1
EXHIBIT 10.9
ASSET DISPOSITION AGREEMENT
THIS Asset Disposition Agreement dated as of the 28th day of February,
1995 (the "Agreement"), is made by and among Liberte Investors, a Massachusetts
business trust ("Liberte"), ST Lending, Inc., a Delaware corporation ("STL"),
and Lomas Management, Inc., a Nevada corporation ("LMI").
R E C I T A L S
WHEREAS, Liberte and STL are the holders of certain participation
interests in the assets listed on the attached Schedule A pursuant to a certain
(i) Participation Agreement dated as of July 28, 1970, between Lomas Financial
Corporation ("LFC") and Liberte ("LFC's right, title, and interest therein
having been assigned to STL), and (ii) Proceeds Agreement dated as of May 1,
1990, by and among LFC, Liberte, LMI, Lomas Mortgage USA, Inc., L&N
Consultants, Inc., and Naples Canta Mar, Ltd. (both agreements as each of them
may have been amended or modified being collectively referred to in this
agreement as the "Participation Agreement"); and
WHEREAS, LMI is the manager of the assets listed on the attached
Schedule A pursuant to that certain Management Agreement dated as of July 1,
1992, by and among LMI, LFC, and Liberte (the "Management Agreement"); and
WHEREAS, STL and Liberte have reached certain agreements with respect
to the assets listed on the attached Schedule A (the "Participated Assets"),
and Liberte and LMI have reached certain agreements with respect to the
Management Agreement; and
WHEREAS, the parties desire to describe and implement such agreements
through this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows.
1. Exchange Assets.
1.1 Transfer of Participation Interests. Effective
February 28, 1995 (the "Effective Date") Liberte will transfer to STL
its participation interests in the Participated Assets described on
the attached Schedule B (the "STL Exchange Assets") pursuant to a
Master Assignment dated as of the Effective Date between Liberte and
STL substantially in the form attached to this Agreement as Exhibit
B-1 (the "Liberte Master Assignment"); and STL will transfer to
Liberte on the Effective Date its participation interests in the
assets
-1-
2
described on the attached Schedule C (the "Liberte Exchange Assets")
pursuant to a Master Assignment dated as of the Effective Date between
STL and Liberte substantially in the form attached hereto as Exhibit
C-1 (the "STL Master Assignment"). On the "Effective Date" Liberte
will deliver to STL the fully executed Liberte Master Assignment along
with originals of the participation certificates evidencing Liberte's
participation interest in the STL Exchange Assets; and STL will
deliver to Liberte the fully executed STL Master Assignment along with
original participation certificates evidencing STL's participation
interest in the Liberte Exchange Assets.
1.2 Transfer of Title. STL will authorize LMI to cause
the title nominees that hold legal title to the STL Exchange Assets
and the Liberte Exchange Assets, being L & N Consultants ("LNCI") and
Lomas Mortgage USA, Inc. ("Lomas Mortgage"), to execute and deliver to
STL and to Liberte, as appropriate, on the Effective Date, the various
deeds, assignments, and other documents (the "Exchange Asset Transfer
Documents") necessary to convey to Liberte and STL all of their
respective rights, title, and interests in and to the STL Exchange
Assets and the Liberte Exchange Assets. The Exchange Asset Transfer
Documents will consist of deeds and assignments as appropriate to each
Exchange Asset, in substantially the forms attached hereto as Exhibit
B-2 with respect to the STL Exchange Assets and Exhibit C-2 with
respect to the Liberte Exchange Assets. Except for the representations
and warranties contained in this Agreement and in the Exchange Asset
Transfer Documents, the transfers to be made pursuant to this
Agreement shall be without representation or warranty of any kind.
1.3 Liabilities. With respect to liabilities associated
with or related to the Exchange Assets, from and after the Effective
Date STL will be solely responsible for any and all liabilities,
whether accrued before or after the Effective Date, in respect of the
STL Exchange Assets, and Liberte will be solely responsible for any
and all liabilities, whether accrued before or after the Effective
Date, in respect of the Liberte Exchange Assets. For purposes of this
Agreement, "liabilities associated with, related to, and in respect
of" the Exchange Assets shall mean all liabilities associated with the
Exchange Assets, including, without limitation, all liabilities
associated with the ownership and management of the Exchange Assets
(the "Property Related Liabilities") and shall exclude only those
liabilities incurred by or on behalf of Liberte, STL, LMI, or the
title nominees that hold legal title to the Exchange Assets (or their
respective affiliates) that do not arise on account of the Exchange
Assets themselves and are therefore not Property Related Liabilities.
The foregoing provisions
-2-
3
shall in no event limit, modify, discharge, or waive any liabilities
or obligations that the parties may have under or in respect of (i)
the representations and warranties set forth in this Agreement, (ii)
the Liberte Master Assignment, (iii) the STL Master Assignment; (iv)
the Exchange Asset Transfer Documents, or (v) the Management
Agreement.
1.4 Closing Date. The closing of the transactions
described in this section (the "Closing") shall take place on the
Effective Date.
1.5 Exchange Asset Management; Closing Adjustments and
Costs. During the period prior to the Effective Date, there will be no
change in the current management of the Exchange Assets including,
without limitation, current efforts to liquidate the Exchange Assets.
