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) October 26, 1998
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Paine Webber Qualified Plan Property Fund Two, LP
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(Exact name of registrant as specified in its charter)
Delaware 0-17146 04-2752249
- --------------------------------------------------------------------------------
(State or other jurisdiction) (Commission (IRS Employer
of incorporation File Number) Identification No.)
265 Franklin Street, Boston, Massachusetts 02110
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (617) 439-8118
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(Former name or address, if changed since last report)
FORM 8-K
CURRENT REPORT
PAINE WEBBER QUALIFIED PLAN PROPERTY FUND TWO, LP
ITEM 2 - Disposition of Assets
Marshall's at East Lake Partnership, Marietta, Georgia
Disposition Date - October 26, 1998
On October 26, 1998, Marshall's at East Lake Partnership, a joint venture
in which PaineWebber Qualified Plan Property Fund Two, LP ("the "Partnership")
has an interest, sold the property know as Marshall's at East Lake Shopping
Center located in Marietta, Georgia, to an unrelated third party, New Plan Excel
Realty Trust, Inc., a Maryland corporation, for $3,750,000. The Partnership
received net proceeds of approximately $3,571,000 after deducting closing costs
of approximately $164,000 and net closing proration adjustments of approximately
$15,000. The Partnership was entitled to 100% of the net sale proceeds in
accordance with the terms of the joint venture agreement.
As discussed further in the Partnership's Quarterly Report on Form 10-Q
for the period ended May 31, 1998, as part of its plan to liquidate the
Partnership in calendar year 1998, the Partnership had initiated discussions
with area real estate brokers firms to define potential marketing strategies for
selling the Marshall's at East Lake Shopping Center. During the third quarter of
fiscal 1998, the Partnership solicited marketing proposals from two of these
firms. After reviewing their proposals and conducting in-depth interviews, the
Partnership selected a regional brokerage firm with extensive experience
marketing shopping center properties like Marshall's at East Lake. Initial sale
efforts began in May 1998. During the third quarter, a marketing package was
finalized and the property was widely marketed to over 90 potential buyers. As a
result of these efforts, five best and final offers to purchase the property
were received. Following a review of the buyers' financial capabilities and
previous acquisitions, a potential purchaser was selected. Subsequent to the
Partnership's August 31 fiscal year-end, a purchase and sale agreement was
signed on September 28, 1998. Pursuant to this agreement, the prospective
purchaser had 21 days to complete its due diligence review of the property and
thereafter had nine business days to close on the transaction.
Marshall's at East Lake was the final asset owned by the Partnership. A
formal liquidation of the Partnership is now underway. The Partnership
anticipates an orderly liquidation of the Partnership to be completed and a
liquidating distribution of the Partnership's remaining cash reserves, including
the net proceeds from the sale of Marshall's, to be made to the Limited Partners
by November 30, 1998, after paying all liquidation-related expenses.
ITEM 7 - Financial Statements and Exhibits
(a) Financial Statements: None
(b) Exhibits:
(1) Purchase and Sale Agreement by and between Marshall's at East Lake
Partnership and Dean Bernstein and James M. Steuterman As Trustees
of New Plan Realty Trust, dated September 18, 1998.
(2) Limited Warranty Deed by Marshall's at East Lake Partnership to New
Plan Excel Realty Trust, Inc., dated October 26, 1998.
(3) Bill of Sale and General Assignment by Marshall's at East Lake
Partnership to New Plan Excel Realty Trust, Inc. , dated October 26,
1998.
FORM 8-K
CURRENT REPORT
PAINE WEBBER QUALIFIED PLAN PROPERTY FUND TWO, LP
(4) Assignment and Assumption of Leases and Security Deposits by and
between Marshall's at East Lake Partnership and New Plan Excel
Realty Trust, Inc, dated October 26, 1998.
(5) Closing Statement New Plan Excel Realty Trust, Inc. acquisition from
Marshall's at East Lake Partnership, dated October 26, 1998.
.
