignment is effective on that date.
ASSIGNOR
PaineWebber Mortgage Partners Five, L.P.,
a Delaware limited partnership
By: Fifth Mortgage Partners, Inc., a
Delaware corporation, its Managing
General Partner
By: /s/ C. David Carlson
---------------------
Name: C. David Carlson
Title: Vice President
ASSIGNEE
Westgate Crossing Limited Partnership, a South
Carolina limited partnership
By: CBL/GP II, Inc., a Wyoming
corporation, its general partner
By: /s/ Ben S. Landress
--------------------
Name: Ben S. Landress
Title: Executive Vice President
Signed, Sealed and Delivered
in the presence of
/s/
- ------------------
1st Witness
/s/
- -----------------
2nd Witness
<PAGE>
COMMONWEALTH OF MASSACHUSETTS )
) PROBATE
COUNTY OF SUFFOLK )
Personally appeared before me, the undersigned witness and made oath that
he/she saw the within named FIFTH MORTGAGE PARTNERS, INC., general partner of
PAINEWEBBER MORTGAGE PARTNERS FIVE, L.P. by its Vice President, C. David
Carlson, Sign, Seal and as its Act and Deed, deliver the within written
Assignment of Contracts and Intangibles for the uses and purposes herein
mentioned; and that he/she with the other witness subscribed above witnessed the
execution thereof.
/s/ Kristen Sosnosky
--------------------
1st WITNESS
Sworn to before me this 22nd day of
August, 1997.
/s/ Barbara E. Tutt (L.S.)
- --------------------------
Notary Public For Massachusetts
My commission expires: 3/6/98
<PAGE>
STATE OF TENNESSEE )
) PROBATE
COUNTY OF HAMILTON )
Personally appeared before me, the undersigned witness and made oath that
he/she saw the within named CBL/GP II, INC., general partner of WESTGATE
CROSSING LIMITED PARTNERSHIP, by its Executive Vice President and Mary Ann
Okrasinski, Sign, Seal and as its Act and Deed, deliver the within written
Assignment of Contracts and Intangibles for the uses and purposes herein
mentioned; and that he/she with the other witness subscribed above witnessed the
execution thereof.
/s/ Don Sewell
--------------
1st WITNESS
Sworn to before me this 22nd day of
August, 1997.
/s/ Karen R. Benson (L.S.)
- --------------------------
Notary Public For Hamilton County
My commission expires: 3/21/2000
<PAGE>
EXHIBIT A
Property
ALL that certain piece, parcel or tract of land, containing 13.90 acres, more or
less, situate, lying and being on the Southwestern side of S. C. Highway 295, in
the County of Spartanburg, State of South Carolina, and being shown and
designated on plat entitled "As-Built" Survey for The Centre at Westgate, Ltd.,
dated January 19, 1988, prepared by Blackwood Associates, Inc., Engineers, and
recorded in the RMC Office for Spartanburg County, S. C. in Plat Book 103, at
Page 794, and having, according to said plat, the following courses and
distances:
BEGINNING at an iron pin at the corner of the property herein described and
property now or formerly of Spartan Mills, said iron pin being located
approximately 324.6 feet from an iron pin at Lowe's property corner (Lowe's
southeast property corner), on the west right-of-way line for S. C. Highway 295,
and running thence along the west right-of-way line for S. C. Highway 295, the
following courses and distances: S. 32-54-40 E. 101.08 feet to an iron pin;
thence S. 35-05-37 E. 225.95 feet to an iron pin; thence S. 35-51-07 E. 157.61
feet to an iron pin; thence turning and running, 57-54-00 W. 46.54 feet to an
iron pin; thence turning and running, S. 09-57-03 W. 194.85 feet to an iron pin;
thence turning and running, S. 57-54-00 W. 862.94 feet to an iron pin at the
corner of property now or formerly of Spartan Mills; thence with the line of
property now or formerly of Spartan Mills, the following courses and distances:
N. 35-25-23 W. 360.00 feet to an iron pin; thence N. 7-24-22 E. 333.87 feet to
an iron pin; thence N. 57-05-44 E. 825.23 feet to the point of beginning.
TOGETHER WITH a perpetual, non-exclusive easement appurtenant to and running
with the land referred to hereinabove for ingress and egress to and from S. C.
Highway 295 over and across property now or formerly of Spartan Mills, which
lies adjacent to the property described hereinabove and additional property of
The Centre at Westgate, Ltd., along the southern boundaries, said easement being
approximately 70 feet in width and 1100 feet in length. This easement shall be
expanded hereafter to include any and all property over which a boulevard style
driveway is to be constructed under the license granted to The Centre at
Westgate, Ltd. (whether shown on a survey referred to hereinabove, or not). (For
a more accurate description of the location of the easement, reference is hereby
made to the area designated as such on the survey referred to hereinabove and
shown as a cross-hatched area of the survey entitled "Survey for The Centre at
Westgate, Ltd", prepared by Blackwood Associates, Inc., Engineers, dated June
25, 1985.)
