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) September 28, 1999
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PaineWebber Equity Partners Two Limited Partnership
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(Exact name of registrant as specified in its charter)
Virginia 0-15705 04-2918819
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(State or other jurisdiction) (Commission (IRS Employer
of incorporation File Number) Identification No.)
265 Franklin Street, Boston, Massachusetts 02110
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (617) 439-8118
(Former name or address, if changed since last report)
<PAGE>
FORM 8-K
CURRENT REPORT
PAINEWEBBER EQUITY PARTNERS TWO LIMITED PARTNERSHIP
ITEM 2 - Disposition of Assets
Gateway Plaza - Overland Park, Kansas
Disposition Date - September 28, 1999
On September 28, 1999, Daniel/Metcalf Associates Partnership, a joint
venture in which Paine Webber Equity Partners Two Limited Partnership ("the
Partnership") has an interest, sold the property known as Gateway Plaza, located
in Overland Park, Kansas, to an unrelated third party, for $13.55 million. The
Partnership received net proceeds of approximately $8,950,000 after deducting
closing costs of approximately $214,000, closing proration adjustments of
approximately $344,000 and the repayment of the existing mortgage note of
approximately $4,042,000. The Partnership received 100% of the sale proceeds in
accordance with the joint venture agreement. The Partnership will make a special
distribution to the Limited Partners totalling approximately $9,679,000, or $72
per original $1,000 investment, to be paid on October 15, 1999. Of the $72.00
total, $66.58 results from the sale of Gateway Plaza and $5.42 is from
Partnership reserves which exceed future requirements.
As noted in the Partnership's Annual Report on Form 10-K for the year
ended March 31, 1999 and the Quarterly Report on Form 10-Q for the quarter ended
June 30, 1999, preliminary marketing materials were prepared and initial sale
efforts for Gateway Plaza Shopping Center were undertaken in March 1999. A
marketing package was then finalized and comprehensive sale efforts began in
early April 1999. By July 7, 1999, 14 offers were received. To reduce the
prospective buyer's due diligence work and the time required to complete it,
updated operating reports, as well as environmental information on the property,
were provided to the top prospective buyers, who were asked to submit best and
final offers. After completing an evaluation of these offers and the relative
strength of the prospective purchasers, the Partnership selected an offer and
then negotiated a purchase and sale agreement which was signed on July 22, 1999.
The prospective buyer completed its due diligence review work on August 23, 1999
and subsequently made a non-refundable deposit of $250,000. The sale transaction
closed on September 28, 1999 after the prospective buyer secured its financing.
As previously reported, the Partnership has been focusing on potential
near-term disposition strategies for the two remaining investments in its
portfolio. As part of that plan, Gateway Plaza Shopping Center has been sold. In
addition, the Partnership has recently selected a real estate brokerage firm to
market the 625 North Michigan Avenue property for sale. Materials for the
marketing packages have been finalized and initial sale efforts are currently
underway. While the Partnership expects to have the 625 North Michigan Avenue
property under a contract for sale before December 31, 1999, it is unlikely that
both a sale of the property and a subsequent liquidation of the Partnership can
be completed by December 31, 1999. However, the Partnership is actively pursuing
this goal.
ITEM 7 - Financial Statements and Exhibits
(a) Financial Statements: None
(b) Exhibits:
(1) Purchase and Sale Agreement by and between Daniel/Metcalf Associates
Partnership and S&S Real Estate Holding Company L.C., dated July 22, 1999.
(2) Letter Agreement constituting First Amendment to Purchase and Sale
Agreement by and between Daniel/Metcalf Associates Partnership and S&S Real
Estate Holding Company L.C., dated August 23, 1999.
<PAGE>
FORM 8-K
CURRENT REPORT
PAINEWEBBER EQUITY PARTNERS TWO LIMITED PARTNERSHIP
(3) Second Amendment to Purchase and Sale Agreement between Daniel/Metcalf
Associates Partnership and S&S Real Estate Holding Company, dated August
24, 1999.
(4) Assignment of Contract by and between S&S Real Estate Holding Company L.C.,
Assigner, in favor of S&S Gateway, L.L.C., Assignee, dated September 23,
1999.
(5) Kansas General Warranty Deed by and between Daniel/Metcalf Associates
Partnership and S&S Gateway L.L.C., dated September 28, 1999.
(6) Bill of Sale by Daniel/Metcalf Associates Partnership to S&S Gateway,
L.L.C., dated September 28, 1999.
(7) Assignment and Assumption of Leases and Security Deposits by and between
Daniel/Metcalf Associates Partnership and S&S Gateway, L.L.C., dated
September 28, 1999.
(8) Assignment and Assumption of Contracts and Intangibles by and between
Daniel/Metcalf Associates Partnership and S&S Gateway, L.L.C., dated
September 28, 1999.
(9) Seller's Final Closing Statement between Daniel/Metcalf Associates
Partnership and S&S Gateway, L.L.C., dated September 28, 1999.
<PAGE>
FORM 8-K
CURRENT REPORT
PAINEWEBBER EQUITY PARTNERS TWO LIMITED PARTNERSHIP
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 EQUITY PARTNERS
TWO LIMITED PARTNERSHIP
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(Registrant)
By: /s/ Walter V. Arnold
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Walter V. Arnold
Senior Vice President and
Chief Financial Officer
Date: October 11, 1999
<PAGE>
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
DANIEL/METCALF ASSOCIATES PARTNERSHIP ("SELLER")
AND
S & S REAL ESTATE HOLDING COMPANY L.C. ("BUYER")
<PAGE>
TABLE OF CONTENTS
Page
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ARTICLE 1 DEFINITIONS 1
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ARTICLE 2 PURCHASE AND SALE 1
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ARTICLE 3 PURCHASE PRICE DEPOSIT AND ADJUSTMENTS 2
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ARTICLE 4 PRECLOSING OPERATION 4
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ARTICLE 5 ACCESS INSPECTION AND DILIGENCE 6
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ARTICLE 6 TITLE SURVEY CONDITIONS AND REPRESENTATIONS 9
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ARTICLE 7 CLOSING 12
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ARTICLE 8 CASUALTY AND CONDEMNATION 14
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ARTICLE 9 BROKERAGE COMMISSIONS 14
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ARTICLE 10 DEFAULT TERMINATION AND REMEDIES 15
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ARTICLE 11 MISCELLANEOUS 15
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ARTICLE 12 IRS FORM 1099-S DESIGNATION 20
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ARTICLE 13 SECTION 1031 EXCHANGE 21
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SCHEDULE A Legal 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
SCHEDULE F List of Escrow Provisions
SCHEDULE G Form of Deed
SCHEDULE H Form of Bill of Sale
SCHEDULE I Form of Assignment and Assumption of Leases
SCHEDULE J Form of Assignment and Assumption of Contracts and Intangibles
SCHEDULE K Form of Certificate of Non-Foreign Status
<PAGE>
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (this "Agreement") is entered into as of
the 22nd day of July 1999 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: S & S Real Estate Holding Company L.C. an Iowa
limited liability company
SELLER: Daniel/Metcalf Associates Partnership a Virginia
general partnership
PROPERTY: The Real Property and Personal Property
REAL PROPERTY: The land and the buildings structures improvements and
fixtures (collectively the "Improvements") now located
thereon 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: $13,550,000.00
TITLE COMPANY: Lawyers Title Insurance Corporation
ARTICLE 2
PURCHASE AND SALE
2.1 In consideration of the undertakings and mutual covenants of the
parties set forth in this Agreement and for other good and valuable
consideration the receipt and legal sufficiency of which are hereby acknowledged
Seller hereby agrees to sell and convey the Property to Buyer and Buyer hereby
agrees to buy and pay the Purchase Price for the Property on the terms and
conditions contained herein.
ARTICLE 3
PURCHASE PRICE DEPOSIT AND ADJUSTMENTS
3.1 The Purchase Price shall be as specified in Article 1 above and shall
be paid on the Closing Date (as hereinafter defined) by wire transfer of
immediately available federal funds subject to adjustment to reflect application
of the Escrowed Amount (as hereinafter defined) and such other adjustments
herein contained.
3.2 Buyer shall concurrently with the execution of this Agreement deposit
with the Title Company the sum of One Hundred Thousand Dollars ($100000.00) (as
such sum may be increased pursuant to Section 5.3 hereof and together with all
interest earned thereon the "Escrowed Amount") to secure Buyer's obligations
under this Agreement. The Escrowed Amount shall be held by the Title Company
pursuant to the terms of this Agreement and pursuant to the terms of the Escrow
Provisions contained in Schedule F attached hereto and made a part hereof.
Additionally concurrently with the execution of this Agreement Buyer shall
deliver to Seller the sum of One Hundred Dollars ($100.00) (the "Inspection
Fee") as consideration for Buyer's information review and property inspection
rights set forth herein. The Inspection Fee shall remain the property of Seller
in all instances.
3.3 All real estate taxes assessments special taxes special assessments
and any other tax or assessment attributable to the Property through the Closing
Date shall be prorated and adjusted as of the Closing Date unless such items are
paid directly by tenants to the applicable taxing authority in which case no
adjustment or proration shall be made for the items paid directly by the
tenants. If the tax statements for the fiscal year during which the Closing Date
occurs are not finally determined then the tax figures for the immediately prior
fiscal year shall be used for the purposes of prorating taxes on the Closing
Date. Any tax refunds or proceeds (including interest thereon) on account of a
favorable determination resulting from a challenge protest appeal or similar
proceeding relating to taxes and assessments relating to the Property (i) for
all tax periods occurring prior to the applicable tax period in which the
Closing 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 attorney's and consultant's 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 defined in Section
5.2 below) which are assigned to Buyer at Closing shall be prorated and adjusted
as of the Closing Date provided that no item shall be credited to Seller without
written confirmation reasonably satisfactory to Buyer that such amount has been
paid by Seller with respect to such item.