All items of income, revenues, and expenses actually received or paid
in respect of the Exchange Assets prior to the Effective Date shall
be apportioned and allocated between Liberte and STL in accordance
with their respective prorata participation interests as provided
pursuant to the Participation Agreement. LMI agrees that, pursuant to
the Management Agreement, all such items of income, revenue, and
expense have been or will be properly allocated in accordance with the
provisions of this paragraph, and all parties further agree to
promptly correct any errors in respect of the foregoing allocations
after the Effective Date by an appropriate payment from the party in
whose favor such error existed to the other party. Prior to the
Closing, LMI will produce, and the parties will approve, schedules
showing accrued and unpaid taxes and outstanding payables with respect
to the management of the Exchange Assets, including, without
limitation, site work, expenses related to obtaining and maintaining
entitlements, legal expenses, and other expenses related to the
management and liquidation of the Exchange Assets. All such expenses
will be prorated as of the Effective Date. Closing costs arising as a
direct result of the transfer of the Exchange Assets, including,
without limitation, costs associated with obtaining title commitments
and reports, escrow and recording fees, transfer taxes, and other
costs associated with the delivery of transfer and other documents,
will also be prorated between STL and Liberte in accordance with their
respective participation interests pursuant to the Participation
Agreement. The parties will each be responsible for their respective
legal expenses and the cost of any policies of title insurance that
any party, in its sole discretion, chooses to obtain.
1.6 Property Adjustment. Because the net asset value of
the STL Exchange Assets is less than the net asset value of STL's
current participation interest in the Exchange Assets by the sum of
$59,294.96, Liberte will make a cash payment to STL
-3-
4
on the Effective Date in that amount plus the amount of Liberte's
share of property tax prorations. STL hereby acknowledges receipt of
such payment. Should any of the Exchange Assets be sold or otherwise
disposed of prior to the Effective Date, Liberte and STL will mutually
agree upon a satisfactory property adjustment.
2. Non-Exchange Assets.
2.1 Schedule D Assets. With respect to the Participated
Assets listed on the attached Schedule D (the "Schedule D Assets"),
Liberte and STL agree that, although the Schedule D Assets may have
future value, it is too speculative to determine as of the Effective
Date. Accordingly, the parties hereby agree that the Schedule D Assets
will not be exchanged and LMI will continue to manage the Schedule D
Assets as described in Section 4 hereof except that LMI's compensation
for such management will be as described in this paragraph, until
December 31, 1995 (the "Settlement Date"). LMI's management will focus
upon generating cash flow from such assets, whether by liquidation or
otherwise, and LMI will obtain the consent of STL and Liberte prior to
entering into any agreements or making any material expenditures with
respect to the Schedule D Assets. LMI will distribute monies generated
from the Schedule D Assets as follows: (i) payment of all expenses
associated with the relevant transaction to the extent not previously
paid; (ii) payment of ten percent of the total of such funds,
calculated on a gross basis, to LMI in full compensation for its
efforts; and (iii) payment of the balance of such funds 80% to Liberte
and 20% to STL. Effective as of the Settlement Date, STL will transfer
to Liberte its remaining interest in the Schedule D Assets, without
recourse or warranty and on an "As Is" basis, with no proration of
Property Related Liabilities, for no additional consideration.
2.2 Schedule E Assets. With respect to the Participated
Assets listed on the attached Schedule E (the "Schedule E Assets"),
Liberte and STL have agreed that, for various reasons, the Schedule E
Assets should not be exchanged. Accordingly, the Schedule E Assets
will remain as Participated Assets pursuant to the Participation
Agreement and will be managed pursuant to Section 4 hereof until the
Settlement Date. Effective as of the Settlement Date, STL will
transfer its interest in any remaining Schedule E Assets to Liberte,
without recourse or warranty and on an "As Is" basis, with no
proration of Property Related Liabilities, for no additional
consideration.
2.3 Remainder Assets. With respect to Asset Nos. 4471 and
541708 (the "Remainder Assets"), STL and Liberte will each retain its
current participation interest and each of these
-4-
5
assets will continue to be Participated Assets pursuant to the
Participation Agreement. The Remainder Assets will be managed pursuant
to Section 4 hereof until they are fully liquidated.
3. Representations and Warranties.
3.1 Each party to this agreement makes the following
representations and warranties.
(a) such party is duly organized, validly
existing, and in good standing under the laws of state in
which it is organized;
(b) the execution and delivery by such party of
this Agreement and all other documents and instruments
executed and delivered by such party in connection with this
Agreement, and such party's consummation of the transactions
described in this Agreement have been duly authorized and do
not conflict with such party's charter or bylaws or, with
respect to Liberte, declaration of trust, any applicable law,
or any contractual restriction that is binding on or affects
such party;
(c) all authorizations, consents, approvals, or
other actions by, or notices or communications to, any persons
necessary for, or otherwise in connection with, the
consummation by such party of the transactions described in
this Agreement, if any, has been obtained; and
(d) this Agreement is the legal, valid, and
binding obligation of such party, enforceable in accordance
with its terms.
3.2 STL Representation and Warranty. STL hereby
represents and warrants to Liberte that, with respect to the Liberte
Exchange Assets, from and after the Closing, neither STL, nor, except
with respect to Property Related Liabilities, any third party claiming
through STL, will have any further rights, title, claims, or
interests, whether legal, beneficial, or otherwise, including, without
limitation, any participation interest.
3.3 Liberte Representation and Warranty. Liberte hereby
represents and warrants to STL that, with respect to the STL Exchange
Assets, from and after the Closing, neither Liberte, nor, except with
respect to Property Related Liabilities, any third party claiming
through Liberte, will have any further rights, title, claims, or
interests, whether legal, beneficial, or otherwise, including, without
limitation, any participation interest.
-5-
6
4. Post Closing Asset Management Issues.
4.1 Participated Asset Management. The parties anticipate
that the Management Agreement will terminate on or before the
expiration of its current term by mutual agreement of the parties to
the Management Agreement. Accordingly, the parties to this Agreement
hereby agree that, with respect to the assets that will continue to be
Participated Assets after the Closing, LMI will manage such assets for
the benefit of STL and Liberte, using reasonable efforts to preserve
and generate cash flow from such assets. LMI will receive no
management fee except as specifically provided in Section 2.1 of this
Agreement with respect to the Schedule D Assets only. LMI's management
of the Remainder Assets will continue until such assets are fully
liquidated, which the parties expect will occur prior to the
Settlement Date. LMI's management of all other Participated Assets
will continue until the earlier of their liquidation or the Settlement
Date. The parties agree to cooperate with and assist each other in a
manner reasonably required to accomplish the intent and purpose of
this Agreement. Liberte and STL will continue to share revenues and
expenses associated with the Participated Assets according to their
participation interest in such assets, pursuant to the Participation
Agreement.
