Form 8-K - CURRENT REPORT
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) August 1, 2000
SHELTER PROPERTIES IV
(Exact name of registrant as specified in its charter)
South Carolina 0-10884 57-0721760
(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification Number)
incorporation)
55 Beattie Place
Post Office Box 1089
Greenville, South Carolina 29602
(Address of principal executive offices)
(Registrant's telephone number)
(864) 239-1000
N/A
(Former name or former address, if changed since last report)
Item 5. Other Events
On August 1, 2000, the Partnership sold Countrywood Village Apartments to DCF,
Sr., an unrelated third party, for net proceeds of approximately $17,208,000
after payment of closing costs. The Partnership recognized a gain of
approximately $12,376,000 on the sale during the third quarter of 2000. In
addition, the Partnership is waiting on the calculation of a prepayment premium
by the mortgage lender. As a result, the Partnership has the potential to incur
further costs related to this sale.
The Registrant is currently evaluating its cash needs to determine what portion
of the funds can be distributed to its partners in the near future.
Item 7. Financial Statements and Exhibits
(c) Exhibits
10.4(a) Purchase and Sale Contract between Shelter Properties IV and DCF,
Sr., LLC effective August 1, 2000.
10.4(b) First Amendment to Purchase and Sale Agreement between Shelter
Properties IV and DCF, Sr., LLC effective August 1, 2000.
10.4(c) Second Amendment to Purchase and Sale Agreement between Shelter
Properties IV and DCF, Sr., LLC effective August 1, 2000.
10.4(d) Third Amendment to Purchase and Sale Agreement between Shelter
Properties IV and DCF, Sr., LLC effective August 1, 2000.
10.4(e) Fourth Amendment to Purchase and Sale Agreement between Shelter
Properties IV and DCF, Sr., LLC effective August 1, 2000.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
SHELTER PROPERTIES IV
By: Shelter Realty IV Corporation
Its Corporate General Partner
By: /s/Patrick J. Foye
Patrick J. Foye
Executive Vice President and Director
Date: August 11, 2000
EXHIBIT 10.4(a)
PURCHASE AND SALE CONTRACT
BETWEEN
SHELTER PROPERTIES IV,
a South Carolina limited partnership
AS SELLER
AND
DCF, Sr., LLC,
a North Carolina limited liability company
AS PURCHASER
(Countrywood Village)
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT ("Purchase Contract" or the "Agreement")
is entered into as of the 25th day of April, 2000 (the "Effective Date") by and
between SHELTER PROPERTIES IV, a South Carolina limited partnership, having a
principal address at 2000 South Colorado Boulevard, Tower Two, Suite 2-1000,
Denver, Colorado 80222 ("Seller") and DCF, Sr., LLC, a North Carolina limited
liability company, having a principal address at 7200 Stonehedge Drive, Suite
211, Raleigh, North Carolina 27613 ("Purchaser").
NOW, THEREFORE WITNESSETH: That for and in consideration of mutual
covenants and agreements hereinafter set forth, Seller and Purchaser hereby
agree as follows:
RECITALS
R-1. Seller holds legal title to the real estate located in Wake County,
North Carolina, as more particularly described in Exhibit A attached hereto and
made a part hereof. Improvements have been constructed on the property described
in this Recital.
R-2. Purchaser desires to purchase and Seller has agreed to sell such
land, improvements and certain associated property, defined below as the
"Property" on the terms and conditions set forth below, (which terms and
conditions shall control in the event of any conflict with these Recitals), such
that on the Closing Date (as hereinafter defined) the Property will be conveyed
by limited warranty deed to Purchaser.
R-3. Purchaser has agreed to pay to Seller the Purchase Price for the
Property, and Seller has agreed to sell the Property to Purchaser, on the terms
and conditions set forth below.
R-4. Purchaser intends to make investigations regarding the Property, and
Purchaser's intended uses of each of the Property as Purchaser deems necessary
and desirable.
ARTICLE I
DEFINED TERMS
A. Unless otherwise defined herein, terms with initial capital letters in this
Purchase Contract shall have the meanings set forth in this ARTICLE 1 below. B.
"Business Day" means any day other than a Saturday or Sunday or Federal holiday
or legal holiday in the State of North Carolina.
C. "Closing" means the consummation of the purchase and sale and related
transactions contemplated by this Purchase Contract in accordance with the terms
and conditions of this Purchase Contract.
D. "Closing Date" means the date on which date the Closing of the conveyance of
the Property is required to be held under the terms and conditions of this
Purchase Contract and on which date full payment of the Purchase Price for the
Property shall have been paid to and received by Seller in immediately available
U.S. funds. E. "Excluded Permits" means those Permits which, under applicable
law, are nontransferable and such other Permits as may be designated as Excluded
Permits on Exhibit 1.1.4, if any, attached hereto.
F. Intentionally Omitted.
G. "Fixtures and Tangible Personal Property" means all fixtures, furniture,
furnishings, fittings, equipment, machinery, computers (to the extent located on
the Property and owned by Seller), fax machines (to the extent located on the
Property and owned by Seller), copiers (to the extent located on the Property
and owned by Seller), apparatus, appliances and other articles of tangible
personal property now located on the Land or in the Improvements as of the date
of this Purchase Contract and used or usable in connection with any present or
future occupation or operation of all or any part of the Property. The term
"Fixtures and Tangible Personal Property" does not include (i) equipment leased
by Seller and the interest of Seller in any equipment provided to the Property
for use, but not owned or leased, by Seller, or (ii) property owned or leased by
Tenants and guests, employees or other persons furnishing goods or services to
the Property, or (iii) property and equipment owned by Seller, which in the
ordinary course of business of the Property is not used exclusively for the
business, operation or management of the Property or (iv) the property and
equipment, if any, expressly identified in Exhibit 1.1.7.
H. "Improvements" means all buildings and improvements, located on the Land.
I. "Land" means all of those certain tracts of land located in the State of
North Carolina described on Exhibit "A" attached hereto, and all rights,
privileges and appurtenances pertaining thereto.
J. "Lease(s)" means the interest of Seller in and to all leases, subleases and
other occupancy agreements, whether or not of record, which provide for the use
or occupancy of space or facilities on or relating to the Property and which are
in force as of the Effective Date for the applicable Property.
K. "Miscellaneous Property Assets" means all contract rights, leases,
concessions, warranties, plans, drawings and other items of intangible personal
property relating to the ownership or operation of the Property and owned by
Seller, excluding, however, (i) receivables, (ii) Property Contracts, (iii)
Leases, (iv) Permits, (v) cash or other funds, whether in petty cash or house
"banks," or on deposit in bank accounts or in transit for deposit, (vi) refunds,
rebates or other claims, or any interest thereon, for periods or events relating
to the period prior to the Closing Date, (vii) utility and similar deposits, or
(viii) insurance or other prepaid items or (ix) Seller's proprietary books and
records, except to the extent that Seller receives a credit on the closing
statement for any such item. The term "Miscellaneous Property Assets shall also
include the following, but only to the extent owned by Seller and in Seller's
possession: site plans, surveys, soil and substrata studies, architectural
renderings, plans and specifications, engineering plans and studies, floor
plans, tenant data sheets, landscape plans and other plans or studies of any
kind, if any, which relate to the Land and or the Improvements or the Fixtures
and Tangible Personal Property. The term "Miscellaneous Property Assets" shall
also include all of Seller's rights, if any, in and to the name "COUNTRYWOOD
VILLAGE".
L. "Permits" means all licenses and permits granted by governmental authorities
having jurisdiction over the Property in respect of the matter to which the
applicable license or permit applies and owned by Seller and used in or relating
to the ownership, occupancy or operation of the Property or any part thereof not
subject to a Lease.
M. "Permitted Exceptions" means those exceptions or conditions permitted to
encumber the title to the Property in accordance with the provisions of Section
6.2.
N. "Property" means the Land and Improvements and all rights of Seller relating
to the Land and the Improvements, including without limitation, any rights,
title and interest of Seller, if any, in and to (i) any strips and gores
adjacent to the Land and any land lying in the bed of any street, road, or
avenue opened or proposed, in front of or adjoining the Land, to the center line
thereof; (ii) any unpaid award for any taking by condemnation or any damage to
the Property by reason of a change of grade of any street or highway; (iii) all
of the easements, rights, privileges, and appurtenances belonging or in any way
appertaining to the Property; together with all Fixtures and Tangible Personal
Property, the right, if any and only to the extent transferable, of Seller in
and to Property Contracts and Leases, Permits other than Excluded Permits and
the Miscellaneous Property Assets owned by Seller which are located on the
Property and used in its operation.
O. "Property Contracts" means all purchase orders, maintenance, service, or
utility contracts and similar contracts, which relate to the ownership,
maintenance, construction or repair and/or operation of the Property and which
are not cancelable on 30 days' or shorter Notice, except Leases.
P. "Purchase Contract" means this Purchase and Sale Contract by and between
Seller and Purchaser.
Q. "Purchase Price" means the total consideration to be paid by Purchaser to
Seller for the purchase of the Property as set forth in Section 3.1.
R. "Survey" shall have the meaning ascribed thereto in Section 6.7.
S. "Tenant" means any person or entity entitled to occupy any portion of the
Property under a Lease.
T. "Title Commitment" or "Title Commitments" shall have the meaning ascribed
thereto in Section 6.1.
U. "Title Insurer" shall have the meaning set forth in Section 6.1.
ARTICLE 2
PURCHASE AND SALE OF PROPERTY
V. Seller agrees to sell and convey the Property to Purchaser and Purchaser
agrees to purchase the Property from Seller, in accordance with the terms and
conditions set forth in this Purchase Contract.
ARTICLE 3
PURCHASE PRICE & DEPOSIT
W. The total purchase price ("Purchase Price") for the Property shall be
Eighteen Million Four Hundred Seventy Three Thousand and No/100 Dollars
($18,473,000.00), which shall be paid by Purchaser, as follows:
X. On the date hereof, Purchaser shall deliver to Stewart Title Guaranty Company
("Escrow Agent" or the "Title Insurer") a deposit in the sum of One Hundred
Eighty Two Thousand and no/100 Dollars ($182,000.00), in cash, (such sum being
hereinafter referred to and held as the "Initial Deposit"). Purchaser and Seller
each approve the form of Escrow Agreement attached as Exhibit B.
Y. At or before 5:00 p.m Eastern time on the date of expiration of the Financing
Contingency Period, provided Purchaser has not terminated this Purchase Contract
pursuant to Section 5.2 below, Purchaser shall deliver to Escrow Agent an
additional deposit in the sum of One Hundred Eighty Two Thousand and no/100
Dollars ($182,000.00), in cash (such sum being hereinafter referred to as the
"Additional Deposit").
Z. The Escrow Agent shall hold the Initial Deposit and the Additional Deposit
(to the extend paid, collectively, the "Deposit"), and make delivery of the
Deposit to the party entitled thereto under the terms hereof. Escrow Agent shall
invest the Deposit in such short-term, high-grade securities, interest-bearing
bank accounts, money market funds or accounts, bank certificates of deposit or
bank repurchase agreements as Escrow Agent, in its discretion, deems suitable,
(provided that Escrow Agent shall invest the Deposit as jointly directed by
Seller and Purchaser should Seller and Purchaser each in their respective sole
discretion determine to issue such joint investment instructions to the Escrow
Agent) and all interest and income thereon shall become part of the Deposit and
shall be remitted to the party entitled to the Deposit, as set forth below.
AA. If the sale of the Property is closed by the date fixed therefor (or any
extension date provided for herein), monies held as the Deposit shall be applied
to the Purchase Price on the Closing Date. If the sale of the Property is not
closed by the date fixed therefor (or any such extension date) owing to failure
of satisfaction of a condition precedent to Purchaser's obligations, the Deposit
shall be returned and refunded to Purchaser, and neither party shall have any
further liability hereunder, subject to and except for Purchaser's liability
under Section 5.3.
BB. If the sale of the Property is not closed by the date fixed therefor (or any
such extension date) owing to failure of performance or default by Seller,
Purchaser shall be entitled to the remedies set forth in ARTICLE 12 hereof. If
the sale of the Property is not closed by the date fixed therefor (or any such
extension date) owing to failure of performance by
Purchaser, the Deposit shall be forfeited by Purchaser and the sum thereof shall
go to Seller forthwith as liquidated damages for the lost opportunity costs and
transaction expenses incurred by Seller, as more fully set forth in ARTICLE 12
below.
ARTICLE 4
FINANCING
CC. Purchaser shall have a period (the "Financing Contingency Period") of
forty-five (45) calendar days, commencing on the Effective Date, to obtain
financing for the purchase of the Property, upon terms reasonably satisfactory
to Purchaser. Purchaser shall have the right at any time at or before 5:00 p.m.
Eastern time on the last day of the Financing Contingency Period (the "Financing
Contingency Terminate Date") to terminate this Agreement in connection with
Purchaser's inability to obtain financing satisfactory to Purchaser, by
delivering a written notice of such termination to Seller and Escrow Agent. If
Purchaser exercises such right to terminate, this Purchase Contract shall
terminate and be of no further force and effect, subject to and except for
Purchaser's liability under Section 5.3, and Escrow Agent shall forthwith
promptly return the Deposit to Purchaser. If Purchaser fails to provide Seller
with written Notice of cancellation prior to the end of the Financing
Contingency Period in strict accordance with the Notice provisions of this
Purchase Contract, this Purchase Contract shall remain in full force and effect
and Purchaser's obligation to purchase the Property shall be non-contingent and
unconditional except only for satisfaction of the conditions expressly stated in
ARTICLE 5 and in ARTICLE 9.
