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AGREEMNT OF SALE
THIS AGREEMENT OF SALE (the "Agreement") is made this 21 day of April,
1997 by and between NANKIN ASSOCIATES, a New Jersey limited partnership, having
an office at 00 Xxxxx Xxxx, P. 0. Xxx 000, Xxxxxx, Xxx Xxxxxx 00000 (the
"Seller") and NET 2 L.P., a Delaware limited partnership, or its assignee having
an office at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 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 9.7 acres of land and the buildings and improvements
constructed thereon, situated in the City of Westland, County of Xxxxx, State of
Michigan, 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. Free Standing Lease dated April 18, 1988 between Commerce Associates
#1160 Limited Partnership, as landlord and Pace Membership
Warehouse, Inc., as tenant;
b. Memorandum of Lease dated April 18, 1988 between landlord and
tenant, filed for record April 21, 1988 in Liber 23692, page 912 in
the Recorder's Office of Xxxxx, County, Michigan.
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c Lease Assignment and Assumption Agreement dated August 30, 1989 from
landlord to Seller filed for record September 5, 1989 in Liber 2419,
page 772 in the aforesaid records.
d. Assignment and Assumption of Lease dated to be effective on January
10, 1994 from tenant to Wal-Mart Stores, Inc. ("Wal-Mart") .
e. First Amendment to Lease Agreement dated January 10, 1994 between
Seller and Wal-Mart.
On the date hereof, the Property is subject to a Mortgage and Security
Agreement dated September 7, 1989 between Seller, as mortgagor, and Metropolitan
Life Insurance Company ("Mortgagee") , as mortgagee, recorded September 8, 1989
in Liber 24325, Page 212 of the aforesaid records and a Collateral Assignment of
Rents and Leases between Mortgagee and Seller dated September 7, 1989 and
recorded in the aforesaid records at Liber 24325, page 946 on September 8, 1989
(the "Loan Documents") ;
The Loan Documents secure a note of even date therewith in the original
principal amount of $5,700,000 (the "Note") .
The Note and Loan Documents are hereinafter referred to as the
"Obligations".
Photocopies of all of the documents constituting the Lease and the
Obligations have been delivered by Seller to Buyer.
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 the
Obligations.
NOW, THEREFORE, in consideration of the Property and of the mutual
covenants and agreements contained herein, and other good
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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 SEVEN MILLION FIFTY THOUSAND and 00/100 DOLLARS ($7,050,000.00)
(the "Purchase Price") which price
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includes the outstanding principal balance of, and accrued interest on, the
Obligations which at may 1, 1997 shall not exceed $4,743,207. The parties agree
that the actual principal balance of, and accrued interest on, the Obligations
shall be used on the Closing Date in calculating the cash portion of the
Purchase Price. The Purchase Price shall be paid to Seller by Buyer in the
following manner:
a) The Deposit. A ONE HUNDRED THOUSAND DOLLAR ($100,000.00) xxxxxxx
money deposit will 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 directobligations of
the United States of America or any instrumentalityor agency of the United
States of America, or obligationsguaranteed as to the payment of principal and
interest by theUnited States of America, or interest bearing certificates of
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
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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 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.
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(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 (i i) 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.
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
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subject to the following being completed at or prior to Closing or within such
time frame as is specifically designated below:
3.01. 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 Nankin Associates.
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 canceled 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 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
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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. Mortgage Consent. Seller shall deliver to Buyer a writing in
recordable form which, to the satisfaction of Buyer, indicates (a) that the
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 its place; (c) the outstanding principal balance due
under the Note; (d) that there are no events of default outstanding with respect
to the respective 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 Consent and Assignment and Assumption Agreement
or "Mortgage Agreement" in substantially the form attached hereto as Exhibit F.
Any fees or expenses related to obtaining the Mortgage Agreement from Mortgagee
or otherwise incurred in obtaining the consent of the Mortgagee shall be borne
by Seller. If Seller is unable to obtain a Mortgage Agreement from Mortgagee,
the provisions of Section 2.02(a) (i) (cc)
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shall apply, this Agreement shall be null and void and neither party shall have
any further obligation to the other hereunder.
3.04. 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 1992 .Form B ALTA Owner's Title Insurance
Policy with extended coverage in an amount equal to the Purchase Price.
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 de4Lec-@-ive. 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 limited
warranty deed in proper form for recording in the State of Michigan 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") .