4.2 Contingent Liabilities; Third Party
Agreements; Escrows and Deposits. With respect to any currently
existing contingent liabilities, third party agreements, asset related
escrows and deposits, and any other benefits, liabilities, and
obligations that affect any of the parties to this Agreement or the
various nominee titleholders of the Participated Assets and that
derive from the Participated Assets or the relationships established
on account of the Participated Assets, the parties to this Agreement
will cooperate and do all things reasonably necessary to fairly and
equitably resolve or otherwise apportion and secure each currently
existing agreement, obligation, or benefit. To the extent that such
matters affect or arise on account of the Exchange Assets, the parties
will make reasonable efforts to complete such resolution prior to the
Closing. All such matters relating to the remaining Participated
Assets will be resolved as soon as reasonably possible, but in no
event later than the Settlement Date.
5. Miscellaneous.
5.1 Notices. All notices and other communications
necessary or desirable pursuant to this Agreement shall be in writing
and shall be effective on the date deposited in the United States Mail
by registered or certified mail, postage prepaid, return receipt
requested, or delivered by recognized overnight courier, personally
delivered, or sent by facsimile
-6-
7
transmission, to the parties at their respective addresses as shown on
the signature page of this Agreement. Notices or communications sent
otherwise will be effective upon receipt. The parties may change their
addresses for notices in accordance with this paragraph.
5.2 All representations, warranties, rights, and
obligations contained in this Agreement shall survive the Closing.
5.3 This Agreement and the documents referred to in this
Agreement constitute the full and complete agreement of the parties
hereto with respect to the subject matter of this Agreement and
supersede any and all prior agreements with respect to such matters.
5.4 This Agreement may be amended or modified only by a
written instrument executed by all parties. This Agreement will be
governed by the laws of the state of Texas without giving affect to
the principles of conflicts of laws.
5.5 This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns.
5.6 No failure or delay of any party in the exercise of
any right given to such party under this Agreement shall be deemed to
be a waiver thereof. No waiver by any party of any condition under
this Agreement for its benefit shall constitute a waiver of any other
or further right, nor shall any single or partial exercise of any
right preclude any other or further exercise thereof or of any other
rights. The waiver of any breach of this Agreement shall not be deemed
to be a waiver of any other or subsequent breach of this Agreement. No
extensions of time for the performance of any obligation shall be
deemed or construed as an extension of time for the performance of any
other obligation.
5.7 Upon the written request of any party (the
"Requesting Party"), from time to time, the other party or parties
shall do, execute, acknowledge, and deliver, at the sole cost and
expense of the Requesting Party, such further acts, deeds,
conveyances, assignments, notices of assignment or transfer and
assurances as the Requesting Party may reasonably require in order to
better assure, convey, grant, assign, transfer, and confirm upon the
Requesting Party the rights now or hereafter intended to be granted
under this Agreement or any other instrument executed in connection
with this Agreement.
5.8 This Agreement may be executed in one or more
counterparts, each of which when so executed and delivered
-7-
8
shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
5.9 Each of the exhibits and schedules referred to in
this Agreement and attached to this Agreement is hereby incorporated
into this Agreement by this reference, with the same force and effect
as if set forth at length in the body of this Agreement.
5.10 If any party brings any action or suit against any
other party by reason of any breach of this Agreement on the part of
such other party, then, in such event the prevailing party shall be
entitled to have and recover from such other party all costs and
expenses of the action or suit, including, without limitation,
reasonable attorneys' fees, and court costs and expenses resulting
therefrom.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the day and year first above written.
Address Liberte Investors,
a Massachusetts business trust
By: /s/ XXX XXXXX
----------------------------------- --------------------------------
Name: Xxx Xxxxx
----------------------------------- ------------------------------
Title: President
----------------------------------- -----------------------------
Address ST Lending, Inc.
a Delaware corporation
By: /s/ XXXXX X. XXXXXXXX
----------------------------------- --------------------------------
Name: Xxxxx X. Xxxxxxxx
----------------------------------- ------------------------------
Title: President
----------------------------------- -----------------------------
Address Lomas Management, Inc.