FORM 8-K
CURRENT REPORT
PAINE WEBBER QUALIFIED PLAN PROPERTY FUND TWO, LP
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
PAINE WEBBER QUALIFIED PLAN PROPERTY FUND TWO, LP
(Registrant)
By: /s/ Walter V. Arnold
--------------------
Walter V. Arnold
Senior Vice President and
Chief Financial Officer
Date: November 9, 1998
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
MARSHALL'S AT EAST LAKE PARTNERSHIP (SELLER)
AND
DEAN BERNSTEIN and JAMES M. STEUTERMAN
AS TRUSTEES OF NEW PLAN REALTY TRUST (BUYER)
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; ADJUSTMENTS 2
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ARTICLE 4 PRECLOSING OPERATION 5
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ARTICLE 5 ACCESS, INSPECTION, DILIGENCE 6
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ARTICLE 6 TITLE, SURVEY, CONDITIONS AND REPRESENTATIONS 10
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ARTICLE 7 CLOSING 14
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ARTICLE 8 CASUALTY AND CONDEMNATION 16
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ARTICLE 9 BROKERAGE COMMISSIONS 17
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ARTICLE 10 DEFAULT, TERMINATION AND REMEDIES 17
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ARTICLE 11 MISCELLANEOUS 18
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ARTICLE 12 IRS FORM 1099-S DESIGNATION 23
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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 E - 1 Form of Landlord Estoppel Certificate
SCHEDULE F Form of Earnest Money Deposit Escrow Agreement
SCHEDULE G Form of Limited Warranty 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
SCHEDULE L Form of Post-Closing Escrow Agreement
Purchase and Sale Agreement
This Purchase and Sale Agreement (this Agreement) is entered into as of
the 28th day of October, 1998 by and between Seller and Buyer, upon the
following terms and conditions:
ARTICLE 1
DEFINITIONS
References in this Agreement to the following terms shall have the
following meanings:
BUYER: DEAN BERNSTEIN AND JAMES M. STEUTERMAN as Trustees of
- ----- New Plan Realty Trust, a Massachusetts business trust
SELLER: Marshall's at East Lake Partnership, a Delaware
- ------ general partnership
PROPERTY: The Real Property and Personal Property constituting
- -------- Marshall's at East Lake Shopping Center, Marietta,
Georgia
REAL PROPERTY: The land as described in Schedule A attached hereto
- ------------- and the buildings, structures, improvements, signs,
systems, fixtures and landscaping now located thereon
(collectively, the Improvements) and the development,
air, water and other rights appurtenant thereto, all
minerals, oil, gas and other hydrocarbon substances on
or under the land and all right, title and interest in
and to any streets or other public ways adjoining the
land
PERSONAL PROPERTY: The personal and intangible property, if any,
- ----------------- described in Schedule B attached hereto
PURCHASE PRICE: Three Million Seven Hundred and Fifty Thousand Dollars
- -------------- ($3,750,000)
TITLE COMPANY: Commonwealth Land Title Insurance Company
- -------------
ARTICLE 2
PURCHASE AND SALE
2.1 In consideration of the undertakings and mutual covenants of the
parties set forth in this Agreement, and for other good and valuable
consideration, the receipt and legal sufficiency of which are hereby
acknowledged, 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; ADJUSTMENTS
3.1 The Purchase Price shall be as specified in Article 1 above and shall
be paid on the Closing Date (as hereinafter defined) by wire transfer of
immediately available federal funds, subject to adjustment to reflect
application of the Escrowed Amount and such other adjustments herein contained.
3.2 Buyer, by Buyer's check drawn on a New York bank, by wire transfer or
by cashier's or bank certified check, shall, contemporaneously with the
execution of this Agreement, deposit with the Title Company the sum of One
Hundred Thousand Dollars ($100,000.00) (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
Earnest Money Deposit Escrow Agreement attached hereto as Schedule F and made a
part hereof. The Escrowed Amount shall be placed in an interest-bearing account
with all such interest for the account of Buyer only.
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 11:59 p.m. of the day preceding the
Closing Date, provided Seller receives the full amount of the Purchase Price,
less the Escrow Amount and any adjustments, by 2:00 p.m. E.S.T. on the Closing
Date, such 2:00 p.m. time limitation only the case, however, if all closing
documents to be signed by Seller are signed by Seller on or before the day
preceding 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 attorneys' and consultants' fees) incurred by Seller or Buyer, as
applicable, in connection with such proceedings such that Seller shall retain
and be paid that portion of such tax refunds or proceeds as is applicable to the
portion of the applicable tax period prior to the Closing Date and Buyer shall
retain and be paid that portion of such tax refunds or proceeds as is applicable
to the portion of the applicable tax period from and after the Closing Date.
Neither Seller nor Buyer shall settle any tax protests or proceedings in which
taxes for the tax period for which the other party is responsible are being
adjudicated or may be affected 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 11:59 p.m. of the day preceding the Closing Date, provided Seller receives
the full amount of the Purchase Price, less the Escrow Amount and any
adjustments, by 2:00 p.m. E.S.T. on the Closing Date, such 2:00 p.m. time
limitation only the case, however, if all closing documents to be signed by
Seller are signed by Seller on or before the day preceding the Closing Date.
3.5 Seller shall cause all meters for electricity, gas, water, sewer or
other utility usage at the Property to be read at 11:59 p.m. of the day
preceding the Closing Date, and Seller shall pay all charges for such utilities
which have accrued on or prior to 11:59 p.m. of the day preceding 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 11:59 p.m. of the day preceding 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 11:59 p.m.
of the day preceding 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. All payments received by Seller from
tenants prior to Closing, except for those payments made by N.L. Nail to the
State Court, Cobb County, Georgia pursuant to the terms of Case No. 98D5975, for
rents and other amounts on or before the twentieth (20th) day of the month in
which the day preceding the Closing Date occurs shall be applied to tenant
accounts by Seller in its sole discretion. All payments received by Seller from
tenants prior to Closing, except for those payments made by N.L. Nail to the
State Court, Cobb County, Georgia pursuant to the terms of Case No. 98D5975, for
rents and other amounts after the twentieth (20th) day of the month in which the
day preceding the Closing Date occurs shall be applied first to rents and other
amounts payable during such month in which such day preceding the Closing Date
occurs. 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 receive a credit for any utility
deposits made by Seller and not returned to Seller and any deposits made by
Seller for third parties under any of the assigned Contracts (as hereinafter
defined) and not returned to Seller for which deposits Buyer has the benefit of
after Closing.