ARTICLE 5
FEASIBILITY PERIOD
DD. Subject to the terms of Section 5.3 below, for thirty (30) calendar days
following Purchaser's receipt of the Materials (as hereinafter defined), but in
no event later than May 31, 2000 (the "Feasibility Period"), Purchaser, and its
agents, contractors, engineers, surveyors, attorneys, and employees
("Consultants") shall have the right from time to time to enter onto the
Property:
EE. To conduct and make any and all customary studies, tests, examinations and
inspections, or investigations of or concerning the Property (including without
limitation, engineering and feasibility studies, evaluation of drainage and
flood plain, soil tests for bearing capacity and percolation and surveys,
including topographical surveys).
FF. To confirm any and all matters which Purchaser may reasonably desire to
confirm with respect to the Property.
GG. To ascertain and confirm the suitability of the property for Purchaser's
intended use of the Property.
HH. To review all Materials (as hereinafter defined) other than Seller's
proprietary information, including, Materials held by the Property Manager and
the Regional Property Manager (as defined in Section 8.1.4 of this Purchase
Contract). The financial records for the operation of the Property shall not be
deemed Seller's proprietary information.
II.
Purchaser shall have the right to terminate this Purchase Contract for any
reason, or no reason, by giving written Notice to Seller and Escrow Agent on or
before 5:00 p.m. EST on the date of expiration of the Feasibility Period. If
Purchaser exercises such right to terminate, this Purchase Contract shall
terminate and be of no further force and effect, subject to and except for
Purchaser's liability under Section 5.3, and Escrow Agent shall forthwith
promptly return the Deposit to Purchaser. If Purchaser fails to provide Seller
with written Notice of cancellation prior to the end of the Feasibility Period
in strict accordance with the Notice provisions of this Purchase Contract, this
Purchase Contract shall remain in full force and effect and Purchaser's
obligation to purchase the Property shall be non-contingent and unconditional
except only for satisfaction of the conditions expressly stated in ARTICLE 4,
ARTICLE 5 and in ARTICLE 9.
JJ. Purchaser shall indemnify and hold Seller harmless for any actions taken by
Purchaser and its Consultants on the Property. Purchaser shall indemnify, defend
(with attorneys selected by Seller) and hold Seller harmless from any and all
claims, damages, costs and liability which may arise due to such entries,
surveys, tests, investigations and the like. Seller shall have the right,
without limitation, to disapprove any and all entries, surveys, tests,
investigations and the like that in their reasonable judgment could result in
any injury to the Property or breach of any agreement, or expose Seller to any
liability, costs, liens or violations of applicable law, or otherwise adversely
affect the Property or Seller's interest therein. No consent by the Seller to
any such activity shall be deemed to constitute a waiver by Seller or assumption
of liability or risk by Seller. Purchaser hereby agrees to restore the Property
to the same condition existing immediately prior to Purchaser's exercise of its
rights pursuant to this ARTICLE 5 at Purchaser's sole cost and expense.
Purchaser shall maintain casualty insurance and comprehensive public liability
insurance with coverages of not less than $1,000,000.00 for injury or death to
any one person and $3,000,000.00 for injury or death to more than one person and
$500,000.00 with respect to property damage, by water or otherwise. The
provisions of this Section shall survive the Closing or termination of this
Purchase Contract. Notwithstanding the foregoing, Purchaser shall not be
obligated to defend or otherwise indemnify Seller, nor to repair any damage
attributable in whole or part to any one or more of the following: (i) the
discovery of hazardous materials on the Property, (ii) any pre-existing latent
defect in the Property, (ii) the spread of any hazardous materials already
present on the Property despite the use of reasonable care, or (iv) to the acts
or omissions of Seller.
KK. Purchaser shall not permit any mechanic's or materialmen's liens or any
other liens to attach to the Property by reason of the performance of any work
or the purchase of any materials by Purchaser or any other party in connection
with any studies or tests conducted by or for Purchaser. Purchaser shall give
notice to Seller a reasonable time prior to entry onto the Property, shall
deliver proof of insurance coverage required above to Seller and shall permit
Seller to have a representative present during all investigations and
inspections conducted with respect to the Property. Purchaser shall take all
reasonable actions and implement all protections necessary to ensure that all
actions taken in connection with the investigations and inspections of the
Property, and all equipment, materials and substances generated, used or brought
onto the Property pose no material threat to the safety of persons or the
environment and cause no damage to the Property or other property of Seller or
other persons. All information made available by Seller to Purchaser in
accordance with this Purchase Contract or obtained by Purchaser in the course of
its investigations shall be treated as confidential information by Purchaser,
and, prior to the purchase of the Property by Purchaser, Purchaser shall use its
best efforts to prevent its Consultants, agents and employees from divulging
such information to any unrelated third parties except as reasonably necessary
to third parties engaged by Purchaser for the limited purpose of analyzing and
investigating such information for the purpose of consummating the transaction
contemplated by this Purchase Contract, including Purchaser's attorneys and
representatives, prospective lenders and engineers.
LL. Seller shall deliver to Purchaser within ten (10) calendar days from the
Effective Date copies of all leases, contracts, engineering studies, surveys and
other materials (the "Materials") in Seller's possession or control relating to
the Property (other than proprietary information of Seller). If the sale of the
Property is not closed by the date fixed therefor, Purchaser shall, within five
(5) calendar days, return all such Materials to Seller.
ARTICLE 6
TITLE
MM. At its sole cost and expense, Purchaser shall promptly obtain from Stewart
Title Guaranty Company (the "Title Insurer") a preliminary title report or
commitment (the "Title Commitment") to issue an Owner's Policy of Title
Insurance (the "Title Policy") insuring Purchaser's title to the Property to be
good and indefeasible in the amount of the Purchase Price, subject only to the
Permitted Exceptions (described below) and other liens and encumbrances not
constituting objections to title in accordance herewith. A copy of the Title
Commitment and the documents of record reflected therein and Seller's existing
survey shall be furnished to the Purchaser and attorney for Seller. On or before
the expiration of the Feasibility Period, Purchaser shall give written notice
(the "Objection Notice") to the attorneys for Seller of any conditions of title
which Purchaser is not obligated to take the Property subject to pursuant to the
provisions of this Agreement (the "Objections") separately specifying and
setting forth each of such Objections. Seller shall be entitled to reasonable
adjournments of the Closing Date to cure the Objections. If Purchaser gives
Seller an Objection Notice within the period set forth above, then all matters
disclosed on the Title Commitment which are not objected to in such Objection
Notice shall be deemed to be Permitted Exceptions. If Purchaser fails to give
Seller an Objection Notice within the period set forth above, then all matters
disclosed on the Title Commitment shall be deemed to be Permitted Exceptions.
NN. If Seller gives Purchaser notice (the "Response Notice") that Seller is
unable or unwilling to convey title to the Property as required by this Purchase
Agreement, Purchaser may, as its exclusive remedy, elect by written notice given
to Seller within five (5) days after the Response Notice is given, either (a) to
accept such title as Seller is able to convey without any reduction or abatement
of the Purchase Price, or (b) to terminate this Purchase Contract in which event
the Deposit shall be returned to Purchaser. If Purchaser fails to give notice of
its election to terminate this Agreement within such five (5) day period,
Purchaser shall be deemed to have waived said objections and to have elected to
proceed to close the transactions contemplated by this Purchase Contract.
OO. The existence of liens or encumbrances other than the Permitted Exceptions
or those which are permitted by this Purchase Contract shall be deemed to be
Permitted Exceptions if the Title Insurer will insure Purchaser's title clear of
the matter or will insure against the enforcement of such matter out of the
Property. Unpaid liens for real estate and personal property taxes for years
prior to the fiscal year in which the Closing Date occurs and any other matter
which Seller is obligated to pay and discharge at the Closing shall not be
deemed objections to title, but the amount thereof chargeable to Seller, plus
interest and penalties thereon, if any, shall be deducted from the Purchase
Price on the Closing Date and paid to the Title Insurer for the payment of such
matters.
PP. Notwithstanding the foregoing, any deeds of trust and/or mortgages
(including any and all mortgages which secure (i) that certain loan on the
Property in the original principal amount of $4,983,459.00 made by Bank of
America, and (ii) that certain loan on the Property in the original principal
amount of $154,128.00 made by Bank of America (collectively, "Liens") shall be
deemed objectionable exceptions, whether Purchaser gives written notice of such
or not, and shall be paid off, satisfied, discharged and/or cured by Seller at
or before Closing, the same being a material obligation of Seller under this
Purchase Contract.
QQ. Intentionally Deleted.
RR. Seller covenants that it will not voluntarily create or cause any lien or
encumbrance to attach to the Property between the date of this Purchase Contract
and the Closing Date (other than Leases and Property Contracts in the ordinary
course of business); any such monetary lien or encumbrance so attaching by
voluntary act of Seller (hereinafter, a "Voluntary Intervening Lien") shall be
discharged by the Seller at or prior to Closing on the Closing Date or any
postponed Closing Date. Except as expressly provided above, Seller shall not be
required to undertake efforts to remove any other lien, encumbrance, security
interest, exception, objection or other matter, to make any expenditure of money
or institute litigation or any other judicial or administrative proceeding and
Seller may elect not to discharge the same; provided, however, if any lien or
encumbrance (other than a Voluntary Intervening Lien) attaches to the Property
between the date of this Purchase Contract and the Closing Date, Seller shall be
required to satisfy or discharge said lien or encumbrance at or prior to the
Closing, provided that Seller shall not be required to expend more than $150,000
in connection with such satisfaction or discharge. If the amount required to
satisfy or discharge such lien or encumbrance exceeds $150,000, Purchaser shall
have the option of either (a) paying the excess amount over $150,000 required to
satisfy or discharge such lien, and proceeding to the Closing, or (b)
terminating this Purchase Contract, in which case, the Deposit shall be returned
and refunded to Purchaser and neither party shall have any further liability
hereunder, subject to and except for Purchaser's liability under Section 5.3 of
this Purchase Contract. Seller shall have no option to terminate this Purchase
Contract if Purchaser has elected to pay the amount in excess of $150,000 to
satisfy or discharge such lien or encumbrance.
SS. Purchaser at Purchaser's sole cost and expense, may cause to be prepared a
survey for the Property ("Survey") to be delivered to Purchaser and Seller
within the Feasibility Period. The Survey (i) shall be prepared in accordance
with and shall comply with the minimum requirements of the ALTA; (ii) shall be
in a form, and shall be certified as of a date satisfactory to Title Insurer to
enable Title Insurer to delete standard survey exceptions from the title
insurance policy to be issued pursuant to the Title Commitments, except for any
Permitted Exceptions; (iii) shall specifically show all improvements, recorded
easements to the extent locatable, set back lines, and such other matters shown
as exceptions by the Title Commitments; (iv) shall specifically show the right
of way for all adjacent public streets; (v) shall specifically disclose whether
(and, if so, what part of) any of the Property is in an area designated as
requiring flood insurance under applicable federal laws regulating lenders; (vi)
shall contain a perimeter legal description of the Property which may be used in
the limited warranty deed or equivalent deed; (vii) shall be certified to
Purchaser, Purchaser's lender, Seller and Title Insurer as being true and
correct; and (viii) shall certify that the legal description set forth therein
describes the same, and comprises all of, the real estate comprising the
Property to be purchased by Purchaser pursuant to the terms of this Purchase
Contract. In the event the perimeter legal description of the Property contained
in the Survey differs from that contained in the deed or deeds by which Seller
took title to the Property, the latter description shall be used in the limited
warranty deed delivered to Purchaser at Closing, and the Survey legal shall be
used in a quitclaim deed to the Property which also shall be delivered to
Purchaser at Closing. Purchaser, at Purchaser's sole cost and expense, may also
cause to be prepared an environmental report for the Property ("Environmental
Report").
TT. Should such Survey disclose conditions that give rise to a title exception
other than a Permitted Exception, Purchaser shall have the right to object
thereto within the Feasibility Period in accordance with the procedures set
forth in Section 6.1 above.
UU. Purchaser agrees to make payment in full of all costs of obtaining Surveys
required by this Purchase Contract on or before Closing or termination of this
Purchase Contract.
ARTICLE 7
CLOSING
VV. Dates, Places Of Closing, Prorations, Delinquent Rent and Closing Costs.
WW. The Closing shall occur on July 14, 2000 through an escrow with Escrow
Agent, whereby the Seller, Purchaser and their attorneys need not be physically
present at the Closing and may deliver documents by overnight air courier or
other means. Notwithstanding the foregoing, (a) Purchaser shall have the right
to close prior to July 14, 2000 on the condition that Purchaser provide Seller
with at least ten (10) days prior written notice of the early closing date.
XX. The Closing Date may be extended without penalty at the option of Seller to
a date not later than thirty (30) days following the Closing Date specified
above to satisfy a condition to be satisfied by Seller, or such later date as is
mutually acceptable to Seller and Purchaser.
YY. All normal and customarily proratable items, including, without limitation,
Rents (as defined below), operating expenses, personal property taxes, other
operating expenses and fees, shall be prorated as of the Closing Date, Seller
being charged or credited, as appropriate, for all of same attributable to the
period up to the Closing Date (and credited for any amounts paid by Seller
attributable to the period on or after the Closing Date, if assumed by
Purchaser) and Purchaser being responsible for, and credited or charged, as the
case may be, for all of same attributable to the period on and after the Closing
Date. All unapplied deposits under Tenant leases, if any, shall be transferred
by Seller to Purchaser at the Closing. Purchaser shall assume at Closing the
obligations under the Property Contracts relating to the period from and after
the Closing, and assumed by Purchaser, provided that any payments under the
Property Contracts relating to the period on or prior to the Closing shall be
paid by Seller. Any real estate ad valorem or similar taxes for the Property, or
any installment of assessments payable in installments which installment is
payable in the calendar year of Closing, shall be prorated to the date of
Closing, based upon actual days involved on a calendar year basis. The proration
of real property taxes or installments of assessments shall be based upon the
assessed valuation and tax rate figures for the year in which the Closing occurs
to the extent the same are available; provided, that in the event that actual
figures (whether for the assessed value of the Property or for the tax rate) for
the year of Closing are not available at the Closing Date, the proration shall
be made using figures from the preceding year. The provisions of this Section
7.1.3 shall apply during the Proration Period (as defined below). Rents and all
related charges shall be prorated based on actual collections as of the Closing
Date.
