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AGREEMENT OF SALE
THIS AGREEMENT OF SALE (the "Agreement") is made as of the 21st day of
April, 1997 (the "Execution Date") by and between BROWNSVILLE ASSOCIATES LIMITED
PARTNERSHIP, a New Jersey limited partnership, having an office at 00 Xxxxx
Xxxx, P. 0. Xxx 000, Xxxxxx, Xxx Xxxxxx 000X0 (xxx "Seller") and NET 1 L.P., a
Delaware limited partnership, or its assignee having an office at 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, XX 00000 (the "Buyer").
W I T N E S S E T H
ARTICLE 1. RECITALS
1.01. The Property. Seller is the owner of certain real property
consisting of approximately 7.927 acres of land and the buildings and
improvements constructed thereon, situated in the County of Cameron, State of
Texas, as more particularly described in Exhibit "A" attached hereto and made a
part hereof. The aforesaid real property, buildings and improvements, together
with the fixtures and mechanical and utility systems thereon, are hereinafter
collectively called the "Property". The Property is subject to a lease with
Wal-Mart Stores, Inc. ("Wal-Mart") pursuant to the terms of the following
documents and agreements which are hereinafter collectively called the "Lease":
a. Lease dated January 19, 1983 between State of California Public
Retirement Systems ("Cal/Pers") as Lessor and Wal-Mart as Lessee;
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b Memorandum of Lease dated January 19, 1983 between Cal/Pers and
Wal-Mart, filed for record January 19, 1983 in Volume 120, page 227
in the Miscellaneous Deed Records of Cameron County, Texas.
c. Lease Assignment and Assumption Agreement dated September 23, 1985
from Cal/Pers to Seller filed for record September 30, 1985 in
Volume 136, page 738 in the aforesaid records.
d. Amendment to Lease dated January 19, 1983 by and between Cal/Pers
and Walmart.
e. Second Amendment to Lease dated January 19, 1983 by and between
Cal/Pers and Walmart.
The Property is subject to a Deed of Trust Note dated January 27, 1997 in
the original principal amount of $2,413,106.05 (the "Note") from Seller to
Principal Mutual Life Insurance Company ("Principal") secured by Deed of Trust,
Security Agreement and Assignment of Rents (the "Mortgage") of even date
therewith and further secured by an Assignment of Leases and Rents (collectively
referred to herein as the "Obligations").
True and correct photocopies of all of the documents constituting the
Lease and the obligations have been delivered by Seller to Buyer and Buyer
hereby acknowledges receipt thereof.
1.02. Purpose. Seller desires to sell or cause the Property to be sold to
Buyer and Buyer desires to purchase the same, subject to the Lease and, subject
to the provisions of Section 3.03, the Obligations.
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NOW, THEREFORE, in consideration of the Property and of the mutual
covenants and agreements contained herein, and other good and valuable
consideration, the mutual receipt and legal sufficiency of which is hereby
acknowledged, Buyer and Seller hereby covenant and agree as follows:
ARTICLE 2. SALE AND PURCHASE
2.01. Sale and Purchase. Seller agrees to sell and convey and Buyer agrees
to purchase all of Seller's right, title and interest in and to the Property
together with (i) all right, title and interest in and to the Lease, (ii) all
right, title and interest, if any, in and to any land lying in the bed of any
street, road, or avenue, open or proposed, in front of or adjoining the
Property, to the centerline thereof, (iii) rights of way or passageways
appurtenant to or benefiting the Property, (iv) any award made or to be made on
account of any taking of any portion of the Property by any public purpose
organization or entity and any award made for damages to the Property or any
part thereof by reason of change of grade or the closing of any street, road or
avenue, (v) all strips and gores, if any, abutting or adjoining the Property,
and (vi) all other rights, benefits and privileges appurtenant to or benefiting
the Property. Seller shall execute, acknowledge and deliver to Buyer, at Closing
as hereinafter defined, all proper instruments for the assignment and collection
of any award covered by (iv) above.
2.02. Purchase Price. The purchase price for the Property shall be equal
to the sum of THREE MILLION FIVE HUNDRED AND TWENTY-
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FIVE THOUSAND and 00/100 DOLLARS ($3,525,000.00) (the "Purchase Price"). The
Purchase Price shall be paid to Seller by Buyer in the following manner:
a) The Independent Consideration and-the Deposit.
Buyer shall deliver to Seller upon execution of this Agreement a
non-refundable payment in the amount of ONE HUNDRED DOLLARS ($100.00) (the
"Independent Consideration") as Buyer's independent consideration for the
execution and delivery of this Agreement, which Independent Consideration shall
be retained by Seller in the event the Closing (hereinafter defined) fails to
occur for any reason or for no reason. In no event shall the Independent
Consideration be returned to Buyer or be included in the Deposit.
A ONE HUNDRED THOUSAND and 00/100 DOLLAR ($100,000.00) xxxxxxx money
deposit shall be delivered by Buyer to Commonwealth Land Title Insurance
Company, 0 Xxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Xxxx
Xxxxxxxx (the "Escrow Agent") or to such other Escrow Agent mutually agreed upon
by Buyer and Seller upon the execution of this Agreement, to be held in an
interest bearing account pending the Closing, which deposit shall be
non-refundable except as hereinafter described (the "Deposit").
(i) The Escrow Agent shall hold the deposit in direct obligations of the
United States of America or any instrumentality or agency of the United States
of America, or obligations guaranteed as to the payment of principal and
interest by the United States of America, or interest bearing certificates of
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deposit or money market deposit account insured as to the payment of principal
and interest by the FDIC. The Deposit shall be distributed as follows:
(aa) In the event the purchase and sale of the Property closes as
contemplated by this Agreement, the Escrow Agent shall pay the Deposit plus any
accrued interest to Seller at Closing and the entire sum shall be credited
against the Purchase Price.
(bb) In the event that (i) Seller has performed all of its
obligations hereunder and all of the preconditions to Closing have been
satisfied or waived (including but not limited to those set forth in Article 3)
and the Closing does not occur because Buyer violates or fails to perform any of
the terms or conditions of this Agreement, or (ii) in the event Buyer willfully
violates or fails to perform its obligations hereunder, then, after not less
than five (5) business days notice to Buyer, the Deposit plus any accrued
interest shall be paid to and retained by Seller as liquidated damages, which
shall be the sole remedy of Seller for such breach, and this Agreement shall be
null and void and neither party shall have any further obligation to the other
hereunder.
(cc) If Seller shall be unable to sell and convey the Property in
accordance with the terms, covenants and conditions of this Agreement for any
reason whatsoever (other than the exercise by Wal-Mart of its Preferential Right
to Purchase pursuant to Section 20 of the Lease and other than Seller's willful
refusal to convey title to the Property), then the Deposit plus any accrued
interest shall be returned to Buyer together with an amount equal
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to Buyer's third party due diligence and legal expenses, not to exceed $5,000.00
in the aggregate and thereafter neither party shall have any further obligations
hereunder, other than those, if any, which specifically survive the termination
of this Agreement.
(dd) If Seller shall be unable to sell and convey the Property in
accordance with the terms, covenants and conditions of this Agreement because of
the exercise by Wal-Mart of its Preferential Right to Purchase pursuant to
Section 20 of the Lease, then the Deposit plus any accrued interest shall be
returned to Buyer together with an amount equal to Buyer's third party due
diligence and legal expenses, not to exceed $15,000.00 in the aggregate and
thereafter neither party shall have any further obligations hereunder, other
than those, if any, which specifically survive the termination of this
Agreement.
(ee) In the event that Seller willfully refuses to convey title (as
distinguished from its inability to satisfy conditions for which it is
responsible), Buyer shall have the right to either (i) require the Deposit plus
any accrued interest to be returned to it together with an amount equal to
Buyer's third party due diligence and legal expenses not to exceed $5,000.00 in
the aggregate or (ii) pursue its remedies in law and equity, including without
limitation, a suit for specific performance and/or monetary damages.
b) The Cash Purchase Price or the remainder of the Purchase Price, as the
case may be, shall be paid by cash, wire transfer or any other immediately
available funds at Closing.
