SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
Under the Securities Exchange Act of 1934
(Amendment No. 2)
N'TANDEM TRUST
(Name of Issuer)
COMMON SHARES OF BENEFICIAL INTEREST
(Title of Class of Securities)
97374210
(CUSIP Number)
TAMARA D. FISCHER
CHATEAU COMMUNITIES, INC.
6430 South Quebec Street
Englewood, Colorado 80111
(303) 741-3707
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
Copy to:
Jay L. Bernstein, Esq.
Rogers & Wells LLP
200 Park Avenue
New York, New York 10166
(212) 878-8000
November 30, 1998
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition that is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box. |_|
(Continued on following pages)
(Page 1 of 3 Pages)
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EXPLANATORY STATEMENT
This Amendment No. 2 amends, pursuant to Rule 13d-2(a) under the
Securities Exchange Act of 1934, as amended (the"Exchange Act"), the Statement
on Schedule 13D by Chateau Communities, Inc. ("Chateau"), first filed on May 21,
1998 and amended on June 4, 1998 (collectively the "Schedule 13D"), with respect
to the common shares of beneficial interest, par value $.01 per share (the
"Common Shares"), of N'Tandem Trust, a California business trust (the "Issuer").
Unless otherwise indicated, capitalized terms used herein but not otherwise
defined shall have the meanings assigned to them in the Schedule 13D.
SCHEDULE 13D
Item 1. Security and Issuer.
No material change.
Item 2. Identity and Background.
No material change.
Item 3. Source and Amount of Funds or Other Consideration.
No material change.
Item 4. Purpose of the Transaction.
No material change.
Item 5. Interest in Securities of the Issuer.
No material change.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.
Item 6 is hereby amended and restated to read in its entirety:
In March 1998, Chateau entered into an investment agreement with the
Issuer (the "Investment Agreement") providing among other things for: (i) the
immediate investment by Chateau in the Issuer of $5.5 million in cash and (ii)
the future issuance to Chateau by the Issuer, within 90 days of the date of the
Chateau Investment, of (A) such number of Common Shares at $25 per share as the
Issuer may determine in its discretion, and (B) one or more promissory notes in
an aggregate principal amount equal to the difference between (x) $5.5 million,
and (y) the value of the Common Shares issued pursuant to (A) above (based on a
value of $25 per Common Share). Pursuant to the Investment Agreement, on May 11,
1998, the Issuer issued to Chateau (i) 19,339 Common Shares having an aggregate
value of $478,475 and (ii) the Promissory Notes. See Items 3 and 4 in Schedule
13D for additional details.
On November 30, 1998, the Issuer borrowed $5,650,000 from Chateau to
pay for the acquisition of three mobile home communities, Southern Mobile Home
Community, Lexington Manufactured Home Community and Suburban Manufactured Home
Community, in Lexington Park, Maryland containing an aggregate of 412 homesites.
This loan currently bears interest at the Prime Rate (the rate of interest
adopted by First Chicago NBD Corporation from time to time as its base or prime
commercial lending rate) plus 1.00% per annum.
Except as described in this Item 6 and Item 4 in Schedule 13D, there
are no contracts, arrangements or other understandings between the Issuer and
Chateau relating to securities of the Issuer.
Item 7. Material to be Filed as Exhibits.
Exhibit 7.1 Investment Agreement by and between the Issuer and
Chateau.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: December 18 , 1998
CHATEAU COMMUNITIES, INC.
By: /s/ Tamara D. Fischer
_____________________________
Name: Tamara D. Fischer
Title: Chief Financial Officer
Exhibit 7.1
INVESTMENT AGREEMENT
BY AND BETWEEN
CHATEAU COMMUNITIES, INC.
and
WINDSOR REAL ESTATE INVESTMENT TRUST 8
DATED AS OF MARCH 30, 1998
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TABLE OF CONTENTS
Page
SECTION 1
1.1 Issuance and Sale of Common Shares and Promissory Notes..........1
1.2 The Closing......................................................1
SECTION 2
2.1 Organization and Standing; Power and Authority...................2
2.2 Subsidiaries.....................................................2
2.3 Capitalization...................................................2
2.4 Authorization....................................................2
2.5 Absence of Changes...............................................2
2.6 Litigation; Orders...............................................2
2.7 Compliance with Laws; Permits....................................3
2.8 Taxes............................................................3
2.9 Consents.........................................................3
SECTION 3
3.1 Experience.......................................................3
3.2 Investment.......................................................3
3.3 Restrictions on Resale...........................................3
3.4 Access to Data...................................................4
3.5 Authorization....................................................4
3.6 No Brokers.......................................................4
3.7 Accredited Status................................................4
3.8 No Conflicts.....................................................4
SECTION 4
4.1 Representations and Warranties Correct...........................4
4.2 Covenants........................................................4
SECTION 5
5.1 Representations..................................................4
5.2 Compliance with State Securities Laws............................5
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SECTION 6
6.1 Further Assurances...............................................5
SECTION 7
7.1 Restrictions on Transferability..................................5
7.2 Restrictive Legend...............................................5
SECTION 8
8.1 General Provisions...............................................5
8.2 Survival.........................................................5
8.3 Notices..........................................................6
8.4 Assignment; Binding Effect; Benefit..............................6
8.5 Entire Agreement.................................................6
8.6 Amendment........................................................6
8.7 Governing Law....................................................6
8.8 Counterparts.....................................................7
8.9 Headings.........................................................7
8.10 Interpretation..................................................7
8.11 Waivers.........................................................7
8.12 Severability....................................................7
8.13 Enforcement of Agreement........................................7
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INVESTMENT AGREEMENT
Investment Agreement dated as of March 30, 1998, by and between Chateau
Communities, Inc., a Maryland corporation ("Chateau"), and Windsor Real Estate
Investment Trust 8, an unincorporated California business trust (the "Trust").