3.5 Seller shall cause all meters for electricity gas water sewer or other
utility usage at the Property to be read on the Closing Date and Seller shall
pay all charges for such utilities which have accrued on or prior to the Closing
Date; provided however that if and to the extent such charges are paid directly
by tenants no such reading or payment shall be required. If the utility
companies are unable or refuse to read meters for which payment by Seller is
required all charges for such utilities to the extent unpaid shall be prorated
and adjusted as of the Closing Date based on the most recent bills therefor.
Seller shall provide notice to Buyer within five (5) days before the Closing
Date setting forth (i) whether utility meters will be read as of the Closing
Date and (ii) a copy of the most recent bill for any utility charges which are
to be prorated and adjusted as of the Closing Date. 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 (as hereinafter defined)
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) provided that no item shall be credited to
Seller without written confirmation reasonably satisfactory to Buyer that such
amount has been paid by Seller with respect to such item.
3.6.1 All rentals and other tenant charges payable in arrears and
uncollected and all other uncollected rents (including but not limited to
percentage rents common area maintenance charges and real estate tax
charge annual adjustments thereto) for the current and prior rental
periods less the reasonable expenses of collection thereof shall be
apportioned (if and when collected by either party); provided however that
Buyer shall proceed in a commercially reasonable manner consistent with
Buyer's customary practice for tenants owing past due rent to it to
collect such uncollected rents from existing tenants listed on the Rent
Roll (as hereinafter defined); 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 Section 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 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 attorney's fees; and (d) the cost of the
standard owners title insurance policy referred to in Article 6.
3.8 At the Closing Buyer shall pay for (a) any local tax or mortgage tax
other than the Transfer Tax; (b) charges to record the deed and evidence of
Buyer's existence or authority; (c) survey charges; (d) Buyer's attorney's fees
and all costs related to Buyer's due diligence; and (e) costs as to additional
title insurance coverages or endorsements including the cost of a new lenders
title policy.
3.9 The provisions of this Article 3 shall survive the Closing.
ARTICLE 4
PRECLOSING OPERATION
4.1 A rent roll prepared by Seller's property manager (the Rent Roll)
containing a list of all current occupants 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 denial of consent within five (5) days after written
request therefor from Seller Buyer shall be deemed to have consented to such
requested action. In the event Buyer denies its consent Buyer shall specify its
reasons for denial in its written notice thereof. In the event Seller's
requested action with respect to a Lease is consented to or deemed consented to
by Buyer Buyer shall pay for tenant improvements and leasing commissions as
disclosed on Seller's request for consent.
4.3 At all times prior to Closing Seller shall 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 Buyer shall by written notice to Seller on or before the Diligence
Date identify any Contracts (as defined in Section 5.2 below) which it elects to
have assigned to it and therefore will assume. Buyer shall be deemed to have
elected not to assume any Contracts which are not identified as to be assigned
and assumed. Seller shall terminate any Contracts at Closing which are not
identified by Buyer as specified in this section as to be assigned and assumed
at Closing provided that such Contracts may be terminated without cost or
liability to Seller.
4.5 Seller shall use commercially reasonable efforts to obtain tenant
estoppel certificates from all tenants currently occupying their space under the
Leases 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 except as provided below. It shall be a condition
to Buyer's obligation to close hereunder that Buyer has received estoppel
certificates in either the form required by such tenants Lease or in a form
including substantially the information contained in the form attached as
Schedule E from tenants occupying in the aggregate at least seventy-five percent
(75%) of the occupied rentable floor area of the Improvements including an
estoppel certificate from each of (i) Overland Brewery (ii) Gateway Computer
Store (iii) Wright Business School (iv) J. Gilbert Restaurant (v) Chilis
Restaurant and (vi) Honey Baked Ham Store. Notwithstanding the foregoing an
estoppel certificate shall be deemed to satisfy the conditions outlined in the
previous sentence if it is substantially in the form of Schedule E attached
hereto except that any or all of items 13 14 and 15 thereon may have been
deleted or stricken. If the condition set forth in this Section 4.5 has not been
fulfilled on or before the scheduled Closing Date then Buyer shall have the
right to terminate this Agreement by giving written notice to Seller with a copy
to the Title Company by 5:00 p.m. on the scheduled Closing Date whereupon this
Agreement shall automatically terminate and the Escrowed Amount shall be
returned to Buyer and Seller and Buyer shall have no further obligations or
liabilities to each other under this Agreement except as otherwise stated
herein. Notwithstanding the foregoing Seller shall have the right (in its sole
discretion) exercisable by written notice to Buyer on or before the scheduled
Closing Date to extend the Closing Date for a period of up to thirty (30) days
to provide additional time for the fulfillment of such condition. Upon any such
extension the term Closing Date as used herein shall mean the date set forth in
such written notice from Seller.
ARTICLE 5
ACCESS INSPECTION AND DILIGENCE
5.1 Seller agrees that Buyer and its authorized agents or representatives
shall be entitled to enter upon the Real Property 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 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. Seller's prior written approval for physical inspections may be
conditioned on receipt of a detailed description of the proposed physical
inspection a list of the contractors who will be performing the physical
inspection evidence of insurance satisfactory to Seller and such other
information as Seller reasonably requires in connection with such proposed
inspection. Buyer may not interview tenants unless a duly authorized
representative of Seller accompanies Buyer. Seller also agrees to make available
to Buyer during normal business hours upon advance written notice to Seller all
books records plans building specifications contracts agreements or other
instruments or documents contained in 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 (i) Leases (ii) all maintenance service supply
equipment rental management and leasing contracts affecting the Property
(collectively the Contracts) which it has in its files and shall instruct its
property manager to make such Leases and Contracts available to Buyer for
inspection and (iii) such other information and reports affecting the Property
to the extent in Seller's possession or control.
Buyer acknowledges and agrees that any and all information documents
surveys studies add reports provided to Buyer are provided for informational
purposes only and do not constitute representations and warranties of Seller of
any kind.
5.3 Buyer shall promptly commence and actively pursue its due diligence on
the Property including but not limited to the following items:
(a) Review of title and survey matters;
(b) Review of Contracts and information materials;
(c) Obtain and review engineering reports on structural condition
of the mechanical systems;
(d) Obtain and review environmental reports on oil hazardous waste
and asbestos;
(e) Review of applicable zoning and other land use controls and
other permits licenses permissions approvals and consents;
(f) Conduct tenant interviews subject to Section 5.1 above; and
(g) Review of all Leases affecting the Property.
Buyer shall complete its due diligence including but not limited to the
foregoing no later than thirty (30) days after 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 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); provided however that the Inspection Fee shall remain the property
of Seller. In the event Buyer does not terminate this Agreement on In the event
Buyer does not terminate this Agreement on or before the Diligence Date Buyer
shall deposit an additional One Hundred Fifty Thousand Dollars ($150000) with
the Title Company for a total principal Escrowed Amount of Two Hundred Fifty
Thousand Dollars ($250000) and the Escrowed Amount (as so increased) shall
become nonrefundable.
IN THE EVENT OF BUYER'S TIMELY TERMINATION PURSUANT TO THIS PARAGRAPH WHICH
SHALL BE EVIDENCED BY BUYER'S WRITTEN NOTICE OF SUCH TERMINATION TO SELLER AND
ESCROW HOLDER AT ANY TIME ON OR BEFORE THE DILIGENCE DATE ESCROW HOLDER SHALL
IMMEDIATELY RETURN THE ESCROWED AMOUNT TO BUYER BASED SOLELY UPON BUYER'S
UNILATERAL INSTRUCTION (AND NOTWITHSTANDING THE LACK OF OR CONTRARY INSTRUCTION
FROM SELLER) AND THE PARTIES HERETO SHALL HAVE NO FURTHER LIABILITY TO EACH
OTHER EXCEPT AS OTHERWISE PROVIDED HEREIN. IN THE EVENT OF BUYER'S TERMINATION
AS SET FORTH ABOVE ESCROW HOLDER SHALL NOT DISTRIBUTE ANY TERMINATION OR RELEASE
DOCUMENTS TO SELLER PRIOR TO RETURNING THE ESCROWED AMOUNT TO BUYER IT BEING THE
EXPRESS INTENTION OF THE PARTIES THAT BUYER'S UNILATERAL INSTRUCTION PURSUANT TO
THIS PARAGRAPH SHALL BE SUFFICIENT TO TERMINATE THIS ESCROW. SELLER HEREBY
SPECIFICALLY AGREES TO THE FOREGOING BY INITIALING IN THE SPACE BELOW AND HEREBY
RELEASES ALL CLAIMS AGAINST ESCROW HOLDER FOR STRICTLY COMPLYING WITH THIS
SECTION.