a Nevada corporation
By: /s/ XXXXX X. XXXXXXXX
----------------------------------- --------------------------------
Name: Xxxxx X. Xxxxxxxx
----------------------------------- ------------------------------
Title: President
----------------------------------- -----------------------------
-8-
9
Schedule A
Asset Disposition Agreement
Participated Assets
I. Exchange Assets
Asset
Asset No. Type Asset Name
--------- ---- ----------
3211 R Greystone Housing
3382 R Swln, Inc.
3385 R Xxxxxxxx/XxXxxx Dev Co
3592 R Xxxxx Xxxx Self Storage, Inc.
3674 R Swln, Inc.
3701 R Xxxxxxx Partnership
4189 R Ventura Properties, Inc.
0000 X Xxxxxxx Xxxx Xxxxx-Xxxxxxx
4553 L Xxxxx Eastlake Ltd Partnership
540101 R Bel Tiara Ventures II
II. Non Exchange Assets (Schedule D)
Asset
Asset No. Type Asset Name
--------- ----- ----------
3647 L Xxxxxx Xxxxxx
4137 L Kenwood Homes Inc./Xxxx Xxxxx
4169 L Xxxxxx Xxxxxx
4391 L Timbercrest Companies Inc.
4545 L Xxxxxxx X. Xxxxxxx & Xxxxxxxx X.
4571 L Xxxxxx X. Xxxxx III
4583 L Xxxx Xxxxxxxx/Xxxx Xxxxxxxx/
4587 L Xx X. Xxxxxx Xx.
0000 X Xxxxx Xxxx Associates L.P.
4609 L Van Xxxx Xxxxx Xxxxxxxx Xxxx & G
4624 L Xxxxx Xxxxx
4681 L Xxxxx X. Xxxxxxx
4637 L Xxxx Xxxxxxxxx & Xxxxxx Xxxxxx &
3437 R Xxx Xxxxxx
4630 L Lexington Square-Receivable
III. Non Exchange Assets (Schedule E)
Asset
Asset No. Type Asset Name
--------- ----- ----------
3934 R Xxxxxx Xxxxxxxx
4401 L Xxxxxx X. Xxxxx
4402 L Xxxxxx X. Means Jr.
4601 R New Worth Jv. (LNCI)
4632 R Xxxxxx (LNCI)
0000 X Xxxxxxxx Xxxxx Tax Penalty
4645 L Highland Plaza Tax & Cam Tenant
10
Schedule A
Asset Disposition Agreement
Participated Assets
IV. Non Exchange Assets (Remainder Assets)
Asset
Asset No. Type Asset Name
--------- ---- ----------
4471 R Cal-Oaks Investors-89 Lp
541708 L 41st Street East Development Co.
11
Schedule B
Asset Disposition Agreement
STL Exchange Assets
Asset
Asset No. Type Asset Name
--------- ---- ----------
3211 R Greystone Housing
3395 R Pavlakoa/XxXxxx Dev Co
3592 R Xxxxx Xxxx Self Storage, Inc.
3701 R Xxxxxxx Partnership
4553 L Xxxxx Eastlake Ltd Partnership
540101 R Bel Tiara Ventures II
12
EXHIBIT B-1
MASTER ASSIGNMENT
LIBERTE INVESTORS, a Massachusetts business trust ("Assignor"), for
and in consideration of TEN DOLLARS ($10.00) and other good and valuable
consideration paid to Assignor by ST LENDING, INC., a Delaware corporation
("Assignee"), the receipt and sufficiency of which are hereby acknowledged,
hereby CONVEYS, GRANTS, TRANSFERS and ASSIGNS unto Assignee, without recourse
or warranty except as otherwise provided herein, all of the following assets
(the "STL Assets"):
Section 1. (a) The undivided participation interests of Assignor under
the Participation Agreement (as hereinafter defined), including, without
limitation, any and all participation certificates evidencing such interests
(the "Participation Certificates"), in and to the unpaid amounts of principal
and interest of the mortgage loans identified on the attached Schedule I (the
"Participated Mortgage Loans"), (b) any other rights or interests of Assignor
in and to the Participated Mortgage Loans or Participation Certificates or
payments thereunder, and (c) any other rights of Assignor in and to the
promissory notes evidencing such Participated Mortgage Loans (the "Participated
Notes"), and in and to any and all mortgages, assignments of leases,
guaranties, letters of credit, pledged accounts, surety bonds or arrangements
and all other agreements, documents, instruments or deposits evidencing,
insuring or securing the Participated Mortgage Loans or the Participation
Certificates.
Section 2. To the extent not conveyed pursuant to Section 1 above, (a)
all of the undivided participation interests of Assignor (the "Participated
Owned Property Interests") in and to all proceeds from the parcels of real
property identified on the attached Schedule II, as evidenced by the Proceeds
Agreement (as defined below) or otherwise, (b) any other rights or interests of
Assignor in and to the Participated Owned Property Interests, including,
without limitation, the participation certificates evidencing such interest,
and (c) any other rights or interests of Assignor in and to all other
agreements, documents, instruments or deposits evidencing, insuring or
otherwise relating to the Participated Owned Property Interests.
Section 3. The interest of Assignor in and to any and all
participation, servicing, nominee, proceeds or similar agreements related to
the Participated Mortgage Loans and the Participated Owned Property Interests,
including, without limitation, the Participation Agreement dated July 28,
1970 (the "Participation Agreement") between Lomas Financial Corporation
("LFC") and Assignor (formerly known as Lomas & Xxxxxxxxx Mortgage Investors)
and the Proceeds Agreement dated August 1, 1990 among LFC, Assignor (formerly
known as Lomas & Xxxxxxxxx Mortgage Investors) and certain affiliates of LFC
(the "Proceeds Agreement").
-1-
13
REPRESENTATIONS AND WARRANTIES OF ASSIGNOR
Assignor represents and warrants to Assignee and its successors and
assigns that:
(i) Assignor is a business trust duly organized, validly existing
and in good standing under the laws of the State of
Massachusetts;
(ii) Assignor has full power and authority to execute and deliver
this Master Assignment, and this Master Assignment has been
duly authorized, executed and delivered by Assignor and is
valid, binding and enforceable against Assignor in accordance
with its terms;
(iii) Neither the execution nor the delivery of this Master
Assignment by Assignor will (a) conflict with Assignor's
Declaration of Trust, (b) violate, conflict with, or result in
any breach of any terms or provisions of, or constitute a
default under, any material contract, agreement or instrument
to which Assignor or its affiliates is a party or by which
Assignor or its affiliates or any of their properties are
bound or (c) violate, conflict with or breach any provision of
any applicable law, rule or regulation;
(iv) Assignor (a) is the sole legal and beneficial owner of the
assets conveyed hereby and (b) has good title thereto, free
and clear of any and all liens, encumbrances, participation
interests, charges, claims or equity interests of any nature,
except as disclosed in writing to Assignee contemporaneously
herewith.