W I T N E S S E T H
WHEREAS, the Trustees believe it is in the best interests of the Trust
to acquire a 627-site manufactured home community in Montgomery, Alabama for a
purchase price of approximately $5.5 million (the "Montgomery Property");
WHEREAS, the Trustees believe it is in the best interests of the Trust
that Chateau make an investment in the Trust of $5.5 million in cash, to enable
the Trust to acquire the Montgomery Property (the "Chateau Investment");
WHEREAS, Chateau desires to make the Chateau Investment, in accordance
with the terms of, and subject to the conditions of, this Agreement; and
WHEREAS, the Chateau Investment, and this Agreement, have been approved
by the Trustees, including the Independent Trustees, in accordance with the
Declaration of Trust of the Trust;
ACCORDINGLY, the parties hereto, intending to be legally bound hereby
agree as follows:
SECTION 1
ISSUANCE AND SALE OF COMMON SHARES AND PROMISSORY NOTES
1.1 Issuance and Sale of Common Shares and Promissory Notes. Subject to
the terms and conditions hereof, the Chateau pay to the Trust at the Closing
$5.5 million in cash (the "Purchase Price") in consideration of the receipt by
Chateau within 90 days of the Closing, and the issuance by the Trust, of (i)
such number of common shares of beneficial interest, par value $.01, of the
Trust (the "Common Shares"), for a purchase price of $25 per share, as the
Trustees may determine in their discretion, (ii) a secured promissory note in
the form of Exhibit A hereto, and (iii) an unsecured promissory note in the form
of Exhibit B hereto (together, the "Promissory Notes"), with an aggregate
principal amount equal to (a) the Purchase Price, minus (b) an amount which
equals the aggregate purchase price of the Common Shares issued pursuant to (i)
above.
1.2 The Closing. Subject to the terms and conditions of this Agreement,
the closing of the Investment hereunder (the "Closing") shall be held at the
offices of Rogers & Wells, LLP, 200 Park Avenue, New York, NY 10166 at 10:00
A.M., local time on March 31, 1998, or at such other time and place upon which
the Trust and Chateau shall agree (the date of the Closing is hereinafter
referred to as the "Closing Date").
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SECTION 2
REPRESENTATIONS AND WARRANTIES OF THE TRUST
The Trust represents and warrants to Chateau as follows:
2.1 Organization and Standing; Power and Authority. The Trust is an
unincorporated business trust, duly organized and existing under the laws of the
State of California and is in good standing under such laws. The Company has the
requisite power and authority to own and operate its properties and assets, and
to carry on its business as presently conducted. The Trust has the requisite
legal and trust power and authority to execute and deliver this Agreement, to
sell and issue the Common Shares and issue to the Promissory Notes and to carry
out and perform its obligations under this Agreement.
2.2 Subsidiaries. The Trust has no subsidiaries or affiliated companies
and does not otherwise own or control, directly or indirectly, any equity
interest in any corporation, association or business entity.
2.3 Capitalization. There are [100,169] issued and outstanding Common
Shares, and 98,073 issued and outstanding preferred shares of beneficial
interest, par value $.01 per share. The outstanding shares have been duly
authorized and validly issued, and are fully paid and nonassessable. Except as
provided in this Agreement, there are no outstanding options, warrants or other
rights to purchase any of the Trust authorized and unissued shares.
2.4 Authorization. All trust action on the part of the Trust, its
Trustees and shareholders necessary for the authorization, execution, delivery
and performance of this Agreement by the Trust, the authorization, sale,
issuance and delivery of the Common Shares and the Promissory Notes and the
performance of all of the Trust's obligations hereunder required or contemplated
to be taken at or prior to the Closing, has been taken or will be taken prior to
the Closing. This Agreement, when executed and delivered by the Trust, shall
constitute a valid and binding obligation of the Trust, enforceable in
accordance with its terms, except to the extent that enforceability may be
limited by bankruptcy, insolvency or other similar laws affecting creditors'
rights generally. The Common Shares, when issued in compliance with the
provisions of this Agreement, will be validly issued, fully paid and
nonassessable, and the shares will be free of any liens or encumbrances, other
than any liens or encumbrances created by or imposed upon the holders thereof
through no action of the Trust, provided, however, that the shares will be
subject to restrictions on transfer under state and/or federal securities laws
as set forth herein.