Seller's Initials
Buyer acknowledges that as of the Closing it will have had an opportunity
to conduct diligence on the Property and is acquiring the Property in its
current condition based on its diligence. Buyer further acknowledges that
neither Seller nor its employees agents or representatives have made any
representation or warranty as to the condition of the Property or the presence
or absence of any hazardous materials on in under or within the Property or a
portion thereof which survive the Closing hereunder except as expressly provided
in this Agreement. THE BUYER ACKNOWLEDGES AND AGREES THAT THE PROPERTY IS TO BE
CONVEYED BY SELLER TO BUYER "AS IS" "WITH ALL FAULTS" AND SUBSTANTIALLY IN ITS
CURRENT CONDITION. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT EXCEPT AS
EXPRESSLY CONTAINED IN THIS AGREEMENT NEITHER SELLER NOR ANY AGENT EMPLOYEE OR
OTHER REPRESENTATIVE OF SELLER (OR PURPORTED AGENT EMPLOYEE OR OTHER
REPRESENTATIVE OF SELLER) HAS MADE ANY GUARANTEE REPRESENTATION OR WARRANTY
EXPRESS OR IMPLIED (AND SELLER SHALL NOT HAVE ANY LIABILITY WHATSOEVER) AS TO
THE VALUE USES HABITABILITY CONDITION DESIGN OPERATION FINANCIAL CONDITION OR
PROSPECTS OR FITNESS FOR PURPOSE OR USE OF THE PROPERTY (OR ANY PART THEREOF) OR
THE INFORMATION MATERIALS NOT PREPARED BY SELLER OR ANY OTHER GUARANTEE
REPRESENTATION OR WARRANTY WHATSOEVER EXPRESS OR IMPLIED WITH RESPECT TO ANY
PORTION OF THE PROPERTY (OR ANY PART THEREOF) OR THE INFORMATION MATERIALS
SUPPLIED TO BUYER. FURTHER SELLER SHALL HAVE NO LIABILITY FOR ANY LATENT HIDDEN
OR PATENT DEFECT AS TO THE PROPERTY OR THE FAILURE OF THE PROPERTY OR ANY PART
THEREOF TO COMPLY WITH ANY APPLICABLE LAWS AND REGULATIONS. IN PARTICULAR BUYER
ACKNOWLEDGES AND AGREES THAT THE INFORMATION MATERIALS PROVIDED UNDER THIS
AGREEMENT (AND ANY OTHER INFORMATION BUYER MAY HAVE OBTAINED REGARDING IN ANY
WAY ANY OF THE PROPERTY INCLUDING WITHOUT LIMITATION ITS OPERATIONS OR ITS
FINANCIAL HISTORY OR PROSPECTS FROM SELLER OR ITS AGENTS EMPLOYEES OR OTHER
REPRESENTATIVES BUT NOT INCLUDING INFORMATION PREPARED BY SELLER) IS DELIVERED
TO BUYER AS A COURTESY WITHOUT REPRESENTATION OR WARRANTY AS TO ITS ACCURACY OR
COMPLETENESS (EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT) AND NOT AS AN
INDUCEMENT TO ACQUIRE THE PROPERTY; THAT NOTHING CONTAINED IN SUCH DELIVERIES
SHALL CONSTITUTE OR BE DEEMED TO BE A GUARANTEE REPRESENTATION OR WARRANTY
EXPRESS OR IMPLIED IN ANY REGARD AS TO ANY OF THE PROPERTY (EXCEPT AS EXPRESSLY
PROVIDED IN THIS AGREEMENT); AND THAT BUYER IS RELYING ONLY UPON THE PROVISIONS
OF THIS AGREEMENT AND ITS OWN INDEPENDENT ASSESSMENT OF THE PROPERTY AND ITS
PROSPECTS IN DETERMINING WHETHER TO ACQUIRE THE PROPERTY. The provisions of this
paragraph shall survive the Closing.
5.4 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 prepared by third-parties obtained in
connection with Buyer's diligence. The return of the Escrowed Amount to Buyer
under this Agreement shall be contingent upon Buyer's fulfillment of the
obligations under this Section 5.4.
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
directors officers and employees accountants attorney's existing or prospective
lenders investment bankers underwriters rating agencies partners consultants and
other advisors to the extent such parties reasonably need to know such
information and are bound by a confidentiality obligation identical in all
material respects to the one created by this Section. Additionally each party
may discuss and disclose such matters to the extent necessary to comply with any
requirements of the Securities and Exchange Commission or in order to comply
with any securities law or interpretation thereof. This provision shall survive
termination of this Agreement but shall terminate upon Closing. Buyer and Seller
do not contemplate issuing a press release until after the Diligence Date. Any
press release to be made regarding any matter which is the subject of the
confidentiality obligation created in this Section shall be subject to the
reasonable approval of Buyer and Seller respectively 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 attorney's 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.
5.7 Buyer's Release of Seller. SELLER AND ITS PROPERTY MANAGER ARE HEREBY
RELEASED FROM ALL RESPONSIBILITY AND LIABILITY REGARDING THE CONDITION
(INCLUDING THE PRESENCE IN THE SOIL AIR STRUCTURES AND SURFACE AND SUBSURFACE
WATERS OF MATERIALS OR SUBSTANCES THAT HAVE BEEN OR MAY BE IN THE FUTURE
DETERMINED TO BE TOXIC HAZARDOUS UNDESIRABLE OR SUBJECT TO REGULATION AND THAT
MAY NEED TO BE SPECIALLY TREATED HANDLED AND/OR REMOVED FROM THE PROPERTY UNDER
CURRENT OR FUTURE FEDERAL STATE AND LOCAL LAWS REGULATIONS OR GUIDELINES)
VALUATION SALABILITY OR UTILITY OF THE PROPERTY OR ITS SUITABILITY FOR ANY
PURPOSE WHATSOEVER. BUYER ACKNOWLEDGES THAT ANY INFORMATION OF ANY TYPE WHICH
BUYER HAS RECEIVED OR MAY RECEIVE FROM SELLER ITS PROPERTY MANAGER OR THEIR
RESPECTIVE AGENTS INCLUDING WITHOUT LIMITATION ANY ENVIRONMENTAL REPORTS AND
SURVEYS IS FURNISHED ON THE EXPRESS CONDITION THAT BUYER SHALL MAKE AN
INDEPENDENT VERIFICATION OF THE ACCURACY OF SUCH INFORMATION ALL SUCH
INFORMATION BEING FURNISHED WITHOUT ANY WARRANTY WHATSOEVER.
5.8 Buyer's Delivery of Financing Commitment. If Buyer has not provided
Seller on or before July 30 1999 with written evidence that Buyer has obtained a
commitment from Mercantile Bank to finance % ( percent ) of the Purchase Price
then Seller shall be entitled to terminate this Agreement by written notice to
Buyer given no later than August 6 1999 in which event this Agreement shall
terminate the Escrowed Amount shall be returned to Buyer and this Agreement
shall be null and void without recourse to either party hereto (except to the
extent such recourse arises in connection with a provision of this Agreement
which is intended to survive termination); provided however that the Inspection
Fee shall remain the property of Seller.
ARTICLE 6
TITLE SURVEY CONDITIONS AND REPRESENTATIONS
6.1 By executing this Agreement Buyer acknowledges receipt from Seller of:
(a) an ALTA as-built survey of the Real Property (the Survey);
(b) a commitment for a standard ALTA Owners Policy of Title
Insurance showing Buyer as insured fee simple title to the
Real Property as the insured estate and the Purchase Price as
the insurance coverage amount (the Title Commitment) and the
title exception documents referenced therein other than those
described on Schedule 6.1 hereto (the Missing Exception
Documents); and
(c) a Phase I Environmental Inspection Report (the Phase I).
If (i) any matter disclosed on the Survey; (ii) matters listed as
exceptions in the Title Commitment other than the Missing Exception Documents;
or (iii) matters disclosed in the Phase I report are not each satisfactory to
Buyer it shall within ten (10) days following receipt of the Title Commitment
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 or waive such
objection and proceed to Closing. Seller hereby agrees that Buyer shall have
five (5) days from receipt of any Missing Exception Document to provide Seller
with written notice of its objection to such title exception. To enable Seller
to convey Seller may at the Closing use the Purchase Price or any portion
thereof to clear title. Those exceptions or title deficiencies that appear on
the Title Commitment and are not objected to by Buyer shall be the Permitted
Encumbrances.
6.2 On the Closing Date Seller shall convey by Deed to Buyer 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) The Permitted Encumbrances and such matters as would be
disclosed on a current Survey;
(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 Seller shall assign the Leases and Contracts which are
not to be terminated and intangible property if any to Buyer and Buyer shall
assume Seller's obligations thereunder from and after the Closing Date and
Seller shall convey the Personal Property to Buyer by quitclaim bill of sale.
6.4 Representations and Warranties
6.4.1 Seller hereby represents and warrants to Buyer as of the date
of this Agreement as follows:
(a) Organization and Power. Seller is a general partnership validly
existing under the laws of the State of Virginia with all necessary legal
power to enter into and perform its obligations hereunder and under any
document or instrument required hereunder to be executed and delivered on
behalf of Seller;
(b) Authorization and Execution. The execution and delivery of this
Agreement and the consummation of the transaction contemplated hereby have
been duly authorized by all necessary parties and no other proceedings on
the part of Seller are necessary in order to permit it to consummate the
transaction contemplated hereby. This Agreement has been duly executed and
delivered by Seller and (assuming valid execution and delivery by Buyer)
is a legal solid and binding obligation of Seller enforceable against it
in accordance with its terms; and
(c) Governmental Notices. Seller has not received any written notice
from a government agency that the location construction occupancy
operation and use of the Property (including any improvements and
equipment forming any part thereof) violate any applicable law statute
ordinance rule regulation order or determination of any governmental
authority or any board of fire underwriters (or similar body) or any
restrictive covenant or deed restriction or zoning ordinance or
classification affecting the Property including without limitation all
applicable building codes flood disaster laws and health and environmental
laws and regulations (hereinafter sometime collectively called Applicable
Laws). Seller has not received any written notice from a governmental
agency that the Property and Seller are currently subject to any existing
pending or threatened investigation or inquiry by any governmental
authority or to any remedial obligations under any Applicable Laws
pertaining to health or the environment.