3.8. Contingency Date. Seller shall deliver to Buyer the Wal-Mart Waiver,
Mortgage Agreement, 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, 3.03, 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
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shall have any further obligations to the other hereunder. The date by which all
such 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.
ARTICLF 4.. CLOSING AND ESCROW.
4.01. 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 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".
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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. The
Closing shall occur on the later to occur of (a) sixteen (16) days after the
Contingency Date, and (b) two (2) business days after the delivery by Mortgagee
of the executed Mortgage Agreement. 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. The words "Close", "Closing Date" or "Closing" shall mean the time
of recordation of the Deed, Lease Assignment and Assumption Agreement and
Mortgage Agreement.
ARTICLL 5. PRORATIONS AND.APPORTIONMENTS.
5.01. Any rents paid or payable under the Lease and interest on the
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 (or if the fiscal year of Wal-Mart under the Lease is from May 1st to April
30th, then for the Wal-Mart fiscal year under the Lease ending April 30, 1998)
shall be paid to Buyer. This Article 5.01 shall survive Closing.
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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 an ALTA-B owner's title insurance
policy with an amount of insurance equal to the Purchase Price of the Property,
including the Obligations assumed, and any transfer fees due 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 Letters;
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) 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".
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.
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c) Title Policy; A 1992 ALTA owner's policy of title insurance with
extended coverage in the amount of the Purchase Price 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 and Mortgage
Agreements; 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) 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, existing in connection with the
Property, to the extent that any
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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) Mortgage; True and correct copies of all of the executed
documents constituting the obligations, together with the Mortgage Agreement.
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 in 1998.
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 Exhibit "E".
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b) Executed Mortgage Agreement.
c) Such other documents as the Holders may reasonably require.
ARTICLE 7. REPRESENTATIONS.
7.01. Seller's warranties. Seller warrants, covenants and represents to
Buyer as follows, all of which warranties, covenants 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
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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 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 Wal-Mart 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
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the Closing. No broker or other intermediary is entitled to receive any leasing,
brokerage or other compensation 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, 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.
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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 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
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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) 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
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
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and similar systems on the Property are in good repair and working order.
1) 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. 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.
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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 of the Closing, except as to facts, if any, concerning which Buyer
was notified.
ARTICLE 8. MT
8.01- Brokers. Seller and Buyer each warrant and represent to the other
that the only broker they have dealt with in connection with this transaction is
Progressive Properties, Inc., 000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx, XX
80-919, ATTN: Xxxxxxx X. Xxxxxxx (the "Broker") A total commission of $80,000
shall be paid to the Broker by Seller at Closing. 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.
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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 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.
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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 telecopy or Federal Express or similar delivery
service, addressed to the respective parties as follows:
If to Seller:
Nankin Associates
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: Xxxxxx Xxxxxxx, Esq.
If to Buyer:
Net 2 L.P.
c/o The LCP Group
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxx, President
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with a copy to:
Paul, Hastings, Jenofsky & Xxxxxx
000 Xxxx Xxxxxx.
00xx Xxxxx
Xxx Xxxx, XX 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 Assignment. 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 1
L.P. without the consent of 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 Michigan. The captions of articles, sections and subsections used in
this Agreement are for
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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 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.
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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
provision of Article 7 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.
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.
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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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Sale the day and year first above written.
SELLER:
NANKIN ASSOCIATES
By: DVL, Inc.,
general partner
Witness:
________________________________ By:____________________________
(Corporate Seal) Xxxxx X. Xxxxxx
Asst. Vice President
BUYER:
NET 2 L.P.
By: Lepercq Net 2 L.P.
By: Lepercq Net 2 Inc.