2.5 Absence of Changes. Since December 31, 1998, there has not been any
material adverse change in the financial condition, results of operations,
assets or liabilities of the Trust or any event or condition which could
reasonably be expected to have such a material adverse change.
2.6 Litigation; Orders. There is no civil, criminal or administrative
action, suit, claim, notice, hearing, inquiry, proceeding or investigation at
law or in equity or by or before any court, arbitrator or similar panel,
governmental instrumentality or other agency now pending or, to the best
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knowledge of the Trust, threatened against the Trust, or material property owned
by the Trust or the business of the Trust. The Trust is not subject to any
order, writ, injunction or decree of any court of any federal, state, municipal
or other domestic or foreign governmental department, commission, board, bureau,
agency or instrumentality.
2.7 Compliance with Laws; Permits. To the Trust's knowledge, the Trust
(a) has complied in all material respects with all federal, state, local and
foreign laws, rules, ordinances, codes, consents, authorizations, registrations,
regulations, decrees, directives, judgments and orders applicable to the Trust
and its business and (b) has all federal, state, local and foreign governmental
licenses, permits and qualifications material to and necessary in the conduct of
its business as currently conducted, such licenses, permits and qualifications
are in full force and effect, and no violations have been recorded in respect of
any such licenses, permits and qualifications, and no proceeding is pending or,
to the best knowledge of the Trust, threatened to revoke or limit any such
license, permit or qualification.
2.8 Taxes. The Trust has filed all tax returns required by law to have
been filed by it at the time of the Closing and has paid all taxes required to
be paid by it including, without limitation, any tax levied upon any of its
properties, assets, income or franchises, which are due and payable prior to or
at the time of the Closing. All amounts required to be collected or withheld and
any such amounts that are required to be remitted to any taxing authority have
been duly remitted.
2.9 Consents. No permit, authorization, consent or approval of or by,
or any notification of or filing with, any person (governmental or private) is
required in connection with the execution, delivery and performance by the Trust
of this Agreement, the consummation by the Trust of the transactions
contemplated hereby, or the issuance, sale or delivery of the Common Shares or
Promissory Notes to be issued hereunder (other than such notifications or
filings required under applicable state securities laws, if any, which shall be
made on a timely basis).
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Chateau hereby represents, warrants and covenants to the Trust as
follows:
3.1 Experience. Chateau has substantial experience in evaluating and
investing in private placement transactions of securities in companies similar
to the Trust, and other securities transactions such that it is capable of
evaluating the merits and risks of its investment in the Trust and has the
capacity to protect his own interests.
3.2 Investment. Chateau is acquiring all the shares to be issued
pursuant to this Agreement for investment for its own account, not as a nominee
or agent, and not with the view to, or for resale in connection with, any
distribution thereof. Chateau understands that the shares have not been, and
will not be, registered under the Securities Act by reason of a specific
exemption from the registration provisions of the Securities Act, the
availability of which depends upon, among other things, the bona fide nature of
the investment intent and the accuracy of such Investor's representations as
expressed herein.
3.3 Restrictions on Resale. Chateau acknowledges that the shares must
be held indefinitely unless subsequently registered under the Securities Act or
unless all exemption from such registration is available.
3.4 Access to Data. Chateau has had an opportunity to discuss the
Trust's business, management and financial affairs with the Trust's management
and has had the opportunity to review the Trust's record books, agreements and
other documents. Chateau has also had an opportunity to ask questions of
officers of the Trust, which questions were answered to its satisfaction.
Chateau understands that such discussions, as well as any written information
issued by the Trust, were intended to describe certain aspects of the Trust's
business and prospects but were not a thorough or exhaustive description.
3.5 Authorization. This Agreement when executed and delivered by
Chateau will constitute a valid and legally binding obligation of Chateau,
enforceable in accordance with its terms.
3.6 No Brokers. Chateau has not employed any broker or finder in
connection with the transactions contemplated by this Agreement.
3.7 Accredited Status. Chateau is an "Accredited Investor"
(as defined in Rule 501(a) under the Securities Act).
3.8 No Conflicts. The execution, delivery and performance by Chateau of
this Agreement and the consummation by Chateau of the transactions contemplated
hereby will not (a) violate any provision of law, statute, rule or regulation,
or any ruling, writ, injunction, order, judgment or decree of any court,
administrative agency or other governmental body applicable to Chateau.