(d) Litigation. Based solely on input from Seller's property manager
Seller has received no written notice of any actions suits or proceedings
pending with respect to the leases other than collection litigation
relating to rent delinquencies.
(e) Rent Roll. Based solely on input from Seller's property manager
the Rent Roll is true and complete in all material respects as of the date
indicated in such Rent Roll and except as noted on the Rent Roll or the
public records no parties have any right to occupy any portion of the
Property.
6.4.2 The representations and warranties contained in Section 6.4.1
are hereby qualified to Seller's actual knowledge without further inquiry. Each
representation or warranty contained in Section 6.4.1 is subject to being
updated by Seller in writing on or before the Diligence Date and shall be deemed
to have been amended and updated by any information delivered to or made
available to Buyer and any other information obtained by Buyer in connection
with its diligence (including but not limited to tenant estoppel certificates).
No representations or warranties made hereunder shall survive Closing.
6.4.3 Buyer hereby represents and warrants to Seller as of the date
of this Agreement as follows:
(a) Organization and Power. Buyer is a limited liability company
organized existing and in good standing under the laws of the State of
Iowa and has the requisite power and authority to enter into and perform
the terms of this Agreement; and
(b) Authorization and Execution. The execution and delivery of this
Agreement and the consummation of the transaction contemplated hereby have
been duly authorized by all necessary parties and no other proceedings on
the part of Buyer are necessary in order to permit it to consummate the
transaction contemplated hereby. This Agreement has been duly executed and
delivered by Buyer and (assuming valid execution and delivery by Seller)
is a legal valid and binding obligation of Buyer enforceable against it in
accordance with its terms.
6.5 The obligations of Buyer to consummate the transaction contemplated by
this Agreement are subject to the representations and warranties made by Seller
in this Agreement being true and correct in all material respects on and as of
the Closing Date with the same force and effect as though such representations
and warranties had been made as of the Closing Date.
6.6 The obligations of Seller to consummate the transaction contemplated
by this Agreement are subject to the representations and warranties made by
Buyer in this Agreement being true and correct in all material respects on and
as of the Closing Date with the same force and effect as though such
representations and warranties had been made as of the Closing Date.
ARTICLE 7
CLOSING
7.1 The consummation of the purchase and sale contemplated in this
Agreement (the "Closing") shall occur at the offices of the Title Company on the
date that is thirty (30) days after the Diligence Date (the Closing Date). It is
agreed that time is of the essence in this Agreement.
7.2 On the Closing Date Seller shall deliver or cause to be delivered each
of the following items to Buyer:
(a) A duly executed and acknowledged deed conveying the Real
Property and the Improvements to Buyer in the form attached hereto as
Schedule G;
(b) Duly executed bill of sale conveying the Personal Property to
Buyer in the form attached hereto as Schedule H;
(c) Duly executed assignment and assumption of Leases (the
"Assignment of Leases") in the form attached hereto as Schedule I;
(d) Duly executed assignment and assumption of Contracts and
intangible property (the "Assignment of Contracts") in the form attached
hereto as Schedule J;
(e) Transfer tax statements (or similar affidavits or forms) if
required of the Seller by local law to effect transfer or recordation of
the Deed;
(f) Certificate or certificates of non-foreign status from Seller in
the form attached hereto as Schedule K;
(g) Customary affidavits and indemnities sufficient for the Title
Company to delete any exceptions for mechanics or materialmen's' liens
from Buyer's title policy and such other affidavits relating to such title
policy as the Title Company may reasonably request;
(h) Counterpart original of the closing statement setting forth the
Purchase Price the closing adjustments and the application of the Purchase
Price as adjusted (the Closing Statement);
(i) Original tenant estoppel certificates to the extent received;
(j) All business and accounting records pertaining to the operation
of the Property in Seller's possession;
(k) All original Leases and tenant correspondence in each case if in
Seller's possession;
(l) Keys to all locks which manager has in its possession;
(m) Notice letters from Seller to tenants of the sale of the
Property and assignment of the Leases; and
(n) All documents customary in the State of Kansas and required by
Title Company confirming Seller's authority to sell the Property; and
(o) Seller's certification that the representations and warranties
are true as of the Closing Date.
7.3 On the Closing Date Buyer shall deliver or cause to be delivered at
its expense each of the following to Seller:
(a) Purchase Price for the Property as such Purchase Price may have
been further adjusted pursuant to the provisions of this Agreement and
credited for any portion of the Escrowed Amount paid to Seller in the
manner provided for in Article 3;
(b) Duly executed Assignment of Leases;
(c) Duly executed Assignment of Contracts;
(d) Counterpart original of the Closing Statement; and
(e) Such other instruments as Seller may reasonably request to
effectuate the transaction contemplated by this Agreement.
ARTICLE 8
CASUALTY AND CONDEMNATION
8.1 If the Improvements are materially damaged by fire or any other
casualty and the Improvements are not substantially restored to the condition
existing immediately prior to such casualty before the Closing Date Buyer shall
have the following elections:
(a) to purchase the Property in its then condition and pay the
Purchase Price in which event Seller shall pay over or assign to Buyer as
the case may be on the Closing Date all amounts recovered or recoverable
by Seller on account of any insurance as a result of such casualty plus
the amount of any applicable deductible less any amounts reasonably
expended by Seller for partial restoration; or
(b) if any portion of the Improvements shall have been substantially
destroyed to terminate this Agreement by giving notice of termination to
Seller on or before that date which is thirty (30) days after the
occurrence of the fire or other casualty or on the Closing Date whichever
occurs first in which event the Title Company shall return the Escrowed
Amount to Buyer this Agreement shall terminate and neither Seller nor
Buyer shall have any recourse against the other (except to the extent such
recourse arises in connection with a provision of this Agreement which is
intended to survive termination). For purposes of this subparagraph (b)
substantially destroyed shall mean damage in Seller's reasonable judgment
greater than $500000.
8.2 If any portion of or interest in the Property shall be taken or is in
the process of being taken by exercise of the power of eminent domain or if any
governmental authority notifies Seller prior to the Closing Date of its intent
to take or acquire any portion of or interest in the Property (each an "Eminent
Domain Taking") Seller shall give notice promptly to Buyer of such event and
Buyer shall have the option to terminate this Agreement by providing notice to
Seller to such effect on or before the date which is five (5) days from Seller's
notice to Buyer of such Eminent Domain Taking or on the Closing Date whichever
occurs first in which event the Title Company shall return the Escrowed Amount
to Buyer this Agreement shall terminate and neither Seller nor Buyer shall have
any recourse against the other. If Buyer does not timely notify Seller of its
election to terminate this Agreement Buyer shall purchase the Property and pay
the Purchase Price and Seller shall pay over or assign to Buyer on delivery of
the deed all awards recovered or recoverable by Seller on account of such
Eminent Domain Taking less any amounts reasonably expended by Seller in
obtaining such award.
8.3 If the Improvements or the Property are materially damaged by any
release spill leak emission discharge or disposal of any material or substance
which is identified as hazardous or toxic under any applicable law statute
judicial or administrative decree or decision (Release) which Release is clearly
documented to have first occurred after the Diligence Date and which does not
arise out of the activities of Buyer its members officers managers agents
employees or invitees and either party has a written estimate from a reputable
contractor stating that the cost of cleaning up such Release and restoring the
Property to its condition immediately prior to the Release would exceed $100000
then either Buyer or Seller may terminate this Agreement by written notice to
the other party given within five (5) days of becoming aware of the Release in
which event the Title Company shall return the Escrowed Amount to Buyer this
Agreement shall terminate and neither Seller nor Buyer shall have any recourse
against the other (except to the extent such recourse arises in connection with
a provision of this Agreement which is intended to survive termination). If this
Agreement is not so terminated after a Release then Buyer shall purchase the
Property in its then condition on the Closing Date and pay the Purchase Price
offset by the amount which the parties reasonably agree is necessary to clean up
such Release such offset to be reduced by any amounts reasonably expended by
Seller for partial clean up of such Release. In such event Seller shall retain
all rights of recovery against the party responsible for the Release and Buyer
shall cooperate with Seller's collection efforts.
ARTICLE 9
BROKERAGE COMMISSIONS
Seller represents and warrants to Buyer that Seller has not used or
employed any broker or brokers in connection with the negotiation execution or
consummation of the transaction contemplated by this Agreement other than
Kessinger/Hunter and Cohen Esrey (collectively Seller's Agent). Seller will
indemnify defend and hold Buyer harmless from and against any claims of Seller's
Agent for any commission finders fee or other compensation in connection with
the transactions contemplated by this Agreement. Seller agrees to pay Seller's
Agent its commission in accordance with a separate agreement between Seller and
Seller's Agent. Buyer and Seller hereby acknowledge that Seller's Agent
represents Seller.
Buyer represents and warrants to Seller that Buyer has not used or
employed any broker or brokers in connection with the negotiation execution or
consummation of the transaction contemplated by this Agreement.
Buyer and Seller each hereby agree to indemnify defend and hold the other
harmless from and against any claims losses damages costs or expenses (including
but not limited to reasonable attorney's fees) of any kind or character which
arise as a result of breach of the foregoing representation and warranty. This
Section 9 shall survive the Closing or earlier termination of the Agreement.