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ARTICLE 3. CONDITIONS PRECEDENT TO CLOSE
The obligation of the parties hereto to each other and to otherwise
perform their respective obligations hereunder shall be subject to the following
being completed at or prior to Closing or within such time frame as is
specifically designated below:
3.1. Limited Partner Consent. Buyer acknowledges that it understands that
Seller is a limited partnership and that under its Partnership Agreement, the
general partner is required to obtain the consent of a majority-in-interest of
the limited partners of Seller for the Partnership to proceed with the
transaction contemplated by this Agreement. Therefore, all of Seller's
obligations under this Agreement are entirely subject to its obtaining the
consent of a majority-in-interest of the limited partners of Brownsville
Associates Limited Partnership. Seller shall use its best efforts to obtain such
consent within twenty-one (21) days of the full execution and delivery of this
Agreement. If Seller is unable to obtain such consent this Agreement shall be
deemed cancelled in which event the provisions of Section 2.02(a)(i)(cc) shall
apply and this Agreement shall be null and void and neither party shall have any
further obligations to the other hereunder.
3.02. Wal-Mart Waiver. The obligations of Buyer to buy and of Seller to
sell the Property are subject to Wal-Mart's Preferential Right to Purchase
Option contained in Section 20 of the Lease. Immediately upon execution and
delivery of this Agreement to Seller, Wal-Mart's waiver of this right will be
sought
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by delivery to Wal-Mart of the letter attached hereto as Exhibit C. In the event
Wal-Mart exercises its Preferential Right to Purchase Option, then this
Agreement shall be null and void, of no further force and effect, the provisions
of Section 2.02(a)(i)(dd) shall apply and all obligations of the parties hereto
to each other shall cease.
3.03. Assumption or Payoff of Obligations/Mortgagee Consent. On or before
20 days after the full execution and delivery of this Agreement, Buyer shall
notify Seller in writing whether Buyer elects (1) to assume the obligations at
the Closing, or (2) to require Seller to pay off the obligations at the Closing.
In the event that Buyer falls to timely send written notice to Seller with
respect to such option, then Buyer shall have elected to require Seller to pay
off the Obligations at the Closing for all purposes. If Buyer elects (or is
deemed to have elected) that Seller pay off the obligations pursuant to this
Section 3.03, then, at the Closing, Seller shall cause the obligations to be
paid in full and the Mortgage and all other documents evidencing and securing
the obligations to be released and discharged of record.
In the event that Buyer sends written notice to Seller electing to assume
the Obligations on the Closing Date (if, and only if, the Closing occurs), then,
Seller shall deliver to Buyer a writing in recordable form which, to the
satisfaction of Buyer, indicates (a) that Mortgagee consents to this transfer;
(b) that all references to Seller and its affiliates shall be deemed deleted
from the Mortgage and Buyer or its Assignee shall be substituted in
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its place; (c) the outstanding principal balance due under the Note; (d) that
there are no events of default outstanding with respect to the Obligations and
no event which with the passage of time or giving of notice or both would
constitute an event of default under any of the obligations; and (e) that upon
the Closing, Seller shall assign to Buyer or its Assignee and, Buyer or its
Assignee shall assume, all of Seller's rights, duties and obligations under the
obligations as modified pursuant to this section with respect to the Property
from and after the Closing. The foregoing instrument is hereinafter referred to
as the Mortgage Consent and Assignment and Assumption Agreement or "Mortgage
Agreement" in substantially the form attached hereto as Exhibit E. Subject to
Section 3.09, any fees or expenses related to obtaining the Mortgage Agreement
from the Mortgagee of the Mortgage or otherwise incurred in obtaining the
consent of the holders shall be borne by Seller. In the event Buyer is not
satisfied with the form of Mortgage Agreement that Mortgagee is willing to
deliver then Seller shall have the right to satisfy its debt to Mortgagee at
Closing.
3.4. Title. Title to the Property shall be (a) good and marketable and
free of all liens, encumbrances, restrictions, easements and rights of others of
record but shall be subject to the permitted title exceptions, shown of record
and approved by Buyer, none of which shall inhibit or prohibit the use and
operation of the Property as it is being used and operated on the Closing Date
(collectively the "Permitted Encumbrances"), and (b) insurable as aforesaid at
regular standard rates pursuant to a Form
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insurable as aforesaid at regular standard rates pursuant to a Form T-1 Owner's
Policy of Title Insurance with the survey deletion endorsement and in an amount
equal to the Purchase Price (such policy with such endorsement, the "Title
Policy").
Without in any way limiting the generality of the foregoing, Seller
covenants and agrees to satisfy, release and discharge of record that certain
Deed of Trust, dated September 27, 1985 and recorded in Volume 1210, page 705 in
the County Clerk's Office of Cameron County, Texas, as modified by (i) Note and
Deed of Trust Modification Agreement dated September 27, 1985 recorded in Volume
1210, page 738 of such office, (ii) Second Note Modification Agreement dated
October 14, 1985 and (iii) Wraparound Note and Mortgage Assignment, Assumption
and Modification Agreement, dated January 1, 1992, recorded in Volume 2353, page
286 of such office.
If title to the Property cannot be conveyed to Buyer at the time of
Closing in accordance with the requirements of this Agreement, then Buyer shall
have the option:
a) of taking such title as Seller can cause to be conveyed and/or
waiving the unfulfilled condition, without abatement of the Purchase Price
(except that any existing encumbrance on the Property securing a monetary
obligation created or incurred by Seller or Tenant shall be required to be
removed forthwith by the payment of the precise amount due and owing, not
including any premium, and discharged by Seller from the proceeds of the
Purchase Price), whereupon the parties hereto shall consummate the transaction
as contemplated and the provisions
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relating to the condition of title shall be deemed waived by Buyer; or
b) of terminating this Agreement by written notice to Seller,
whereupon this Agreement shall be deemed terminated as of the date of such
notice, the provisions of Section 2.02(a)(i)(cc) shall apply, and neither Seller
nor Buyer shall be further obligated to the other.
3.05. Survey. Seller shall deliver to Buyer an ALTA survey of the Property
dated after the effective date of this Agreement, certified to Buyer and Escrow
Agent showing metes and bounds of the Property and describing and locating the
Permitted Encumbrances.
3.06. Environmental Compliance. Seller shall provide Buyer with evidence,
in the form of a Phase I Environmental Assessment dated after the date hereof
and made for Buyer's direct benefit, that the Property is not subject to the
presence of any hazardous substance, material or waste which would render the
Property environmentally defective. In the event the Phase I Environmental
Assessment is not satisfactory to Buyer, Buyer shall have the right, at its sole
cost and expense to order a Phase II Environmental Assessment. In the event
Buyer determines that the Phase II Environmental Assessment is unsatisfactory,
Buyer shall immediately notify Seller, whereupon this Agreement shall be
terminated, the Deposit and any interest earned thereon shall be returned to
Buyer and neither party shall be further obligated to the other.
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3.07. Deed. The deed conveying the Property to Buyer shall be a special
warranty deed in proper form for recording in the State of Texas and shall be
duly executed and acknowledged so as to convey to Buyer fee simple title to the
Property subject only to the Permitted Encumbrances (the "Deed").
3.08. Contingency Date. Seller shall deliver to Buyer the Wal-Mart Waiver
Title Commitment (which shall include complete and legible copies of all
recorded and unrecorded documents referenced therein), Survey, Environmental
Assessment and notice of receipt of the limited partner's consent in accordance
with Sections 3.01, 3.02, 3.04, 3.05 and 3.06 hereof. If Buyer shall consider
any of such items as unsatisfactory, then Buyer must notify Seller of its
specific objection within seven (7) days of receipt thereof provided that with
respect to title, it shall be seven (7) days after Buyer's receipt of the later
of the Survey or the Title Commitment. Seller shall then have fifteen (15) days
to cure such objection to the reasonable satisfaction of Buyer, unless Seller
notifies Buyer that it will require additional time to cure the objection, which
additional time cannot exceed fifteen (15) days, unless otherwise agreed by the
parties, at the end of which period the specific condition precedent will be
satisfied, unless waived without any adjustment to the Purchase Price or deemed
unsatisfied by Buyer. In the event any condition is unsatisfied, the provisions
of Section 2.02(a)(i)(cc) shall apply, this Agreement shall be null and void and
neither party shall have any further obligations to the other hereunder. The
date by which all such
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items listed above shall be delivered to Buyer shall be hereinafter referred to
as the "Contingency Date" which the parties hereto agree shall be on or before
thirty (30) days after the Execution Date.