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,
which shall consist at a minimum of Buyer continuing to diligently pursue
the collection of any past-due rents for a period of three months after
the date of Closing, 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
and Seller shall first apply rents and other tenant charges subsequently
received to rent and other tenant charges due and owing for rental periods
accruing on and 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) business 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 and to the extent the same do not adversely affect
Buyer's future ownership or operation of the Property.
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 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. Seller shall provide the
necessary information to prepare the foregoing adjustments to the extent
possible.
3.7 At the Closing, Seller shall pay the amount due for (a) state, county
and local transfer tax (or any tax substituted therefor) imposed in connection
with the consummation of the transaction contemplated hereby (the Transfer Tax);
(b) recording charges for documents to clear title, evidence Seller's authority
or enable Seller to convey; (c) Seller's attorneys' fees; and (d) the cost of
the standard ALTA owner's title insurance policy, including search and exam
charges referred to in Article 6, below.
3.8 At the Closing, Buyer shall pay, or reimburse Seller to the extent
costs are incurred by Seller, for (a) any local tax or mortgage tax other than
the Transfer Tax, if any; (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.
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 amend or terminate any existing Leases, provided, however, Seller shall not
require Buyer's consent to enter into any lease for premises consisting of less
than 1,200 square feet, a term of less than three (3) years and at a market
rental rate; (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 the physical structure
of any Improvements, without the written consent of Buyer in any such instance,
which consent shall not be unreasonably withheld or delayed. Seller shall
deliver Buyer a copy of the proposed document together with any consent request.
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, if this
purchase transaction closes. Except as otherwise provided in the immediately
preceding sentence, Buyer shall receive a credit at Closing for any unfulfilled
or remaining tenant concessions, including any rent free or reduced rent
periods, under existing Leases regardless of the date by which such allowances
or concessions are to be fulfilled or realized.
4.2.1 Prior to the date hereof, Seller has provided Buyer with the
terms of the proposed lease amendment to be entered into with N.L. Nail, an
existing tenant, and Buyer has consented to these terms.
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. Seller, at Seller's sole cost and expense, shall terminate
any property management and leasing agreement(s) no later than the Closing Date.
4.5 Seller shall use commercially reasonable efforts to obtain tenant
estoppel certificates from all tenants in the form attached hereto as Schedule
E, or such other form as may be required under any applicable lease (the
Estoppels). Seller shall obtain tenant estoppel certificates from Marshalls,
Inc., Rack Room Shoes and Australian Body Works (the Major Tenants) and
remaining tenants occupying in the aggregate sixty percent (60%) of the total
leasable area of the Property not leased by Major Tenants and currently
occupying their space under the Leases (collectively, the Required Estoppels).
Seller shall not be obligated to expend more than nominal funds or commence
litigation in pursuit of such Estoppels. The only remedy Buyer shall have in the
event (i) Seller is unable to deliver the Estoppels or (ii) any Estoppel
discloses a material default on the part of Seller under any Lease or any
Estoppel or Estoppels disclose defaults on the part of Seller under any Lease or
Leases which defaults, in the aggregate, are material and Seller fails on or
prior to the day preceding the date of Closing to cure, as applicable, either
each such material default or each such other defaults which are material, in
the aggregate, is to terminate this Agreement and receive a refund of the
Escrowed Amount. If Seller has not obtained the Estoppels on or prior to the day
preceding the date of Closing, Seller may extend the date of Closing for a
period of seven (7) days upon written notice to Buyer delivered on or prior to
the day preceding the date of Closing.
In the event Seller has not obtained the Estoppels, Seller shall
deliver one or more estoppel certificates from Seller in the form attached
hereto as Schedule E-1 with respect to Leases for which Estoppels were not
obtained from tenants to satisfy the closing condition set forth in Section
7.2(i) (the Seller Estoppels) and the certifications contained therein shall
survive Closing for a period of three (3) months provided, however, that
Seller's liability for any breach of any certification contained therein shall
be limited to an aggregate amount of Fifty Thousand Dollars ($50,000.00), as
provided in Section 6.4.4 herein.
ARTICLE 5
ACCESS, INSPECTION, DILIGENCE
5.1 Seller agrees that Buyer and its authorized agents or representatives
shall be entitled to enter upon the Real Property and the Improvements during
normal business hours after two (2) days advance oral 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
which is invasive or disturbs the physical condition of the Property or conduct
interviews with tenants until tenant estoppel certificates have been delivered
to 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 and its property management group CNM
Associates, available for such physical testing or interviews upon two (2) days
prior oral notice. Seller's prior written approval for physical testing may be
conditioned on receipt of a detailed description of the proposed physical
testing, a list of the contractors who will be performing the physical testing,
and such other information as Seller reasonably requires in connection with such
proposed testing. Buyer may not interview tenants unless a duly authorized
representative of Seller, which shall include Seller's property management group
CNM Associates, accompanies Buyer. Seller also agrees to make available to Buyer
during normal business hours upon advance oral notice to Seller all books,
records, plans, building specifications, contracts, agreements or other
instruments or documents contained in Seller's files relating to the financial
records of Marshall's at East Lake exclusively, title, construction, operation
and maintenance of the Property and the files of the current manager of the
Property that relate to the Property, in each case to the extent available.