ARTICLE 10
DEFAULT TERMINATION AND REMEDIES
10.1 In the event that Seller shall have failed in any material respect
adverse to Buyer on the Closing Date to have performed any of the covenants and
agreements contained in this Agreement which are to be performed by Seller on or
before the Closing Date Buyer shall have the following remedies (i) the right to
take any and all legal actions necessary to compel Seller's specific performance
hereunder (it being acknowledged that damages at law would be an inadequate
remedy) and to consummate the transaction contemplated by this Agreement in
accordance with the provisions of this Agreement (such conveyance shall be
deemed to satisfy and waive any other remedy) or (ii) the right to terminate
this Agreement and receive the Escrowed Amount.
10.2 In the event that Buyer shall have failed in any material respect
adverse to Seller on the Closing Date to have performed any of the covenants and
agreements contained in this Agreement which are to be performed by Buyer on or
before the Closing Date or if Buyer defaults in its obligation to close
hereunder Seller shall be entitled to receive the Escrowed Amount as liquidated
damages in lieu of all other remedies available to Seller at law or in equity
for such default and Buyer shall direct the Title Company to release the
Escrowed Amount to Seller. Seller and Buyer agree that the damages resulting to
Seller as a result of such default by Buyer as of the date of this Agreement are
difficult or impossible to ascertain and the liquidated damages set forth in the
preceding sentence constitute Buyer's and Seller's reasonable estimate of such
damages.
ARTICLE 11
MISCELLANEOUS
11.1 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 (i) when delivered by hand during regular business hours (ii)
three (3) days after being sent by United States Postal Service registered or
certified mail postage prepaid return receipt requested (iii) one day after
being sent by a reputable overnight express mail service that provides tracing
and proof of receipt or refusal of items mailed or (iv) when sent by telecopier
or facsimile transmission with transmission confirmed and with confirmation copy
by notice methods (i) (ii) or (iii) above addressed to Seller or Buyer as the
case may be at the address or addresses set forth below or such other addresses
as the parties may designate in a notice similarly sent; provided however that
no notice issued pursuant to Section 5.3 hereof shall be effective unless it is
actually received by the Title Company prior to the Diligence Date. 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:
S & S Real Estate Holding Company L.C.
c/o Robin Seiser
1985 N.W. 94th Street Suite B
Clive IA 50325
Telephone: (515) 334-0222
with a copy to:
Jerome E. Murphy P.C.
4700 Belleview Suite 210
Kansas City MO 64112
Telecopy: (816) 753-2886
Telephone: (816) 753-2800
(2) If to Seller:
Daniel/Metcalf Associates Partnership
c/o PaineWebber Properties Incorporated
265 Franklin Street 15th Floor
Boston MA 02110
Attention: Peter Sullivan
Telecopy: (617) 439-8106
with a copy to:
Goodwin Procter &Hoar LLP
Exchange Place
Boston Massachusetts 02109
Attention: Andrew C. Sucoff Esq.
Telecopy: (617) 277-8591
(3) If to the Title Company:
Stewart Title Guaranty Company
1220 Washington
Kansas City Missouri 64105
Attn: John Coghlan
Telecopy:
11.3 Words of any gender used in this Agreement shall be held and
construed to include any other gender and words of a singular number shall be
held to include the plural and vice versa unless the context requires otherwise.
11.4 The captions used in connection with the Articles of this Agreement
are for convenience only and shall not be deemed to extend limit or otherwise
define or construe the meaning of the language of this Agreement.
11.5 Nothing in this Agreement express or implied is intended to confer
upon any person other than the parties hereto and their respective successors
and assigns any rights or remedies under or by reason of this Agreement.
11.6 This Agreement may be amended only by a written instrument executed
by Seller and Buyer (or Buyer's assignee or transferee).
11.7 This Agreement embodies the entire agreement between Seller and Buyer
with respect to the transaction contemplated in this Agreement and there have
been and are no covenants agreements representations warranties or restrictions
between Seller and Buyer with regard thereto other than those set forth or
provided for in this Agreement.
11.8 This Agreement shall be construed under and in accordance with the
laws of the State of Kansas.
11.9 This Agreement may be executed in two (2) or more counterparts each
of which shall be an original but such counterparts together shall constitute
one and the same instrument notwithstanding that both Buyer and Seller are not
signatory to the same counterpart.
11.10 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 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.
11.11 In the event of any disagreement between the parties the Title
Company shall retain all deposits pending instructions mutually agreed to by
Seller and Buyer. In the event there is no mutual agreement by Seller and Buyer
for disbursements the Title Company shall hold said deposits pending a court
order to disburse. The Title Company may conclusively rely on the authenticity
validity and effectiveness of any writing delivered to it and Title Company
shall not be obligated to make any investigation or determination except as
provided in the case of disputes as to the truth and accuracy of any information
contained therein. Buyer and Seller agree to defend indemnify and hold Title
Company harmless from any liabilities suits claims or expenses arising from or
out of or in connection with Title Company's acts or failure to act hereunder
unless caused or created as a result of Title Company's 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
attorney's fees of counsel retained by Title Company. If there is a settlement
by Buyer and Seller prior to a court order Buyer and Seller will share equally
in the expenses incurred by the Title Company. Otherwise the non-prevailing
party shall assume full responsibility for the Title Company's expenses. Title
Company is not required to advance or expend or risk its own funds or otherwise
incur personal liability in performance of its duties hereunder and it may
require advancement of funds by the parties.
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 Buyer nor anyone claiming by through or under Buyer shall
be entitled to obtain any judgment extending liability beyond the Property or
creating personal liability on the part of the officers directors shareholders
or agents of Seller or any of their successors. The obligations of Buyer
hereunder shall be binding only on the assets of Buyer and neither Seller nor
anyone claiming by through or under Seller shall be entitled to obtain any
judgment creating personal liability on the part of the partners officers
shareholders or agents of Buyer or any of their successors or any affiliated
entities.
11.14 As used herein the term business day shall mean any day other than
on Saturday Sunday or federal holiday.
11.15 Property Conveyed AS IS.
(a) NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY IT IS
UNDERSTOOD AND AGREED THAT EXCEPT AS EXPRESSLY SET FORTH HEREIN SELLER AND ITS
PROPERTY MANAGER HAVE NOT MADE AND ARE NOT NOW MAKING AND THEY SPECIFICALLY
DISCLAIM ANY OTHER WARRANTIES REPRESENTATIONS OR GUARANTIES OF ANY KIND OR
CHARACTER EXPRESS OR IMPLIED ORAL OR WRITTEN PAST PRESENT OR FUTURE WITH RESPECT
TO THE PROPERTY INCLUDING BUT NOT LIMITED TO WARRANTIES REPRESENTATIONS OR
GUARANTIES AS TO (I) MATTERS OF TITLE (OTHER THAN SELLER'S WARRANTY OF TITLE SET
FORTH IN THE DEED (HEREINAFTER DEFINED) TO BE DELIVERED AT CLOSING) (II)
ENVIRONMENTAL MATTERS RELATING TO THE PROPERTY OR ANY PORTION THEREOF (III)
GEOLOGICAL CONDITIONS INCLUDING WITHOUT LIMITATION SUBSIDENCE SUBSURFACE
CONDITIONS WATER TABLE UNDERGROUND WATER RESERVOIRS LIMITATIONS REGARDING THE
WITHDRAWAL OF WATER AND EARTHQUAKE FAULTS AND THE RESULTING DAMAGE OF PAST
AND/OR FUTURE EARTHQUAKES (IV) WHETHER AND TO THE EXTENT TO WHICH THE PROPERTY
OR ANY PORTION THEREOF IS AFFECTED BY ANY STREAM (SURFACE OR UNDERGROUND) BODY
OF WATER FLOOD PRONE AREA FLOOD PLAIN FLOODWAY OR SPECIAL FLOOD HAZARD (V)
DRAINAGE (VI) SOIL CONDITIONS INCLUDING THE EXISTENCE OF INSTABILITY PAST SOLID
REPAIRS SOIL ADDITIONS OR CONDITIONS OF SOIL FILL OR SUSCEPTIBILITY TO
LANDSLIDES OR THE SUFFICIENCY OF ANY UNDERSHORING (VII) ZONING TO WHICH THE
PROPERTY OR ANY PORTION THEREOF MAY BE SUBJECT (VIII) THE AVAILABILITY OF ANY
UTILITIES TO THE PROPERTY OR ANY PORTION THEREOF INCLUDING WITHOUT LIMITATION
WATER SEWAGE GAS AND ELECTRIC (IX) USAGES OF ADJOINING PROPERTY (X) ACCESS TO
THE PROPERTY OR ANY PORTION THEREOF (XI) THE VALUE COMPLIANCE WITH THE PLANS AND
SPECIFICATIONS SIZE LOCATION AGE USE DESIGN QUALITY DESCRIPTION SUITABILITY
STRUCTURAL INTEGRITY OPERATION TITLE TO OR PHYSICAL OR FINANCIAL CONDITION OF
THE PROPERTY OR ANY PORTION THEREOF OR ANY INCOME EXPENSES CHARGES LIENS
ENCUMBRANCES RIGHTS OR CLAIMS ON OR AFFECTING OR PERTAINING TO THE PROPERTY OR
ANY PART THEREOF OR ANY INCOME EXPENSES CHARGES LIENS ENCUMBRANCES RIGHTS OR
CLAIMS ON OR AFFECTING OR PERTAINING TO THE PROPERTY OR ANY PART THEREOF (XII)
THE PRESENCE OF HAZARDOUS SUBSTANCES IN OR ON UNDER OR IN THE VICINITY OF THE
PROPERTY (XIII) THE CONDITION OR USE OF THE PROPERTY OR COMPLIANCE OF THE
PROPERTY WITH ANY OR ALL PAST PRESENT OR FUTURE FEDERAL STATE OR LOCAL
ORDINANCES RULES REGULATIONS OR LAWS BUILDING FIRE OR ZONING ORDINANCES CODES OR
OTHER SIMILAR LAWS (XIV) THE EXISTENCE OR NON-EXISTENCE OF UNDERGROUND STORAGE
TANKS (XV) ANY OTHER MATTER AFFECTING THE STABILITY OR INTEGRITY OF THE REAL
PROPERTY (XVI) THE POTENTIAL FOR FURTHER DEVELOPMENT OF THE PROPERTY (XVII) THE
EXISTENCE OF VESTED LAND USE ZONING OR BUILDING ENTITLEMENTS AFFECTING THE
PROPERTY (XVIII) THE MERCHANTABILITY OF THE PROPERTY OR FITNESS OF THAT PROPERTY
FOR ANY PARTICULAR PURPOSE (BUYER AFFIRMING THAT BUYER HAS NOT RELIED ON
SELLER'S OR ITS PROPERTY MANAGERS SKILL OR JUDGMENT TO SELECT OR FURNISH THE
PROPERTY FOR ANY PARTICULAR PURPOSE AND THAT SELLER MAKES NO WARRANTY THAT THE
PROPERTY IS FIT FOR ANY PARTICULAR PURPOSE) OR (XIX) TAX CONSEQUENCES.