3.09. Transfer Fee/Yield Maintenance Fee.
(a) In the event Buyer timely elects to assume the obligations in
accordance with Section 3.03, then, at the Closing (1) seller shall pay to the
Mortgagee the lesser of (i) an amount equal to the one percent (1%) transfer and
assumption fee set forth in the Mortgage (the "Transfer Fee Amount"), and (ii)
the amount which would have been payable by Seller under the Mortgage as a yield
maintenance fee if Seller had paid off the Obligations at the Closing (such
amount, the "Yield Maintenance Amount"), and (2) Buyer shall pay to the
Mortgagee the amount by which the Transfer Fee Amount exceeds the Yield
Maintenance Amount, if any.
(b) In the event that the Yield Maintenance Amount exceeds the
Transfer Fee Amount (the amount of such excess, the "Yield Amount Excess"), then
Seller shall retain such Yield Amount Excess.
ARTICLE 4. CLOSING AND ESCROW
4.1. Escrow Instructions. This Agreement, together with any "General
Provisions" on Escrow Agent's standard preprinted form of escrow instructions,
shall serve as the instructions to Escrow Agent for consummation of the purchase
and sale contemplated hereby. In the event Escrow Agent fails to timely execute
and deliver counterparts of this Agreement and any supplemental
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instructions in a timely manner, either Buyer or Seller may substitute as Escrow
Agent hereunder any other title or escrow company reasonably acceptable to the
other which is willing to so execute and deliver this Agreement. Seller and
Buyer agree to execute such additional and supplemental escrow instructions as
may be appropriate to enable the Escrow Agent to comply with the terms of this
Agreement; provided, however, that in the event of any conflict between the
provisions of this Agreement and any supplemental escrow instructions, including
such General Provisions, the terms of this Agreement shall control, unless the
parties hereto specifically state that the same is meant to modify this
Agreement. The date that Escrow Agent accepts this Agreement shall be deemed the
date of "Opening of Escrow".
4.02. Closing. The Closing shall occur by mail through the Escrow Agent or
at such offices and in such manner as the parties may mutually agree. Subject to
Section 6.01(i), the Closing shall occur on the later to occur of (a) fourteen
(14) days after the Contingency Date, and (b) subject to Section 6.01(l), two
(2) business days after the delivery by Mortgagee of the executed Mortgage
Agreement. The words "Close", "Closing Date" or "Closing" shall mean the time of
recordation of the Deed, Lease Assignment and Assumption Agreement and the
Mortgage Agreement, if Buyer timely elects to assume the Obligations.
ARTICLE 5. PROPATIONS AND APPORTIONMENTS
5.1. Any rents paid or payable under the Lease and, if the Obligations are
timely assumed by Buyer, interest on the
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Obligations paid by Seller shall be prorated or adjusted as of the date of
Closing. Notwithstanding the foregoing, Buyer and Seller agree that the entire
percentage rent due to Seller for the Wal-Mart fiscal year ending January 31,
1998 shall be paid to Buyer. This Article 5.01 shall survive Closing.
5.02. Seller shall pay for all transfer and deed taxes, recording charges,
documentary stamps, survey preparation, Phase I Environmental Assessment, title
search and examination fees, premium for the Title Policy and, subject to
Section 3.09, any transfer fees due the Mortgagee. Buyer and Seller shall each
pay its own legal fees.
ARTICLE 6. DELIVERY OF DOCUMENTS
6.01. Additional Documents to be Delivered by Seller. Seller shall deliver
the following documents to Buyer at or prior to Closing as a condition of
Buyer's obligation to complete Closing hereunder:
a) Estoppel Letter;
(i) An Estoppel Letter dated no earlier than thirty (30) days
prior to Closing and Waiver of Preferential Right to Purchase from Wal-Mart
signed by an authorized officer, substantially in the form attached hereto as
Exhibits "B" and "C".
(ii) If Buyer timely elects to assume the Obligations, an
Estoppel Letter dated no earlier than thirty (30) days prior to Closing and
consents from Mortgagee signed by authorized officers, substantially in the form
attached hereto as Exhibit D.
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(b) Plans and Specifications; Any set of plans and/or working
drawings pertaining to the construction of the building and improvements which
are in possession of Seller.
c) Title Policy; The Title Policy dated the Closing Date issued by
the Escrow Agent, showing title to be as described in Section 3.04 above.
d) Cash, Deed, Assignment and Assumption of Lease; At Closing, Buyer
shall wire transfer the Cash Purchase Price or the remainder of the Purchase
Price, as the case may be, to Escrow Agent. At that time, Seller shall cause
Escrow Agent to record and deliver to Buyer (i) the Deed; (ii) the Lease
Assignment and Assumption Agreement; and (iii) if Buyer timely elects to assume
the obligations, the Mortgage Agreement. Upon recordation of the aforesaid
documents, Escrow Agent shall be authorized and directed to release the Cash
Purchase Price, as adjusted, to or at the direction of Seller and in accordance
with the provisions of this Agreement.
e) Warranties and Guarantees; An assignment (subject to any rights
of Wal-Mart therein) by Seller to Buyer of any remaining warranties or
guarantees of any general contractors, subcontractors, materialmen and equipment
suppliers performing any work on, or supplying any material to, the Property,
together with the original, executed copies of any such warranties and
guarantees in possession of Seller.
f) Licenses and Permits; An assignment of all transferable licenses,
permits, certificates and approvals, if any,
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existing in connection with the Property, to the extent that any such items have
not already been assigned to Wal-Mart pursuant to the Lease.
g) Environmental Compliance; Evidence in the form of a Phase I
Environmental Assessment dated after the date hereof and made for Buyer's direct
benefit that the Property is not subject to the storage, disposition or presence
of any hazardous substance, material or waste which would render the Property
environmentally defective.
h) Lease; The original executed documents, or if unavailable,
certified copies constituting the Lease, together with a Lease Assignment and
Assumption Agreement substantially in the form attached hereto as Exhibit "E".
i) Survey; An ALTA As-Built Survey dated December 16, 1996, redated,
revised and certified to Buyer and the title company.
j) FIRPTA Certificate; An executed FIRPTA Certificate.
k) Tenant Notice; Seller will deliver an executed notice to Wal-Mart
of the completion of the sale and directing Wal-Mart to pay all rent and other
payments thereafter due under the Lease at the direction of Buyer, including
percentage rents due under the Lease for the fiscal year ending January 31,
1998.
l) Mortgage Agreement; In the event Buyer timely elects to assume
the Obligations pursuant to Section 3.03, then, if Seller has received the
executed Mortgage Agreement from the Mortgagee, Seller shall deliver such
document, together with originals of, or
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certified copies of, all of the documents evidencing or securing the obligations
to the Closing. In the event the Mortgage Agreement is not received by Seller on
or before fourteen (14) days after the Contingency Date, then Seller shall have
the option to adjourn or postpone the Closing for up to sixty (60) days after
the Contingency Date. If the Mortgage Agreement is not received by Seller on or
before the date designated by Seller, from time to time, as the final Closing
Date (which date shall not extend beyond sixty (60) days after the Contingency
Date) then, Section 2.02(a)(i)(cc) shall apply for all purposes. If Buyer elects
(or is deemed to have elected) for Seller to payoff the Obligations pursuant to
Section 3.03, then, Seller shall deliver evidence that the Mortgage will be
released on the Closing Date.