ZZ. If any of the items subject to proration hereunder cannot be prorated at the
Closing because the information necessary to compute such proration is
unavailable, or if any errors or omissions in computing prorations at the
Closing are discovered subsequent to the Closing, then such item shall be
reapportioned and such errors and omissions corrected as soon as practicable
after the Closing Date and the proper party reimbursed, which obligation shall
survive the Closing for a period (the "Proration Period") from the Closing Date
until one (1) year after the Closing Date. Neither party hereto shall have the
right to require a recomputation of a Closing proration or a correction of an
error or omission in a Closing proration unless within the Proration Period one
of the parties hereto (i) has obtained the previously unavailable information or
has discovered the error or omission, and (ii) has given Notice thereof to the
other party together with a copy of its good faith recomputation of the
proration and copies of all substantiating information used in such
recomputation. The failure of a party to obtain any previously unavailable
information or discover an error or omission with respect to an item subject to
proration hereunder and to give Notice thereof as provided above within the
Proration Period shall be deemed a waiver of its right to cause a recomputation
or a correction of an error or omission with respect to such item after the
Closing Date.
AAA. If on the Closing Date any Tenant is in arrears in any Rent payment under
any Tenant lease (the "Delinquent Rent"), any Delinquent Rent received by
Purchaser and Seller from such Tenant after the Closing shall be applied to
amounts due and payable by such Tenant during the following periods in the
following order of priority: (i) first, to the period of time after the Closing
Date, and (ii) second, to the period of time before the Closing Date. If
Delinquent Rent or any portion thereof received by Seller or Purchaser after the
Closing are due and payable to the other party by reason of this allocation, the
appropriate sum, less a proportionate share of any reasonable attorneys' fees
and costs and expenses expended in connection with the collection thereof, shall
be promptly paid to the other party. Any monies received by Seller after closing
shall be forwarded to Purchaser for disbursement in accordance with the order of
payment provided herein above. After the Closing, Seller shall continue to have
the right, but not the obligation, in its own name, to demand payment of and to
collect Delinquent Rent owed to Seller by any Tenant, which right shall include,
without limitation, the right to continue or commence legal actions or
proceedings against any Tenant (provided, that Seller shall not commence any
legal actions or proceedings against any Tenant which continues as a Tenant at
the Property after Closing without the prior consent of Purchaser, which will
not be unreasonably withheld or delayed), and the delivery of the Assignment as
defined in Section 7.2.1.3 shall not constitute a waiver by Seller of such
right. Purchaser agrees to cooperate with Seller at no cost or liability to
Purchaser in connection with all efforts by Seller to collect such Delinquent
Rent and to take all steps, whether before or after the Closing Date, as may be
necessary to carry out the intention of the foregoing, including, without
limitation, the delivery to Seller, within seven (7) days after a written
request, of any relevant books and records (including, without limitation, rent
statements, receipted bills and copies of tenant checks used in payment of such
rent), the execution of any and all consents or other documents, and the
undertaking of any act reasonably necessary for the collection of such
Delinquent Rent by Seller; provided, however, that Purchaser's obligation to
cooperate with Seller pursuant to this sentence shall not obligate Purchaser to
terminate any Tenant lease with an existing Tenant or evict any existing Tenant
from the Property. The provisions of this Section 7.1.5 shall apply during the
Proration Period.
BBB. Seller shall pay the cost of all transfer taxes (e.g., excise stamp taxes)
and Purchaser shall pay the cost of all recording costs with respect to the
Closing. Purchaser shall pay the cost of obtaining the Title Policy and any
endorsements thereto. Seller and Purchaser shall share equally in the costs of
the Escrow Agent for escrow fees.
CCC. Items To Be Delivered Prior To Or At Closing.
DDD. Seller. At Closing, Seller shall deliver to the Escrow Agent, each of the
following items, as applicable:
EEE. Limited Warranty Deed in the form attached as Exhibit 7.2.1.1 and, if
applicable a quitclaim deed as set forth in Section 6.7 hereof, to Purchaser.
The acceptance of such deed at Closing, shall be deemed to be full performance
of, and discharge of, every agreement and obligation on Seller's part to be
performed under this Purchase Contract, except for those that this Purchase
Contract specifically provides shall survive Closing.
FFF. A Bill of Sale in the form attached as Exhibit 7.2.1.2 covering all
Property Contracts, Leases, Permits (other than Excluded Permits) and Fixtures
and Tangible Personal Property required to be transferred to Purchaser with
respect to such Property. Purchaser shall countersign the same so as to effect
an assumption by Purchaser of, among other things, Seller's obligations
thereunder.
GGG. An Assignment (to the extent assignable and in force and effect) in the
form attached as Exhibit 7.2.1.3 of all of Seller's right, title and interest in
and to the Miscellaneous Property Assets, subject to any required consents.
Purchaser shall countersign the same so as to effect an assumption by Purchaser,
including, without limitation, of Seller's obligations thereunder.
HHH. A closing statement executed by Seller.
III. A title affidavit or at Seller's option an indemnity, as applicable, in the
customary form reasonably acceptable to Seller to enable Title Insurer to delete
the standard exceptions to the title insurance policy set forth in this Purchase
Contract (other than matters constituting any Permitted Exceptions and matters
which are to be completed or performed post-Closing) to be issued pursuant to
the Title Commitment; provided that such affidavit does not subject Seller to
any greater liability, or impose any additional obligations, other than as set
forth in this Purchase Contract; and JJJ. A certification of Seller's
non-foreign status pursuant to Section 1445 of the Internal Revenue Code of
1986, as amended.
KKK. Except for the items expressly listed above to be delivered at Closing,
delivery of any other required items shall be deemed made by Seller to
Purchaser, if Seller leaves such documents at the Property in their customary
place of storage or in the custody of Purchaser's representatives.
LLL. Intentionally Deleted.
MMM. A list certified to the best of Seller's knowledge, disclosing any known
current pending and/or threatened litigation affecting the Property.
NNN. Evidence that the management agreement for Seller's manager has been
terminated.
OOO. A rent roll for the Property certified by Seller, but limited to Seller's
knowledge, listing the monthly base rent payable, lease expiration date and
unapplied security deposit as of the Closing Date.
PPP. Resolutions, certificates of good standing, and such other organizational
documents as Title Insurer shall reasonably require evidencing Seller's
authority to consummate this transaction.
QQQ. To the extent in Seller's possession or control, originals or copies of the
Leases and Property Contracts, lease files, warranties, guaranties, operating
manuals, keys to the property, Seller's books and records (other than
proprietary information) regarding the Property.
RRR. Purchaser. At Closing, Purchaser shall deliver to the Escrow Agent (for
disbursement to Seller upon the Closing) the following items with respect to the
Property being conveyed at such Closing:
SSS. The full Purchase Price as required by ARTICLE 3 hereof plus or minus the
adjustments or prorations required by this Purchase Contract. If at Closing
there are any liens or encumbrances on the Property that Seller is obligated or
elects to pay and discharge, Seller may use any portion of the Purchase Price
for the Property(s) to satisfy the same, provided that Seller shall have
delivered to Title Company, on such Closing instruments in recordable form
sufficient to satisfy such liens and encumbrances of record (or, as to any
mortgages or deeds of trust, appropriate payoff letters, acceptable to the Title
Insurer), together with the cost of recording or filing such instruments.
Purchaser, if request is made within a reasonable time prior to Closing, agrees
to provide at Closing separate certified or cashier's checks as requested,
aggregating not more than the amount of the balance of the portion of Purchase
Price, to facilitate the satisfaction of any such liens or encumbrances. The
existence of any such liens or encumbrances shall not be deemed objections to
title if Seller shall comply with the foregoing requirements.
TTT. A closing statement executed by Purchaser.
UUU. A countersigned counterpart of the Bill of Sale in the form attached as
Exhibit 7.2.1.2.
VVV. A countersigned counterpart of the Assignment in the form attached as
Exhibit 7.2.1.3.
WWW. Such other instruments, documents or certificates as are required to be
delivered by Purchaser to Seller in accordance with any of the other provisions
of this Purchase Contract.
ARTICLE 8
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF SELLER AND PURCHASER
XXX. Representations, Warranties and Covenants Of Seller.
YYY. For the purpose of inducing Purchaser to enter into this Purchase Contract
and to consummate the sale and purchase of the Property in accordance herewith,
Seller represents and warrants to Purchaser the following as of the Effective
Date and as of the Closing Date:
ZZZ. Seller is lawfully and duly organized, and in good standing under the laws
of the state of its formation set forth in the initial paragraph of this
Purchase Contract; and has or at the Closing shall have the power and authority
to sell and convey the Property and to execute the documents to be executed by
Seller and prior to the Closing will have taken as applicable, all corporate,
partnership, limited liability company or equivalent entity actions required for
the execution and delivery of this Purchase Contract, and the consummation of
the transactions contemplated by this Purchase Contract. The compliance with or
fulfillment of the terms and conditions hereof will not conflict with, or result
in a breach of, the terms, conditions or provisions of, or constitute a default
under, any purchase contract to which Seller is a party or by which Seller is
otherwise bound. Seller has not made any other purchase contract for the sale
of, or given any other person the right to purchase, all or any part of any of
the Property;
AAAA. Seller owns insurable, fee title to the Property, including all real
property contained therein required to be sold to Purchaser, subject only to the
Permitted Exceptions (provided, however, that if this representation is or
becomes untrue, Purchaser's remedies shall be limited to the remedies set forth
in Section 6.2 hereof and Seller shall have no other liability as a result
thereof, either before or after Closing);
BBBB. There are no adverse or other parties in possession of the Property,
except for occupants, guests and tenants under the Leases (provided, however,
that if this representation is or becomes untrue, Purchaser's remedies shall be
limited to the remedies set forth in Section 6.2 hereof).
CCCC. The joinder of no person or entity other than Seller is necessary to
convey the Property, fully and completely, to Purchaser at Closing, or to
fulfill Seller's obligations and Seller has all necessary right and authority to
convey and assign to Purchaser all contract rights and warranties required to be
conveyed and assigned to Purchaser hereunder;
DDDD. Purchaser has no duty to collect withholding taxes for Seller pursuant to
the Foreign Investors Real Property Tax Act of 1980, as amended.
EEEE. To Seller's knowledge, there are no actions, proceedings, litigation or
governmental investigations or condemnation actions either pending or threatened
against the Property;
FFFF. Seller has no knowledge of any claims for labor performed, materials
furnished or services rendered in connection with constructing, improving or
repairing any of the Property, as applicable, caused by Seller and which remain
unpaid beyond the date for which payment was due and in respect of which liens
may or could be filed against any of the Property, as applicable;
GGGG. To Seller's knowledge, Seller has not received any written notice of and
to Seller's knowledge, there is no proposed taking, condemnation or special
assessment with respect to the Property;
HHHH. To Seller's knowledge, Seller has not received any written notice of and
to Seller's knowledge, there is no uncured violations of any federal, state,
county or municipal law, ordinance, order, regulation or requirement affecting
the Property, including environmental laws, regulations or requirements;
IIII. To Seller's knowledge, Seller has not received any written notice of and
to Seller's knowledge, there is no default by Seller under any of the Property
Contracts that will not be terminated on the Closing Date;
JJJJ. Seller agrees to maintain its existing insurance policies covering the
Property in full force and effect through the Closing Date, to continue to
maintain the Property as Seller has been operating the Property immediately
prior to the Effective Date, and to cause any of the units on the Property that
are vacant as of the day immediately prior to the Closing Date to be in "make
ready" condition on the Closing Date; and
KKKK. To Seller's knowledge, all documents relating to the Property that were
delivered by Seller to Purchaser in connection with this Purchase Contract, are
true, correct and complete in all material respects, and none contain any untrue
statement of a material fact or omit to state a material fact.
LLLL. Except for the representations and warranties expressly set forth above in
Subsection 8.1.1, the Property is expressly purchased and sold "AS IS," "WHERE
IS," and "WITH ALL FAULTS." The Purchase Price and the terms and conditions set
forth herein are the result of arm's-length bargaining between entities familiar
with transactions of this kind, and said price, terms and conditions reflect the
fact that Purchaser shall have the benefit of, and is not relying upon any
information provided by Seller or Broker or statements, representations or
warranties, express or implied, made by or enforceable directly against Seller
or Broker, including, without limitation, any relating to the value of the
Property, the physical or environmental condition of the Property, any state,
federal, county or local law, ordinance, order or permit; or the suitability,
compliance or lack of compliance of the Property with any regulation, or any
other attribute or matter of or relating to the Property (other than any
covenants of title contained in the deeds conveying the Property and the
representations set forth above). Purchaser represents and warrants that as of
the date hereof and as of the Closing Date, it has and shall have reviewed and
conducted such independent analyses, studies, reports, investigations and
inspections as it deems appropriate in connection with the Property. If Seller
provides or has provided any documents, summaries, opinions or work product of
consultants, surveyors, architects, engineers, title companies, governmental
authorities or any other person or entity with respect to the Property,
including, without limitation, the offering prepared by Broker, Purchaser and
Seller agree that Seller has done so or shall do so only for the convenience of
both parties, Purchaser shall not rely thereon and the reliance by Purchaser
upon any such documents, summaries, opinions or work product shall not create or
give rise to any liability of or against Seller, Seller's partners or affiliates
or any of their respective partners, officers, directors, participants,
employees, contractors, attorneys, consultants, representatives, agents,
successors, assigns or predecessors-in-interest. Purchaser shall rely only upon
any title insurance obtained by Purchaser with respect to title to the Property.