(b) BUYER HAS NOT RELIED UPON AND WILL NOT RELY UPON EITHER DIRECTLY
OR INDIRECTLY ANY REPRESENTATION OR WARRANTY OF SELLER OR ITS PROPERTY MANAGER
OR ANY OF THEIR RESPECTIVE AGENTS EXPECT AS EXPRESSLY SET FORTH HEREIN AND
ACKNOWLEDGES THAT NO OTHER SUCH REPRESENTATIONS HAVE BEEN MADE. BUYER REPRESENTS
THAT IT IS A KNOWLEDGEABLE EXPERIENCED AND SOPHISTICATED BUYER OF REAL ESTATE
AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF BUYER'S
CONSULTANTS IN PURCHASING THE PROPERTY. BUYER WILL CONDUCT SUCH INSPECTIONS AND
INVESTIGATIONS OF THE PROPERTY AS BUYER DEEMS NECESSARY INCLUDING BUT NOT
LIMITED TO THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF AND SHALL RELY UPON
SAME. UPON CLOSING BUYER SHALL ASSUME THE RISK THAT ADVERSE MATTERS INCLUDING
BUT NOT LIMITED TO ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS MAY NOT HAVE
BEEN REVEALED BY BUYER'S INSPECTIONS AND INVESTIGATIONS. BUYER ACKNOWLEDGES AND
AGREES THAT UPON CLOSING SELLER SHALL SELL AND CONVEY TO BUYER AND BUYER SHALL
ACCEPT THE PROPERTY "AS IS WHERE IS" WITH ALL FAULTS. BUYER FURTHER ACKNOWLEDGES
AND AGREES THAT THERE ARE NO ORAL AGREEMENTS WARRANTIES OR REPRESENTATIONS
COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLER ANY AGENT OF SELLER OR ANY
THIRD PARTY. THE TERMS AND CONDITIONS OF THIS SECTION 11.4(B) SHALL EXPRESSLY
SURVIVE THE CLOSING NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS AND
SHALL BE INCORPORATED INTO THE DEED. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER
BY ANY ORAL OR WRITTEN STATEMENTS REPRESENTATIONS OR INFORMATION PERTAINING TO
THE PROPERTY FURNISHED BY ANY REAL ESTATE BROKER AGENT EMPLOYEE SERVANT OR OTHER
PERSON UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED TO HEREIN. BUYER
ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS THE "AS IS" NATURE OF THIS SALE
AND ANY FAULTS LIABILITIES DEFECTS OR OTHER ADVERSE MATTERS THAT MAY BE
ASSOCIATED WITH THE PROPERTY. BUYER HAS FULLY REVIEWED THE DISCLAIMERS AND
WAIVERS SET FORTH IN THIS AGREEMENT WITH ITS COUNSEL AND UNDERSTANDS THE
SIGNIFICANCE AND EFFECT THEREOF.
--------------
Buyer's Initials
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.
ARTICLE 13
SECTION 1031 EXCHANGE
13.1 1031 Exchange. Buyer may acquire the Property as part of an Internal
Revenue Code Section 1031 tax deferred exchange for the benefit of Buyer. Seller
agrees to assist and cooperate in such exchange provided that such exchange does
not result in any cost expense or liability to Seller or delay the Closing
beyond the Closing Date or modify any condition to closing set forth herein.
Seller further agrees to execute any and all documents (subject to the
reasonable approval of Seller's legal counsel) as are reasonably necessary to
effect such exchange. As part of such exchange Buyer shall acquire the Property
and Seller shall not be obligated to acquire or convey any property as part of
such exchange. No permitted assignment hereunder shall relieve Buyer of
liability hereunder. Buyer shall indemnify Seller for all loss claims damage and
expense caused by Seller's participation on such exchange.
BROKER/AGENT DISCLOSURE
BUYER HEREBY DISCLOSES THAT IT IS OR IS OWNED IN WHOLE OR IN PART BY A
REAL ESTATE BROKER AND/OR AGENT. SELLER ACKNOWLEDGES BEING ADVISED OF THIS
DISCLOSURE.
-------------
Seller's Initials
[Remainder of page left intentionally blank]
<PAGE>
IN WITNESS WHEREOF the parties have executed this instrument as of the day
and year first set forth above.
SELLER:
DANIEL/METCALF ASSOCIATES PARTNERSHIP
By: PaineWebber Equity Partners Two Limited
Partnership general partner
By: Second Equity Partners Inc. its
managing general partner
By: /s/ Peter F. Sullivan
---------------------
Name: Peter F. Sullivan
Title: Vice President
By: Second Equity Partners Inc. general
partner
By: /s/ Peter F. Sullivan
---------------------
Name: Peter F. Sullivan
Title: Vice President
BUYER:
S & S REAL ESTATE HOLDING COMPANY L.C.
By: /s/ Robin L. P. Seiser
----------------------
Name: Robin L.P. Seiser
Title: Authorized Principal
TITLE COMPANY:
STEWART TITLE GUARANTY COMPANY
By: /s/ John Coghlan
----------------
Name: John Coghlan
<PAGE>
August 23 1999
By Facsimile
Jerome E. Murphy P.C.
4700 Belleview Ave. Suite 210
Kansas City Missouri 64112
Re: Sale of Gateway Plaza Overland Park Kansas
Dear Jerry:
Reference is made to the Purchase and Sale Agreement (the Purchase
Agreement) dated as of July 22 1999 by and between Daniel Metcalf/Associates
Partnership a Virginia partnership (Seller) and S & S Real Estate Holding
Company an Iowa limited liability company (Buyer).
I am writing to confirm our understanding that Section 5.3 of the Purchase
Agreement has been amended to provide that the Diligence Date of August 23 1999
5. p.m. C.S.T. has been extended to August 24 1999 5 p.m. C.S.T. Please
countersign this letter in the space indicated below to confirm this amendment
on behalf of the Buyer.
Except as noted herein the Purchase Agreement is hereby ratified and
confirmed.
Sincerely
/s/ Carla F. Brigham
---------------------
Carla F. Brigham
counsel to Seller
ACCEPTED AND AGREED:
By:/s/ Jerome E. Murphy
--------------------
Jerome E. Murphy P.C.
counsel to Buyer
cc: Mr. Peter Sullivan
Mr. Dave French
Andrew C. Sucoff Esq.
<PAGE>
SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT (this Second
Amendment) is entered into to be effective as of August 24 1999 between
DANIEL/METCALF ASSOCIATES PARTNERSHIP a Virginia general partnership (Seller)
and S & S REAL ESTATE HOLDING COMPANY an Iowa limited liability company (Buyer).
Recitals:
A. Seller and Buyer are parties to that certain Purchase and Sale
Agreement dated as of July 22 1999 (the Agreement) relating to the purchase and
sale of certain property commonly known as Gateway Plaza Overland Park Kansas.
Any capitalized term used but not defined herein shall have the same meaning
given to such term in the Agreement.
B. Seller and Buyer executed a letter agreement dated August 23 1999
extending the Diligence Date to August 24 1999 at 5:00 p.m. Central Standard
Time.
C. Seller and Buyer desire to further amend the Agreement as provided
below.
Agreement:
NOW THEREFORE for good and valuable consideration the receipt and
sufficiency of which are mutually acknowledged the parties agree as follows:
1. Adjustment to Purchase Price. At the Closing the Buyer shall receive a
credit of $46,642.00 toward the Purchase Price attributable to rent after
February 28 2000 for the space currently leased to Calico Corners. In addition
Buyer shall receive a credit of $257.80 toward the Purchase Price for each day
between the Closing and October 15 1999 attributable to rent for the space to be
leased to Jasons Deli.
2. Estoppel Certificates. Buyer hereby acknowledges that the conditions to
closing set forth in Section 4.5 have been satisfied in full and that Buyer
shall have no right to terminate the Agreement pursuant to such provision.