6.02. Documents to be Delivered by Buyer. Buyer shall deliver to Seller at
closing:
a) An executed Lease Assignment and Assumption Agreement
substantially in the form attached hereto as Exhibit "E".
b) An executed Mortgage Agreement, if Buyer timely elects to assume
the Obligations.
c) Such other documents as the Holders may reasonably require.
ARTICLE 7. REPRESENRATIONS
7.1 Seller's Warranties. Seller warrants, covenants and represents to
Buyer as follows, all of which warranties, covenants
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and representations are and shall be true and correct as of the date of this
Agreement and shall be true and correct as of the Closing:
a) Seller is a limited partnership duly organized and existing under
and by virtue of the laws of the State of New Jersey, and has full power and
authority to enter into this Agreement and to perform its obligations hereunder.
The limited partnership agreement of Seller provides the general partner, DVL,
Inc., with authority to execute any and all documents necessary for this
transaction assuming limited partner consent in accordance with Section 3.01
hereof is obtained. DVL, Inc. is a corporation duly organized, existing and in
good standing under and by virtue of the laws of the State of Delaware and has
full power and authority to enter into this Agreement as general partner of
Seller and to perform its obligations hereunder.
b) (i) Except for those documents constituting the Lease, there
are no other agreements, understandings or promises, oral or written, between
Seller and Wal-Mart relating to the Property, and no outstanding contracts or
leases entered into by Seller relating to the use, occupancy, maintenance or
otherwise relating to the Property.
(ii) The copy of the Lease delivered by Seller to Buyer is a
true, accurate and complete copy of the Lease and has not been further modified
or amended. Seller will not modify the Lease after the date of this Agreement
without the prior written consent of Buyer. The Lease is in full force and
effect other
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than Wal-Mart, there are no tenants, occupants or other parties having any right
or option to occupy the Property or any portion thereof.
(iii) There has been no default by Wal-Mart in the payment of
rent or any other sum of money under the Lease, nor to the knowledge of Seller
has there been any default by Wal-Mart in the performance of any other covenant,
agreement or condition contained in the Lease. There are no sums to be credited
to Walmart or any setoffs against rent which may be claimed by Wal-Mart by
reason of any alterations, rental allowances, repairs, free rent or otherwise,
and Wal-Mart has not paid Seller any deposit or sum as security under the Lease.
Wal-Mart has no renewal options, purchase options or rights of first refusal
with respect to the Property except as shown in the Lease. No rents under the
Lease have been prepaid other than for the current month and Seller will not
accept any prepayment of rent, other than for the then current month, after the
date hereof. Except for the obligations, neither the Lease nor the rents payable
thereunder have been assigned, pledged or otherwise encumbered that will not be
removed prior to the Closing. No broker or other intermediary is entitled to
receive any leasing, brokerage or other compensation cut out of, or with respect
to, rents under the Lease.
(iv) All obligations of Seller as lessor under the Lease which
shall have accrued at or prior to the Closing will have been performed at or
prior to the Closing. Seller has taken no action which would constitute a
default under the Lease or which,
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with notice or passage of time or both, would constitute a default under the
Lease.
c) (i) The copies of the Obligations delivered by Seller to Buyer
are true, correct and complete copies thereof and have not been further modified
or amended. Seller will not modify or amend the Obligations after the date of
this Agreement without the prior written consent of Buyer.
(ii) Seller has taken no action which would constitute a
default under the Obligations, or which, with notice or passage of time or both,
would constitute a default under the obligations. Seller shall, between the date
hereof and the date of closing, fully comply with all of the terms and
conditions to be performed under the Obligations. All duties, responsibilities
and agreements of Seller under the Obligations which shall have accrued at or
prior to the Closing shall have been performed at or prior to the Closing. To
the best of Seller's knowledge, there has occurred no default by the Mortgagee
in the performance of any of their respective obligations under the obligations.
d) No assessments for public improvements have been made against the
Property which remain unpaid and Seller has no knowledge and has received no
notice of any proposed assessment for public improvements.
e) Seller has no knowledge of any action, suit or proceeding
pending, threatened against or affecting the Property or any portion thereof
(including but not limited to a pending or threatened, or contemplated
condemnation of the Property), or
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relating to or arising out of, the ownership, management or operation of the
Property.
f) There are no outstanding, uncured notices issued by any municipal
or other governmental authority, or by any insurance carrier which has issued a
policy with respect to the Property, requiring or calling attention to the need
for any work, repairs, construction or installation on, about, or in connection
with the Property.
g) The Property is properly zoned (or any variances required have
been properly obtained) for the operation of the building and improvements
presently being operated thereon, and all necessary governmental consents,
permits and approvals for such use and operation have been obtained. Neither the
execution of this Agreement nor the conveyance to be made pursuant hereto
constitute a subdivision or require any consent, approval or permit of any
governmental authority.
h) To the best of Seller's knowledge without conducting any
independent investigation, the building and improvements constructed on the
Property are presently in good order and repair, the roof is free from leaks and
there currently are no maintenance or repair contracts pending or in progress
relating to the Property.
i) At the Closing, Buyer (as to the Property) and the Property will
be free of any employment, management, equipment, supply or maintenance
contracts which in any way affect the Property and Buyer shall be under no
obligations to hire, or
22
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recognize any responsibility to, any person, persons or companies employed by
Seller in connection with the operation of the Property. Notwithstanding the
aforesaid, Seller makes no representation or warranty with respect to any
contracts made by Wal-Mart.
j) At the Closing, there will be no debts, liabilities or
obligations of Seller arising from the ownership and operation of the Property,
including, but not limited to, salaries, taxes, rates, levies and assessments
which may entitle any third party to file any lien(s) or charge(s) against the
Property.
k) To the best of Seller's knowledge, without any independent
investigation, all water, sewer, gas, electric, telephone and drainage
facilities, and all other utilities required by law or by the normal operation
of the Property are installed to the Property lines and connected to the
Property with valid permits and are adequate to service the Property so as to
permit full compliance with all existing requirements of law and normal usage of
the improvements. To the best of Seller's knowledge, without any independent
investigation, all electrical, mechanical, plumbing and similar systems on the
Property are in good repair and working order.
l) The Closing contemplated by this Agreement will not constitute or
result in any default or event that with notice or lapse of time, or both, would
be a default, breach or violation of any lease, mortgage, deed of trust,
covenant or other agreement, instrument or arrangement by which Seller or the
Property is bound.
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Seller is not in default under any notice, evidence of indebtedness, lease,
contract, license, undertaking or other agreement where the liability thereunder
might adversely affect Seller's liability to perform its obligations under this
Agreement.
m) Seller will pay all bills and claims in connection with the
construction or any repair of any improvements for work done prior to Closing.
Seller shall have the right to contest the same, but shall not allow any lien
foreclosure to be consummated on the Property or any part thereof or interest
therein with respect to any such xxxx or claim. If any claim is contested,
Seller shall deposit cash, bond, or letter of credit with the Title Company,
sufficient to satisfy such lien and to cause the Title Company to affirmatively
insure against collection thereon, and the closing will proceed as though the
lien(s) was (were) satisfied.
n) To the best of Seller's knowledge without conducting any
independent investigation, Seller has all of the necessary licenses, permits,
easements and rights-of-way for the conduct and operation of the Property for
the purposes for which they will be conducted and operated pursuant to the
Lease.
o) If prior to Closing, Seller becomes aware of any fact or
circumstance which would change a representation or warranty, then Seller will
immediately give notice of such changed fact or circumstance to Buyer, but such
notice shall not relieve Seller of its liabilities or obligations with respect
thereto. At Closing, Seller shall be deemed to state that all of the
representations and warranties contained in this Section 7.01 are true and
correct as
24
25
of the Closing, except as to facts, if any, concerning which Buyer was notified.