ATTEST:
________________________________ By:____________________________
(Corporate Seal) Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
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STATE OF NEW JERSEY )
) ss.:
COUNTY OF BERGEN )
Before me, a Notary Public, in and for said State and County, personally
appeared Xxxxx X. Xxxxxx, known to me to be the person, who, as the Asst. Vice
President of DVL, INC., general partner of NANKIN ASSOCIATES, the corporation
which executed the foregoing instrument, signed the same, and acknowledged to me
that.she signed said instrument in the name and upon behalf of said corporation,
as her free act and deed; that4le 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-XXXXX
Notary Public, State of Now Jersey
No. 2193991
Qualified in Bergen County
Commission Expires September 25. 0000
XXXXX XX XXX XXXX )
) 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 2 Inc., the corporation which executed the foregoing instrument,
signed her name, and acknowledged to me that she signed said instrument in the
name and on behalf of said corporation, as her free act and deed, that she 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
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EXHIBITS
A. Legal Description
B. Tenant Estoppel
C. Tenant Waiver
D. Mortgagee Estoppel
E. Assignment and Assumption of Lease
F. Mortgage Agreement
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EXHIBIT A
A parcel of land in the Southwest one quarter of Section 4 and in the Southeast
one-quarter of Xxxxxxx 0, Xxxx 0 Xxxxx, Xxxxx 0 Xxxx, Xxxx of Xxxxxxxx, Xxxxx
County, Michigan, described as follows:
Commencing at the West one-quarter corner of Xxxxxxx 0, Xxxx 0 Xxxxx, Xxxxx 0
Xxxx, (Xxxx being the East one-quarter corner of Section 5, Town 2 South, Range
9 East) and proceeding thence along the West line of Section 4, South 1 degree
28 minutes 00 seconds East, 342.75 feet to the point of beginning of the parcel
xxxxx described, said point being on the South line of Nankin Boulevard (86 feet
wide) ; thence along the East line of Section 5, South 1 degree 28 minutes 00
seconds East, 295.83 feet; thence South 78 degrees 24 minutes 45 seconds West,
78.58 feet; thence South 11 degrees 35 minutes 15 seconds East 440.22 feet to a
point on the East line of Section 5 and the West line of Section 4; thence
continuing into the Southwest one-quarter of Section 4, South 11 degrees 35
minutes 15 seconds East, 59.78 feet to a point on the North line of Xxxxx Road
(93 feet wide) ; thence along said North line of Xxxxx Road South 78 degrees 24
minutes 45 seconds West, 10.67 feet to a point on the West line of Section 4 and
the East line of Section 5; thence continuing into the Southeast one-quarter of
Section 5 along said North line of Xxxxx Road, South 78 degrees 24 minutes 45
seconds West, 6.33 feet; thence South 76 degrees 54 minutes 00 seconds West
340.60 feet and South 74 degrees 30 minutes 15 seconds West 144.86 feet along
said North line of Xxxxx Road; thence North 11 degrees 35 minutes 15 seconds
West of 687.39 feet; thence along the Southerly line of Nankin Boulevard on the
following three courses: North 49 degrees 29 minutes 30 seconds East, 199.60
feet; thence along the arc of a curve concave to the South 538.63 feet, (radius
712.44 feet, central angle 43 degrees 19 minutes 03 seconds, chord North 71
degrees 09 minutes 02 seconds East, 525.89 feet) thence South 87 degrees 11
minutes 27 seconds East, 6.42 feet to the point of beginning.
TAX ID NO: 56 000 00 0000 007
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[LETTERHEAD OF WAL*MART]
EXHIBIT B
Subject: Sam's Club #0000
Xxxxxxxx, Xxxxxxxx
Estoppel Certificate
Gentlemen:
Wal-Mart Stores, Inc. is a tenant of Nankin Associates LP by virtue of a lease
dated April 18, 1988, as amended January 10, 1994, with respect to certain real
property located in Westland, Michigan (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 00000 Xxxxxxx Xxxx Xxxxxxx, Xxxxxxxx,
Xxxxxxxx have been accepted for possession by Wal-Ma--t on or about
January 10, 1994 by virtue of an Assignment of-Lease from Pace
Membership Warehouses, Inc.
C. The Annual Base Rent due and payable under the Lease is the sum of
$752,776.79 due and payable on or before the first day of each and
every month in the amount of $62,731.40.
d. Wal-Mart has no charge, lien, claim or off-set under the Lease, or
otherwise, against the rents required thereunder.
e. 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
Nankin Associates LP 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.
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Page 2
Estoppel Certificate
Sam's Club #6666
2. Maintenance required to repair the following items:
a. To the best of our knowledge, none at this time.
The information provided and the representations made herein are intended only
for the use of DVL, Inc. 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
Attest: Wal-Mart Stores, Inc.
________________________ _______________________________
Name:
Title:
STATE OF
COUNTY OF
On the ___ day of 1997, before me personally came _________________ to me known,
who, being by me duly sworn, did depose and say that he is _____________________
of Wal Mart Stores Inc., the corporation described in which executed the
foregoing instrument and that he signed his name thereto by order of the board
of directors.