GOVERNING LAW
THIS MASTER ASSIGNMENT SHALL BE DEEMED TO BE A CONTRACT UNDER THE INTERNAL LAWS
OF THE STATE OF TEXAS, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS,
AND FOR ALL PURPOSES SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE
LAWS OF SAID STATE, EXCEPT AS MAY OTHERWISE BE REQUIRED BY MANDATORY PROVISIONS
OF LAW.
EXECUTED as of February 28, 1995.
ASSIGNOR:
LIBERTE INVESTORS,
a Massachusetts business trust
By: /s/ XXX XXXXX
--------------------------------
Name: Xxx Xxxxx
------------------------------
Title: President
-----------------------------
-2-
14
MASTER ASSIGNMENT BETWEEN
LIBERTE INVESTORS (ASSIGNOR)
AND ST LENDING, INC. (ASSIGNEE)
SCHEDULE I
PARTICIPATED MORTGAGE LOANS
STL ASSET NO. CURRENT BORROWER NAME
------------- ---------------------
4553 Xxxxx Eastlake Ltd Partnership
-3-
15
MASTER ASSIGNMENT BETWEEN
LIBERTE INVESTORS (ASSIGNOR)
AND ST LENDING, INC. (ASSIGNEE)
SCHEDULE II
PARTICIPATED OWNED PROPERTY INTERESTS
STL ASSET NO. CURRENT ASSET NAME
------------- ------------------
3211 Greystone Housing
3395 Xxxxxxxx/Xxxxxx Dev Co
0000 Xxxxx Xxxx Self Storage, Inc.
3701 Xxxxxxx Partnership
** 540101 Bel Tiara Ventures II
** Denotes property reported as foreclosure in substance
-4-
16
EXHIBIT B-2
Loan No. 4553/WA
ASSIGNMENT OF NOTE AND MORTGAGE
STATE OF TEXAS )
) KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF DALLAS )
LOMAS MORTGAGE USA, INC., a Connecticut corporation ("Assignor"), for
Ten Dollars ($10.00) and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by Assignor, hereby assigns unto ST
LENDING, INC., a Delaware corporation, ("Assignee"), all of its right title and
interest in and to the certain Promissory Note dated January 6, 1989, in the
original principal sum of $9,600,000.00 (the "Loan"), executed on behalf of
XXXXX EASTLAKE LIMITED PARTNERSHIP ("Borrower"), and payable to the order of
Assignor together with all of its right, title and interest in and to that
certain Washington Deed of Trust (with Security Agreement and Assignment of
Rents and Leases) dated January 6, 1989 (the "Mortgage") and recorded on
January 13, 1989 in the County of King and the State of Washington, as
Instrument No. 8901131266, as such Mortgage may have been modified or amended
from time to time, covering certain real property located in the County of King
and the State of Washington, being more particularly described on Exhibit A
attached hereto, including any and all extensions, renewals, and modifications
thereof, together with all of the right, title and interest of Assignor in and
to (i) the instruments described on the attached Schedule I, and (ii) any and
all other documents evidencing, securing or pertaining to the Loan, and all
ancillary documents, including, without limitation, all rights under any
applicable mortgagee or loan policy of title insurance issued for the benefit
of Assignor, relating or pertaining to the Loan.
This Assignment of Note and Mortgage is made without recourse and
without any representation or warranty, either express or implied.
TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns
forever.
Assignor hereby further covenants and agrees that Assignor will, at
any time and from time to time, upon written request therefor and at Assignee's
sole expense, execute and deliver to Assignee such other documents and
assurances as Assignee may reasonably request in order to effect the purposes
of this Assignment of Note and Mortgage and carry out the provisions hereof.
1
17
Loan No. 4553/WA
IN WITNESS WHEREOF, Assignor has duly executed this Assignment
effective as of the ___ day of February, 1995.
LOMAS MORTGAGE USA, INC.,
a Connecticut corporation
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
STATE OF TEXAS )
)
COUNTY OF DALLAS )
On February __, 1995, before me, a Notary Public in and for the State
of Texas, personally appeared ________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person whose name
is subscribed to the within instrument and acknowledged to me that _he executed
the same in h__ authorized capacity, and that by h__ signature on the
instrument the person, or the entity upon behalf of which the person acted,
executed the instrument.
WITNESS my hand and official seal.
-----------------------------------
Notary Public in and for the
State of Texas
Printed Name:
----------------------
My Commission Expires:
-------------
2
18
EXHIBIT B-2
WHEN RECORDED, RETURN TO:
Xxxxxx Xxxxxxx
Xxxxx Financial Group
Office of the General Counsel
Xxxx Xxxxxx Xxx 000000
Xxxxxx, Xxxxx 00000-0000
DOCUMENT PREPARED BY:
Xxxxxxx X. Xxx
Lomas Financial Group
Office of the General Counsel
Xxxx Xxxxxx Xxx 000000
Xxxxxx, Xxxxx 00000-0000
--------------------------------------------------------------------------------
(Space above line for Recorder's Use Only)
No. 3674/TX
SPECIAL WARRANTY DEED
THE STATE OF TEXAS )
) KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF DALLAS )
LOMAS MORTGAGE USA, INC., a Connecticut ("Grantor"), whose mailing
address is 1420 Viceroy, X.X. Xxx 000000, Xxxxxx, Xxxxx 00000, for and in
consideration of (i) the sum of Ten Dollars ($10.00) and other good and
valuable consideration paid by LIBERTE INVESTORS, a Massachusetts business
trust ("Grantee"), whose mailing address is __________________________________
________________________________________________, the receipt and sufficiency
of which consideration are hereby acknowledged, has GRANTED, BARGAINED, SOLD,
and CONVEYED and by these presents does hereby GRANT, BARGAIN, SELL and CONVEY
unto Grantee all of that certain real property located in Bexar County, Texas,
and being more particularly described in Exhibit A attached hereto and made a
part hereof for all purposes, together with all improvements thereon and all
and singular the rights, benefits, privileges, easements, tenements,
hereditaments, and appurtenances thereon or in anywise appertaining thereto
(said real property, together with such improvements and such rights, benefits,
privileges, easements, tenements, hereditaments and appurtenances are
hereinafter collectively referred to as the "Property").