ARTICLE 8. MISCELLANEOUS
8.01 Brokers. Seller and Buyer each warrant and represent to the other
that the only brokers they have dealt with in connection with this transaction
are Progressive Properties, Inc., 000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx,
XX 00000, Atty: Pichard X. Xxxxxxx (the "Broker"). A total commission of $15,000
shall be paid to the Broker by Seller at Closing, subject however to a separate
agreement by and between Seller and Broker. In the event that any other claim is
asserted by any other person, firm or corporation, whether a broker or
otherwise, claiming a commission and/or finder's fee in respect to this
transaction resulting from any act, representation or promise of Buyer or
Seller, as the case may be, the party making such representation or promise or
committing such act shall indemnify and save harmless the other from all loss,
costs or expenses caused by any such claim.
8.02. Damage or Destruction. Between the date hereof and Closing, Seller
assumes the full risk for any damage or destruction to the Property by fire or
the elements. The cost of the work of restoring, rebuilding, repairing and
replacing shall be borne by Seller, at its sole cost and expense, prior to the
Closing. Seller shall have an affirmative obligation to repair or cause the
repair of the damage or destruction referred to herein, but, in the event that
any damage or destruction to the Property cannot be repaired by the Closing,
Buyer may, at its election: a) consummate the
25
26
purchase contemplated hereunder by paying the Purchase Price herein set forth
less only the amount of any deductible under Seller's policy of insurance, with
Buyer either (i) receiving the proceeds of any insurance paid in connection with
such damage or (ii) receiving the affirmative undertaking of Wal-Mart that it is
repairing and restoring the Property at its sole cost and expense; or b) cancel
this Agreement by written notice to Seller, in which case the Deposit plus any
accrued interest shall be immediately returned to Buyer without offset and
neither of the parties hereto shall have any further liability or obligation
hereunder.
8.03. Condemnation. If, prior to Closing, all or any part of the Property
shall be condemned by governmental or other lawful authority, then this
Agreement shall be null and void, the deposit and interest accrued thereon shall
be returned to Buyer, and neither party shall have any further liability
hereunder. If prior to Closing, all or any part of the Property shall be subject
to a threat of condemnation by governmental or other lawful authority, then
Buyer may, at its election, cancel this Agreement, in which event the Deposit
plus any accrued interest shall be returned to Buyer without offset and neither
party shall have any further liability hereunder.
8.04. Notices. All notices, demands or other communications which are
required or permitted to be given hereunder shall be in writing and shall be
personally delivered or sent by registered or certified mail, postage prepaid,
return receipt requested, or by
26
27
telecopy or Federal Express or similar delivery service, addressed to the
respective parties as follows:
If to Seller:
Brownsville Associates Limited Partnership
00 Xxxxx Xxxx
P. 0. Xxx 000
Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx Xxxx
with a copy to:
c/o DVL, Inc.
00 Xxxxx Xxxx
P. 0. Xxx 000
Xxxxxx, Xxx Xxxxxx 00000
Attention: General Counsel
If to Buyer:
Net 1 L.P.
c/o The LCP Group
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxx, President
with a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
or to such other address as either party may from time to time designate by
notice to the other given in accordance with this section. Notice shall be
deemed to have been given upon the receipt thereof in the case of personal
delivery, or upon deposit in the U.S. mail in the case of mailing, or upon
delivery to the delivery service in the case thereof.
8.05. Right to Assign Agreement. Buyer shall assign its rights under this
Agreement to a single purpose entity which may be a subsidiary of Buyer or
Lexington Corporate Properties, The LCP Group, East Xxxxx Corporation or Net 2
L.P. without the consent of
27
28
Seller. The term "Buyer" as used herein shall be deemed to include any assignee
of Buyer.
8.06. Exculpation. This Agreement is executed by the authorized
representatives of Buyer and Seller, not individually. All persons dealing with
Buyer or Seller must look solely to the assets of Buyer or of Seller for the
enforcement of any claim against it. The obligations hereunder are not binding
upon, nor shall resort be had to, the private property of any of the partners,
directors, officers, advisors, employees or agents of Buyer or Seller.
8.07. Interpretation. This Agreement shall be governed by the laws of the
State of Texas. The captions of articles, sections and subsections used in this
Agreement are for convenience only. The singular shall include the plural, and
the masculine, feminine and neuter genders shall include the others. The
provisions hereof shall be binding upon and inure to the benefit of the
successors and assigns of Seller and Buyer. In the event any portion of this
Agreement shall be declared by any court of competent jurisdiction to be
invalid, illegal or unenforceable, such portion shall be deemed severed from
this Agreement, and the remaining parts hereof shall remain in full force and
effect, as fully as though such invalid, illegal or unenforceable portion had
never been part of this Agreement.
8.08. Additional Documents. From time to time prior to and at the Closing,
each party shall execute and deliver such instruments of transfer and other
documents as may be reasonably
28
29
requested by the other party to carry out the purpose and intent of this
Agreement. Any amendments to this Agreement must be in writing signed by all
parties hereto. Any waivers provided for in this Agreement must be made in
writing by the party to be bound thereby.
8.09. No Recording. This Agreement shall not be lodged for record in any
place or office of public record. If Buyer records this Agreement, Seller, at
its option, may cancel this Agreement and retain the deposit as liquidated
damages; provided, however, the filing or recording of this Agreement as part of
any proceedings instituted in any court of proper jurisdiction to enforce the
provisions of this Agreement shall not be deemed a breach of this Section 8.09.
8.10. Property Sold "As Is". Except as otherwise provided herein, Buyer is
purchasing the Property "as is, where is, with all faults".
8.11. Binding Effect. This Agreement shall be binding upon and shall
benefit the parties hereto and their respective heirs, successors and assigns.
8.12. Attorney's Fees. In the event the Closing fails to occur and either
Seller or Buyer shall commence legal proceedings for the purpose of enforcing
Section 2.02(a) and/or Section 8.01, then the successful party in such
proceeding shall be entitled to reasonable attorney's fees and costs as
determined by the court. In the event the Closing occurs and either Seller or
Buyer shall commence legal proceedings with respect to a breach of any term or
29
30
provision of Article 7 or Section 8.01, then the successful party in such
proceeding shall he entitled to reasonable attorney's fees and costs as
determined by the court.
8.13. Dependency and Survival of Provisions. The respective warranties,
representations, covenants, agreements, obligations and undertakings of Seller
and Buyer hereunder shall be construed as dependent upon and given in
consideration of those of the other party, and shall survive the Closing and the
delivery of the Deed.
8.14. Publicity. Prior to Closing, Buyer and Seller agree that no press
release or other public disclosure shall be made by it or any of its agents
concerning this transaction without the prior written consent of the other
party. This provision shall not be deemed to prohibit governmentally required
disclosures.
8.15. Entire Agreement. This Agreement, including the Exhibits annexed
hereto, represents the entire agreement between the parties with respect to the
Property, and may not be modified or terminated except by agreement, in writing,
signed by the parties. There are no representations, agreements, arrangements,
or understandings, oral or written, relating to the subject matter which are not
fully expressed herein.
30
31
IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Sale the day and year first above written.
SELLER:
BROWNSVILLE ASSOCIATES LIMITED PARTNERSHIP
By: DVL, Inc.,
general partner
WITNESS:
By:
--------------------------------------
---------------------- Xxxxx Xxxxxx,
(Corporate Seal) Asst. Vice President
BUYER:
NET 1 L.P.
By: Lepercq Net I L.P.
By: Lepercq Net I Inc.
ATTEST:
By:
--------------------------------------
---------------------- Name: Xxxxxxx X. Xxxxxxxx
(Corporate Seal) Title: Vice President
31
32
STATE OF NEW JERSEY )
) ss.:
COUNTY OF BERGEN )
Before me, a Notary Public, in and for said State and County, personally
appeared Xxxxx Xxxxxx, known to me to be the person, who, as an Asst. Vice
President of DVL, INC., general partner of BROWNSVILLE ASSOCIATES LIMITED
PARTNERSHIP, the corporation which executed the foregoing instrument, signed the
same, and acknowledged to me that he signed said instrument in the name and upon
behalf of said corporation, as his free act and deed; that he was duly
authorized by the board of directors of said corporation.
In witness whereof, I have subscribed my name this 21st day of April,
1997.