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 and reports provided to Buyer are provided for informational
purposes only and do not constitute representations and warranties of Seller of
any kind, except as otherwise set forth in this Agreement.
5.3 Buyer intends to promptly commence and actively pursue its due
diligence on the Property, including, but not limited to the following items:
(a) Review of title and survey matters;
(b) Review of Contracts;
(c) Obtain and review environmental reports on oil, hazardous
waste, and asbestos;
(d) Review of applicable zoning and other land use controls, and
other permits, licenses, permissions, approvals and consents;
(e) Conduct tenant interviews, subject to Section 5.1 above; and
(f) Review of all Leases affecting the Property.
Buyer shall complete its due diligence no later than twenty-one (21) days
after the date of this Agreement at 5:00 p.m. E.S.T. (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 in its sole and absolute discretion 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). In the event Buyer does not terminate this Agreement on or
before the Diligence Date, the Escrowed Amount shall become nonrefundable,
subject only to furnishing of estoppel certificates pursuant to Section 4.5,
casualty pursuant to Section 8.1(b), condemnation pursuant to Section 8.2,
Seller's default pursuant to Section 10.1 or failure of conditions pursuant to
Section 6.5.
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, except as otherwise set forth in this
Agreement. 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, EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT. 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, EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, 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 AND NOT AS AN
INDUCEMENT TO ACQUIRE THE PROPERTY (EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT); 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 final environmental reports prepared by third-parties
obtained in connection with Buyer's diligence.
5.5 Confidentiality. Each party hereto agrees to maintain in confidence,
and not to discuss with or to disclose to any person or entity who is not a
party to this Agreement, any material term of this Agreement or any aspect of
the transactions contemplated hereby, except as provided in this Section.
Neither party hereto shall discuss with or disclose such matters to any other
party than directors, officers, employees, accountants, attorneys, existing or
prospective lenders, tenants, governmental authorities, investment bankers,
underwriters, rating agencies, partners, consultants, Title Company, and
surveyor and other advisors to the extent such parties reasonably need to know
such matters. 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 or in order to comply with any legal action or proceeding
thereunder. 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 prior to
Closing regarding any matter which is the subject of the confidentiality
obligation created in this Section shall be subject to the reasonable approval
of Buyer and Seller, respectively both as to timing and content.
5.6 Indemnity. If any inspection or test physically injures any of the
Property, Buyer will restore the Property to substantially the same condition as
existed prior to any such inspection or test. Buyer shall keep the Property free
and clear of any liens and will indemnify, defend, and hold Seller harmless from
all losses, costs and damages including reasonable attorneys' fees incurred by
Seller as a result of such entry or investigation by or on behalf of Buyer,
including, without limitation, physical injury or damage to human beings, 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. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN 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.
ARTICLE 6
TITLE, SURVEY, CONDITIONS AND REPRESENTATIONS
6.1 Promptly following the execution of this Agreement Seller shall
provide or has provided Buyer with:
(a) a copy of the most recent survey or plat of the Real Property
in Seller's possession, if any (the Survey);
(b) a copy of Seller's ALTA Owner's Policy of Title Insurance ; and
(c) a Phase II Environmental Inspection Report (the Phase II).
Promptly following execution of this Agreement, Buyer shall obtain:
(a) a commitment for an ALTA Owner's Policy of Title Insurance,
including endorsements and coverages required by Buyer,
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
(b) Buyer may obtain, at Buyer's sole cost and expense, an ALTA
as-built survey of the Real Property.
If (i) any matter disclosed on the Survey; (ii) matters listed as
exceptions in the Title Commitment or (iii) special endorsements and other
coverages are not satisfactory to Buyer, Buyer shall, within fourteen (14) 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 shall
in all events be obligated to cure all objections constituting mortgages or
other voluntary encumbrances securing the payment of money, and final judgments,
on or before the Closing Date. To enable Seller to convey, Seller may, at the
Closing use the Purchase Price or any portion thereof to clear title. Those
exceptions or title deficiencies that appear on the Title Commitment are not
objected to by Buyer shall be the Permitted Encumbrances.
6.2 On the Closing Date, Seller shall convey by Limited Warranty 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) All matters listed on the Title Commitment and as would be
disclosed on a current Survey and not objected to pursuant to Section 6.1
above;
(c) All Leases disclosed to Buyer;
(d) All zoning, building and other laws applicable to the Property;
and
(e) All matters which arise after the effective date of the Title
Commitment which are agreed upon or consented to by Buyer in writing.
6.3 At the Closing, 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 Delaware with all necessary legal
power to enter into and perform its obligations hereunder and under any
document or instrument required hereunder to be executed and delivered on
behalf of 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, valid and binding obligation of Seller enforceable against it
in accordance with its terms.
(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) Leases. The Rent Roll lists all of the leases pertaining to the
Property, and each of the Leases constitute the entire agreement
pertaining to the occupancy of the Property by the relevant tenant. The
Rent Roll lists any security deposits held by Seller in connection with
the Leases. All leasing commissions due upon the execution of the Leases
in existence on the date of this Agreement have been paid; however,
additional commissions may be due upon the renewal or extension of any of
such Leases and Buyer shall at Closing assume responsibility for the
payment thereof if such renewal or extension is exercised after the date
hereof.