_____________________________________
Notary Public
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EXHIBIT C
NANKIN ASSOCIATES LP
Wal-Mart Stores, Inc.
ATTN: Property Manager
000 X.X. Xxxxxx Xx.
X.0. Xxx 000
Xxxxxxxxxxx, XX 00000
Re: Sam's Club #0000 Xxxxxxxx, Xxxxxxxx
Dear Sir/Madam:
Nankin Associates LP, 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 Section 27 of the Lease dated April 18, 1988 covering the
Premises, Wal-Mart has the right to purchase the store at the terms described in
said annexed Agreement. Please sign the enclosed copy of this letter indicating
your intentions to waive or exercise this option and return it to the
undersigned by fax to 000-000-0000 and by mail in the enclosed envelope.
Very truly yours,
NANKIN ASSOCIATES LP
By: DVL, Inc., general partner
By: _________________________
Name:
Title:
Wal-Mart Stores, Inc. hereby chooses to
waive its First Refusal to Purchase Option
_______________________________________
Name:
Title:
Wal-Mart Stores, Inc. hereby chooses to
exercise its First Refusal to Purchase Option
_______________________________________
Name:
Title:
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EXHIBIT D
ESTOPPEL CERTIFICATE
Nankin Associates LP
00 Xxxxx Xxxx
X.X. Xxx 000
Xxxxxx, XX 00000
NET 2 L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
MORTGAGEE: Metropolitan Life Insurance Company
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000-0000
Loan #700227
MORTGAGOR: Nankin Associates LP
SECURED PREMISES: 00000 Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
The undersigned, Mortgagee, hereby warrants and represents that:
1. The loan is evidenced by a Note dated September 7, 1989 in the original
principal amount of $5,700,000 and secured by a Mortgage of even date
therewith recorded with the Register of Xxxxx, Xxxxx County, Michigan, in
Liber 24325, page 212 (the "Mortgage") .
2. The total monthly payments of $56,908 required under the Note, including
interest of 10-1/2 percent, have been paid to ____________________. The
Mortgage has a current outstanding balance of $___________.
3. The obligation is in full force and effect and Mortgagee has no knowledge
of any event of default under the Mortgage or any other document
evidencing or securing the Note.
4. The undersigned is a duly authorized officer of Mortgagee and is empowered
to execute this Estoppel letter.
5. This Estoppel Letter is made to and for the benefit of Net 2 L.P. or its
assigns in connection with its acquisition of the above referenced Secured
Premises. Mortgagee understands and acknowledges that Net 2 L.P. will rely
upon the representations made herein in consummating such acquisition.
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ATTEST: METROPOLITAN LIFE INSURANCE COMPANY
By: _____________________ By: _______________________
Name: Name:
Title: Title:
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EXHIBIT "E"
LEASE ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS LEASE ASSIGNMENT AND ASSUMPTION AGREEMENT made this _________ day of
_________ 1993 by and between NANKIN ASSOCIATES LP, having an address at
00 Xxxxx Xxxx, Xxxxxx, Xxx Xxxxxx 00000 (the "Assignor") and
______________. having an address at (the "Assignee") .
W I T N E S S E T H
Contemporaneously with the execution and delivery hereof, the Assignor has
sold to the Assignee certain land and the buildings and improvements thereon,
located in the State of Michigan, County of Xxxxx, and described in Exhibit "All
attached hereto and made a part hereof (the "Property") . In connection with the
sale of the Property, the Assignor has agreed to assign all leases affecting the
Property to the 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. The Assignor hereby conveys, assigns, transfers and sets over to the
Assignee all of its right, title and interest in, under and to the following
agreements, which are hereinafter collectively called the "Lease":
a. Free Standing Lease: Tenant Build-to-Suit Lease dated April 18, 1988
between Commerce Associates #1160 Limited Partnership ("Commerce")
and Pace Membership Warehouse, Inc. ("Pace") ;
b. Memorandum of Lease dated April 18, 1988 between Pace and Commerce,
recorded in the Recorder's office of Xxxxx County, Michigan in Liber
23692, Page 912 on April 21, 1988; and
c. Lease Assignment and Assumption Agreement dated August 30, 1989
between Commerce and Seller recorded as aforesaid in Liber 2419,
page 772 on September 5, 1989.
d. Assignment and Assumption of Lease effective on January 10, 1994
from Pace to Wal-Mart Stores, Inc. ("Wal-Mart") -
e. First Amendment to Lease Agreement dated January 10, 1994 between
Seller and Wal-Mart.