3. Diligence. Buyer hereby acknowledges that Buyer has completed its
diligence regarding the Property and hereby waives all right to terminate the
Agreement pursuant to Section 5.3 of the Agreement.
4. Leasing Activities.
(a) Seller agrees not to renew the lease dated September 1989
between Seller and Dan Howard Maternity Store prior to the Closing or
termination of the Agreement.
(b) Buyer may discuss the renewal of the lease dated July 13 1989 to
Houlihans d/b/a J. Gilbert directly with representatives of Houlihans; provided
however that Buyer shall discuss only issues previously approved by Seller with
such representatives.
5. Amendment of Legal Description.
Buyer and Seller acknowledge that Exhibit A to the Agreement must be
amended to reflect that a reversionary interest rather than a fee interest in
the portions of the Property described in the instruments recorded in the
Johnson County Registry of Deeds in Volume 4529 Page 757 and Volume 4529 Page
763 of the Johnson County Registry of Deeds shall be conveyed by Seller to Buyer
on the Closing Date. Counsel to Seller and counsel to Buyer shall agree on a
mutually acceptable form of Exhibit A prior to the Closing.
6. Closing Date. Section 7.1 of the Agreement is hereby amended to provide
that the Closing Date shall be September 28 1999.
7. Increase in Deposit. Buyer hereby agrees to deposit the additional
deposit of One Hundred and Fifty Thousand Dollars ($150,000) with the Title
Company promptly upon execution of this Amendment (the Additional Escrowed
Amount). If the Title Company has not received the Additional Escrowed Amount by
5:00 p.m. Central Standard Time on Monday August 30 1999 then the Agreement
shall terminated the Escrowed Amount of One Hundred Thousand Dollars ($100,000)
and all interest earned thereon shall be delivered to Seller and the Agreement
shall be null and void and without recourse to either party hereto (except to
the extent such recourse arises in connection with a provision of the Agreement
which is explicitly intended to survive termination).
8. Miscellaneous
(a) Except as expressly amended hereby the Agreement shall remain in
full force and effect. In the event of any inconsistencies between the
provisions of this Second Amendment and the Agreement the provisions of this
Second Amendment shall control.
<PAGE>
(b) This Second Amendment may be executed in multiple counterparts
each of which shall constitute an original and all of which when taken together
shall constitute one instrument. Facsimile copies of this Second Amendment
bearing the parties respective signatures shall be enforceable as originals.
IN WITNESS WHEREOF the parties have executed this Second Amendment to Purchase
and Sale Agreement to be effective as of the date first written above.
SELLER:
DANIEL/METCALF ASSOCIATES PARTNERSHIP
By: PaineWebber Equity Partners Two Limited
Partnership general partner
By: Second Equity Partners Inc. its
managing general partner
By: /s/ Peter F. Sullivan
---------------------
Name: Peter F. Sullivan
Title: Vice President
By: Second Equity Partners Inc. general
partner
By: /s/ Peter F. Sullivan
---------------------
Name: Peter F. Sullivan
Title: Vice President
BUYER:
S & S REAL ESTATE HOLDING COMPANY L.C.
By: /s/ Robin L. P. Seiser
----------------------
Name: Robin L.P. Seiser
Title: Authorized Principal
<PAGE>
KANSAS GENERAL WARRANTY DEED
FILE#:
STEWART TITLE INC.
THIS WARRANTY DEED is made by and between:
DANIEL/METCALF ASSOCIATES PARTNERSHIP, a Virginia general partnership,
as GRANTOR, and;
S&S GATEWAY, L.L.C., a Missouri limited liability company
as GRANTEE, whose mailing address is:
Robin L. P. Seiser
1985 N.W. 94th Street, Suite B
Clive, Iowa 50325
WITNESSETH: THAT GRANTOR, in consideration of the sum of Ten Dollars ($10.00)
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged by GRANTOR, does hereby Grant, Bargain, Sell and Convey
to GRANTEE, the following described real property (the Property) situated in the
County of Johnson, State of Kansas, to wit:
The property described on Exhibit A attached hereto and by this reference
incorporated herein.
Subject to easements, restrictions, reservations, and covenants of record, if
any.
TO HAVE AND TO HOLD THE SAME, Together with all and singular the tenements,
hereditaments and appurtenances hereunto belonging or in any wise appertaining,
forever. And GRANTOR for GRANTOR, GRANTOR'S heirs, executors or administrators,
does hereby covenant, promise and agree to and with GRANTEE that at the delivery
of these presents GRANTOR is lawfully seized in GRANTOR'S own right of an
absolute and indefeasible estate of inheritance, in fee simple, of and in all
and singular the above granted and described Property, with the appurtenances,
that the same are free, clear, discharged and unincumbered of and from all
former and other grants, title, charges, estates, judgments, taxes, assessments
and encumbrances, of what nature or kind soever, except as stated above and
except for all taxes and assessments, general and special, not now due and
payable; and that GRANTOR will warrant and forever defend the same unto GRANTEE,
GRANTEE'S heirs and assigns against GRANTOR, GRANTOR'S heirs, and all and every
person or persons whomsoever, lawfully claiming or to claim the same. If two or
more persons constitute the GRANTOR or GRANTEE, the words GRANTOR and GRANTEE
shall be construed to read GRANTORS or GRANTEES whenever the sense of this DEED
requires.
PaineWebber Equity Partners Two Limited Partnership, a Virginia limited
partnership, and Second Equity Partners, Inc., a Delaware corporation, are the
only partners of GRANTOR.
<PAGE>
IN WITNESS WHEREOF, The GRANTOR has executed this instrument on September 28,
1999.
SELLER:
DANIEL/METCALF ASSOCIATES PARTNERSHIP
By: PaineWebber Equity Partners Two Limited
Partnership, general partner
By: Second Equity Partners Inc. its
managing general partner
By: /s/ Peter F. Sullivan
---------------------
Name: Peter F. Sullivan
Title: Vice President
By: Second Equity Partners Inc. general
partner
By: /s/ Peter F. Sullivan
---------------------
Name: Peter F. Sullivan
Title: Vice President
<PAGE>
ASSIGNMENT OF CONTRACT
THIS ASSIGNMENT, made this 23rd day of September, 1999, by and between S &
S Real Estate Holding Company, L.C., Assignor, in favor of S & S Gateway,
L.L.C., Assignee, WITNESSETH:
WHEREAS, it is the desire and intent of Assignor to transfer and assign to
Assignees all of Assignor's right, title and interest as Buyer in that "PURCHASE
AND SALE AGREEMENT", By and between S & S Real Estate Holding Company, L.C., as
Buyer and Daniel/Metcalf Associates Partnership, as Seller's effective July 22,
1999, as amended, and conveying that property located on the East side of
Metcalf between 89th Street and 91st Street in Overland Park, Kansas which is
popularly known as "Gateway 2000 Plaza Shopping Center" for the amount of
$13,550,000.00;
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and of
the mutual covenants and agreements of the above-described transaction, and
other good and valuable consideration, receipt of which is hereby acknowledged,
Assignor does hereby sell, assign, transfer, set over and convey unto Assignees,
their successors and assigns, all of Assignor's right, title and interest as
Buyer in and to the above-described real estate purchase contract.
ASSIGNOR:
S & S Real Estate Holding Company, L.C.
By: /s/ Robin L. P. Seiser
----------------------
Robin L.P. Seiser
Manager
ASSIGNEE:
S & S Gateway, L.L.C.
By: /s/ Robin L. P. Seiser
----------------------
Robin L.P. Seiser, Manager
Consented and acknowledged:
DANIEL/METCALF ASSOCIATES PARTNERSHIP,
a Virginia general partnership
By: PaineWebber Equity Partners Two Limited Partnership,
a Delaware limited partnership, a general partner
By: Second Equity Partners, Inc., a Delaware corporation,
its managing general partner
By: /s/ Peter F. Sullivan
---------------------
Name: Peter Sullivan
Title: Vice President
By: Second Equity Partners, Inc., a Delaware corporation,
its managing general partner
By: /s/ Peter F. Sullivan
---------------------
Name: Peter Sullivan
Title: Vice President
<PAGE>
BILL OF SALE
This Bill of Sale is made as of this 28th day of September, 1999 from
DANIEL/METCALF ASSOCIATES PARTNERSHIP, a Virginia general partnership having an
office at c/o PaineWebber Properties Incorporated, 265 Franklin Street, Boston,
Massachusetts 02110 (the Seller) to S & S Gateway, L.L.C., a Missouri limited
liability company having an office at c/o Robin Seiser, 1985 N.W. 94th Street,
Suite B, Clive, Iowa 50325 (the Purchaser).
WHEREAS, in connection with the conveyance of the real property commonly
known as Gateway Plaza, Overland Park, Kansas, (the Real Property), Seller is
obligated to convey, transfer, set over and assign to Purchaser all of the
Seller's right, title and interest, if any, in and to all personal property
owned by Seller located at the Real Property, including all furniture,
carpeting, appliances, equipment, machinery, inventories, supplies, signs and
other tangible personal property of every kind and nature, if any, owned by
Seller and installed, located at and used in connection with the ownership,
occupation and operation of the Real Property, including, without limitation,
the personal property listed on Schedule A attached hereto, but specifically
excluding (i) any items of personal property owned by tenants at or on the Real
Property, and (ii) any items of personal property owned by third parties and
leased to Seller (collectively Personal Property).