(e) Litigation, Condemnation. To the best of Seller's knowledge, (i)
Seller has not received written notice that any actions, suits, or
proceedings of any kind are pending or threatened against or affect the
Property in any court of law or any administrative proceeding and (ii)
Seller has not received any written notice from any public authority that
any condemnation proceedings with regard to or affecting any of the
Property is currently contemplated.
(f) Nonforeign Status. Seller is not a foreign person as defined
in, and Buyer shall not be required to withhold any portion of the
purchase price pursuant to, Internal Revenue Code Section 1445.
(g) To the best of Seller's knowledge, Seller has not obtained any
environmental report except for the Limited Phase II Assessment
Professional Cleaners, Project Numbers 74638-001.098 and 74638-002.098,
dated June 30, 1998 and prepared by EMCON which Seller has provided to
Buyer.
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. Notwithstanding
the foregoing, if, prior to the Closing, Buyer (i) obtains actual knowledge or
(ii) receives any Estoppels, in either case indicating that any representation
or warranty of Seller is inaccurate and Buyer nonetheless proceeds with the
Closing, Seller shall have no liability for any such matter regarding which
Buyer had actual knowledge or was included in such Estoppels prior to the
Closing. If Seller learns that any of the above representations and warranties
require updating, Seller shall promptly notify Buyer pursuant to the notice
provisions contained in Section 11.2 herein. If Seller intentionally fails to
notify Buyer pursuant to the notice provisions contained in Section 11.2 herein
of any material adverse change in any of the above representations and
warranties or if Seller fails to correct any material adverse change in any of
the above representations or warranties prior to Closing, then Buyer shall have
the right to terminate this Agreement pursuant to Section 10.1. For purposes of
Section 6.4.1 actual knowledge of Seller without further inquiry shall mean the
actual awareness of Celia R. Deluga, Vice President, and for purposes of Section
6.4.1(c), (d) and (e) actual knowledge of Seller without further inquiry shall
mean the actual awareness of Steven Cooper of CNM Associates, provided that such
individuals have no obligation to make further inquiry of any persons other than
reasonable inquiry of its property manager and further provided that such
individuals shall have no personal liability for any misrepresentations or
breaches of warranty pursuant to this Section 6.4.1. For purposes of this
Section 6.4.2 actual knowledge of Buyer shall mean the actual knowledge, without
further inquiry, of either Deborah Hartigan or Linda Fernez.
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 two trustees of New Plan Realty
Trust, a Massachusetts business trust organized, existing and in good
standing under the laws of the Commonwealth of Massachusetts and has the
requisite power and authority to enter into and perform the terms of this
Agreement.
(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.
6.4.4 The representations and warranties of Seller contained in
Section 6.4.1 shall survive Closing for a period of three months provided,
however, that Seller's liability for any breach of any representations or
warranties contained herein or in any and all other documents executed by Seller
in connection with this transaction shall be limited to an aggregate amount of
Fifty Thousand Dollars ($50,000). Seller shall deposit into escrow said Fifty
Thousand Dollars ($50,000) with an escrow agent and pursuant to an escrow
agreement in the form attached hereto as Schedule L for the duration of the
three month escrow period.
6.5 The obligations of Buyer to consummate the transaction contemplated by
this Agreement are subject to:
(a) The representations and warranties made by Seller in this
Agreement being true and correct in all material respects, both
individually and in the aggregate, both on the date hereof and again 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,
except to the extent updated as provided in Section 6.4.2;
(b) All documents required to be delivered by or on behalf of Seller
on or before the Closing Date shall have been delivered; and
(c) All covenants and agreements of Seller shall have been duly
performed.
6.6 The obligations of Seller to consummate the transaction contemplated
by this Agreement are subject to:
(a) The representations and warranties made by Buyer in this
Agreement being true and correct in all material respects, both
individually and in the aggregate, both on the date hereof and again on
and as of the Closing Date with the same force and effect as though such
representations and warranties had been made as of the Closing Date.
(b) All documents required to be delivered by or on behalf of Buyer
on or before the Closing Date shall have been delivered; and
(c) All covenants and agreements of Buyer shall have been duly
performed.
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 five (5) days after the Diligence Date (the Closing Date). It is
agreed that time is of the essence in this Agreement. Buyer and Seller may each
extend the Closing Date for a period not to exceed two (2) business days by
providing written notice to the other prior to the Closing Date.