2. Assignee hereby accepts the conveyance, transfer and assignment of the
Lease and assumes, from and after the date hereof, the obligations of the
Assignor under the Lease.
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3. All of the documents constituting the Lease have been delivered to the
Assignee simultaneously with the execution hereof. The 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 any portion of the Property.
IN WITNESS WHEREOF, the parties have executed and delivered this
Lease Assignment and Assumption Agreement as of the day and year first above
written.
ASSIGNOR:
ATTEST: NANKIN ASSOCIATES LP
By: DVL, INC.
general partner
___________________________ By:_________________________________
Name:
Title:
(Corporate Seal)
ASSIGNEE:
ATTEST:
___________________________ By:_________________________________
Name:
Title:
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STATE OF NEW JERSEY )
) Ss.:
COUNTY OF BERGEN )
On the ______ day of ____________ 1997, before me personally came
______________________, to me known, who, being by me duly sworn, did depose and
say that he is of DVL, INC., general partner of Nankin Associates LP, the
corporation described in and which executed the foregoing instrument, that he
signed his name thereto by order of the board of directors of said corporation.
_____________________________
Notary Public
STATE OF )
) Ss.:
COUNTY OF )
On the ________ day of ____________ 1997, before me came
___________________ to me known, who being by me duly sworn, did depose and say
that he is the __________________ of which executed the foregoing instrument,
that he signed his name thereto as a duly authorized representative of said
group.
_____________________________
Notary Public
Prepared by:
_________________________
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EXHIBIT A
A parcel of land in the Southwest one-quarter of Section 4 and in the Southeast
one-quarter of Xxxxxxx 0, Xxxx 0 Xxxxx, Xxxxx 0 Xxxx, Xxxx of Xxxxxxxx, Xxxxx
County, Michigan, described as follows:
Commencing at the West one-quarter corner of Xxxxxxx 0, Xxxx 0 Xxxxx, Xxxxx 0
Xxxx, (Xxxx being the East one-quarter corner of Section 5, Town 2 South, Range
9 East) and proceeding thence along the West line of Section 4, South 1 degree
28 minutes 00 seconds East, 342.75 feet to the point of beginning of the parcel
herein described, said point being on the South line of Nankin Boulevard (86
feet wide) ; thence along the East line of Section 5, South 1 degree 28 minutes
00 seconds East, 295.83 feet; thence South 78 degrees 24 minutes 45 seconds
West, 78.58 feet; thence South 11 degrees 35 minutes 15 seconds East 440.22 feet
to a point on the East line of Section 5 and the West line of Section 4, thence
continuing into the Southwest one-quarter of Section 4, South 11 degrees 35
minutes 15 seconds East, 59.78 feet to a point on the North line of Xxxxx Road
(93 feet wide) ; thence along said North line of Xxxxx Road South 78 degrees 24
minutes 45 seconds West, 10.67 feet to a point on the West line of Section 4 and
the East line of Section 5, thence continuing into the Southeast one-quarter of
Section 5 along said North line of Xxxxx Road, South 78 degrees 24 minutes 45
seconds West, 6.33 feet; thence South 76 degrees 54 minutes 00 seconds West
340.60 feet and South 74 degrees 30 minutes 15 seconds West 144.86 feet along
said North line of Xxxxx Road; thence 11 degrees 35 minutes 15 seconds West,
687.39 feet; thence along the Southerly line of Nankin Boulevard on the
following three courses: North 49 degrees 29 minutes 30 seconds East, 119.60
feet; thence along the arc of a curve concave to the South 538.63 feet, (radius
712.44 feet, central angle 43 degrees 19 minutes 03 seconds, chord North 71
degrees 09 minutes 02 seconds East, 525.89 feet) thence South 87 degrees 11
minutes 27 seconds East, 6.42 feet to the point of beginning.
TAX ID NO: 56 000 00 0000 007
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EXHIBIT F
Record and Return To:
Xxxxxxx X. Xxxxxx Esq.