This Special Warranty Deed is made and accepted expressly subject to
those exceptions set forth in Exhibit B attached hereto and made a part hereof
for all purposes, and to all Property Related Liabilities as such term is
defined in that certain Asset Disposition Agreement dated as of February 28,
1995, by and among Liberte Investors, Lomas Management, Inc., and ST Lending,
Inc. (the "Permitted Exceptions").
1
19
No. 3674/TX
TO HAVE AND TO HOLD the Property, subject to the Permitted Exceptions
as aforesaid, unto Grantee, its successors and assigns, forever, and Grantor
does hereby bind itself, its successors and assigns, to WARRANT AND FOREVER
DEFEND all and singular the Property, unto Grantee, its successors and assigns,
against every person whomsoever lawfully claiming or to claim the same, or any
part thereof by, through, or under Grantor, but not otherwise.
Except as specifically stated herein Grantor hereby specifically
disclaims any warranty, guaranty, or representation, oral or written, past,
present or future, of, as to, or concerning (i) the nature and condition of the
Property, including but not by way of limitation, the water, soil, geology and
the suitability thereof, and of the Property, for any and all activities and
uses which Grantee may elect to conduct thereon or any improvements Grantee may
elect to construct thereon, income to be derived therefrom or expenses to be
incurred with respect thereto, or any obligations or any other matter or thing
relating to or affecting the same; (ii) the manner of construction and
condition and state of repair or lack of repair of any improvements located
thereon; (iii) the nature and extent of any easement, right-of-way, lease,
possession, lien, encumbrance, license, reservation, condition or otherwise;
and (iv) the compliance of the Property, or the operation of the Property with
any laws, rules, ordinances, or regulations of any government or other body. IN
CONNECTION WITH THE CONVEYANCE OF THE PROPERTY AS PROVIDED FOR HEREIN, GRANTOR
HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR COVENANTS OF
ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO
THE QUALITY OR CONDITION OF THE PROPERTY, THE SUITABILITY OF THE PROPERTY FOR
ANY AND ALL ACTIVITIES AND USES WHICH GRANTEE MAY CONDUCT THEREON, COMPLIANCE
BY THE PROPERTY WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY
APPLICABLE GOVERNMENTAL AUTHORITY OR HABITABILITY, MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE, AND SPECIFICALLY, GRANTOR DOES NOT MAKE ANY
REPRESENTATIONS REGARDING HAZARDOUS WASTE, AS DEFINED BY THE LAWS OF THE STATE
OF TEXAS AND THE REGULATIONS ADOPTED THEREUNDER OR THE U.S. ENVIRONMENTAL
PROTECTION AGENCY REGULATIONS AT 40 C.F.R., PART 261, OR THE DISPOSAL OF ANY
HAZARDOUS WASTE OR OTHER HAZARDOUS OR TOXIC SUBSTANCES IN OR ON THE PROPERTY.
The conveyance of the Property as provided for herein is made on an "AS IS" and
"WITH ALL FAULTS" basis.
Grantee, by its acceptance hereof, does hereby assume and agree to pay
any and all ad valorem taxes and special assessments pertaining to the Property
for calendar year of Closing and subsequent years, there having been a proper
proration of ad valorem taxes for the current calendar year between Grantor and
Grantee.
2
20
No. 3674/TX
IN WITNESS WHEREOF, this Special Warranty Deed has been executed and
delivered to be effective for all purposes as of the 28th day of February,
1995.
GRANTOR:
LOMAS MORTGAGE USA, INC.,
a Connecticut corporation
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on ________, 1995, by
________________________________, ________________________ of LOMAS MORTGAGE
USA, INC., a Connecticut corporation, on behalf of said corporation.
-----------------------------------
Notary Public, State of Texas
Printed Name:
----------------------
My Commission Expires:
-------------
3
21
Schedule C
Asset Disposition Agreement
Liberte Exchange Assets
Asset
Asset No. Type Asset Name
--------- ---- ----------
3382 R Swln, Inc.
3674 R Swln, Inc.
4189 R Ventura Properties, Inc.
0000 X Xxxxxxx Xxxx Xxxxx-Xxxxxxx II
22
EXHIBIT C-1
MASTER ASSIGNMENT
ST LENDING, INC., a Delaware corporation ("Assignor"), for and in
consideration of TEN DOLLARS ($10.00) and other good and valuable consideration
paid to Assignor by LIBERTE INVESTORS, a Massachusetts business trust
("Assignee"), the receipt and sufficiency of which are hereby acknowledged,
hereby CONVEYS, GRANTS, TRANSFERS and ASSIGNS unto Assignee, without recourse
or warranty except as otherwise provided herein, all of the following assets
(the "STL Assets"):
Section 1. (a) The undivided participation interests of Assignor under
the Participation Agreement (as hereinafter defined), including, without
limitation, any and all participation certificates evidencing such interests
(the "Participation Certificates"), in and to the unpaid amounts of principal
and interest of the mortgage loans identified on the attached Schedule I (the
"Participated Mortgage Loans"), (b) any other rights or interests of Assignor
in and to the Participated Mortgage Loans or Participation Certificates or
payments thereunder, and (c) any other rights of Assignor in and to the
promissory notes evidencing such Participated Mortgage Loans (the "Participated
Notes"), and in and to any and all mortgages, assignments of leases,
guaranties, letters of credit, pledged accounts, surety bonds or arrangements
and all other agreements, documents, instruments or deposits evidencing,
insuring or securing the Participated Mortgage Loans or the Participation
Certificates.