Purchaser acknowledges and agrees that no representation has been made and no
responsibility is assumed by Seller with respect to current and future
applicable zoning or building code requirements or the compliance of the
Property with any other laws, rules, ordinances or regulations, the financial
earning capacity or expense history of the Property, the continuation of
contracts, continued occupancy levels of the Property, or any part thereof, or
the continued occupancy by tenants of any Leases or, without limiting any of the
foregoing, occupancy at Closing. Prior to Closing, Seller shall have the right,
but not the obligation, to enforce its rights against any and all Property
occupants, guests or tenants. Except as otherwise set forth herein, Purchaser
agrees that the departure or removal, prior to Closing, of any of such guests,
occupants or tenants shall not be the basis for, nor shall it give rise to, any
claim on the part of Purchaser, nor shall it affect the obligations of Purchaser
under this Purchase Contract in any manner whatsoever; and Purchaser shall close
title and accept delivery of the deed with or without such tenants in possession
and without any allowance or reduction in the Purchase Price under this Purchase
Contract. Purchaser hereby releases Seller from any and all claims and
liabilities relating to the foregoing matters, except as provided in Section
8.1.3 below.
MMMM. Notwithstanding anything to the contrary herein, Seller agrees that
Purchaser shall be entitled to rely on the foregoing representations and
warranties made by Seller herein and that Purchaser has so relied. Seller and
Purchaser agree that those representations and warranties contained in Section
8.1 shall survive Closing for a period of one (1) year (the "Survival Period").
Seller shall have no liability after the Survival Period with respect to the
representations and warranties contained herein except to the extent that
Purchaser has filed a lawsuit against Seller during the Survival Period for
breach of any representation or warranty. In the event that Seller breaches any
representation contained in Section 8.1 and Purchaser had actual and conscious
knowledge of such breach prior to the Closing Date, Purchaser shall be deemed to
have waived any right of recovery, and Seller shall not have any liability in
connection therewith.
NNNN. Representations and warranties above made to the knowledge of Seller shall
not be deemed to imply any duty of inquiry. For purposes of this Purchase
Contract, the term Seller's "knowledge" shall mean and refer to only actual
knowledge of the Designated Representative (as hereinafter defined) of the
Seller and shall not be construed to refer to the knowledge of any other
partner, officer, director, agent, employee or representative of the Seller, or
any affiliate of the Seller, or to impose upon such Designated Representative
any duty to investigate the matter to which such actual knowledge or the absence
thereof pertains, or to impose upon such Designated Representative any
individual personal liability. As used herein, the term Designated
Representative shall refer to Linda Smith of Apartment Investment & Management
Company ("AIMCO"), as the on-site property manager (the "Property Manager"), and
Cindy Ducharme, the Regional Property Manager handling this Property at AIMCO
(the "Regional Property Manager").
OOOO. Representations And Warranties Of Purchaser
PPPP. For the purpose of inducing Seller to enter into this Purchase Contract
and to consummate the sale and purchase of the Property in accordance herewith,
Purchaser represents and warrants to Seller the following as of the Effective
Date and as of the Closing Date:
QQQQ. With respect to Purchaser and its business, Purchaser represents and
warrants, in particular, that:
RRRR. Purchaser is a limited liability company duly organized, validly existing
and in good standing under the laws of North Carolina.
SSSS. Purchaser, acting through any of its or their duly empowered and
authorized officers or members, has all necessary power and authority to own and
use its properties and to transact the business in which it is engaged, and has
full power and authority to enter into this Purchase Contract, to execute and
deliver the documents and instruments required of Purchaser herein, and to
perform its obligations hereunder; and no consent of any of Purchaser's officers
or members are required to so empower or authorize Purchaser.
TTTT. No pending or, to the knowledge of Purchaser, threatened litigation exists
which if determined adversely would restrain the consummation of the
transactions contemplated by this Purchase Contract or would declare illegal,
invalid or non-binding any of Purchaser's obligations or covenants to Seller.
UUUU. Purchaser is duly authorized to execute and deliver, acting through its
duly empowered and authorized officers and members, respectively, and perform
this Purchase Contract and all documents and instruments and transactions
contemplated hereby or incidental hereto, and such execution, delivery and
performance by Purchaser does not (i) violate any of the provisions of their
articles of organization or bylaws, (ii) violate any provision of any law,
governmental rule or regulation currently in effect, (iii) violate any judgment,
decree, writ, injunction, award, determination or order currently in effect that
names or is specifically directed at Purchaser or its property, and (iv) require
the consent, approval, order or authorization of, or any filing with or notice
to, any court or other governmental authority.
VVVV. The joinder of no person or entity other than Purchaser is necessary to
consummate the transactions to be performed by Purchaser and Purchaser has all
necessary right and authority to perform such acts as are required and
contemplated by this Purchase Contract.
WWWW. Purchaser has not dealt with any broker, finder or any other person, in
connection with the purchase of or the negotiation of the purchase of the
Property that might give rise to any claim for commission against Seller or lien
or claim against the Property.
XXXX. Intentionally Omitted.
ARTICLE 9
CONDITIONS PRECEDENT TO CLOSING
YYYY. Purchaser's obligation to close under this Purchase Contract, shall be
subject to and conditioned upon the fulfillment of each and all of the following
conditions precedent:
ZZZZ. All of the documents required to be delivered by Seller to Purchaser at
the Closing pursuant to the terms and conditions hereof shall have been
delivered and shall be in form and substance reasonably satisfactory to
Purchaser;
AAAAA. Each of the representations, warranties and covenants of Seller contained
herein shall be true in all material respects as of the Closing Date (and
Purchaser shall be permitted to perform an inspection of the Property
immediately prior to the Closing Date to verify same);
BBBBB. Seller shall have complied with, fulfilled and performed in all material
respects each of the covenants, terms and conditions to be complied with,
fulfilled or performed by Seller hereunder;
CCCCC. Neither Seller nor Seller's general partner shall be a debtor in any
bankruptcy proceeding or shall have been in the last 6 months a debtor in any
bankruptcy proceeding;
DDDDD. A taking of all or any part of the Property must not have been commenced
or threatened in writing;
EEEEE. The actual occupancy level of the Property shall not have decreased by
more than fifteen percent (15%) from the actual occupancy level on the Effective
Date;
FFFFF. Seller shall have terminated any Property Contracts which are not being
assumed by Purchaser as of the Closing Date (and which are capable of being
terminated by Seller without penalty or cost to Seller).
GGGGG. Notwithstanding anything to the contrary, there are no other conditions
on Purchaser's obligation to Close except as expressly set forth above. If any
of the above conditions is not satisfied, then notwithstanding anything to the
contrary contained in this Purchase Contract, Purchaser may, at its option (a)
waive such condition and proceed to Closing and accept title to the Property
with an agreed upon offset or deduction from the Purchase Price (assuming Seller
and Purchaser can agree upon such offset or deduction amount, and neither party
has any obligation to come to an agreement), (b) waive such condition and
proceed to Closing and accept title to the Property without any offset or
deduction from the Purchase Price, or (iii) notify Seller of Purchaser's
election to terminate this Purchase Contract and receive a return of the Deposit
from the Escrow Agent.
HHHHH. Without limiting any of the rights of Seller elsewhere provided for in
this Purchase Contract, Seller's obligation to close with respect to conveyance
of a particular Property under this Purchase Contract shall be subject to and
conditioned upon the fulfillment of each and all of the following conditions
precedent:
IIIII. Purchaser's representations and warranties set forth in this Purchase
Contract shall have been true and correct in all material respects when made,
and shall be true and correct in all material respects on the Closing Date and
as of the Effective Date as though such representations and warranties were made
at and as of such date and time.
JJJJJ. Purchaser shall have fully performed and complied with all covenants,
conditions, and other obligations in this Purchase Contract to be performed or
complied with by it at or prior to Closing including, without limitation,
payment in full of the Purchase Price.
KKKKK. There shall not be pending or, to the knowledge of either Purchaser or
Seller, any litigation or threatened litigation which, if determined adversely,
would restrain the consummation of any of the transactions contemplated by this
Purchase Contract or declare illegal, invalid or nonbinding any of the covenants
or obligations of the Purchaser.
LLLLL. If applicable, Purchaser shall have produced evidence reasonably
satisfactory to Seller of Purchaser's compliance with Hart-Scott-Rodino Act
requirements or of the non-applicability thereof to the transactions
contemplated by this Purchase Contract.
ARTICLE 10
BROKERAGE
MMMMM. Seller represents and warrants to Purchaser that it has dealt only with
CB Richard Ellis ("Broker") in connection with this Purchase Contract. Seller
and Purchaser each represents and warrants to the other that other than Broker
and Drucker and Faulk ("D&F"), it has not dealt with or utilized the services of
any other real estate broker, sales person or finder in connection with this
Purchase Contract, and each party agrees to indemnify the other party from and
against all claims for brokerage commissions and finder's fees arising from or
attributable to the acts or omissions of the indemnifying party.
NNNNN. Seller agrees to pay Broker a commission according to the terms of a
separate agreement. Broker shall not be deemed a party or third party
beneficiary of this Purchase Contract. Seller also agrees to pay D&F a brokerage
commission of $273,000.00 due and payable upon the Closing.
OOOOO. Broker assumes no responsibility for the condition of the Property or
representation for the performance of this Purchase Contract by the Seller or
Purchaser.
ARTICLE 11
POSSESSION
PPPPP. Possession of the Property subject to the Permitted Exceptions shall be
delivered to Purchaser at the Closing, subject to Purchaser's right of entry for
inspection as set forth in ARTICLE 5.
ARTICLE 12
DEFAULTS AND REMEDIES
QQQQQ. In the event Purchaser terminates this Purchase Contract following the
Feasibility Period for any reason other than Seller's inability to convey title
as required by this Purchase Contract, or Seller defaults hereunder on or prior
to the Closing Date and consummation of the Closing does not occur by reason of
such termination or default by Purchaser, Seller and Purchaser agree that it
would be impractical and extremely difficult to estimate the damages which
Seller may suffer. Therefore, Seller and Purchaser hereby agree that, except for
the Purchaser's obligations to Seller under Section 5.3, the reasonable estimate
of the total net detriment that Seller would suffer in the event that Purchaser
terminates this Purchase Contract or defaults hereunder on or prior to the
Closing Date is and shall be, as Seller's sole remedy (whether at law or in
equity), the right to receive from the Escrow Agent and retain the full amount
of the Deposit. The payment and performance of the above as liquidated damages
is not intended as a forfeiture or penalty within the meaning of applicable law
and is intended to settle all issues and questions about the amount of damages
suffered by Seller in the applicable event, except only for damages under
Section 5.3 above, irrespective of the time when the inquiry about such damages
may take place. Upon any such failure by Purchaser hereunder, this Purchase
Contract shall be terminated, and neither party shall have any further rights or
obligations hereunder, each to the other, except for the Purchaser's obligations
to Seller under Section 5.3 above, and the right of Seller to collect such
liquidated damages to the extent not theretofore paid by Purchaser.
RRRRR. Provided that Purchaser has not terminated this Purchase Contract and is
not otherwise in default hereunder, if the Closing does not occur as a result of
Seller's default hereunder, Purchaser's sole remedy shall be to elect to either
(a) terminate this Purchase Contract and receive reimbursement of the Deposit or
(b) enforce specific performance of this Purchase Contract. In the event
Purchaser is unable to enforce the remedy of specific performance after using
commercially reasonable efforts to seek to enforce such remedy, then in lieu of
obtaining specific performance, Purchaser shall have the right to bring suit for
damages against Seller in an amount not to exceed $250,000.00 in addition to
receiving reimbursement of the Deposit.
ARTICLE 13
RISK OF LOSS OR CASUALTY
SSSSS. In the event that the Property is damaged or destroyed by fire or other
casualty prior to Closing, and the cost of repair is more than $300,000, then
Seller will have no obligation to repair such damage or destruction and, at
Purchaser's option, this Agreement shall terminate. In the event Purchaser
elects not to terminate this Agreement, this transaction shall be closed in
accordance with the terms of this Agreement, notwithstanding any such damage or
destruction and Purchaser shall receive all insurance proceeds pertaining
thereto (plus a credit against the Purchase Price in the amount of any
deductible payable by Seller in connection therewith) at Closing.
TTTTT. In the event that the Property is damaged or destroyed by fire or other
casualty prior to the Closing, and the cost of repair is less than $300,000,
this transaction shall be closed in accordance with the terms of this Agreement,
notwithstanding the damage or destruction; provided, however, Seller shall make
such repairs if they can be reasonably effected before the Closing. If Seller is
unable to effect such repairs, then Purchaser shall receive all insurance
proceeds pertaining thereto (plus a credit against the Purchase Price in the
amount of any deductible payable by Seller in connection therewith) at Closing.
ARTICLE 14
RATIFICATION
UUUUU. This Purchase Contract shall be null and void unless fully ratified by
Purchaser and Seller on or before May 2, 2000.