----------------------------------------
Notary Public
(Seal)
My commission expires:__________________
XXXX X. XXXXXXX-XXXXXX
Notary Public. State of New Jersey
No. 2193991
Qualified in Bergen County
Commission Expires September 15.2001
STATE OF NEW York )
) ss.:
COUNTY OF NEW YORK )
Before me, a Notary Public, in and for said State and County, personally
appeared Xxxxxxx X. Xxxxxxxx, known to me to be the person who as Vice President
of Lepercq Net 1 Inc., the corporation which executed the foregoing instrument,
signed his name, and acknowledged to me that he signed said instrument in the
name and on behalf of said corporation, as his free act and deed, that he was
duly authorized by the board of directors of said corporation.
In witness whereof, I have subscribed my name this 18th day of April,
1997.
----------------------------------------
Notary Public
(Seal)
My commission expires:__________________
XXXX X. XXXXXXXX
Notary Public, State of New York
No. 00-0000000
Qualified in Suffolk County
Commission Expires August 3, 1997
32
33
EXHIBITS
A. Legal Description
B. Tenant Estoppel
C. Tenant Waiver
D. Assignment and Assumption of Lease
E. Mortgage Agreement
34
-1-
EXHIBIT A
D-751340
Being a tract or parcel of land containing 7.9264 acres (called 7.927 acres)
more or less, located in the Xxxxxxx Xxxxxxx Banco, Number 5 in Share 00,
Xxxxxxxx Xxxxx Xxxxx, Xxxxxxx Xxxxxx, Xxxxx and being Xxx 0, Xxxxx 0, Xxx-Xxxx
Addition No. 456 of record in Cabinet 1, Page 263-A of the Map Records of
Cameron County, Texas which is out of and a part of Block 4 of Amigoland Xxxx
"X" of Section II of record in Volume 26, Page 44 of the Map Records of Cameron
County, Texas, said 7.9264 acres being that same tract from the State of
California Public Employees' Retirement System to Brownsville Associates Limited
Partnership by General Warranty Deed dated October 1, 1985, of record in Volume
1431, Page 176 in the Deed Records of Cameron County, Texas, and being more
particularly described by metes and bounds as follows (bearings based on the
plat of Wal-Mart Addition No. 456):
BEGINING at a 1 inch disk in concrete found at the intersection of the southeast
right-of-way line of East 0xx Xxxxxx (200 feet wide) as shown on the plat of
AmigoLand Unit "A", Section II of record in Volume 25, Page 24 of the Map
Records of Cameron County, Texas, with the southwest right-of-way line of Calle
Amistosa (60 feet wide) as shown on aforesaid plat of Amigoland Unit "B",
Section II;
THENCE, South 43 degrees 51 minutes 41 seconds East, along the southwest
right-of-way line of aforesaid Calle Amistosa, a distance of 369.46 feet to a
5/8 inch iron rod found marking the beginning of a curve to the right;
THENCE, along the arc of aforesaid curve to the right and the southwest
right-of-way line of Calle Amistosa, thru a central angle of 43 degrees 35
minutes 08 seconds, having a radius of 340.00 feet, an arc length of 258.64 feet
and a long chord bearing South 22 degrees 04 minutes 07 seconds East, a distance
of 252.45 feet to the end of said curve and the most north and east corner of
Lot 2 as shown on the aforesaid plat of Wal-Mart Addition No. 456, from which a
1/2 inch iron rod found bears South 48 degrees 02 minutes East, a distance of
0.26 foot, and also a 1/2 inch iron rod found marking the end of the overall
curve for said Calle Amistosa, bears along the arc of said curve to the right,
thru a central angle of 25 degrees 18 minutes 23 seconds, an arc length of
150.17 feet and a long chord bearing South 12 degrees 22 minutes 38 seconds
West, a distance of 148.95 feet.
THENCE, South 89 degrees 43 minutes 27 seconds West, along the common line of
Lots 1 and 2 of aforesaid Wal- Addition No. 456 a distance of 95.55 feet to an
interior corner of said Lot 1, from which a 5/8 inch iron rod found bears South
43 degrees 51 minutes 41 seconds East, a distance of 0.19 foot;
00
-0-
XXXXXX, Xxxxx 43 degrees 51 minutes 41 seconds West. along the common line of
aforesaid Lots 1 and 2 a distance of 35.00 feet to an interior corner of said
Lot 1;
THENCE, South 46 degrees 08 minutes 19 seconds West, along the common line of
aforesaid Lots 1 and 2, at a distance of 0.31 foot pass a 518 inch iron rod
found disturbed and continue for an overall distance of 515.00 feet to a 1/2
inch iron rod found in the northeast right-of-way line of Mexico Street (200
foot right-of-way) as shown in Volume 93, Page 343 of the Deed Records of
Cameron County, Texas, in the arc of a curve to the left, from which a radial
line bears, South 53 degrees 05 minutes 58 seconds West;
THENCE, along the arc of aforesaid curve to the left and the northeast
right-of-way line of aforesaid Mexico Street, thru a central angle of 06 degrees
58 minutes 36 seconds, a radius of 881.54 feet, an arc length of 107.34 feet and
a long chord bearing North 40 degrees 23 minutes 20 seconds West, a distance of
107.28 feet to the end of said curve, from which a PK nail found bears, South 46
degrees 07 minutes 22 seconds West, a distance of 1.80 feet;
THENCE, North 43 degrees 52 minutes 38 seconds West, along the northeast
right-of-way line of aforesaid Mexico Street a distance of 395.92 feet to a 1
inch disk in concrete found at the intersection with the southeast right-of-way
line of aforesaid East 6th Street, from which a 1/2 inch iron rod found at the
south most corner of aforesaid Amigoland Unit "A", Section II bears, South 46
degrees 08 minutes 19 seconds West, a distance of 200.00 feet;
THENCE, North 46 degrees 08 minutes 19 seconds East, along the southeast
right-of-way line of aforesaid Xxxx 0xx Xxxxxx a distance of 671.54 feet to the
POINT OF BEGINNING and containing 7.9264 acres of land, more or less.
Note for information: Account # 07-6462-0000-0010-00.
36
EXHIBIT B
Subject: Wal-Mart Store #456
Gentlemen:
Wal-Mart Stores, Inc. is a tenant of Brownsville Associates Limited Partnership
by virtue of a lease dated August 26, 1983 with respect to certain real property
located in Brownsville, Texas (the "Property").
We understand this letter and the information contained herein is a necessity to
your determination of whether or not you will acquire the Property.
Except as noted herein below, Wal-Mart certifies and affirms to the best of
knowledge that:
a. The Lease has not been modified and is in full force and effect as
written.
b. The Leased Premises at ______________ have been accepted for
possession by Wal-Mart on or about ______________.
c. Wal-Mart has no charge, lien, claim or off-set under the Lease, or
otherwise, against the rents required thereunder.
d. No rentals required under the Lease have been paid for more than 30
days in advance of their due date.
The following requirements, representations, conditions and obligations of
Brownsville Associates Limited Partnership and, pursuant to the terms of the
Lease, have been satisfied and complied with to the satisfaction of Wal-Mart:
1. Any lien or claim against the property which is of record: a. To the
best of our knowledge, none at this time.
2. Maintenance required to repair the following items: a. To the best
of our knowledge, none at this time.
37
Page 2
Estoppel Certificate
Wal-Mart Store #456
The information provided and the representations made herein are intended only
for the use of . Other parties having information and knowledge to the contrary
should not rely on representations made herein as a waiver of any rights,
warranties, or credits of Wal-Mart-Stores, Inc.
Wal-Mart Stores, Inc. requires written notification of any change of address
necessitated by the above contemplated change of ownership. The representations
made herein are hereby made specifically contingent upon receipt by Wal-Mart of
copy of the document evidencing change of ownership, the assignment of lease,
along with a cover letter from the Lessor or previous Lessor acknowledging the
changes. Wal-Mart will not be responsible for untimely payment of rent that
results from the failure of the parties to follow the procedures.