<PAGE>
STATEMENT OF SELLER
PaineWebber Mortgage Partners Five, L.P., a Delaware limited partnership
(Seller) is, as of the date hereof, conveying to Westgate Crossing Limited
Partnership, a South Carolina limited partnership (Purchaser), by Statutory
Warranty Deed that certain tract of land together with improvements thereon (the
Property) lying and being situated in the City of Spartanburg, County of
Spartanburg, State of South Carolina more particularly described in Exhibit A
attached hereto.
As a condition precedent to Purchasers obligation to proceed with the
acquisition of the Property, Seller has agreed to confirm certain matters as set
forth in that certain Purchase and Sale Agreement by and between Seller and
Purchaser dated April 30, 1997 (the Sale Agreement).
NOW THEREFORE, in consideration of the premises and the receipt of ten
dollars ($10.00) and other good and valuable consideration in hand paid by
Purchaser to Seller, the receipt and sufficiency of which are hereby
acknowledged, Seller does hereby state, it being specifically agreed that
Purchaser shall rely thereon in its acquisition of the Property, that to the
best of Seller's actual knowledge, without independent investigation, the
following matters are true:
1. The representations and warranties made by Seller in the Purchase
Agreement are true and correct in all material respects on and as of
the date hereof.
2. There has been no material adverse change in the environmental,
physical or economic characteristics of the Property since 5:00 p.m.
Eastern Daylight Time, August 18, 1997.
3. Neither Seller nor any tenant of the Property has become a party to
any bankruptcy, insolvency, receivership or other like proceeding
since 5:00 p.m. Eastern Daylight Time, August 18, 1997.
All defined terms contained herein shall be defined as stated in the Sale
Agreement, and the statements made by Seller herein shall be otherwise subject
to all terms, conditions and provisions thereof.
In witness whereof, Seller has executed this instrument to be effective as
of the 22nd day of August 1997.
SELLER:
By: PAINEWEBBER MORTGAGE PARTNERS FIVE, L.P.,
a Delaware limited partnership
By: Fifth Mortgage Partners, Inc.,
its managing general partner
By: /s/ C. David Carlson
----------------------
Name: C. David Carlson
Title: Vice President
<PAGE>
SWORN TO and subscribe before me this 22nd day of August, 1997.
/s/ Barbara E. Tutt
-------------------
Notary Public
My commission expires: 3/6/98
<PAGE>
EXHIBIT A
Property
ALL that certain piece, parcel or tract of land, containing 13.90 acres, more or
less, situate, lying and being on the Southwestern side of S. C. Highway 295, in
the County of Spartanburg, State of South Carolina, and being shown and
designated on plat entitled As-Built Survey for The Centre at Westgate, Ltd.,
dated January 19, 1988, prepared by Blackwood Associates, Inc., Engineers, and
recorded in the RMC Office for Spartanburg County, S. C. in Plat Book 103, at
Page 794, and having, according to said plat, the following courses and
distances:
BEGINNING at an iron pin at the corner of the property herein described and
property now or formerly of Spartan Mills, said iron pin being located
approximately 324.6 feet from an iron pin at Lowe's property corner (Lowe's
southeast property corner), on the west right-of-way line for S. C. Highway 295,
and running thence along the west right-of-way line for S. C. Highway 295, the
following courses and distances: S. 32-54-40 E. 101.08 feet to an iron pin;
thence S. 35-05-37 E. 225.95 feet to an iron pin; thence S. 35-51-07 E. 157.61
feet to an iron pin; thence turning and running, 57-54-00 W. 46.54 feet to an
iron pin; thence turning and running, S. 09-57-03 W. 194.85 feet to an iron pin;
thence turning and running, S. 57-54-00 W. 862.94 feet to an iron pin at the
corner of property now or formerly of Spartan Mills; thence with the line of
property now or formerly of Spartan Mills, the following courses and distances:
N. 35-25-23 W. 360.00 feet to an iron pin; thence N. 7-24-22 E. 333.87 feet to
an iron pin; thence N. 57-05-44 E. 825.23 feet to the point of beginning.
TOGETHER WITH a perpetual, non-exclusive easement appurtenant to and running
with the land referred to hereinabove for ingress and egress to and from S. C.
Highway 295 over and across property now or formerly of Spartan Mills, which
lies adjacent to the property described hereinabove and additional property of
The Centre at Westgate, Ltd., along the southern boundaries, said easement being
approximately 70 feet in width and 1100 feet in length. This easement shall be
expanded hereafter to include any and all property over which a boulevard style
driveway is to be constructed under the license granted to The Centre at
Westgate, Ltd. (whether shown on a survey referred to hereinabove, or not). (For
a more accurate description of the location of the easement, reference is hereby
made to the area designated as such on the survey referred to hereinabove and
shown as a cross-hatched area of the survey entitled Survey for The Centre at
Westgate, Ltd., prepared by Blackwood Associates, Inc., Engineers, dated June
25, 1985.)