ARTICLE 15
EMINENT DOMAIN
VVVVV. In the event that at the time of Closing all or any part of the Property
is (or has previously been) acquired, or is about to be acquired, by authority
of any governmental agency in purchase in lieu thereof (or in the event that at
such time there is any notice of any such acquisition or intent to acquire by
any such governmental agency), Purchaser shall have the right, at Purchaser's
option, to terminate this Purchase Contract by giving written Notice within
Fifteen (15) days of Purchaser's receipt from Seller of the occurrence of such
event and recover the Deposit hereunder, or to settle in accordance with the
terms of this Purchase Contract for the full Purchase Price and receive the full
benefit of any condemnation award. It is expressly agreed between the parties
hereto that this paragraph shall in no way apply to customary dedications for
public purposes which may be necessary for the development of the Property.
ARTICLE 16
MISCELLANEOUS
WWWWW. Exhibits And Schedules
All Exhibits and Schedules, whether or not annexed hereto, are a part
of this Purchase Contract for all purposes.
XXXXX. Assignability
Subject to Section 16.18, this Purchase Contract is not assignable without first
obtaining the prior written approval of the non-assigning party, except that
Purchaser may assign all or an undivided interest in this Purchaser Contract to
one or more entities so long as (i) Purchaser or its affiliate remains a part of
the purchasing entity(ies), (ii) Purchaser is not released from its liability
hereunder, and (iii) Seller receives timely written notification of such
assignment. For purposes of this Section 16.2, David C. Falk, Sr. shall be
deemed to be an affiliate of Purchaser. YYYYY. Binding Effect
This Purchase Contract shall be binding upon and inure to the
benefit of Seller and Purchaser, and their respective successors, heirs and
permitted assigns.
ZZZZZ. Captions
The captions, headings, and arrangements used in this Purchase
Contract are for convenience only and do not in any way affect, limit, amplify,
or modify the terms and provisions hereof.
AAAAAA. Number And Gender Of Words
Whenever herein the singular number is used, the same shall include
the plural where appropriate, and words of any gender shall include each other
gender where appropriate.
BBBBBB. Notices
All Notices, demands, requests and other communications required
pursuant to the provisions of this Purchase Contract ("Notice") shall be in
writing and shall be deemed to have been properly given or served for all
purposes (i) if sent by Federal Express or a nationally recognized overnight
carrier for next business day delivery, on the first business day following
deposit of such Notice with such carrier, or (ii) if personally delivered, on
the actual date of delivery or (iii) if sent by certified mail, return receipt
requested postage prepaid, on the Fifth (5th) business day following the date of
mailing, or (iv) if sent by telecopier, then on the actual date of delivery (as
evidenced by a telecopier confirmation) provided that a copy of the telecopy and
confirmation is also sent by U.S. mail, addressed as follows:
If to Seller: If to Purchaser:
SHELTER PROPERTIES IV DCF, Sr., LLC
2000 South Colorado Boulevard 7200 Stonehedge Drive, Suite 211
Tower Two, Suite 2-1000 Raleigh, North Carolina 27613
Denver, Colorado 80222 Attn: Mr. Bobby S. Stovall
Attn: Mr. Harry Alcock Facsimile No. (919) 846-9771
Facsimile No. (303) 692-0786
And With a copy to
SHELTER PROPERTIES IV Satisky & Silverstein, LLP
2000 South Colorado Boulevard 900 Ridgefield Drive
Tower Two, Suite 2-1000 Raleigh. North Carolina 27609
Denver, Colorado 80222 Attn: Howard P. Satisky, Esq.
Attn: Mr. Pat Stucker and Facsimile No. (919) 790-1560
Mr. Mark Reoch
Facsimile No. (303) 692-0786
With a copy to
Loeb & Loeb, LLP
1000 Wilshire Boulevard, Suite 1600
Los Angeles, California 90017
Attn: Andrew S. Clare, Esq. and
Karen N. Higgins, Esq.
Facsimile No. (213) 688-3460
Any of the parties may designate a change of address by Notice in writing
to the other parties. Whenever in this Purchase Contract the giving of Notice by
mail or otherwise is required, the giving of such Notice may be waived in
writing by the person or persons entitled to receive such Notice.
CCCCCC. Governing Law And Venue
The laws of the State of North Carolina shall govern the validity,
construction, enforcement, and interpretation of this Purchase Contract, unless
otherwise specified herein except for the conflict of laws provisions thereof.
All claims, disputes and other matters in question arising out of or relating to
this Purchase Contract, or the breach thereof, shall be decided by proceedings
instituted and litigated in the United States District Court or State Court for
the district in which the Property is situated, and the parties hereto expressly
consent to the venue and jurisdiction of such court.
DDDDDD. Entirety And Amendments
This Purchase Contract embodies the entire Purchase Contract between the parties
and supersedes all prior Purchase Contracts and understandings, if any, relating
to the Property, and may be amended or supplemented only by an instrument in
writing executed by the party against whom enforcement is sought.
EEEEEE. Severability
If any provision of this Purchase Contract is held to be illegal,
invalid, or unenforceable under present or future laws, such provision shall be
fully severable. The Purchase Contract shall be construed and enforced as if
such illegal, invalid, or unenforceable provision had never comprised a part of
this Purchase Contract; and the remaining provisions of this Purchase Contract
shall remain in full force and effect and shall not be affected by the illegal,
invalid, or unenforceable provision or by its severance from this Purchase
Contract. In lieu of such illegal, invalid, or unenforceable provision, there
shall be added automatically as a part of this Purchase Contract a provision as
similar in terms to such illegal, invalid, or unenforceable provision as may be
possible to make such provision legal, valid, and enforceable.
FFFFFF. Multiple Counterparts
This Purchase Contract may be executed in a number of identical counterparts. If
so executed, each of such counterparts is to be deemed an original for all
purposes and all such counterparts shall, collectively, constitute one Purchase
Contract. In making proof of this Purchase Contract, it shall not be necessary
to produce or account for more than one such counterparts.
GGGGGG. Further Acts
In addition to the acts and deeds recited herein and contemplated and performed,
executed and/or delivered by Seller and Purchaser, Seller and Purchaser agree to
perform, execute and/or deliver or cause to be performed, executed and/or
delivered any and all such further acts, deeds, and assurances as may be
necessary to consummate the transactions contemplated hereby.
HHHHHH. Construction
No provision of this Purchase Contract shall be construed in favor of, or
against, any particular party by reason of any presumption with respect to the
drafting of this Purchase Contract; both parties, being represented by counsel,
having fully participated in the negotiation of this instrument.
IIIIII. Confidentiality
Purchaser shall not disclose the terms and conditions contained in
this Purchase Contract, shall keep the same confidential, provided that
Purchaser may disclose the terms and conditions of this Purchase Contract (i) as
required by law, (ii) to consummate the terms of this Purchase Contract, or any
financing relating thereto, or (iii) to Purchaser's or Seller's lenders,
attorneys and accountants. Any information provided by Seller or its agents to
Purchaser is also confidential and Purchaser shall be prohibited from making
such information public to any other person or entity other than its agents and
legal representatives, without Seller's prior written authorization, which may
be granted or denied in Seller's sole discretion.
JJJJJJ. Time Of The Essence
It is expressly agreed by the parties hereto that time is of the essence
with respect to this Purchase Contract.
KKKKKK. Cumulative Remedies And Waiver
No remedy herein conferred or reserved is intended to be exclusive
of any other available remedy or remedies herein conferred or referred, but each
and every such remedy shall be cumulative and shall be in addition to every
other remedy given under this Purchase Contract. No delay or omission to
exercise any right or power accruing upon any default, omission, or failure of
performance hereunder shall impair any right or power or shall be construed to
be a waiver thereof, but any such right and power may be exercised from time to
time and as often as may be deemed expedient. No waiver, amendment, release, or
modification of this Purchase Contract shall be established by conduct, custom,
or course of dealing.
LLLLLL. Litigation Expenses
In the event either party hereto commences litigation against the
other to enforce its rights hereunder, the prevailing party in such litigation
shall be entitled to recover from the other party its reasonable attorneys' fees
and expenses incidental to such litigation.
MMMMMM. Time Periods
Should the last day of a time period fall on a weekend or legal
holiday, the next Business Day thereafter shall be considered the end of the
time period.
NNNNNN. Exchange
At Seller's sole cost and expense, Seller may structure the sale of
the Property to Purchaser as a Like Kind Exchange under Internal Revenue Code
Section 1031 whereby Seller will acquire certain property (the "Like Kind
Exchange Property") in conjunction with the sale of the Property (the "Like Kind
Exchange"). Purchaser shall cooperate fully and promptly with Seller's conduct
of the Like Kind Exchange, provided that all costs and expenses generated in
connection with the Like Kind Exchange shall be borne solely by Seller, and
Purchaser shall not be required to take title to or contract for the purchase of
any other property. If Seller uses a qualified intermediary to effectuate the
exchange, any assignment of the rights or obligations of Seller hereunder shall
not relieve, release or absolve Seller of its obligations to Purchaser. In no
event shall the Closing Date be delayed by the Like Kind Exchange. Seller shall
indemnify and hold harmless Purchaser from and against any and all liability
arising from and out of the Like Kind Exchange.
At Purchaser's sole cost and expense, Purchaser may structure the
purchase of the Property from Seller as a Like Kind Exchange under Internal
Revenue Code Section 1031. Seller shall cooperate fully and promptly with
Purchaser's conduct of the Like Kind Exchange, provided that all costs and
expenses generated in connection with Purchaser's Like Kind Exchange shall be
borne solely by Purchaser, and Seller shall not be required to take title to or
contract for the purchase of any other property. If Purchaser uses a qualified
intermediary to effectuate the exchange, any assignment of the rights or
obligations of Purchaser shall not relieve, release or absolve Purchaser of its
obligations to Seller. In no event shall the Closing Date by delayed by the Like
Kind Exchange. Purchaser shall indemnify and hold harmless Seller from and
against any and all liability arising out of the Like Kind Exchange.
OOOOOO. No Personal Liability of Officers, Trustees or directors of Seller's
Partners
Purchaser acknowledges that this Agreement is entered into by Seller which is a
South Carolina limited partnership, and Purchaser agrees that no individual
officer, trustee, director or representative of the partners of Seller shall
have any personal liability under this Agreement or any document executed in
connection with the transactions contemplated by this Agreement.
PPPPPP. No Exclusive Negotiations
Seller shall have the right, at all times prior to the expiration of
the Financing Contingency Period, to solicit backup offers and enter into
discussions, negotiations, or any other communications concerning or related to
the sale of the Property with any third-party; provided, however, that such
communications are subject to the terms of this Agreement, and that Seller shall
not enter into any contract or binding agreement with a third-party for the sale
of the Property unless such agreement is contingent on the termination of this
Agreement without the Property having been conveyed to Purchaser.
NOW WHEREFORE, the parties hereto have executed this Purchase Contract
under seal as of the date first set forth above.
Seller:
SHELTER PROPERTIES IV,
a South Carolina limited partnership
By:____Shelter Realty IV Corporation,
a South Carolina corporation,
Its Managing Partner
___________________________________________ By:
[SEAL]
___________________________________________ Name:
_Title:
Purchaser:
DCF, Sr., LLC
a North Carolina limited liability company
By:
[SEAL]
Name:
Title:
<PAGE>
ACKNOWLEDGEMENTS
STATE OF__________ )
)
COUNTY OF ________________ )
On _____________________, before me, _____________________________________, a
Notary Public, personally appeared _________________________________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity (ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
-----------------------------------
Notary Public
STATE OF__________ )
)
COUNTY OF ________________ )
On _____________________, before me, _____________________________________, a
Notary Public, personally appeared _________________________________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity (ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
-----------------------------------
Notary Public
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION FOR THE COUNTRYWOOD VILLAGE
Wake County, North Carolina
All those tracts or parcels of land lying and being in Raleigh Township, Wake
County, North Carolina being all of the units of The Fairways Condominium; the
Declaration of Condominium of which was recorded on June 3, 1980 in Deed Book
2832, Page 773, Wake County Registry and is incorporated herein in full by this
reference.
Together with and appurtenance to the above-described condominium units the
undivided ownership interest in the common area set forth in said Declaration of
Condominium. The units of the Fairways Condominium comprise the property
described as follows:
Beginning at a point in the center line of New Hope Road, said point being N. 84
degrees - 45'E. 589 feet along the center line of New Hope Road from a concrete
nail at the intersection of the center line of New Hope Road and U.S. Highway
#1, and runs thence with the center line of New Hope Road in a southeasterly
direction, the arc of a circular curve to the right have a radius of 1091.35
feet an arc distance of 1666.67 feet the chord being S. 51 degrees - 30'E
1509.36 feet, to a point in the center line of New Hope Road blocked by a nail;
thence with the center line of New Hope Road S.07 degrees - 45'E. 767.21 feet to
a point marked by a nail; thence S. 75 degrees 50 feet W. 1135.86 feet to an
iron pipe; thence W. 05 degrees 15' W. 1985.83 feet to the point or place of
beginning, according to the Survey prepared by Herndon E. Edgerton dated August
2, 1974, containing 44 acres, more or less.
<PAGE>
EXHIBIT 1.1.4
LIST OF EXCLUDED PERMITS
To Be Inserted, If Any
<PAGE>
EXHIBIT 1.1.7
LIST OF EXCLUDED PERSONAL PROPERTY OR EQUIPMENT
1. Any Buyer's Access computers and/or software
<PAGE>
EXHIBIT 6.2.1
ADDITIONAL TITLE EXCEPTIONS
[To Be Attached]
<PAGE>
EXHIBIT 7.2.1.1
FORM OF LIMITED WARRANTY DEED
Drawn by and
Return after recording to:Howard P. Satisky, Esq.