-------------------
Property Management
Wal-Mart Stores, Inc.
38
EXHIBIT C
BROWNSVILLE ASSOCIATES LIMITED PARTNERSHIP
Wal-Mart Stores, Inc.
ATTN: Xxxxxxxx Xxxx, Property Manager
000 X. X. Xxxxxx Xx.
P. 0. Xxx 000
Xxxxxxxxxxx, XX 00000
Re: Wal-Mart Store #456
Brownsville, TX
Dear Xxxxxxxx:
Brownsville Associates Limited Partnership, Landlord of the above
referenced Store, has received a bona fide third party offer to purchase the
Store pursuant to the terms of the Agreement of Sale annexed hereto.
Pursuant to Paragraph 20 of the above mentioned Lease, Wal-Mart has the
right to purchase the Store at the terms described in said offer. Please sign
the enclosed copy of this letter indicating your intentions to waive or exercise
this option within thirty (30) days of receipt of this letter.
Very truly yours,
BROWNSVILLE ASSOCIATES
LIMITED PARTNERSHIP
By: DVL, Inc., general partner
By:
---------------------------
Name:
Title:
Wal-Mart Stores, Inc. hereby chooses to
waive its Preferential Right to Purchase
----------------------------------------
Name:
Title:
Wal-Mart Stores, Inc. hereby chooses to
exercise its Preferential Right to Purchase
----------------------------------------
Name:
Title:
39
EXHIBIT D
LEASE ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS LEASE ASSIGNMENT AND ASSUMPTION AGREEMENT made this day of , 1997 by
and between BROWNSVILLE ASSOCIATES LIMITED PARTNERSHIP, a New Jersey limited
partnership, having an address at 00 Xxxxx Xxxx, Xxxxxx, Xxx Xxxxxx 00000 (the
"Assignor"), and ____________________ , ____________________ a
____________________ , having an address at ______________________________ (the
"Assignee).
W I T N E S S E T H
Contemporaneously with the execution and delivery hereof, Assignor has
sold to Assignee certain land and the buildings and improvements thereon,
located in Cameron County, Texas, and more particularly described in Exhibit "A"
attached hereto and made a part hereof (the "Property"). In connection with the
sale of the Property, Assignor has agreed to assign all leases affecting the
Property to Assignee.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the sufficiency and receipt of which, prior to the
execution hereof, is hereby acknowledged, the parties hereto, intending to be
legally bound, do hereby agree as follows:
1. Assignor hereby conveys, assigns, transfers and sets over to Assignee
all of its right, title and interest in, under and to the following documents
and agreements which are hereinafter collectively called the "Lease":
a. Lease dated January 19, 1983 between State of California
Public Retirement Systems ("Cal/Pers") as Lessor and Wal-Mart
Stores, Inc. ("Wal-Mart") as Lessee;
b. Memorandum of Lease dated January 19, 1983 between Cal/Pers
and Wal-Mart, filed for record January 19, 1983 in Volume 120,
page 227 in the Miscellaneous Deed Records of Cameron County,
Texas.
c. Lease Assignment and Assumption Agreement dated September 23,
1985 from Cal/Pers to Seller filed for record September 30,
1985 in Volume 136, page 738 in the aforesaid records.
d. Amendment to Lease dated January 19, 1983 by, and between
Cal/Pers and Wal-Mart.
e. Second Amendment to Lease dated January 19, 1983 by and
between Cal/Pers and Wal-Mart.
40
2. Assignee hereby accepts the conveyance, transfer and assignment of the
Lease and assumes, from and after the date hereof, the obligations of Assignor
under the Lease.
3. All of the documents constituting the Lease have been delivered to
Assignee simultaneously with the execution hereof. Assignor represents and
warrants that the Lease has not been modified, altered or amended and that other
than the Lease, there are no contracts or agreements with tenants or occupants
affecting the Property.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the day and year first written above.
ASSIGNOR:
BROWNSVILLE ASSOCIATES
LIMITED PARTNERSHIP
By: DVL, INC.,
General Partner
Attest:
By:
--------------------------- ---------------------------------------
Xxxxx X. Xxxxxx Name:
Asst. Secretary Title:
ASSIGNEE:
Attest:
By:
--------------------------- ---------------------------------------
Name: Name:
Title: Title:
00
XXXXX XX XXX XXXXXX )
) ss.:
COUNTY OF BERGEN )
Before me, a Notary Public, in and for said State and County, personally
appeared , ________________ known to me to be the person, who as _______________
of DVL, Inc., general partner of Brownsville Associates Limited Partnership, the
corporation which executed the foregoing instrument, signed the same, and
acknowledged to me that he signed said instrument in the name and upon behalf of
said corporation, as his free act and deed; that he was duly authorized by the
board of directors of said corporation.
In witness whereof, I have subscribed my name this _____ day of ____ ,
1997.
-------------------------------
Notary Public
(Seal) My commission expires: _______
STATE OF )
) ss.:
COUNTY OF )
Before me, a Notary Public, in and for said State and County, personally
appeared ________________ , known to me to be the person, who as
________________ of ________________ , executed the foregoing instrument, signed
the same, and acknowledged to me that he signed said instrument in the name and
upon behalf of said corporation, as his free act and deed on behalf of said
corporation.
In witness whereof, I have subscribed my name this _____ day of ____ ,
1997.
-------------------------------
Notary Public
(Seal) My commission expires: _______
42
-1-
EXHIBIT A
D-751340
Being a tract or parcel of land containing 7.9264 acres (called 7.927 acres)
more or less, located in the Xxxxxxx Xxxxxxx Banco, Number 5 in Share 00,
Xxxxxxxx Xxxxx Xxxxx, Xxxxxxx Xxxxxx, Xxxxx and being Xxx 0, Xxxxx 0, Xxx-Xxxx
Addition No. 456 of record in Cabinet 1, Page 263-A of the Map Records of
Cameron County, Texas which is out of and a part of Block 4 of Amigoland Xxxx
"X" of Section II of record in Volume 26, Page 44 of the Map Records of Cameron
County, Texas, said 7.9264 acres being that same tract from the State of
California Public Employees' Retirement System to Brownsville Associates Limited
Partnership by General Warranty Deed dated October 1, 1985, of record in Volume
1431, Page 176 in the Deed Records of Cameron County, Texas, and being more
particularly described by metes and bounds as follows (bearings based on the
plat of Wal-Mart Addition No. 456):
BEGINING at a 1 inch disk in concrete found at the intersection of the southeast
right-of-way line of East 0xx Xxxxxx (200 feet wide) as shown on the plat of
AmigoLand Unit "A", Section II of record in Volume 25, Page 24 of the Map
Records of Cameron County, Texas, with the southwest right-of-way line of Calle
Amistosa (60 feet wide) as shown on aforesaid plat of Amigoland Unit "B",
Section II;
THENCE, South 43 degrees 51 minutes 41 seconds East, along the southwest
right-of-way line of aforesaid Calle Amistosa, a distance of 369.46 feet to a
5/8 inch iron rod found marking the beginning of a curve to the right;
THENCE, along the arc of aforesaid curve to the right and the southwest
right-of-way line of Calle Amistosa, thru a central angle of 43 degrees 35
minutes 08 seconds, having a radius of 340.00 feet, an arc length of 258.64 feet
and a long chord bearing South 22 degrees 04 minutes 07 seconds East, a distance
of 252.45 feet to the end of said curve and the most north and east corner of
Lot 2 as shown on the aforesaid plat of Wal-Mart Addition No. 456, from which a
1/2 inch iron rod found bears South 48 degrees 02 minutes East, a distance of
0.26 foot, and also a 1/2 inch iron rod found marking the end of the overall
curve for said Calle Amistosa, bears along the arc of said curve to the right,
thru a central angle of 25 degrees 18 minutes 23 seconds, an arc length of
150.17 feet and a long chord bearing South 12 degrees 22 minutes 38 seconds
West, a distance of 148.95 feet.