Section 2. To the extent not conveyed pursuant to Section 1 above, (a)
all of the undivided participation interests of Assignor (the "Participated
Owned Property Interests") in and to all proceeds from the parcels of real
property identified on the attached Schedule II, as evidenced by the Proceeds
Agreement (as defined below) or otherwise, (b) any other rights or interests of
Assignor in and to the Participated Owned Property Interests, including,
without limitation, the participation certificates evidencing such interest,
and (c) any other rights or interests of Assignor in and to all other
agreements, documents, instruments or deposits evidencing, insuring or
otherwise relating to the Participated Owned Property Interests.
Section 3. The interest of Assignor in and to any and all
participation, servicing, nominee, proceeds or similar agreements related to
the Participated Mortgage Loans and the Participated Owned Property Interests,
including, without limitation, the Participation Agreement dated July 28, 1970
(the "Participation Agreement") between Lomas Financial Corporation ("LFC") and
Assignor (formerly known as Lomas & Xxxxxxxxx Mortgage Investors) and the
Proceeds Agreement dated August 1, 1990 among LFC, Assignor (formerly known as
Lomas & Xxxxxxxxx Mortgage Investors) and certain affiliates of LFC (the
"Proceeds Agreement").
-1-
23
REPRESENTATIONS AND WARRANTIES OF ASSIGNOR
Assignor represents and warrants to Assignee and its
successors and assigns that:
(i) Assignor is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware;
(ii) Assignor has full power and authority to execute and deliver
this Master Assignment, and this Master Assignment has been
duly authorized, executed and delivered by Assignor and is
valid, binding and enforceable against Assignor in accordance
with its terms;
(iii) Neither the execution nor the delivery of this Master
Assignment by Assignor will (a) conflict with Assignor's
Declaration of Trust, (b) violate, conflict with, or result in
any breach of any terms or provisions of, or constitute a
default under, any material contract, agreement or instrument
to which Assignor or its affiliates is a party or by which
Assignor or its affiliates or any of their properties are
bound or (c) violate, conflict with or breach any provision of
any applicable law, rule or regulation;
(iv) Assignor (a) is the sole legal and beneficial owner of the
assets conveyed hereby and (b) has good title thereto, free
and clear of any and all liens, encumbrances, participation
interests, charges, claims or equity interests of any nature,
except as disclosed in writing to Assignee contemporaneously
herewith.
GOVERNING LAW
THIS MASTER ASSIGNMENT SHALL BE DEEMED TO BE A CONTRACT UNDER THE INTERNAL LAWS
OF THE STATE OF TEXAS, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS,
AND FOR ALL PURPOSES SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE
LAWS OF SAID STATE, EXCEPT AS MAY OTHERWISE BE REQUIRED BY MANDATORY PROVISIONS
OF LAW.
EXECUTED as of February 28, 1995.
ASSIGNOR:
ST LENDING, INC.,
a Delaware corporation
By: /s/ CANEY X. XXXXXXXX
--------------------------------
Name: Caney X. Xxxxxxxx
------------------------------
Title: President
-----------------------------
-2-
24
MASTER ASSIGNMENT BETWEEN
ST LENDING, INC. (ASSIGNOR)
AND LIBERTE INVESTORS (ASSIGNEE)
SCHEDULE I
PARTICIPATED MORTGAGE LOANS
None
-4-
25
MASTER ASSIGNMENT BETWEEN
ST LENDING, INC. (ASSIGNOR)
AND LIBERTE INVESTORS (ASSIGNEE)
SCHEDULE II
PARTICIPATED OWNED PROPERTY INTERESTS
ASSET NO. CURRENT ASSET NAME
--------- ------------------
3383 Swln, Inc.
3674 Swln, Inc.
4184 Ventura Properties, Inc.
0000 Xxxxxxx Xxxxx Xxxxx-Xxxxxxx II
-5-
26
EXHIBIT C-2
WHEN RECORDED, MAIL TO:
Xxxxxx Xxxxxxx
Xxxxx Financial Group
Office of the General Counsel
Xxxx Xxxxxx Xxx 000000
Xxxxxx, Xxxxx 00000-0000
DOCUMENT PREPARED BY:
Xxxxxxx X. Xxx
Lomas Financial Group
Office of the General Counsel
Xxxx Xxxxxx Xxx 000000
Xxxxxx, Xxxxx 00000-0000
--------------------------------------------------------------------------------
(Space above this line for Recorder's Use)
No. 3395/FL
SPECIAL WARRANTY DEED
LOMAS MORTGAGE USA, INC. (formerly, The Lomas & Xxxxxxxxx Company,
also known as, Lomas & Xxxxxxxxx Company), a Connecticut corporation
("Grantor"), whose mailing address is 1420 Viceroy, X.X. Xxx 000000, Xxxxxx,
Xxxxx 00000, for and in consideration of the sum of Ten Dollars ($10.00) and
other good and valuable consideration paid by ST LENDING, INC., a Delaware
corporation ("Grantee"), whose mailing address is 1420 Viceroy, X.X. Xxx
000000, Xxxxxx, Xxxxx 00000, the receipt and sufficiency of which consideration
are hereby acknowledged, has GRANTED, BARGAINED, SOLD, and CONVEYED and by
these presents does hereby GRANT, BARGAIN, SELL and CONVEY unto Grantee all of
that certain real property located in Brevard County, Florida, and being more
particularly described in Exhibit A attached hereto and made a part hereof for
all purposes, together with all improvements thereon and all and singular the
rights, benefits, privileges, easements, tenements, hereditaments, and
appurtenances thereon or in anywise appertaining thereto (said real property,
together with such improvements and such rights, benefits, privileges,
easements, tenements, hereditaments and appurtenances are hereinafter
collectively referred to as the "Property").