Satisky & Silverstein, LLP
900 Ridgefield Drive, Raleigh, North Carolina 27609
================================================================================
SPECIAL WARRANTY DEED
THIS DEED made this _____ day of _____________, 2000, by Shelter
Properties IV, a South Carolina limited partnership, having a principal address
at Tower Two, 2000 South Colorado Boulevard, Suite 2-1000, Denver, Colorado
80222 ("GRANTOR") and _______________________________________ having an address
of 7200 Stonehedge Drive, Suite 211, Raleigh, North Carolina 27613 ("GRANTEE")
(the designation Grantor and Grantee as used herein shall include said parties,
their heirs, successors and assigns, and shall include singular, plural,
masculine, feminine or neuter as required by context);
WITNESSETH:
That Grantor, for a valuable consideration paid by the Grantee, the
receipt of which is hereby acknowledged, has granted and sold and by these
presents does grant, bargain, sell and convey unto the Grantee in fee simple
those certain lots or parcels of land situated in Wake County, North Carolina,
which are more particularly described as follows:
See Exhibit "A" attached hereto and incorporated herein.
TOGETHER with all and singular the hereditaments and appurtenances thereto
belonging, or in anywise appertaining, and the reversion and reversions,
remainder and remainders, rents, issues and profits thereof, and all the estate,
right, title interest, claim and demand whatsoever of Grantor, either in law or
equity, of, in and to the above bargained premises, with the hereditaments,
easements, rights of way and appurtenances, and with all of Grantor's interest,
if any, in and to any and all minerals, water, ditches, wells, reservoirs and
drains, and all water, ditch, well, reservoir and drainage rights which are
appurtenant to, located on, now or hereafter acquired under or above or used in
connection with the property.
The property hereinabove described was acquired by Grantor by instrument
recorded on _________, in Book _____, Page _____, Wake County, North Carolina
Public Registry (the "Registry").
TO HAVE AND TO HOLD the aforesaid lots or parcels of land and all
privileges and appurtenances thereto belonging to the Grantee in fee simple.
And the Grantor covenants with the Grantee, that Grantor has done nothing
to impair such title as Grantor received, and that Grantor will warrant and
defend the title against the lawful claims of all persons claiming by, under or
through Grantor, except for the exceptions hereinafter stated.
Title to the property hereinabove described is subject to the exceptions
set forth on Exhibit "B" attached hereto.
IN WITNESS WHEREOF, the Grantors' managing partner has caused this
instrument to be duly executed by its duly authorized officers and its seal to
be hereunto affixed for and on behalf of and under seal of Grantor, the day and
year first above written.
Grantor: SHELTER PROPERTIES IV, a South Carolina limited
partnership
[Corporate Seal]
By: Shelter Realty IV Corporation, a South
ATTEST: Carolina corporation,
Its Managing Partner
_____________________________ By: [SEAL]
_____________________ Secretary Name:
Title:
<PAGE>
Notarial Acknowledgement
[To Be Attached]
<PAGE>
EXHIBIT "A"
LEGAL DESCRIPTION
Wake County, North Carolina
<PAGE>
EXHIBIT 7.2.1.2
FORM OF BILL OF SALE
This Bill of Sale ("Assignment") is executed by SHELTER PROPERTIES IV, a
South Carolina limited partnership ("Seller"), in favor of DCF, Sr., LLC, a
North Carolina limited liability company ("Purchaser").
Seller and Purchaser, have entered into that certain Purchase and Sale
Contract and dated as of April 25, 2000 ("Purchase Contract"), in which Seller
has agreed to sell and Purchaser has agreed to purchase the real property
described in Exhibit A attached thereto and the improvements located thereon
(collectively, the "Project").
Pursuant to the Purchase Contract, Seller has agreed to assign, without
recourse or warranty except as set forth herein, to Purchaser all of Seller's
right, title and interest, if any, in and to the Property (as hereinafter
defined).
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
1. As used herein, the term "Property" shall mean the following property to the
extent said property is owned by Seller and used in, held for use in connection
with, or necessary for the operation of the Project:
Property Contracts. All of Seller's rights and interests in
and to purchase orders, maintenance, service or utility
contracts or similar contracts which relate to the ownership,
maintenance, construction or repair or operation of the
Project.
Leases. All of Seller's rights and interests in and to leases,
subleases, and other occupancy agreements, whether or not of
record, which provide for use or occupancy of space or
facilities on or relating to the Project.
Licenses and Permits. All of Seller's rights and interests in
and to all licenses or permits granted by governmental
authorities having jurisdiction over the Project and utilized
with respect to the Project.
Fixtures and Tangible Personal Property. All of Sellers
rights and interests in and to all fixtures, furniture,
furnishings, fittings, equipment, machinery, computers (to
the extent located on the Property and owned by Seller), fax
machines (to the extent located on the Property and owned by
Seller), copiers (to the extent located on the Property and
owned by Seller), apparatus, appliances and other articles
of tangible personal property now located on the Project or
in the improvements thereon and used in connection with any
present or future occupation or operation of all or any part
of the Project.
The term "Property" shall not include any of the foregoing: (i) to
the extent the same are excluded or reserved to Seller pursuant to the Purchase
Contract to which Seller and Purchaser are parties; and (ii) to the extent that
the sale or transfer thereof requires consent or approval of any third party,
which consent or approval is not obtained by Seller. Nothing herein shall create
a transfer or assignment of intellectual property or similar assets of Seller.
2. Assignment. Seller hereby assigns, sells and transfers to Purchaser, without
recourse or warranty except as expressly stated in this Paragraph 2, all of
Seller's right, title and interest, if any, in and to the Property, subject to
any rights of consent as provided therein. To Seller's knowledge (as defined in
Section 8.1.4 of the Purchase Contract), Seller owns the Property free and clear
of any liens or encumbrances.
3. Assumption. Purchaser expressly agrees to assume and hereby assumes all
liabilities and obligations of the Seller in connection with the Property for
the period from and after the date hereof, and agrees to perform all of the
covenants and obligations of Seller thereunder. Purchaser further agrees to
indemnify, defend and hold Seller harmless from and against any and all cost,
loss, harm or damage which may arise in connection with the Property for the
period from and after the date hereof. Seller agrees to indemnify, defend and
hold Purchaser harmless from and against any and all cost, loss, harm or damage
which may arise in connection with the Property for the period on or prior to
the date hereof.
4. Counterparts. This Assignment may be executed in
counterparts, each of which shall be deemed an original, and both of which
together shall constitute one and the same instrument.
5. Attorneys' Fees. If any action or proceeding is commenced by either party to
enforce its rights under this Assignment, the prevailing party in such action or
proceeding shall be entitled to recover all reasonable costs and expenses
incurred in such action or proceeding, including reasonable attorneys' fees and
costs, in addition to any other relief awarded by the court.
6. Applicable Law. This Assignment shall be governed by and interpreted in
accordance with the laws of the State of North Carolina.
7. Titles and Section Headings. Titles of sections and subsections
contained in this Assignment are inserted for convenience of reference only, and
neither form a part of this Assignment or are to be used in its construction or
interpretation.
8. Binding Effect. This Assignment shall be binding upon and inure to the
benefit of the parties hereto and their respective transferees, successors, and
assigns.
9. Entire Agreement; Modification. This Assignment supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may not be altered or modified without the written consent of
all parties.
EXCEPT AS SPECIFICALLY SET FORTH HEREIN, WITH RESPECT TO ALL MATTERS
TRANSFERRED, WHETHER TANGIBLE OR INTANGIBLE, PERSONAL OR REAL, SELLER EXPRESSLY
DISCLAIMS A WARRANTY OF MERCHANTABILITY AND WARRANTY FOR FITNESS FOR A
PARTICULAR USE OR ANY OTHER WARRANTY EXPRESSED OR IMPLIED THAT MAY ARISE BY
OPERATION OF LAW OR UNDER THE UNIFORM COMMERCIAL CODE FOR THE STATE IN WHICH THE
PROPERTY IS LOCATED.
WITNESS the signatures under seal of the undersigned.
Dated: , 2000
Seller:
SHELTER PROPERTIES IV,
a South Carolina limited partnership
By:____Shelter Realty IV Corporation,
a South Carolina corporation,
Its Managing Partner
___________________________________________ By:
[SEAL]
___________________________________________ Name:
_Title:
Purchaser:
DCF, Sr., LLC, a North Carolina limited
liability company
By:
[SEAL]
Name:
Title:
<PAGE>
EXHIBIT 7.2.1.3
GENERAL ASSIGNMENT
This General Assignment ("Assignment") is executed by SHELTER PROPERTIES
IV, a South Carolina limited partnership ("Seller"), in favor of DCF, Sr., LLC,
a North Carolina limited liability company ("Purchaser").
Seller and Purchaser, have entered into that certain Purchase and Sale
Contract and dated as of April 25, 2000 ("Purchase Contract"), in which Seller
has agreed to sell and Purchaser has agreed to purchase the real property
described in Exhibit "A" attached thereto and the improvements located thereon
collectively, the "Project"). Capitalized terms not otherwise defined herein
shall have the meaning ascribed to them in the Purchase Contract.
Pursuant to the Purchase Contract, Seller has agreed to assign, without
recourse or warranty, to Purchaser all of Seller's right, title and interest, if
any, in and to the Miscellaneous Property Assets (as hereinafter defined).
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
1. As used herein, the term "Miscellaneous Property Assets" shall mean all
contract rights, leases, concessions, warranties, plans, drawings, and other
items of intangible personal property to the extent said property is owned by
Seller and used in, held for use in connection with, or necessary for the
operation of the Project. The term "Miscellaneous Assets" shall also include the
following, but only to the extent owned by Seller and in Seller's possession:
site plans, surveys, soil and substrata studies, architectural renderings, plans
and specifications, engineering plans and studies, floor plans, tenant data
sheets, landscape plans and other plans or studies of any kind, if any, which
relate to the Land and or the Improvements or the Fixtures and Tangible Personal
Property. The term "Miscellaneous Property Assets" shall also include all of
Seller's rights, if any, in and to the name "COUNTRYWOOD VILLAGE".
2. The term "Miscellaneous Property Assets" shall not include any of the
foregoing: (i) to the extent the same are excluded or reserved to Seller
pursuant to the Purchase Contract to which Seller and Purchaser are parties; and
(ii) to the extent that the sale or transfer thereof requires consent or
approval of any third party, which consent or approval is not obtained by
Seller. Nothing herein shall create a transfer or assignment of intellectual
property or similar assets of Seller.
3. Assignment. Seller hereby assigns, sells and transfers to Purchaser, without
recourse or warranty except as set forth in this Paragraph 3, all of Seller's
right, title and interest, if any, in and to the Miscellaneous Property Assets,
subject to any rights of consent as provided therein. To Seller's knowledge (as
defined in Section 8.1.4 of the Purchase Contract), Seller owns the
Miscellaneous Property Assets free and clear of any liens or encumbrances.
4. Assumption. Purchaser expressly agrees to assume and hereby assumes all
liabilities and obligations of the Seller in connection with the Miscellaneous
Property Assets pertaining to acts arising from and after the date hereof, and
agrees to perform all of the covenants and obligations of Seller thereunder.
Purchaser further agrees to indemnify, defend and hold Seller harmless from and
against any and all cost, loss, harm or damage which may arise in connection
with the Miscellaneous Property Assets, pertaining to acts arising on and after
the date hereof. Seller further agrees to indemnify, defend and hold Purchaser
harmless from and against any and all cost, loss, harm or damage which may arise
in connection with the Miscellaneous Property Assets pertaining to acts arising
prior to the date hereof.
5. Counterparts. This Assignment may be executed in counterparts, each of
which shall be deemed an original, and both of which together shall constitute
one and the same instrument.
6. Attorneys' Fees. If any action or proceeding is commenced by either party to
enforce its rights under this Assignment, the prevailing party in such action or
proceeding shall be entitled to recover all reasonable costs and expenses
incurred in such action or proceeding, including reasonable attorneys' fees and
costs, in addition to any other relief awarded by the court.
7. Applicable Law. This Assignment shall be governed by and interpreted in
accordance with the laws of the State of North Carolina.
8. Titles and Section Headings. Titles of sections and subsections
contained in this Assignment are inserted for convenience of reference only, and
neither form a part of this Assignment or are to be used in its construction or
interpretation.
9. Binding Effect. This Assignment shall be binding upon and inure to the
benefit of the parties hereto and their respective transferees, successors, and
assigns.
10. Entire Agreement; Modification. This Assignment supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may not be altered or modified without the written consent of
all parties.
EXCEPT AS SPECIFICALLY SET FORTH HEREIN, WITH RESPECT TO ALL MATTERS
TRANSFERRED, WHETHER TANGIBLE OR INTANGIBLE, PERSONAL OR REAL, SELLER EXPRESSLY
DISCLAIMS A WARRANTY OF MERCHANTABILITY AND WARRANTY FOR FITNESS FOR A
PARTICULAR USE OR ANY OTHER WARRANTY EXPRESSED OR IMPLIED THAT MAY ARISE BY
OPERATION OF LAW OR UNDER THE UNIFORM COMMERCIAL CODE FOR THE STATE IN WHICH THE
PROPERTY IS LOCATED.
[Remainder of Page Intentionally Left Blank]
<PAGE>
WITNESS the signatures under seal of the undersigned.