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Seller does hereby sell, deliver,
transfer, set over and assign unto Purchaser the Personal Property in its as is
condition without express or implied warranty of any kind or nature except as
expressly set forth in the Purchase and Sale Agreement by and between Seller and
Purchaser, to have and to hold the same unto Purchaser and the Purchasers
successors and assigns, forever.
EXECUTED UNDER SEAL as of the date first written above.
DANIEL/METCALF ASSOCIATES PARTNERSHIP
By: PaineWebber Equity Partners Two Limited
Partnership, general partner
By: /s/ Peter F. Sullivan
---------------------
Name: Peter Sullivan
Title: Vice President
By: Second Equity Partners, Inc., general
partner
By: /s/ Peter F. Sullivan
---------------------
Name: Peter Sullivan
Title: Vice President
<PAGE>
ASSIGNMENT AND ASSUMPTION OF LEASES AND SECURITY DEPOSITS
THIS ASSIGNMENT OF LEASES AND SECURITY DEPOSITS (Assignment) is made
and entered into effective this 28th day of September, 1999, by and between
DANIEL/METCALF ASSOCIATES PARTNERSHIP, a Virginia general partnership
(Assignor), and S & S GATEWAY, L.L.C., a Missouri limited liability company
(Assignee).
The parties enter into this Assignment on the basis of and in
reliance upon the following facts:
A. Assignor has conveyed contemporaneously herewith to Assignee that
certain improved parcel of land located in Overland Park, Kansas, more
particularly described on EXHIBIT A attached hereto and by this reference
incorporated herewith (the Property).
B. Assignor has previously, in its capacity as owner of the Property,
entered into certain occupancy leases at the Property, which are currently in
force and effect, as described in EXHIBIT B attached hereto and by this
reference incorporated herewith (Leases).
C. Assignor now desires to assign and transfer to Assignee all of the
Leases, together with any security deposits paid pursuant to the terms thereof
and listed on EXHIBIT C attached hereto and made a part hereof for all purposes,
and Assignee desires to accept the Leases and all of Assignors right, title,
interest and obligations in, to and under the Leases, as set forth herein.
NOW, THEREFORE, in consideration of (i) Ten Dollars ($10.00) and
other good and valuable cash consideration and (ii) the mutual covenants and
promises of the parties provided for herein, Assignor and Assignee agree as
follows:
1. Assignment. Assignor hereby assigns all of its right, title and
interest in, to and under the Leases and any security deposits paid pursuant
thereto as set forth on EXHIBIT C to Assignee and represents that it has not
previously assigned any of its right, title and interest to the Leases or such
security deposits.
2. Assumption. Assignee hereby accepts said assignment and assumes all of
the obligations of Assignor under the Leases from and after the date hereof.
Assignor shall remain liable for all obligations of Assignor arising under the
Leases prior to the date hereof.
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.
<PAGE>
IN WITNESS WHEREOF, the undersigned parties have executed this Assignment.
ASSIGNOR:
DANIEL/METCALF ASSOCIATES PARTNERSHIP
By: PaineWebber Equity Partners Two Limited
Partnership, general partner
By: Second Equity Partners, Inc., its
managing general partner
By: /s/ Peter F. Sullivan
---------------------
Name: Peter Sullivan
Title: Vice President
By: Second Equity Partners, Inc., general
partner
By: /s/ Peter F. Sullivan
---------------------
Name: Peter Sullivan
Title: Vice President
ASSIGNEE:
S & S GATEWAY, L.L.C.
By: /s/ Robin L. P. Seiser
----------------------
Name: Robin L.P. Seiser
Title: Manager
<PAGE>
ASSIGNMENT AND ASSUMPTION OF CONTRACTS AND INTANGIBLES
This Assignment and Assumption of Contracts and Intangibles (this
Assignment) is made and entered into as of this 28th day of September, 1999, by
and between DANIEL/METCALF ASSOCIATES PARTNERSHIP, a Virginia general
partnership, (Assignor), and S & S Gateway, L.L.C., a Missouri limited liability
company (Assignee).
WITNESSETH:
Assignor hereby assigns, sells, transfers, sets over and delivers
unto Assignee all of Assignors estate, right, title and interest in and to the
following:
1. 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 Gateway Plaza Shopping Center (Property) described in Exhibit A
attached hereto; the use of the name Gateway Plaza Shopping Center and any other
trade names, trademarks, and logos used by Assignor in the operation and
identification of the Property; all development rights and other intangible
rights, titles, interests, privileges and appurtenances of Assignor related to
or used in connection with the Property and its operation; and all licenses,
consents, easements, rights of way and approvals issued, approved or granted by
any private parties to make use of utilities and to insure vehicular and
pedestrian ingress and egress to the Property (collectively, Licenses and
Permits);
2. 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);
3. all warranties and guaranties in effect with respect to the
Property and all contracts for services and all operating agreements described
on Exhibit B with respect to the Property (the Contracts); and
4. the interest of Assignor in all other intangible personalty
relating to the use and operation of the Property including good will if any
(the Intangibles).
Assignor makes no warranties of any kind or nature, express or
implied, regarding the Licenses and Permits, Records and Plans and Contracts and
Intangibles.
Assignee hereby assumes the performance of all of the terms,
convents and conditions imposed upon Assignor under the Licenses and Permits,
Records and Plans and Contracts arising on or after the date of delivery of this
Assignment. Assignor shall be responsible for the performance of all of the
terms, covenants and conditions imposed upon Assignor under the Licenses and
Permits, Records and Plans and Contracts arising prior to the date of delivery
of this Assignment.
This Assignment may be executed in one or more counterparts, each of
which shall be deemed an original, and all of such counterparts, taken together,
shall constitute one and the same instrument.
The terms and provisions of this Assignment shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
<PAGE>
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment as of the date first written above.
ASSIGNOR:
DANIEL/METCALF ASSOCIATES PARTNERSHIP
By: PaineWebber Equity Partners Two Limited
Partnership, general partner
By: Second Equity Partners, Inc., its
managing general partner
By: /s/ Peter F. Sullivan
---------------------
Name: Peter Sullivan
Title: Vice President
By: Second Equity Partners, Inc., its
general partner
By: /s/ Peter F. Sullivan
---------------------
Name: Peter Sullivan
Title: Vice President
ASSIGNEE:
S & S GATEWAY, L.L.C.
By: /s/ Robin L. P. Seiser
----------------------
Name: Robin L.P. Seiser
Title: Manager
<PAGE>
SELLER FINAL CLOSING STATEMENT
NAME OF BORROWER: S & S Gateway, L.L.C., a Missouri Limited Liability
Company
ADDRESS: 1985 NW 94th Street, Suite B, Clive, IA 50325
NAME OF SELLER: Daniel/Metcalf Associates Partnership, a Virginal General
Partnership
ADDRESS: c/o PaineWebber Properties, 265 Franklin Street, Boston
NAME OF LENDER: Mercantile Bank
ADDRESS: 1101 Walnut, Suite 700
Kansas City, MO 64105
PROPERTY LOCATION: Lot 3 Block's Plaza, Overland Park, Johnson County, KS
9091 Metcalf Ave, Overland Park, KS
SETTLEMENT AGENT: Stewart Title Inc. CLOSER: Sheryl A. Snook
SETTLEMENT AGENT TIN: 43-1622646
PLACE OF SETTLEMENT Stewart Title Incorporated SETTLEMENT DATE:
ADDRESS: 1220 Washington, Suite 100 Closing date: 9/28/99
Kansas City, MO 64105 Proration date: 9/28/99
Seller
------
GROSS AMOUNT DUE TO SELLER:
Contract sales price $ 13,550,000.00
Accounts receivable 15,152.01
% Rent settlement 11,250.00
Adjustments:
Tax arrearages 9/28/99 to 1/01/00 2,500.00
---------------
GROSS AMOUNT DUE TO SELLER: 13,578,902.01
REDUCTIONS IN AMOUNT DUE TO SELLER:
Settlement charges to seller 214,448.02
Payoff of first mortgage loan 4,041,549.35
Calico Corners rent 46,642.00
1999 Income taxes 3,330.79
Security deposits 56,210.56
Tenant Imp-Jason's Deli 59,520.00
Adjustments for items unpaid by seller:
County taxes 01/01/99 to 9/28/99 192,361.70
Tenant Imp-Wright Business School 15,000.00
---------------
TOTAL REDUCTION IN AMOUNT: 4,629,062.42
---------------
Gross amount due to seller 13,578,902.01
Less total reductions in amount due to seller 4,629,062.42
---------------
CASH TO SELLER: $ 8,949,839.59
==============
<PAGE>
SETTLEMENT CHARGES:
Commissions paid at settlement $ 202,667.00
TITLE CHARGES:
Settlement or closing fee Stewart Title Company 250.00
Title insurance Stewart Title Incorporated 10,840.00
Wire/Courier fees Stewart Title Incorporated 25.00
Copies/Litigation Eagle Legal Service 566.02
GOVERNMENT RECORDING AND TRANSFER CHARGES
Recording fees, Deed 100.00
--------------
TOTAL SETTLEMENT CHARGES $ 214,448.02
==============
DANIEL/METCALF ASSOCIATES PARTNERSHIP
By: PaineWebber Equity Partners Two Limited
Partnership, its Partner
By: Second Equity Partners, Inc., its
Partner
By: /s/ Peter F. Sullivan
---------------------
Name: Peter F. Sullivan
Title: Vice President
S&S GATEWAY, L.L.C.
By: a Missouri Limited Liability Company
By: /s/ Robin L.P. Seiser
---------------------
Name: Robin L. P. Seiser
Title: Authorized Principal