This Special Warranty Deed is made and accepted expressly subject to
those exceptions set forth in Exhibit B attached hereto and made a part hereof
for all purposes, and to all Property Related Liabilities as such term is
defined in that certain Asset Disposition Agreement dated as of February 28,
1995, by and among Liberte Investors, Lomas Management, Inc., and ST Lending,
Inc. (the "Permitted Exceptions").
27
No. 3395/FL
TO HAVE AND TO HOLD the Property, subject to the Permitted Exceptions
as aforesaid, unto Grantee, its successors and assigns, forever, and Grantor
does hereby bind itself, its successors and assigns, to WARRANT AND FOREVER
DEFEND all and singular the Property, unto Grantee, its successors and assigns,
against every person whomsoever lawfully claiming or to claim the same, or any
part thereof by, through, or under Grantor, but not otherwise.
Except as specifically stated herein Grantor hereby specifically
disclaims any warranty, guaranty, or representation, oral or written, past,
present or future, of, as to, or concerning (i) the nature and condition of the
Property, including but not by way of limitation, the water, soil, geology and
the suitability thereof, and of the Property, for any and all activities and
uses which Grantee may elect to conduct thereon or any improvements Grantee may
elect to construct thereon, income to be derived therefrom or expenses to be
incurred with respect thereto, or any obligations or any other matter or thing
relating to or affecting the same; (ii) the manner of construction and
condition and state of repair or lack of repair of any improvements located
thereon; (iii) the nature and extent of any easement, right-of-way, lease,
possession, lien, encumbrance, license, reservation, condition or otherwise;
and (iv) the compliance of the Property, or the operation of the Property with
any laws, rules, ordinances, or regulations of any government or other body. IN
CONNECTION WITH THE CONVEYANCE OF THE PROPERTY AS PROVIDED FOR HEREIN, GRANTOR
HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR COVENANTS OF
ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO
THE QUALITY OR CONDITION OF THE PROPERTY, THE SUITABILITY OF THE PROPERTY FOR
ANY AND ALL ACTIVITIES AND USES WHICH GRANTEE MAY CONDUCT THEREON, COMPLIANCE
BY THE PROPERTY WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY
APPLICABLE GOVERNMENTAL AUTHORITY OR HABITABILITY, MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE, AND SPECIFICALLY, GRANTOR DOES NOT MAKE ANY
REPRESENTATIONS REGARDING HAZARDOUS WASTE, AS DEFINED BY THE LAWS OF THE STATE
OF FLORIDA AND THE REGULATIONS ADOPTED THEREUNDER OR THE U.S. ENVIRONMENTAL
PROTECTION AGENCY REGULATIONS AT 40 C.F.R., PART 261, OR THE DISPOSAL OF ANY
HAZARDOUS WASTE OR OTHER HAZARDOUS OR TOXIC SUBSTANCES IN OR ON THE PROPERTY.
The conveyance of the Property as provided for herein is made on an "AS IS" and
"WITH ALL FAULTS" basis.
Grantee, by its acceptance hereof, does hereby assume and agree to pay
any and all ad valorem taxes and special assessments pertaining to the Property
for calendar year of Closing and subsequent years, there having been a proper
proration of ad valorem taxes for the current calendar year between Grantor and
Grantee.
2
28
No. 3395/FL
IN WITNESS WHEREOF, this Special Warranty Deed has been executed and
delivered to be effective for all purposes as of the 28th day of February,
1995.
GRANTOR:
LOMAS MORTGAGE USA, INC.,
(formerly, The Lomas & Xxxxxxxxx Company,
Signed, sealed, and also known as, Lomas & Xxxxxxxxx Company), a
delivered in the Connecticut corporation
presence of:
By:
------------------------------ --------------------------------
Name:
------------------------------ ------------------------------
Print Name of Witness Title:
-----------------------------
------------------------------
------------------------------
Print Name of Witness
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on ________, 1995, by
________________, ________________ of LOMAS MORTGAGE USA, INC. (formerly, The
Lomas & Xxxxxxxxx Company, also known as, Lomas & Xxxxxxxxx Company), a
Connecticut corporation, on behalf of said corporation. He is personally known
to me or has produced ________ as identification and did not take an oath.
-----------------------------------
Notary Public, State of Texas
Printed Name:
----------------------
My Commission Expires:
-------------
3
29
Schedule D
Asset Disposition Agreement
Non Exchange Assets
Asset
Asset No. Type Asset Name
--------- ---- ----------
3647 L Xxxxxx Xxxxxx
4137 L Kenwood Homes Inc./Xxxx Xxxxx
4169 L Xxxxxx Xxxxxx
4391 L Timbercrest Companies Inc.
4545 L Xxxxxxx X. Xxxxxxx & Xxxxxxxx X.
4571 L Xxxxxx X. Xxxxx III
4583 L Xxxx Xxxxxxxx/Xxxx Xxxxxxxx/
4587 L Xx X. Xxxxxx Xx.
0000 X Xxxxx Xxxx Associates L.P.
4609 L Van Xxxx Xxxxx Xxxxxxxx Xxxx & G
4624 L Xxxxx Xxxxx
4681 L Xxxxx X. Xxxxxxx
4637 L Xxxx Xxxxxxxxx & Xxxxxx Xxxxxx &
3437 R Xxx Xxxxxx
4630 L Lexington Square-Receivable
30
Schedule E
Asset Disposition Agreement
Non Exchange Assets
Asset
Asset No. Type Asset Name
--------- ---- ----------
3934 R Xxxxxx Xxxxxxxx
4401 L Xxxxxx X. Xxxxx
4402 L Xxxxxx X. Means Jr.
4601 R New Worth Jv. (LNCI)
4632 R Xxxxxx (LNCI)
0000 X Xxxxxxxx Xxxxx Tax Penalty
4645 L Highland Plaza Tax & Cam Tenant