Dated: ___________, 2000
Seller:
SHELTER PROPERTIES IV,
a South Carolina limited partnership
By:____Shelter Realty IV Corporation,
a South Carolina corporation,
Its Managing Partner
___________________________________________ By:
[SEAL]
___________________________________________ Name:
_Title:
Purchaser:
DCF, Sr., LLC, a North Carolina limited
liability company
By:
[SEAL]
Name:
Title:
<PAGE>
EXHIBIT 7.2.1.8
Intentionally Deleted
<PAGE>
EXHIBIT B
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Escrow Agreement") made this 25th day of April,
2000 by and among SHELTER PROPERTIES IV, a South Carolina limited partnership
("Seller"), and DCF, Sr., LLC, a North Carolina limited liability company
("Purchaser"); and STEWART TITLE GUARANTY COMPANY ("Escrow Agent");
WITNESSETH:
Whereas Purchaser and Seller are parties to a certain Purchase and Sale
Contract (the "Purchase Contract") made and dated as of the 25th day of April,
2000; and
Whereas, the Purchase Contract requires that Purchaser provide a deposit
in the amount of One Hundred Eighty Two Thousand and No/100 Dollars
($182,000.00) in cash (the "Initial Deposit"), to be held pursuant to an escrow
agreement approved by Purchaser and Seller; and
Whereas, the Purchase Contract requires that on or before 5:00 p.m.
Eastern time on the date of the expiration of the Financing Contingency Period,
Purchaser shall provide an additional deposit in the sum of One Hundred
Eighty-Two Thousand and No/100 Dollars ($182,000.00), in cash (the "Additional
Deposit"), to be held by Escrow Agent.
Now, therefore, the parties agree to the following:
1. Establishment of Escrow. Escrow Agent hereby acknowledges receipt of One
Hundred Eighty Two Thousand and No/100 Dollars ($182,000.00), in cash
(constituting the Initial Deposit), to be deposited, held, invested, and
disbursed for the benefit of Seller and Purchaser and their respective
successors and assigns, as provided herein and as provided in the Purchase
Contract.
2. Investment of Escrow Fund. All funds received by Escrow Agent, including the
Initial Deposit and the Additional Deposit (collectively, the "Escrow Fund"),
shall be held in insured accounts and invested in such short-term, high-grade
securities, money market funds or accounts, interest -bearing bank accounts,
bank certificates of deposit or bank repurchase agreements as Escrow Agent, in
its discretion, deems suitable (provided that Escrow Agent shall invest the
Escrow Fund as jointly directed by Seller and Purchaser should Seller and
Purchaser each in their respective sole discretion determine to issue such joint
investment instructions to the Escrow Agent) and all interest and income thereon
shall become part of the Escrow Fund and shall be remitted to the party entitled
to the Escrow Fund, as set forth below.
3. Application of Escrow Fund. Escrow Agent shall hold the Escrow Fund as
provided above and (a) if the sale of the Property is closed by the date fixed
therefor (or any extension date provided for by mutual written consent of the
parties hereto, given or withheld in their respective sole discretion), Escrow
Agent shall deliver the Escrow Fund to Seller in immediately available funds by
wire transfer in accordance with the instructions of Seller on the Closing Date
as set forth in the Purchase Contract, (b) if the sale of the Property is not
closed by the date fixed therefor (or any such extension date) owing to failure
of satisfaction of a condition precedent to Purchaser's obligations, the Escrow
Agent shall return and refund the Escrow Fund to Purchaser, (c) if the sale of
the Property is not closed by the date fixed therefor (or any such extension
date) owing to failure of performance by Seller, Purchaser shall give Notice to
the Escrow Agent and Seller and in such Notice shall state whether it elects as
its remedy return of the Escrow Fund or specific performance of the Purchase
Contract; if Purchaser elects return of the Escrow Fund, Escrow Agent shall
return and refund the Escrow Fund to Purchaser, (d) if the sale of the Property
is not closed by the date fixed therefor (or any such extension date) owing to
failure of performance by Purchaser, Escrow Agent shall forthwith deliver to
Seller the Escrow Fund in immediately available funds by wire transfer in
accordance with the instructions of Seller, and (e) if Purchaser shall have
canceled the Purchase Contract on or before (i) the expiration of the
Feasibility Period (as defined in the Purchase Contract), with respect to any
contingency other than the financing contingency described in Section 4.1 of the
Purchase Contract, or (ii) the expiration of the Financing Contingency Period
with respect to the financing contingency described in Section 4.1of the
Purchase Contract, then the Escrow Agent shall return and refund the Escrow Fund
to Purchaser.
If on or prior to the termination of the Escrow Agreement, a party claims
to be entitled to payment of the Escrow Fund under the provisions referred to,
such party shall give Notice to the Escrow Agent and the other party of the
claim in writing, describing in such Notice the nature of the claim, and the
provisions of the Purchase Contract on which the claim is based. Unless the
other party sends the Escrow Agent a written objection to the claim, with a copy
concurrently to the claiming party, within ten (10) days after delivery of the
Notice of claim, the claim shall be conclusively presumed to have been approved.
In such case, or in the event of mutual written consent of the parties hereto,
given or withheld in their respective sole discretion, Escrow Agent shall,
within two (2) business days thereafter, pay the claim as demanded.
Notwithstanding the foregoing, Escrow Agent shall deliver the Escrow Fund to
Seller forthwith upon Closing in accordance with the terms of subpart (a) of the
immediately preceding paragraph.
When all monies held by Escrow Agent have been finally distributed in
accordance herewith, this Escrow Agreement shall terminate.
4. Liability. Escrow Agent will be obligated to perform only the duties that are
expressly set forth herein. In case of conflicting demands upon Escrow Agent, it
may (i) refuse to comply therewith as long as such disagreement continues and
make no delivery or other disposition of any funds or property then held (and
Escrow Agent shall not be or become liable in any way for such failure or
refusal to comply with such conflicting or adverse claims or demands, except for
its failure to exercise due care, willful breach and willful misconduct); and
(ii) continue to so refrain and so refuse to act until all differences have been
adjusted by agreement and, Escrow Agent has been notified thereof in writing
signed jointly by Seller and Purchaser or (iii) to interplead the portion of
Escrow Fund in dispute.
5. No Obligation to Take Legal Action. Escrow Agent shall not be under any
obligation to take any legal action in connection with this Escrow Agreement or
for its enforcement, or to appear in, prosecute, or defend any action or legal
proceeding which, in its opinion, would or might involve it in any costs,
expense, loss, or liability, unless and as often as required by it, it is
furnished with satisfactory security and indemnity against all such costs,
expenses, losses, or liabilities.
6. Status of Escrow Agent. Escrow Agent is to be considered and regarded as a
depository only, and shall not be responsible or liable (except for its failure
to exercise due care, willful breach or willful misconduct) for the sufficiency
or correctness as to form, manner of execution, or validity of any instrument
deposited pursuant to this Escrow Agreement, nor as to the identity, authority,
or rights of any person executing the same. Escrow Agent's duties hereunder
shall be limited to the safekeeping and investment of money, instruments, and
securities received by it as Escrow Agent and for their disbursement in
accordance with the written escrow instructions given it in accordance with this
Escrow Agreement.
7. Written Instructions of Parties. Notwithstanding any contrary provision
contained herein, Escrow Agent shall, at all times, have full right and
authority and the duty and obligation to pay over and disburse the principal and
interest of the Escrow Fund in accordance with the joint written instructions
signed by Seller and Purchaser.
8. Notices. Any required or permitted Notice or other communication under this
Escrow Agreement ("Notice") shall be given as follows. All Notices, requests,
demands and other communications hereunder shall be deemed to have been duly
given if the same shall be in writing and shall be delivered personally or sent
by federal express or other recognized national overnight courier service
maintaining records of delivery, or sent by registered or certified mail,
postage pre-paid, or sent by facsimile transmission (with a copy of the
facsimile confirmation and the facsimile transmission also sent by U.S. Mail)
and addressed as set forth below:
If to Seller: If to Purchaser:
SHELTER PROPERTIES IV DCF, Sr., LLC
2000 South Colorado Boulevard 7200 Stonehedge Drive, Suite
Tower Two, Suite 2-1000 211
Denver, Colorado 80222 Raleigh, North Carolina 27613
Attn: Mr. Harry Alcock Attn: Mr. Bobby S. Stovall
Facsimile No. (303) 692-0786 Facsimile No. (919) 846-9771
And With a copy to
AIMCO Satisky & Silverstein, LLP
2000 South Colorado Boulevard 900 Ridgefield Drive
Tower Two, Suite 2-1000 Raleigh. North Carolina 27609
Denver, Colorado 80222 Attn: Howard P. Satisky, Esq.
Attn: Mr. Pat Stucker and Facsimile No. (919) 790-1560
Mr. Mark Reoch
Facsimile No. (303) 692-0786
<PAGE>
With a copy to If to Escrow Agent:
Loeb & Loeb LLP Stewart Title Guaranty Company
1000 Wilshire Boulevard, Suite 1980 Post Oak Boulevard, Suite
1800 610
Los Angeles, California 90017 Houston, Texas 77056
Attn: Andrew S. Clare, Esq. and Attn: Ms. Wendy Howell
Karen N. Higgins, Esq. Facsimile No. (713) 552-1703
Facsimile No. (213) 688-3460
Any party may change the address to which Notices are to be addressed by
giving the other parties Notice in the manner herein set forth. All such
Notices, requests, demands and other communications shall be deemed to have been
delivered (i) as of the day of receipt, in the case of personal delivery, or
(ii) as of the day of receipt or attempted delivery date in the case of delivery
by air courier, or (iii) as of the date of receipt or first attempted delivery,
as evidenced by the return receipt card, in the case of mailing by certified or
registered United States mail.
9. Fee. Escrow Agent shall receive a fee of $500.00 for its services hereunder,
and be paid or reimbursed for all expenses, disbursements and advances,
including reasonable attorneys' fees, incurred or paid in connection with
carrying out its duties hereunder, the payment of all amounts to be shared
equally by Purchaser and Seller equally, and not out of the Escrow Fund.
Non-payment of such fee by Purchaser shall not entitle Escrow Agent to refuse or
fail to act as required by this Escrow Agreement.
10. Titles and Section Headings. Titles of sections and subsections contained in
this Escrow Agreement are inserted for convenience of reference only, and
neither form a part of this Escrow Agreement or are to be used in its
construction or interpretation.
11. Counterparts. This Escrow Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
12. Non-Waiver. No waiver by either party of any breach of any term or condition
of this Escrow Agreement shall operate as a waiver of any other breach of such
term or condition or of any other term or condition. No failure to enforce such
provision shall operate as a waiver of such provision or of any other provision
hereof, or constitute or be deemed a waiver or release of any other party for
anything arising out of, connected with, or based upon this Escrow Agreement.
13. Binding Effect. This Escrow Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective transferees, successors, and
assigns. The parties recognize and acknowledge that the powers and authority
granted Escrow Agent herein are each irrevocable and coupled with an interest.
Escrow Agent shall have no liability to Seller or Purchaser for any mistakes in
judgment in the performance of any function hereunder, except for failure to
exercise due care, willful breach and willful misconduct.
14. Nonlimitation of Liability. Nothing contained herein shall in any way limit
the liabilities, obligations and remedies of Seller and Purchaser as set forth
in the Purchase Contract.
15. Governing Law. This Escrow Agreement shall be governed by and construed in
accordance with the laws of the State of North Carolina.
16. Time of Essence. Time is of the essence of this Escrow Agreement.
17. Entire Agreement; Modification. This Escrow Agreement supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may not be altered or modified without the written consent of
all parties.
In witness whereof each of the parties hereto has caused this Escrow
Agreement to be executed under seal on its behalf by duly authorized persons,
all as of the day and year first above written.
Seller:
SHELTER PROPERTIES IV,
a South Carolina limited partnership
By:____Shelter Realty IV Corporation,
a South Carolina corporation,
Its Managing Partner
___________________________________________ By:
[SEAL]
___________________________________________ Name:
_Title:
Purchaser:
DCF, Sr., LLC, a North Carolina limited
liability company
By:
[SEAL]
Name:
Title:
Escrow Agent:
STEWART TITLE GUARANTY COMPANY
By: [SEAL]
Name:
Title:
<PAGE>
ARTICLE 1...................................................DEFINED TERMS 2
ARTICLE 2 PURCHASE AND SALE OF PROPERTY...................................5
ARTICLE 3 PURCHASE PRICE & DEPOSIT........................................5
ARTICLE 4 FINANCING.......................................................6
ARTICLE 5 FEASIBILITY PERIOD..............................................6
ARTICLE 6 TITLE...........................................................8
ARTICLE 7 CLOSING........................................................10
ARTICLE 8 REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND
PURCHASER......................................................14
ARTICLE 9 CONDITIONS PRECEDENT TO CLOSING................................18
ARTICLE 10 BROKERAGE......................................................19
ARTICLE 11 POSSESSION.....................................................20
ARTICLE 12 DEFAULTS AND REMEDIES..........................................20
ARTICLE 13 RISK OF LOSS OR CASUALTY.......................................20
ARTICLE 14 RATIFICATION...................................................21
ARTICLE 15 EMINENT DOMAIN.................................................21
ARTICLE 16 MISCELLANEOUS..................................................21
<PAGE>
EXHIBIT 10.4(b)
FIRST AMENDMENT TO PURCHASE AND SALE CONTRACT
This First Amendment to Purchase and Sale Contract ("First Amendment") is
made and entered into this 31st day of May, 2000, by and between Shelter
Properties IV, a South Carolina limited partnership (hereinafter referred to as
"Seller") and DCF, Sr., LLC, a North Carolina limited liability company
(hereinafter referred to as "Buyer").
W I T N E S S E T H:
WHEREAS, Seller and Buyer entered into that certain Purchase and Sale
Contract ("Contract") having an Effective Date of April 25, 2000 for the
purchase and sale of certain real property, improvements and personal property
known as Countrywood Apartments, located in Wake County, North Carolina and more
particularly described in the Contract; and
WHEREAS, pursuant to the Contract the parties agreed that the Feasibility
Period shall expire May 31, 2000, the Financing Contingency Period shall expire
forty-five (45) days after the Effective Date and the Closing shall occur on
July 14, 2000; and
WHEREAS, Shelter and Buyer now desire to amend said Contract to extend the
Feasibility Period to June 7, 2000, to extend the Financing Contingency Period
to June 23, 2000, and to amend the Closing Date to July 24, 2000.