SECTION 4
CHATEAU'S CONDITIONS TO CLOSING
Chateau's obligations to close are subject to the fulfillment of the
following conditions:
4.1 Representations and Warranties Correct. The representations and
warranties made by the Trust in Section 2 hereof shall be true and correct when
made, and shall be true and correct on the Closing Date.
4.2 Covenants. All covenants, agreements and conditions contained in
this Agreement to be performed by the Trust on or prior to the Closing Date
shall have been performed or complied with in all material respects.
SECTION 5
TRUST'S CONDITIONS TO CLOSING
The Trust's obligation to sell and issue the Common Shares and the
Promissory Notes, and to consummate the transactions contemplated by this
Agreement, is, at the option of the Trust, subject to the fulfillment as of the
Closing Date of the following conditions:
5.1 Representations. The representations made by Chateau in Section 3
hereof shall be true and correct when made, and shall be true and correct on the
Closing Date.
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5.2 Compliance with State Securities Laws. The Trust shall have
obtained all permits and qualifications required by any state for the offer and
sale of the Common Shares and Promissory Notes or shall have the availability of
exemptions therefrom.
SECTION 6
AFFIRMATIVE COVENANTS OF THE TRUST AND CHATEAU
6.1 Further Assurances. The parties hereto hereby agree to execute and
deliver such further documents and instruments and do such other acts and things
as may be necessary or appropriate in order to fully effect the intents and
purposes of this Agreement.
SECTION 7
RESTRICTIONS ON TRANSFERABILITY OF SECURITIES;
COMPLIANCE WITH SECURITIES ACT
7.1 Restrictions on Transferability. The shares issued to Chateau
pursuant to the Agreement shall not be sold, assigned, transferred or pledged by
Chateau except upon satisfaction of the conditions specified in this Section 7,
which conditions are intended to ensure compliance with the provisions of the
Securities Act. Chateau shall cause any proposed purchaser, assignee,
transferee, or pledgee of the shares held by Chateau to agree to take and hold
such securities subject to the provisions and conditions of this Section 7.
7.2 Restrictive Legend. Each certificate representing (i) the Common
Shares, and (ii) any other securities issued pursuant to this Agreement or in
respect of the Common Shares upon any stock split, stock dividend,
recapitalization, merger, consolidation or similar event, shall be stamped or
otherwise imprinted with a legend in the following form (in addition to any
legend required under applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED. SUCH SHARES MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR THE
AVAILABILITY OF AN EXCEPTION FROM SUCH REGISTRATION REQUIREMENTS.
Chateau consents to the Trust making a notation on its records and
giving instructions to any transfer agent of the shares in order to implement
the restrictions on transfer established in this Section 7.
SECTION 8
MISCELLANEOUS
8.1 General Provisions.
8.2 Survival. The representations, warranties, covenants and agreements
made herein shall survive any investigation made by the Trust and Chateau and
the closing of the transactions contemplated hereby.
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8.3 Notices. Any notice required to be given hereunder shall be
sufficient if in writing, and sent by courier service (with proof of service),
hand delivery or certified or registered mail (return receipt requested and
first-class postage prepaid), addressed as follows:
If to the Trust, to it at :
6430 South Quebec Street
Englewood, CO 80111
With a copy to:
Rogers & Wells LLP
200 Park Avenue
New York, NY 10166
Attention: Jay L. Bernstein, Esq.
If to Chateau, to it at:
6430 South Quebec Street
Englewood, CO 80111
With a copy to:
Rogers & Wells LLP
200 Park Avenue
New York, NY 10166
Attention: Jay L. Bernstein, Esq.
or to such other address as any party shall specify by written notice so
given, and such notice shall be deemed to have been delivered as of the
date so telecommunicated, personally delivered or mailed.
8.4 Assignment; Binding Effect; Benefit. Neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any of
the parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties. Subject to the preceding sentence, this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns. Notwithstanding anything
contained in this Agreement to the contrary, nothing in this Agreement,
expressed or implied, is intended to confer on any person other than the parties
hereto or their respective heirs, successors, executors, administrators and
assigns any rights, remedies, obligations or liabilities under or by reason of
this Agreement.
8.5 Entire Agreement. This Agreement constitutes the entire agreement
among the parties with respect to the subject matter hereof and supersedes all
prior agreements and understandings (oral and written) among the parties with
respect thereto. No addition to or modification of any provision of this
Agreement shall be binding upon any party hereto unless made in writing and
signed by all parties hereto.
8.6 Amendment. This Agreement may be amended by the parties hereto by
an instrument in writing signed by or on behalf of each of the parties hereto.
8.7 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California without regard to its rules
of conflict of laws.
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8.8 Counterparts. This Agreement may be executed by the parties hereto
in separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute one and the
same instrument. Each counterpart may consist of a number of copies of this
Agreement, each of which may be signed by less than all of the parties hereto,
but together all such copies are signed by all of the parties hereto.