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 Limited Warranty Deed conveying
the Real Property and the Improvements to Buyer in the form attached
hereto as Schedule G;
(b) Duly executed quitclaim 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 mechanic's or materialmen's liens
from Buyer's title policy and such other affidavits relating to such title
policy as the Title Company may reasonably request;
(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). Seller will use
reasonable efforts to deliver a proposed closing statement as contemplated
by this Agreement to Buyer not later than two (2) business days prior to
Closing Date for Buyer's review;
(i) Estoppels, including Seller Estoppel(s) as applicable, in
accordance with Section 4.5;
(j) All business and accounting records pertaining exclusively to
the operation of the Property in Seller's possession;
(k) All original Leases (or certified copies if originals are not
available) and tenant correspondence and Lease files in each case, if in
Seller's possession;
(l) Keys to all locks which manager has in its possession; and
(m) Notice letters from Seller signed by Seller and its property
manager, together with completed green cards and white slips indicating
New Plan Realty Trust as return receipt recipient for certified mailing,
to tenants of the sale of the Property and assignment of the Leases
prepared by Buyer;
(n) At Seller's expense (except for the cost of any endorsements
which are to be paid by Buyer), an Owner's Title Policy based on the Title
Commitment;
(o) All documents customarily and reasonably required by Title
Company confirming Seller's authority to sell the Property;
(p) Broker's receipt;
(q) Georgia affidavits regarding brokerage commissions;
(r) Georgia withholding tax forms;
(s) Termination of managing and leasing agent contracts; and
(t) Seller's bring-down certificate reaffirming Seller's
representations and warranties; and
(u) Notice letter(s) to reciprocal easement holder(s), if any,
prepared by Buyer and approved by Seller.
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; and
(d) Counterpart original of the Closing Statement.
ARTICLE 8
CASUALTY AND CONDEMNATION
8.1 If the Improvements are substantially damaged by fire or any other
casualty and are not substantially restored to the condition immediately prior
to such casualty before the Closing Date, Buyer shall have the following
elections:
(a) to purchase the Property in its then condition and pay the
Purchase Price, in which event Seller shall pay over or assign to Buyer as
the case may be, on the Closing Date, 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, or if any of Marshalls, Inc., Rack Room Shoes or Australian
Body Works has a right to terminate its lease as a result of such
destruction, 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, or if the casualty is later than five (5) days prior to
Closing, five (5) business days after such casualty, 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 and Buyer's mutual reasonable
judgment, greater than $300,000.
(c) In the event any portion of the Improvements are damaged by
casualty for which Landlord is uninsured and damage from such uninsured
loss is less than $300,000, then Seller may elect to provide a credit to
Buyer at Closing for the amount of such uninsured loss. If Seller elects
not to provide Buyer with the above-mentioned credit, Buyer shall have the
right to terminate this Agreement by giving notice of termination to
Seller on or prior to the Closing Date. Notwithstanding the above, Seller
reserves the right to make emergency repairs and/or to commence repairs
prior to the Closing Date if failure to commence such repairs would
adversely affect the Property or the Leases.
8.2 If any portion of or interest in the Property shall be taken or is in
the process of being taken by exercise of the power of eminent domain or if any
governmental authority notifies Seller prior to the Closing Date of its intent
to take or acquire any portion of or interest in the Property (each an Eminent
Domain Taking), Seller shall give notice promptly to Buyer of such event and
Buyer shall have the option to terminate this Agreement by providing notice to
Seller to such effect on or before the date which is ten (10) days from Seller's
notice to Buyer of such Eminent Domain Taking or on the Closing Date, whichever
occurs first, or if such notice to Buyer of such Eminent Domain Taking is later
than five (5) days prior to Closing, five (5) business days after such notice to
Buyer of such Eminent Domain Taking, 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.
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 Ben
Carter Associates (Seller's Agent). Seller will indemnify, defend and hold Buyer
harmless from and against any claims of Seller's Agent for any commission,
finder's 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 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, except Seller's
Agent.
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 or before 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 or shall have made a misrepresentation
or breach of warranty under this Agreement, 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 specific performance shall be deemed to satisfy and waive such
failure to perform) or (ii) the right to terminate this Agreement and receive
the Escrowed Amount and actual out-of-pocket expenses Buyer has incurred up to
Fifteen Thousand Dollars ($15,000).
Provided Buyer has performed all of its obligations hereunder in all
material respects and this Agreement has not otherwise been terminated, in the
event Seller willfully breaches its obligations to close hereunder and sells the
Property to a third party unaffiliated with Buyer, Buyer shall have as its sole
remedy at law or in equity the right to terminate this Agreement and receive the
Escrowed Amount and liquidated damages in the amount of Fifty Thousand Dollars
($50,000) from Seller. Seller and Buyer agree that the damages resulting to
Buyer as a result of such default by Seller 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.
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 otherwise defaults in its obligation to
close hereunder, Seller, as its sole and exclusive remedy (subject to the final
sentence of this Section 10.2), shall be entitled to terminate this Agreement
and 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 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. Notwithstanding the foregoing, in the event of Buyer's
default and a termination of this Agreement by Seller on account thereof, Seller
shall have all remedies available at law or in equity in the event Buyer or any
party related to or affiliated with Buyer thereafter asserts any claims or
rights to the Property that would otherwise delay or prevent Seller from having
clear, indefeasible and marketable title to the Property.