NOW, THEREFORE in consideration of the terms and conditions set forth and
contained herein and other good and valuable consideration, receipt and
sufficiency of which are hereby acknowledged, the parties hereto intending to be
legally bound do hereby agree as follows:
1. The foregoing recitals are incorporated herein by reference.
2. All terms not specifically defined herein shall have the same meaning
ascribed to them in the Contract.
3. The Contract is amended as follows:
A. The Feasibility Period is hereby extended to June 7, 2000;
B. The Financing Contingency Period is hereby extended to June 23, 2000 and
the Financing Contingency Termination Date shall hereafter by June 30, 2000;
C. The Closing is hereby extended to July 24, 2000 and the Closing Date shall
hereafter be July 24, 2000.
4. In the event of any conflicts or discrepancies between the terms of the
Contract and the terms of this First Amendment, the terms of this First
Amendment shall control.
5. Except as specifically modified herein, the Contract remains in full force
and effect as written.
6. This First Amendment may be executed in several counterparts, each of which
shall constitute an original and all of which shall constitute one and the same
instrument. Any party hereto may execute this First Amendment by signing any one
counterpart. This First Amendment will be deemed delivered by the parties upon
receipt by each party of a signed counterpart. An executed facsimile copy of
this First Amendment shall be binding for all purposes and receipt of a
facsimile telecopy shall be deemed receipt of an original.
IN WITNESS WHEREOF, Seller and Buyer have executed this First Amendment
effective as of the day and year first above written.
"SELLER"
SHELTER PROPERTIES IV,
a South Carolina limited partnership
By: Shelter Realty IV Corporation
a South Carolina Corporation,
Its Managing Partner
By: [SEAL]
Name:
Title:
"BUYER"
DCF, Sr., LLC, a North Carolina
limited liability company
By: [SEAL]
Name: David C. Falk, Sr.
Title: Member
<PAGE>
EXHIBIT 10.4(c)
SECOND AMENDMENT TO PURCHASE AND SALE CONTRACT
This Second Amendment to Purchase and Sale Contract ("Second Amendment")
is made and entered into this 8th day of June, 2000, by and between Shelter
Properties IV, a South Carolina limited partnership (hereafter referred to as
"Seller") and DCF, Sr., LLC, a North Carolina limited liability company
(hereinafter referred to as "Purchaser").
W I T N E S S E T H:
WHEREAS, Seller and Purchaser entered into that certain Purchase and Sale
Contract ("Original Contract") having an Effective Date of April 25, 2000
together with a First Amendment to Purchase and Sale Contract dated May 31, 2000
("First Amendment") (the Original Contract and the First Amendment are together
hereinafter referred to as the "Contract") for the purchase and sale of certain
real property, improvements and personal property known as Countrywood
Apartments, located in Wake County, North Carolina and more particularly
described in the Contract; and
WHEREAS, the Contract was terminated by Purchaser within the Feasibility
Period; and
WHEREAS, Seller and Purchaser now desire to reinstate and further amend
the Contract to reduce the Purchase Price from Eighteen Million Four Hundred
Seventy Three Thousand and No/100 Dollars ($18,473,000.00) to Seventeen Million
Eight Hundred Thousand and No/100 Dollars ($17,800,000.00), to eliminate the
requirement for Seller to pay D&F a brokerage commission of Two Hundred
Seventy-Three Thousand and No/100 Dollars ($273,000.00), and to confirm that the
Feasibility Period has expired.
NOW, THEREFORE in consideration of the terms and conditions set forth and
contained herein and other good and valuable consideration, receipt and
sufficiency of which are hereby acknowledged, the parties hereto intending to be
legally bound do hereby agree as follows:
1. The foregoing recitals are incorporated herein by reference.
2. All terms not specifically defined herein shall have the same meaning
ascribed to them in the Contract.
3. The Contract is amended by reducing the Purchase Price as set forth in
Section 3.1 of the Original Contract from Eighteen Million Four Hundred Seventy
Three Thousand and No/100 Dollars ($18,473,000.00) to Seventeen Million Eight
Hundred Thousand and No 100 Dollars ($17,800,000.00).
4. The Contract is further amended by deleting in its entirety the last
sentence of Section 10.2, which reads "Seller also agrees to pay D&F a brokerage
commission of $273,000 due and payable upon the Closing.", and inserting in lieu
thereof the following sentence: "Purchaser agrees to be responsible for any
brokerage commission due D&F."
5. Purchaser and Seller hereby confirm and acknowledge that the Feasibility
Period has expired, that the Financing Contingency Period has been extended to
June 23, 2000 and the Financing Contingency Termination Date is June 23, 2000,
and that the Closing has been extended to July 24, 2000, and the Closing Date is
July 24, 2000.
6. In the event of any conflicts or discrepancies between the terms of the
Original Contract, the First Amendment and the terms of this Second Amendment,
the terms of this Second Amendment shall control.
7. The Contract as modified by this Second Amendment is hereby re-instated,
re-adopted, re-ratified and re-confirmed.
8. Except as specifically modified herein, the Contract remains in full
force and effect as written.
9. This Second Amendment may be executed in several counterparts, each of
which shall constitute an original and all of which shall constitute one and the
same instrument. Any party hereto may execute this Second Amendment by signing
any one counterpart. This Second Amendment will be deemed delivered by the
parties upon receipt by each party of a signed counterpart. An executed
facsimile copy of this Second Amendment shall be binding for all purposes and
receipt of a facsimile telecopy shall be deemed receipt of an original.
IN WITNESS WHEREOF, Seller and Purchaser have executed this Second
Amendment effective as of the day and year first above written.
"SELLER"
SHELTER PROPERTIES IV,
a South Carolina limited partnership
By: Shelter Realty IV Corporation
a South Carolina Corporation,
Its Managing Partner
By: [SEAL]
Name:
Title:
"PURCHASER"
DCF, Sr., LLC, a North Carolina
limited liability company
By: [SEAL]
Name: David C. Falk, Sr.
Title: Member
<PAGE>
EXHIBIT 10.4(d)
THIRD AMENDMENT TO PURCHASE AND SALE CONTRACT
This Third Amendment to Purchase and Sale Contract ("Third Amendment") is
made and entered into this 20th day of June, 2000, by and between Shelter
Properties IV, a South Carolina limited partnership (hereafter referred to as
"Seller") and DCF, Sr., LLC, a North Carolina limited liability company
(hereinafter referred to as "Purchaser").
W I T N E S S E T H:
WHEREAS, Seller and Purchaser entered into that certain Purchase and Sale
Contract ("Original Contract") having an Effective Date of April 25, 2000
together with a First Amendment to Purchase and Sale Contract dated May 31, 2000
("First Amendment") and a Second Amendment to Purchase and Sale Contract dated
June 8, 2000 ("Second Amendment") (the Original Contract, the First Amendment,
and the Second Amendment are together hereinafter referred to as the "Contract")
for the purchase and sale of certain real property, improvements and personal
property known as Countrywood Apartments, located in Wake County, North Carolina
and more particularly described in the Contract; and
WHEREAS, Seller and Purchaser now desire to further amend the Contract to
extend the Financing Contingency Period from June 23, 2000 to June 30, 2000, to
extend the Closing from July 24, 2000 to July 31, 2000, and to grant Purchaser
the right to extend the Closing an additional thirty (30) days to August 30,
2000 for an extension deposit in the amount of One Hundred Seventy-Eight
Thousand Dollars ($178,000.00).
NOW, THEREFORE in consideration of the terms and conditions set forth and
contained herein and other good and valuable consideration, receipt and
sufficiency of which are hereby acknowledged, the parties hereto intending to be
legally bound do hereby agree as follows:
1. The foregoing recitals are incorporated herein by reference.
2. All terms not specifically defined herein shall have the same meaning
ascribed to them in the Contract.
3. The Contract is amended as follows:
(a) The Financing Contingency Period is hereby extended to June 23, 2000 to June
30, 2000;
(b) The Closing is hereby extended to July 31, 2000 and the Closing Date shall
hereafter be July 31, 2000.
(c) Purchaser may extend the Closing Date to August 30, 2000 by notifying Seller
prior to July 31, 2000 of such extension and depositing with the Escrow Agent an
extension deposit of One Hundred Seventy-Eight Thousand Dollars ($178,000.00)
(the "Extension Deposit"). The Extension Deposit shall be applicable to the
Purchase Price, shall be treated as and become part of the Deposit, and the
definition of "Deposit" is hereby amended to include the Initial Deposit, the
Additional Deposit, and the Extension Deposit (to the extent Purchaser has paid
same).
4. In the event of any conflicts or discrepancies between the terms of
the Original Contract, the First Amendment, the Second Amendment, and the terms
of this Third Amendment, the terms of this Third Amendment shall control.
5. Except as specifically modified herein, the Contract remains in full
force and effect as written.
6. This Third Amendment may be executed in several counterparts, each of
which shall constitute an original and all of which shall constitute one and the
same instrument. Any party hereto may execute this Third Amendment by signing
any one counterpart. This Third Amendment will be deemed delivered by the
parties upon receipt by each party of a signed counterpart. An executed
facsimile copy of this Third Amendment shall be binding for all purposes and
receipt of a facsimile telecopy shall be deemed receipt of an original.
IN WITNESS WHEREOF, Seller and Purchaser have executed this Third
Amendment effective as of the day and year first above written.
"SELLER"
SHELTER PROPERTIES IV,
a South Carolina limited partnership
By: Shelter Realty IV Corporation
a South Carolina Corporation,
Its Managing Partner
By: [SEAL]
Name:
Title:
"PURCHASER"
DCF, Sr., LLC, a North Carolina
limited liability company
By: [SEAL]
Name: David C. Falk, Sr.
Title: Member
<PAGE>
EXHIBIT 10.4(e)
FOURTH AMENDMENT TO PURCHASE AND SALE CONTRACT
(Countrywood)
This Fourth Amendment To Purchase and Sale Contract (this "Amendment") is
entered into as of the 31st day of July, 2000, by and between SHELTER PROPERTIES
IV, a South Carolina limited partnership ("Seller"), DCF, SR., LLC, a North
Carolina limited liability company ("Purchaser"), and FIFTH & 21st LLC, a New
York limited liability company, and COUNTRYWOOD RALEIGH, LLC, a North Carolina
limited liability company (collectively, "Assignee"), with respect to an escrow
established with Stewart Title Guaranty Company.
WITNESSETH:
WHEREAS, Seller and Purchaser entered into that certain Purchase and Sale
Contract (the "Original Contract") having an Effective Date of April 25, 2000,
together with a First Amendment to Purchase and Sale Contract dated May 31, 2000
(the "First Amendment"), a Second Amendment to Purchase and Sale Contract dated
June 8, 2000 (the "Second Amendment") and a Third Amendment to Purchase and Sale
Contract dated June 20, 2000 (the "Third Amendment") (The Original Contract, the
First Amendment, the Second Amendment and the Third Amendment are together
thereinafter referred to as the "Contract") for the purchase and sale of certain
real property, improvements and personal property known as Countrywood
Apartments, located in Wake County, North Carolina and more particularly
described in the Contract; and
WHEREAS, Seller, Purchaser and Assignee desire to further amend the
Contract pursuant to the terms set forth below.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Contract is hereby amended as
follows:
1. Assignment by Purchaser. Purchaser hereby nominates Assignee via the Title
Company of North Carolina as qualified intermediary as Purchaser under the
Contract.
Purchaser hereby assigns to Assignee its interests under the Contract, and
Assignee hereby agrees to assume all of Purchaser's obligations and liabilities
under the Contract. Seller hereby agrees to the foregoing nomination, assignment
and assumption on the condition that Purchaser shall not be released from its
liability and obligations under the Contract in the event of a breach of the
Contract by Assignee.
2. Credit for Waiver of Make Ready Condition. Pursuant to Section 8.1.1.11 of
the Contract, Seller is required to cause any of the units on the Property that
are vacant as of the day immediately prior to the Closing Date to be in "make
ready" condition on the Closing Date. Seller and Purchaser acknowledge that said
condition has not been satisfied, but Purchaser hereby agrees to waive said
condition in exchange for a credit of $28,810 in favor of Purchaser to be made
against the Purchase Price at the Closing.
3. Closing Date. Seller and Purchaser hereby agree that the Closing Date shall
be extended from July 31, 2000 to August 1, 2000; provided, however, that Seller
and Purchaser shall maintain their respective rights to extend the Closing Date
as set forth in Sections 7.1.1 and 7.1.2 of the Contract.
4. Counterparts. This Amendment may be executed in counterparts, each of which
when compiled together shall constitute one and the same original.
All other terms and conditions of the Contract remain unmodified and in
full force and effect.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, Seller, Assignee and Purchaser have entered into this
Amendment as of the date written above.
Seller:
SHELTER PROPERTIES IV,
a South Carolina limited partnership
By:____Shelter Realty IV Corporation,
a South Carolina corporation,
Its Managing Partner
By:
[Seal]
Name:
Title:
Purchaser:
DCF, Sr., LLC
a North Carolina limited liability company
By:
[SEAL]
Name:
Title:
Assignee:
FIFTH & 21st LLC,
a New York limited liability company
By:
[SEAL]
Name: Bernard H. Kayden
Title: Manager
COUNTRYWOOD RALEIGH, LLC,
a North Carolina limited liability company
By:
[SEAL]
Name: David C. Falk
Title: Manager