8.9 Headings. Headings of the Articles and Sections of this Agreement
are for the convenience of the parties only, and shall be given no substantive
or interpretive effect whatsoever.
8.10 Interpretation. In this Agreement, unless the context otherwise
requires, words describing the singular number shall include the plural and vice
versa, and words denoting any gender shall include all genders and words
denoting natural persons shall include corporations and partnerships and vice
versa.
8.11 Waivers. Except as provided in this Agreement, no action taken
pursuant to this Agreement, including, without limitation, any investigation by
or on behalf of any party, shall be deemed to constitute a waiver by the party
taking such action of compliance with any representations, warranties, covenants
or agreements contained in this Agreement. The waiver by any party hereto of a
breach of any provision hereunder shall not operate or be construed as a waiver
of any prior or subsequent breach of the same or any other provision hereunder.
8.12 Severability. Any term or provision in this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or otherwise affecting the validity or enforceability of any of the
terms or provisions of this Agreement in any other jurisdiction. If any
provision of this Agreement is so broad as to be unenforceable, the provision
shall be interpreted to be only so broad as is enforceable.
8.13 Enforcement of Agreement. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions.
IN WITNESS WHEREOF, the parties have executed this Agreement and caused
the same to be duly delivered on their behalf as of the day and year first
written above.
CHATEAU COMMUNITIES, INC.
By:______________________
Name: Gary P. McDaniel
Title: President
WINDSOR REAL ESTATE
INVESTMENT TRUST 8
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By:______________________
Name: Gary P. McDaniel
Title: Trustee
By:______________________
Name: Kenneth G. Pinder
Title: Trustee
By:______________________
Name: Richard B. Ray
Title: Trustee
8
Exhibit A
MORTGAGE NOTE
_____________ March 30, 1998
FOR VALUE RECEIVED Windsor Real Estate Investment Trust 8, an
unincorporated California business trust, having an address at 6430 South Quebec
Street, Englewood, Colorado 80111 (hereinafter referred to as "Maker"), promises
to pay to the order of Chateau Communities, Inc. at its address at 6430 South
Quebec Street, Englewood, Colorado 80111 (hereinafter referred to as "Payee"),
or at such place as the holder hereof may from time to time designate in
writing, the principal sum of ______________ in lawful money of the United
States of America, with interest thereon to be computed from the date of this
Note at the Applicable Interest Rate (hereinafter defined), and to be paid as
follows:
ARTICLE 1: PAYMENT TERMS
Accrued interest shall be due and payable on the 1st day of May, 1998,
and on the same day of each succeeding month, and the balance of said principal
sum and all accrued, unpaid interest thereon shall be due and payable on the
31st day of March, 1999 (the "Maturity Date"). Interest on the principal sum of
this Note shall be calculated on the basis of a three hundred sixty (360) day
year composed of twelve (12) months of thirty (30) days each except that
interest due and payable for a period of less than a full month shall be
calculated by multiplying the actual number of days elapsed in such period by a
daily rate based on said 360 day year.
The term "Applicable Interest Rate" as used in this Note shall mean one
percent (1%) per annum over such base rate of interest ("Base Rate") as may be
adopted by First Chicago NBD Corporation from time to time as its base or prime
commercial lending rate. Regardless of the term that may be used from time to
time to describe the Base Rate (such as "prime rate"), Base Rate does not
necessarily mean the lowest interest rate charged by First Chicago NBD
Corporation to other borrowers. The Applicable Rate shall be adjusted on the
first day of each calendar quarter during the term of this Note, with the
adjusted rate being based upon the Base Rate prevailing on the date of such
adjustment.
ARTICLE 2: DEFAULT AND ACCELERATION
The whole of the principal sum of this Note, together with all interest
accrued and unpaid thereon and all other sums due under this Note and the
Mortgage (hereinafter defined) (all such sums hereinafter collectively referred
to as the "Debt") shall without notice become immediately due and payable at the
option of Payee (i) if any payment required in this Note is not paid within ten
(10) days of the date when due, (ii) if the entire Debt is not paid on the
Maturity Date or (iii) on the happening of any other default, after the
expiration of any applicable notice and grace periods, herein, under the terms
of the Mortgage, ((i), (ii) or (iii) hereinafter an "Event of Default"). All of
the terms, covenants and conditions contained in the Mortgage are hereby made
part of this Note tot he same extent and with the same force as if they were
fully set forth herein. In the event that it should become necessary to employ
counsel to collect the Debt or to protect or foreclose the security hereof,
Maker also agrees to pay attorney's fees for the services of such counsel
whether or note suit be brought.