ARTICLE 11
MISCELLANEOUS
11.1 Buyer may only assign or transfer its rights under this Agreement to
an entity owned, or controlled directly or indirectly by New Plan Realty Trust
or which owns or controls directly or indirectly New Plan Realty Trust. 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 may be given by either Seller
or Buyer or their respective attorneys, shall be in writing and shall be deemed
given if (i) delivered by hand during regular business hours, (ii) sent by
United States Postal Service, registered or certified mail, postage prepaid,
return receipt requested, (iii) sent by a reputable overnight express mail
service that provides tracing and proof of receipt or refusal of items mailed,
or (iv) sent by telecopier or facsimile transmission 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. 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. Notice shall
be deemed received (i) on the date of delivery if delivered by hand, (ii) on the
third business day after mailing if sent by United States Postal Service, (iii)
on the next business day if sent by reputable overnight express service, or (iv)
upon confirmation of transmission if sent by telecopier or facsimile.
(1) If to Buyer: Dean Bernstein and James M. Steuterman as
Trustees of New Plan Realty Trust
1120 Avenue of the Americas
12th Floor
New York, New York 10036
Telecopy: (212) 302-4776
with a copy to: Altheimer & Gray
10 South Wacker Drive
Suite 400
Chicago, Illinois 60606
Attn: Robert M. Horwitch, Esq.
Telecopy: (312) 715-4800
(2) If to Seller:
Marshall's at East Lake Partnership
c/o PaineWebber Qualified Plan Property Fund Two, L.P.
265 Franklin Street, 15th Floor
Boston, MA 02110
Attention: Ms. Celia R. Deluga
Telecopy: (617) 478-4725
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:
Commonwealth Land Title Insurance Company
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 Georgia.
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. On or
prior to the Diligence Date, and provided Seller receives notice on or 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. 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. Except as set forth
above, 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 attorneys' fees of counsel retained by Title Company. Any such costs
and expenses not paid by the parties after billing and supporting documentation
by Title Company may be paid by Title Company out of the Escrowed Amount. If
there is a settlement by Buyer and Seller prior to a court order, Buyer and
Seller will share equally in the expenses incurred by the Title Company.
Otherwise, the non-prevailing party shall assume full responsibility for the
Title Company's expenses. Title Company is not required to advance or expend or
risk its own funds or otherwise incur personal liability in performance of its
duties hereunder and it may require advancement of funds by the parties.
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
assets of Seller and neither Buyer nor anyone claiming by, through or under
Buyer shall be entitled to obtain any judgment extending liability beyond the
assets of Seller 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. Any date which falls on a date other
than a business day shall mean the next business day.
11.15 If required by any governmental authority or law, Buyer, at Buyer's
sole cost and expense, shall have the right after the Closing Date to audit the
books and records of Seller which relate exclusively to the Property for those
last two entire fiscal years of Seller ending immediately preceding the Closing
plus any stub period thereafter to the Closing Date. Buyer agrees to fully
reimburse Seller for all costs incurred by Seller in connection with any such
audit.
11.16 Exculpatory Provision. This Agreement and all documents, agreements,
understandings and arrangements relating to this transaction have been
negotiated, executed and delivered by trustees or officers of New Plan Realty
Trust, a Massachusetts business trust, in their representative capacity under
the Amended and Restated Declaration of Trust of New Plan Realty Trust dated as
of January 15, 1996 and not individually, and bind only the trust estate of New
Plan Realty Trust, and no trustee, officer, employee, agent or shareholder of
New Plan Realty Trust shall be bound or held to any personal liability or
responsibility in connection with the agreements, obligations and undertakings
of Buyer thereunder, and any person or entity dealing with Buyer in connection
therewith shall look solely to the trust estate for the payment of any claim or
for the performance of any agreement, obligation or undertaking thereunder.
Seller acknowledges and agrees that each agreement and other document executed
by Buyer in accordance with or in respect of this transaction shall be deemed
and treated to include in all respects and for all purposes the foregoing
exculpatory provision.
11.17 Property Conveyed AS IS. (a) 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 MANAGER'S 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, EXCEPT 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.
IN WITNESS WHEREOF, the parties have executed this instrument as of the
day and year first set forth above.
SELLER:
Marshall's at East Lake Partnership
By: PaineWebber Qualified Plan Property
Fund Two, L.P., a General Partner
By: Second Qualified Properties,
Inc., its Managing General
Partner
By: /s/ Celia R. Deluga
-------------------
Name: Celia R. Deluga
Title: Vice President
BUYER:
By: /s/ Dean Bernstein
------------------
Name: Dean Bernstein
Title: Trustee
New Plan Realty Trust
By: /s/ James M. Steuterman
-----------------------
Name: James M. Steuterman
Title: Trustee
TITLE COMPANY:
Commonwealth Land Title Insurance Company
By: /s/ Mark S. Baillie
--------------------
Name: Mark S. Baillie
Title: Vice President and Senior NCS
Counsel
Limited Warranty Deed
Know all men by these presents that, Marshall's at East Lake Partnership
("Grantor"), a Delaware general partnership, for and in consideration of Ten
Dollars ($10.00) and other good and valuable considerations in hand paid, the
receipt of which is hereby acknowledged, has granted, bargained, sold, aliened,
conveyed, transferred and confirmed and by these presents does hereby grant,
bargain, sell, alien, convey, transfer and confirm unto New Plan Excel Realty
Trust, Inc., a Maryland corporation ("Grantee"), the land and improvements
legally described in Exhibit A attached hereto and incorporated herein.