THENCE, South 89 degrees 43 minutes 27 seconds West, along the common line of
Lots 1 and 2 of aforesaid Wal- Addition No. 456 a distance of 95.55 feet to an
interior corner of said Lot 1, from which a 5/8 inch iron rod found bears South
43 degrees 51 minutes 41 seconds East, a distance of 0.19 foot;
00
-0-
XXXXXX, Xxxxx 43 degrees 51 minutes 41 seconds West. along the common line of
aforesaid Lots 1 and 2 a distance of 35.00 feet to an interior corner of said
Lot 1;
THENCE, South 46 degrees 08 minutes 19 seconds West, along the common line of
aforesaid Lots 1 and 2, at a distance of 0.31 foot pass a 518 inch iron rod
found disturbed and continue for an overall distance of 515.00 feet to a 1/2
inch iron rod found in the northeast right-of-way line of Mexico Street (200
foot right-of-way) as shown in Volume 93, Page 343 of the Deed Records of
Cameron County, Texas, in the arc of a curve to the left, from which a radial
line bears, South 53 degrees 05 minutes 58 seconds West;
THENCE, along the arc of aforesaid curve to the left and the northeast
right-of-way line of aforesaid Mexico Street, thru a central angle of 06 degrees
58 minutes 36 seconds, a radius of 881.54 feet, an arc length of 107.34 feet and
a long chord bearing North 40 degrees 23 minutes 20 seconds West, a distance of
107.28 feet to the end of said curve, from which a PK nail found bears, South 46
degrees 07 minutes 22 seconds West, a distance of 1.80 feet;
THENCE, North 43 degrees 52 minutes 38 seconds West, along the northeast
right-of-way line of aforesaid Mexico Street a distance of 395.92 feet to a 1
inch disk in concrete found at the intersection with the southeast right-of-way
line of aforesaid East 6th Street, from which a 1/2 inch iron rod found at the
south most corner of aforesaid Amigoland Unit "A", Section II bears, South 46
degrees 08 minutes 19 seconds West, a distance of 200.00 feet;
THENCE, North 46 degrees 08 minutes 19 seconds East, along the southeast
right-of-way line of aforesaid Xxxx 0xx Xxxxxx a distance of 671.54 feet to the
POINT OF BEGINNING and containing 7.9264 acres of land, more or less.
Note for information: Account # 07-6462-0000-0010-00.
44
EXHIBIT E
Record and Return To:
Xxxxxxx X. Xxxxxx Esq.
Paul, Hastings, Xxxxxxxx & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
DEED OF TRUST, SECURITY AGREEMENT AND
ASSIGNMENT OF RENTS
MODIFICATION, CONSENT AND
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS DEED OF TRUST, SECURITY AGREEMENT AND ASSIGNMENT OF RENTS
MODIFICATION, CONSENT AND ASSIGNMENT AND ASSUMPTION AGREEMENT is made as of the
day of , 1997 by and among PRINCIPAL MUTUAL LIFE INSURANCE COMPANY ("Lender"),
BROWNSVILLE ASSOCIATES LIMITED PARTNERSHIP ("Seller"), and NET 1 L.P. ("Buyer").
W I T N E S S E T H:
WHEREAS, Lender is the owner and holder of a certain Deed of Trust Note
dated January 27, 1997 in the original principal amount of $2,413,106.05 made by
Seller (the "Note").
WHEREAS, the Note is secured by a certain Deed of Trust, Security
Agreement and Assignment of Rents dated January 27, 1997 (the "Mortgage")
recorded in Book ____ Page _____ in the Deed Records of Cameron County, Texas
which Mortgage encumbers certain real property in Cameron County, Texas more
particularly described in Exhibit "A" annexed hereto and incorporated herein by
reference (the "Property");
WHEREAS, the Note is also secured by a certain Assignment of Lease and
Rents dated January 27, 1997 (the "Assignment") recorded in Volume _____ page
_____ , in the Deed Records of the aforesaid office; and
WHEREAS, Lender is willing to consent to the conveyance of title to the
Property by Seller to Buyer, the assignment by Seller and assumption by Buyer of
Seller's obligations under the Note, the Mortgage and the Assignment
(collectively the "Loan Documents") and the modification and amendment of the
Mortgage and the other Loan Documents subject to and in accordance with the
terms and
45
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises, and the mutual covenants
and agreements of the parties hereinafter set forth, the parties agree as
follows:
1. Consent. Lender hereby consents to the conveyance and transfer of title
to the Property by Seller to Buyer and the assumption by Buyer of Seller's
obligations under the Loan Documents.
2. Assignment. Seller hereby assigns to Buyer all of Seller's right, title
and interest in and to the Note, the Mortgage and the Assignment, and all other
documents securing the Note, to have and to hold the same unto Buyer, its
successors and assigns, provided however, Seller shall remain liable for any and
all obligations under the Loan Documents (other than the principal amount due
under the Note) arising or accruing prior to the date hereof and which have not
been performed or discharged by Seller as of the date hereof.
3. Assumption. Buyer hereby accepts the assignment of Seller's interest in
the Loan Documents and, from and after the date hereof, hereby assumes and
agrees to be bound by the provisions of the Loan Documents, as herein modified
and amended, including, but not limited to, the obligation to make all payments
due under the Note and to perform and observe all of the covenants and
agreements under the Loan Documents in accordance with their terms and
conditions as herein modified and amended.
4. Status of Loan Documents.
(a) As of _______________ , 1997, the outstanding principal balance due
under the Note is $ _________________ .
(b) As of the date hereof, Seller represents and warrants, and Lender
represents and warrants to the best of its knowledge without inquiry, there are
no events of default outstanding under any of the Loan Documents and there is no
event which with the giving of notice or the passage of time or both would
constitute an event of default under any of the Loan Documents.
5. Modification and Amendment.
(a) As of the date hereof, all references to the Seller and
2
46
its affiliates set forth in the Note, the Mortgage and the Assignment are hereby
deleted and Buyer and its affiliates are substituted in their place.
(b) For purposes of Paragraph 33 of the Mortgage, Grantor's address is:
Net 1 L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
6. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original regardless of date of execution or delivery
and together shall constitute one and the same document.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the date and year first above written.
LENDER:
ATTEST: PRINCIPAL MUTUAL LIFE INSURANCE
Company
--------------------------- ---------------------------------------
Name:
Title:
SELLER:
ATTEST: BROWNSVILLE ASSOCIATES
LIMITED PARTNERSHIP
By: DVL, INC., General Partner
By:
--------------------------- ------------------------------------
NAME:
TITLE:
BUYER,:
ATTEST: NET 1 L.P.
By: ________________ General Partner
By:
--------------------------- ------------------------------------
NAME:
TITLE:
3
47
STATE OF )
) ss.:
COUNTY OF )
On the _________ day of ___________ 1996, before me came
________________________ to me known, who being by me duly sworn, did depose and
say that (s)he is the _________________ of Principal Mutual Life insurance
Company, which executed the foregoing instrument, that he/she signed his/her
name thereto as a duly authorized representative of said group.
----------------------------------
Notary Public
(Seal)
My commission expires:_________
STATE OF NEW JERSEY )
) ss.:
COUNTY OF BERGEN )
On the _______ day of ______________ 1996, before me, a Notary Public, in
and for said State and County, personally appeared, _______________________
known to me to be the person, who as ____________________ of DVL, Inc., general
partner of Brownsville Associates Limited Partnership, the corporation which
executed the foregoing instrument, signed the same, and acknowledged to me that
he signed said instrument in the name and upon behalf of said corporation, as
his free act and deed; that he was duly authorized by the board of directors of
said corporation.
1 ----------------------------------
Notary Public
(Seal)
My commission expires:_________
4
48
STATE OF )
) ss.:
COUNTY OF )
Before me, a Notary Public, in and for said State and County,
personally appeared ___________________ , known to me to be the person, who as
__________________ of Net 1 L.P., which executed the foregoing instrument,
signed the same, and acknowledged to me that he signed said instrument as his
free act and deed.
----------------------------------
Notary Public
(Seal)
My commission expires:_________