ARTICLE 3: DEFAULT INTEREST
Maker does hereby agree that upon the occurrence of an Event of
Default, Payee shall be entitled to receive and Maker shall pay interest on the
entire unpaid principal sum at the rate of the lesser of (i) 5% above the
Applicable Interest Rate, or (ii) the maximum rate of interest which Maker may
by law pay (the "Default Rate"). The Default Rate shall be computed from the
occurrence of the Event of Default until such Event of Default is cured or the
date upon which the Debt is paid in full, as the case may be. This charge shall
be added to the Debt, and shall be deemed secured by the Mortgage. This clause,
however, shall not be construed as an agreement or privilege to extend the date
of the payment of the Debt, nor as a waiver of any other right or remedy
accruing to Payee by reason of the occurrence of any Event of Default.
ARTICLE 4: PREPAYMENT
The principal balance of this Note may be prepaid in whole or in part
at anytime.
ARTICLE 5: SECURITY
This Note is secured by the Mortgage. The term "Mortgage" as used in
this Note shall mean the Mortgage and Security Agreement given by Maker to Payee
covering the fee estate of Maker in certain premises located in Montgomery
County, State of Alabama, and other property, as more particularly described
therein and intended to be duly recorded in said County. Whenever used, the
singular number shall include the plural, the plural the singular, and the words
"Payee" and "Maker" shall include their respective successors, assigns, heirs,
executors and administrators; however, nothing in this paragraph shall be deemed
to modify the provisions of paragraph 9 of the Mortgage regarding a transfer of
the Mortgaged Property by Maker.
ARTICLE 6: SAVINGS CLAUSE
This Note is subject to the express condition that at no time shall
Maker be obligated or required to pay interest on the Debt or any portion
thereof at a rate which could subject Payee to either civil or criminal
liability as a result of being in excess of the maximum interest rate which
Maker is permitted by applicable law to contract or agree to pay. If by the
terms of this Note, Maker is at any time required or obligated to pay interest
on the Debt or any portion thereof at a rate in excess of such maximum rate, the
rate of interest under this Note shall be deemed to be immediately reduced to
such maximum rate and the interest payable shall be computed at such maximum
rate and all prior interest payments in excess of the maximum rate shall be
deemed to have been payments in reduction of principal and not on account of the
interest due hereunder.
ARTICLE 7: LATE CHARGE
If any sum payable under this Note is not paid within 10 days of the
date on which it is due, Maker shall pay to Payee an amount equal to the lesser
of five percent (5%) of such unpaid sum or the maximum amount permitted by
applicable law to defray the expenses incurred by Payee in handling and
processing such delinquent payment and such amount shall be secured by the
Mortgage; provided, however, no such late charge will be charged or collected if
the amount of such late charge when added to all interest constructed for,
charged or received by Payee hereunder would exceed the maximum amount of
interest allowed by applicable law. This clause, however, shall not be construed
as an agreement or privilege to extend the date of the payment of the Debt, nor
as a waiver of any other right or remedy accruing to Payee by reason of the
occurrence of any Event of Default.
ARTICLE 8: NO ORAL CHANGE
This Note may not be modified, amended, waived, extended, changed,
discharged or terminated orally or by any act or failure to act on the part of
Maker or Payee, but only by an agreement in writing signed by the party against
whom enforcement of any modification, amendment, waiver, extension, change,
discharge or termination is sought.
ARTICLE 9: JOINT AND SEVERAL LIABILITY
If Maker consists of more than one person or party, the obligations and
liabilities of each such person or party shall be joint and several.
ARTICLE 10: WAIVERS
Maker and all others who may become liable for the payment of all or
any part of the Debt do hereby severally waive presentment and demand for
payment, notice of dishonor, protest and notice of protest and non-payment. No
release of any security for the Debt or extension of time for payment of this
Notice or any installment hereof, and no alteration, amendment or waiver of any
provision of this Note or the Mortgage made by agreement between Payee and any
other person or party shall release, modify, amend, waive, extend, change,
discharge, terminate or affect the liability of Maker, and any other who may
become liable for the payment of all or any part of the Debt, under this Note or
the Mortgage.
ARTICLE 11: AUTHORITY
Maker (and the undersigned representative of the Maker, if any)
represents that Maker has full power, authority and legal right to execute,
deliver and perform its obligations pursuant to this Note and the Mortgage and
that this Note and the Mortgage constitute valid and binding obligations of
Maker.
ARTICLE 12: EXCULPATION
Intentionally omitted.
ARTICLE 13: NOTICES
All notices or other written communications hereunder shall be deemed
to have been properly given (i) upon delivery, if delivered in person or by
facsimile transmissions, (ii) one (1) Business Day (defined below) after having
been deposited for overnight delivery with any reputable overnight courier
service, or (iii) three (3) Business Days after having been deposited in any
post office or mail depository regularly maintained by the U.S. Postal Service
and sent by registered or certified mail, postage prepaid, return receipt
requested, addressed as follows:
<PAGE>
If to Maker: Windsor Real Estate Investment Trust 8
6430 South Quebec Street
Englewood, Colorado 80111
Attention: Steven G. Waite
Facsimile No.: (303) 741-3715
If to Payee: Chateau Communities, Inc.