TO HAVE AND TO HOLD, the same unto the said Grantee, and assigns forever,
together with all rights and appurtenances to the same being, belonging or in
any way appertaining to the only proper use, benefit and behoof of Grantee,
forever, in Fee Simple. Grantor shall warrant and forever defend the right,
title and interest to said property unto Grantee against the claims of all
persons claiming by, through, or under Grantor, subject to and excepting all
encumbrances and restrictions of record set forth in Exhibit B attached hereto
and incorporated herein.
WITNESS my hand and seal this 26th day of October, 1998.
GRANTOR:
Signed, sealed and delivered Marshall's at East Lake Partnership in the presence
of:
By: PaineWebber Qualified Plan Property
Fund Two, L.P., a General Partner
Linda Z. MacDonald
- ------------------
Witness By: Second Qualified
Properties, Inc., its
Managing General Partner
Cynthia L. Proctor By:/s/ Celia R. Deluga
- ------------------ -------------------
Notary Public Celia R. Deluga
Vice President
Bill of Sale
This Bill of Sale is made as of this 26th day of October, 1998 from
Marshall's at East Lake Partnership, a Delaware general partnership, having an
office at c/o PaineWebber Properties Incorporated, 265 Franklin Street, Boston,
Massachusetts 02110 (the "Seller") to New Plan Excel Realty Trust, Inc., a
Maryland corporation, having an office at 1120 Avenue of the Americas, New York,
New York 10036 (the "Purchaser").
WHEREAS, in connection with the conveyance of the real property commonly
known as Marshall's at East Lake Shopping Center, Marietta, Georgia (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 only at or used only in connection
with 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 located only at
or used only 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 Purchaser's
successors and assigns, forever.
EXECUTED UNDER SEAL as of the date first written above.
Marshall's at East Lake Partnership
By: PaineWebber Qualified Plan
Property Fund Two, L.P., a General
Partner
By: Second Qualified Properties, Inc.,
its Managing General Partner
By: /s/ Celia R. Deluga
-------------------
Celia R. Deluga
Vice President
Assignment and Assumption of Leases and Security Deposits
THIS ASSIGNMENT OF LEASES AND SECURITY DEPOSITS ("Assignment") is
made and entered into effective this 26th day of October, 1998, by and between
Marshall's at East Lake Partnership, a Delaware general partnership ("Assignor")
and New Plan Excel Realty Trust, Inc., a Maryland corporation ("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 the Marietta, Georgia, 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 Assignor's 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.
2. Assumption. Assignee hereby accepts said assignment and assumes all of
the obligations of Assignor first arising under the Leases from and after the
date hereof. Assignor shall be responsible for the performance of all of the
terms, covenants and conditions imposed upon Assignor under the Leases arising
prior to the date hereof.
[Signatures on next page]
IN WITNESS WHEREOF, the undersigned parties have executed this Assignment
effective as of the 26th day of October, 1998.
ASSIGNOR:
Marshall's at East Lake Partnership
By: PaineWebber Qualified Plan Property
Fund Two, L.P., a General Partner
By: Second Qualified Properties,
Inc., its Managing General
Partner
By: /s/ Celia R. Deluga
-------------------
Celia R. Deluga
Vice President
ASSIGNEE:
New Plan Excel Realty Trust, Inc.
By: /s/ Dean Bernstein
------------------
Name: Dean Bernstein
Title: Trustee
Closing Statement
New Plan Excel Realty Trust, Inc.
acquisition from
Marshall's at East Lake Partnership
Marshall's at East Lake Shopping Center, Marietta, Georgia
Funds Due to Seller
- -------------------------------------------------------------------------------
Purchase Price $3,750,000.00
Deductions
Deposits $100,000.00
Rent $12,435.16
Security Deposits $18,147.97
Total Deductions $130,583.13 $(130,583.13)
Additions
Real Estate Taxes $9,703.99
Commission - Sole 2 Sole $3,600.00
Commission - NL Nails $1,800.00
Items Paid in Advance $251.60
Total Additions $15,355.59 $15,355.59
Gross Funds Due To Seller from NPXL $3,634,772.46
-------------
Seller's Disbursements
Seller's Closing Costs $163,442.92
Total Seller's disbursements $163,442.92 $(163,442.92)
Net Funds Due To Seller $3,471,329.54
Deposits Released by Title
Company to Seller $100,000.00
-----------
Total Funds Due to Seller $3,571,329.54
Funds Due From Buyer
- --------------------------------------------------------------------------------
Purchase Price $3,750,000.00
Deductions
Deposits $100,000.00
Security Deposits $18,147.97
Rent $12,435.16
Total Deductions $130,583.13 $(130,583.13)
Additions
Real Estate Taxes $9,703.99
Commission - Sole 2 Sole $3,600.00
Commission - NL Nails $1,800.00
Items Paid in Advance $251.60
-------
Total Additions $15,355.59 $15,355.59
Net Funds Due From Buyer to Seller $3,634,772.46
-------------
Buyer's Disbursements
Buyer's Closing Costs $8,031.59
---------
Total Seller's disbursements $8,031.59 $8,031.59
Gross Funds Due From Buyer
(Wire to Title Company) $3,642,804.05
Deposits From Buyer Released
by Title Company $100,000.00
-----------
Total Funds From Buyer $3,742,804.05
-------------