Paul, Hastings, Xxxxxxxx & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
MORTGAGE AND SECURITY AGREEMENT
MODIFICATION, CONSENT AND
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS MORTGAGE AND SECURITY AGREEMENT MODIFICATION, CONSENT AND ASSIGNMENT
AND ASSUMPTION AGREEMENT is made as of the ______ day of _____ 1997 by and among
METROPOLITAN LIFE INSURANCE COMPANY ("Lender") , NANKIN ASSOCIATES LP
("Seller"), and NET 2 L.P. (""Buyer")
W I T N E S S E T H:
WHEREAS, Lender is the owner and holder of a certain Note Secured by
Mortgage dated September 7, 1989 in the original principal amount of
$5,700,000.00 made by Seller (the "Note") ;
WHEREAS, the Note is secured by a certain Mortgage and Security Agreement
dated September 7, 1989 (the "Mortgage") recorded in Liber 24325 Page 212 in the
records of Xxxxx County, Michigan which Mortgage encumbers certain real property
in Xxxxx County, Michigan more particularly described in Exhibit "A" annexed
hereto and incorporated herein by reference (the "Property") ;
WHEREAS, the Note is also secured by a Collateral Assignment of Leases and
Rents dated September 7, 1989 (the "Assignment") recorded in Liber 24325, page
946, in the 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 conditions hereinafter set forth.
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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
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its affiliates, (including but not limited to, Kenbee Management, Inc.) 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 3.04 of the Mortgage, Borrower's address is:
Net 2 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: METROPOLITAN LIFE INSURANCE COMPANY
__________________________ ___________________________________
Name:
Title:
SELLER:
ATTEST: NANKIN ASSOCIATES LP
By: DVL, INC., General Partner
__________________________ By:________________________________
Name:
Title:
BUYER:
ATTEST: NET 2 L.P.
By:___________________ General Partner
__________________________ By:________________________________
Name:
Title:
44
45
STATE OF )
) ss.:
COUNTY OF )
On the ____________ day of _______________ 1997, before me came
________________ to me known, who being by me duly sworn, did depose and say
that (s) he is the ______________________ of Metropolitan 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 ___________ 1997, 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
Nankin Associates LP, 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.
By:
______________________________________
Notary Public
(Seal)
My commission expires:________________
45
46
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 2 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.
By:
______________________________________
Notary Public
(Seal)
My commission expires:________________
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EXHIBIT A
A parcel of land in the Southwest one-quarter of Section 4 and in the Southeast
one-quarter of Xxxxxxx 0, Xxxx 0 Xxxxx, Xxxxx 0 Xxxx, Xxxx of Xxxxxxxx, Xxxxx
County, Michigan, described as follows:
Commencing at the West one-quarter corner of Xxxxxxx 0, Xxxx 0 Xxxxx, Xxxxx 0
Xxxx, (Xxxx being the East one-quarter corner of Section 5, Town 2 South, Range
9 East) and proceeding thence along the West line of Section 4, South 31 degree
28 minutes 00 seconds East, 342.75 feet to the point of beginning of the parcel
herein described, said point being on the South line of Nankin Boulevard (86
feet wide) ; thence along the East line of Section 5, South 1 degree 28 minutes
00 seconds East, 295.83 feet; thence South 78 degrees 24 minutes 45 seconds
West, 78.58 feet; thence South 11 degrees 35 minutes 15 seconds East 440.22 feet
to a point on the East line of Section 5 and the West line of Section 4; thence
continuing into the Southwest one-quarter of Section 4, South 11 degrees 35
minutes 15 seconds East, 59.78 feet to a point on the North line of Xxxxx Road
(93 feet wide) ; thence along said North line of Xxxxx Road South 78 degrees 24
minutes 45 seconds West, 10.67 feet to a point on the West line of Section 4 and
the East line of Section 5; thence continuing into the Southeast one-quarter of
Section 5 along said North line of Xxxxx Road, South 78 degrees of 24 minutes 45
seconds West, 6.33 feet; thence South 76 degrees 54 minutes 00 seconds West
340.60 feet and South 74 degrees 30 minutes 15 seconds West 144.86 feet along
said North line of Xxxxx Road; thence North 11 degrees 35 minutes 15 seconds
West, 687.39 feet; thence along the Southerly line of Nankin Boulevard on the
following three courses: North 49 degrees 29 minutes 30 seconds East, 119.609
feet; thence along the arc of a curve concave to the South 538.63 feet, (radius
712.44 feet, central angle 43 degrees 19 minutes 03 seconds, chord North 71
degrees 09 minutes 02 seconds East, 525.89 feet) thence South 87 degrees 11
minutes 27 seconds East, 6.42 feet to the point of beginning.
TAX ID NO: 56 000 00 0000 007
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