6430 South Quebec Street
Englewood, Colorado 80111
Attention: Tamara Fischer
Facsimile No.: (303) 741-3715
or addressed as such party may from time to time designate by written notice to
the other parties. Either party by notice to the other may designate additional
or different addresses for subsequent notices or communications. "Business Day"
shall mean a day upon which commercial banks are not authorized or required by
law to close in New York.
ARTICLE 14: WAIVER OF TRIAL BY JURY
Maker hereby waives, to the fullest extent permitted by law, the right
to trial by jury in any action, proceeding or counterclaim, whether in contract,
tort or otherwise, relating directly or indirectly to the loan evidenced by this
Note, the application for the loan evidenced by this Note or the Mortgage or any
acts or omissions of Payee, its officers, employees, directors or agents in
connection herewith.
ARTICLE 15: GOVERNING LAW
This Note shall be deemed to be a contract entered into pursuant to the
laws of the State of Alabama and shall in all respects be governed, construed,
applied and enforced in accordance with the laws of the State of Alabama and the
applicable laws of the United States of America.
IN WITNESS WHEREOF, Maker has duly executed this Note as of the day and
year first written above.
WINDSOR REAL ESTATE INVESTMENT
TRUST 8, an unincorporated California business
trust
By: ________________________________________
Gary P. McDaniel
Trustee
By: _________________________________________
Kenneth G. Pinder
Trustee
By: __________________________________________
Richard B. Ray
Trustee
Exhibit B
UNSECURED PROMISSORY NOTE
________________
March 30, 1998
FOR VALUE RECEIVED Windsor Real Estate Investment Trust 8, an
unincorporated California business trust having an address at 6430 South Quebec
Street, Englewood, Colorado 80111 (hereinafter referred to as "Maker"), promises
to pay to the order of Chateau Communities, Inc. at its address at 6430 South
Quebec Street, Englewood, Colorado 80111 (hereinafter referred to as "Payee"),
or at such place as the holder hereof may from time to time designate in
writing, the principal sum of ______________ or so much as thereof as may be
advanced and outstanding with interest on the principal balance from the date of
each advance in lawful money of the United States of America, with interest
thereon to be computed from the date of this Note at the Applicable Interest
Rate (hereinafter defined), and to be paid as follows:
Article 1: PAYMENT TERMS
Accrued interest shall be due and payable on the 1st day of
May, 1998, and on the same day of each succeeding month, and the balance of said
principal sum and all accrued, unpaid interest thereon shall be due and payable
on the 31st day of March, 1999 (the "Maturity Date"). Interest on the principal
sum of this Note shall be calculated on the basis of a three hundred sixty (360)
day year composed of twelve (12) months of thirty (30) days each except that
interest due and payable for a period less than a full month shall be calculated
by multiplying the actual number of days elapsed in such period by a daily rate
based on said 360 day year.
The term "Applicable Interest Rate" as used in this Note shall
mean one percent (1%) per annum over such base rate of interest ("Base Rate") as
may be adopted by First Chicago NBD Corporation from time to time as its base or
prime commercial lending rate. Regardless of the term that may be used from time
to time to describe the Base Rate (such as "prime rate"), Base Rate does not
necessarily mean the lowest interest rate charged by First Chicago NBD
Corporation to other borrowers. The Applicable Rate shall be adjusted on the
first day of each calendar quarter during the term of this Note, with the
adjusted rate being based upon the Base Rate prevailing on the date of such
adjustment.
Article 2: DEFAULT AND ACCELERATION
The whole of the principal sum of this Note, together with all
interest accrued and unpaid thereon and all other sums due under this Note (all
such sums hereinafter collectively referred to as the "Debt") shall without
notice become immediately due and payable at the option of Payee (i) if any
payment required in this Note is not paid within ten (10) days of the date when
due, or (ii) if the entire Debt is not paid on the Maturity Date ((i) or (ii)
hereinafter an "Event of Default"). In the event that it should become necessary
to employ counsel to collect the Debt, Maker also agrees to pay attorney's fees
for the services of such counsel whether or not suit be brought.
Article 3: DEFAULT INTEREST
Maker does hereby agree that upon the occurrence of an Event
of Default, Payee shall be entitled to receive and Maker shall pay interest on
the entire unpaid principal sum at the rate of the lesser of (i) 5% above the
Applicable Interest Rate, or (ii) the maximum rate of interest which Maker may
by law pay (the "Default Rate"). The Default Rate shall be computed from the
occurrence of the Event of Default until such Event of Default is cured or the
date upon which the Debt is paid in full, as the case may be. This charge shall
be added to the Debt. This clause, however, shall not be construed as an
agreement or privilege to extend the date of the payment of the Debt, nor as a
waiver of any other right or remedy accruing to Payee by reason of the
occurrence of any Event of Default.
Article 4: PREPAYMENT
The principal balance of this Note may be prepaid in whole or
in part at anytime.
Article 5: SECURITY
Intentionally Omitted.
Article 6: SAVINGS CLAUSE
This Note is subject to the express condition that at not time
shall Maker be obligated or required to pay interest on the Debt or any portion
thereof at a rate which could subject Payee to either civil or criminal
liability as a result of being in excess of the maximum interest rate which
Maker is permitted by applicable law to contract or agree to pay. If by the
terms of this Note, Maker is at any time required or obligated to pay interest
on the Debt or any portion thereof at a rate in excess of such maximum rate, the
rate of interest under this Note shall be deemed to be immediately reduced to
such maximum rate and the interest payable shall be computed at such maximum
rate and all prior interest payments in excess of the maximum rate shall be
deemed to have been payments in reduction of principal and not on account of the
interest due hereunder.
Article 7: LATE CHARGE
If any sum payable under this Note is not paid within 10 days
of the date on which it is due, Maker shall pay to Payee an amount equal to the
lesser of five percent (5%) of such unpaid sum or the maximum amount permitted
by applicable law to defray the expenses incurred by Payee in handling and
processing such delinquent payment; provided, however, no such late charge will
be charged or collected if the amount of such late charge when added to all
interest constructed for, charged or received by Payee hereunder would exceed
the maximum amount of interest allowed by applicable law. This clause, however,
shall not be construed as an agreement or privilege to extend the date of the
payment of the Debt, nor as a waiver of any other right or remedy accruing to
Payee by reason of the occurrence of any Event of Default.
Article 8: NO ORAL CHANGE
This Note may not be modified, amended, waived, extended,
changed, discharged or terminated orally or by any act or failure to act on the
part of Maker or Payee, but only by an agreement in writing signed by the party
against whom enforcement of any modification, amendment, waiver, extension,
change, discharge or termination is sought.
Article 9: JOINT AND SEVERAL LIABILITY
If Maker consists of more than one person or party, the
obligations and liabilities of each such person or party shall be joint and
several.
Article 10: WAIVERS
Maker and all others who may become liable for the payment of
all or any part of the Debt do hereby severally waive presentment and demand for
payment, notice of dishonor, protest and notice of protest and non-payment. No
release of any security for the Debt or extension of time for payment of this
Note or any installment hereof, and no alteration, amendment or waiver of any
provision of this Note made by agreement between Payee and any other person or
party shall release, modify, amend, waive, extend, change, discharge, terminate
or affect the liability of Maker, and any other who may become liable for the
payment of all or any part of the Debt.
Article 11: AUTHORITY
Maker (and the undersigned representative of Maker, if any)
represents that Maker has full power, authority and legal right to execute,
deliver and perform its obligations pursuant to this Note and that this Note
constitutes a valid and binding obligation of Maker.
Article 12: EXCULPATION
Intentionally Omitted.
Article 13: NOTICES
All notices or other written communications hereunder shall be
deemed to have been properly given (i) upon delivery, if delivered in person or
by facsimile transmission, (ii) one (1) Business Day (defined below) after
having been deposited for overnight delivery with any reputable overnight
courier service, or (iii) three (3) Business Days after having been deposited in
any post office or mail depository regularly maintained by the U.S. Postal
Service and sent by registered or certified mail, postage prepaid, return
receipt requested, addressed as follows:
If to Maker: Windsor Real Estate Investment Trust 8
6430 South Quebec Street
Englewood, Colorado 80111
Attention: Steven G. Waite
Facsimile No.: (303) 741-3715
If to Payee: Chateau Communities, Inc.
6430 South Quebec Street
Englewood, Colorado 80111
Attention: Tamara Fischer
Facsimile No.: (303) 741-3715
or addressed as such party may from time to time designate by written notice to
the other parties. Either party by notice to the other may designate additional
or different addresses for subsequent notices or communications. "Business Day"
shall mean a day upon which commercial banks are not authorized or required by
law to close in Alabama or New York.
Article 14: WAIVER OF TRIAL BY JURY
Maker hereby waives, to the fullest extent permitted by law,
the right to trial by jury in any action, proceeding or counterclaim, whether in
contract, tort or otherwise, relating directly or indirectly to the loan
evidenced by this Note, the application for the loan evidenced by this Note or
any acts or omissions of Payee, its officers, employees, directors or agents in
connection therewith.
Article 15: GOVERNING LAW
This Note shall be deemed to be a contract entered into
pursuant to the laws of the State of Alabama and shall in all respects be
governed, construed, applied and enforced in accordance with the laws of the
State of Alabama and the applicable laws of the United States of America.
<PAGE>
IN WITNESS WHEREOF, Maker has duly executed this Note as of the day
and year first above written.
WINDSOR REAL ESTATE INVESTMENT
TRUST 8, an unincorporated
California business trust
By:
Gary P. McDaniel
Trustee
By:
Kenneth G. Pinder
Trustee
By:
Richard B. Ray
Trustee
