TENTH AMENDMENT TO REAL PROPERTY
PURCHASE AND SALE AGREEMENT
THIS TENTH AMENDMENT TO REAL PROPERTY PURCHASE AND SALE AGREEMENT (the
"Tenth Amendment") is effective as of the 10th day of May, 2002, and entered
into by and between DCF I, LLC, a North Carolina limited liability company
("Buyer"), the successor in interest to HD ACQUISITIONS, LLC, a North Carolina
limited liability company, and MERISEL PROPERTIES, INC., a Delaware corporation
("Seller").
RECITALS:
WHEREAS, HD Acquisitions, LLC and Seller have heretofore entered into
that certain Real Property Purchase and Sale Agreement dated December 10, 2001,
as amended by that certain First Amendment to Real Property Purchase and Sale
Agreement dated February 8, 2002, as amended by that certain Second Amendment to
Real Property Purchase and Sale Agreement dated March 11, 2002, as amended by
that certain Third Amendment to Real Property Purchase and Sale Agreement dated
March 18, 2002, as amended by that certain Fourth Amendment to Real Property
Purchase and Sale Agreement dated March 22, 2002, as amended by that certain
Fifth Amendment to Real Property Purchase and Sale Agreement dated April 5,
2002, as amended by that certain Sixth Amendment to Real Property Purchase and
Sale Agreement dated April 12, 2002, as amended by that certain Seventh
Amendment to Real Property Purchase and Sale Agreement dated April 19, 2002, as
amended by that certain Eighth Amendment to Real Property Purchase and Sale
Agreement dated April 26, 2002, and as further amended by that certain Ninth
Amendment to Real Property Purchase and Sale Agreement dated May 3, 2002 (the
Real Property Purchase and Sale Agreement as amended shall hereinafter be
referred to as the "Agreement"); and
WHEREAS, effective this date, HD Acquisitions, LLC assigned all of its
right, title and interest in and to the Agreement to Buyer, and Buyer assumed
all of the liabilities and obligations of HD Acquisitions, LLC under the
Agreement, all in accordance with that certain Assignment and Assumption of
Contract by and between HD Acquisitions, LLC and Buyer; and
WHEREAS, effective this date, Buyer, Seller and HD Acquisitions, LLC
entered into that certain Consent to Assignment of Real Property Purchase and
Sale Agreement; and
WHEREAS, any capitalized term not defined herein shall have the
meaning ascribed to it in the Agreement; and
WHEREAS, Buyer and Seller desire to amend the Agreement to restructure
the transaction as a Seller financed purchase and sale in consideration for
which Buyer agrees to make certain improvements to the Property and to allow
Seller to share in any gain realized in connection with a sale or other
disposition of the Property in accordance with the terms and conditions of
certain definitive agreements defined below.
NOW, THEREFORE, in consideration of the mutual covenants of Buyer and
Seller contained in this Tenth Amendment and set forth below, and for other good
and valuable consideration, the receipt and sufficiency of which Buyer and
Seller acknowledge, Buyer and Seller agree as follows:
1. The Recitals are incorporated herein by reference.
2. Section 1.02 of the Agreement is hereby deleted in its
entirety and the following is inserted in lieu thereof:
1.02 Payment of the Purchase Price. The Purchase Price
shall be paid to Seller by Buyer as follows:
a. TWENTY FIVE THOUSAND AND 00/100 DOLLARS ($25,000.00)
of the Purchase Price shall be paid by Buyer to Seller by way of
official bank check or federal wire transfer at Closing; and
b. TWO MILLION NINE HUNDRED SEVENTY-FIVE THOUSAND AND 00/100
DOLLARS ($2,975,000.00) shall be paid by Buyer to Seller in the form of
purchase money financing upon the terms and conditions as substantially
set forth in the Purchase Money Note and Purchase Money Deed of Trust
attached hereto as Exhibit C and Exhibit D, respectively.
Within three (3) days after Closing, Escrow Agent shall return the Letter of
Credit and any Modification Fee(s) to Buyer.
3. The following Section 1.03 is hereby added to the Agreement:
1.03 Inducement for Seller Financing. To induce Seller to
finance the Purchase Price of the Property and to sell the Property in
accordance with the terms hereof, Buyer agrees to cause certain improvements to
be made to the Building and to allow Seller to share in any gain realized in
connection with a sale or other disposition of the Property upon the terms and
conditions as substantially set forth in Loan Agreement attached hereto and
incorporated herein as Exhibit E. Once Buyer has funded improvements to the
Building in the amount of One Million Dollars ($1,000,000), Seller will lend
Buyer additional sums up to an amount of One Million Dollars ($1,000,000) upon
the terms and conditions as substantially set forth in Loan Agreement. This loan
shall be evidenced, secured and guaranteed upon the terms and conditions as
substantially set forth in the Construction Note, the Construction Deed of Trust
and the Guaranty attached hereto and incorporated herein as Exhibit F, Exhibit G
and Exhibit H, respectively.
4. Section 5.02 of the Agreement is hereby amended to extend the
expiration date of the Financing Period to May 17, 2002. It is the intention of
Buyer and Seller that a Fifty Thousand Dollars ($50,000) portion of the Xxxxxxx
Money shall be nonrefundable to Buyer upon the execution of this Tenth
Amendment. As such, the last two sentences of Section 5.02 are amended as
follows:
Prior to the end of the Financing Period, if Buyer, despite its best
efforts, is unable to obtain a loan commitment in accordance with the terms
described above, Buyer may give Seller written notice that this Agreement is
terminated. In such event, Escrow Agent shall deliver the Xxxxxxx Money to
Seller in accordance with the terms of Section 3 of Exhibit B, and Seller shall
be entitled to draw down the Letter of Credit in the amount of Fifty Thousand
and no/100 Dollars ($50,000.00), whereupon both parties shall be relieved of and
released from any further liability hereunder (except as provided in Section
5.01).
5. Section 3(b) of Exhibit B of the Agreement is hereby amended to
extend the Expiration Date of the Financing Period to May 17, 2002. It is the
intention of Buyer and Seller that a Fifty Thousand Dollars ($50,000) portion of
the Xxxxxxx Money shall be nonrefundable to Buyer upon the execution of this
Tenth Amendment. As such, the last three sentences of Section 3(b) of Exhibit B
of the Agreement are amended as follows:
Buyer and Seller acknowledge and agree that upon Buyer's termination of
the Purchase Agreement on or before the Expiration Date, Seller shall have the
right to retain Fifty Thousand and no/100 Dollars ($50,000.00) of the Xxxxxxx
Money. If Buyer elects to terminate the Purchase Agreement on or before the
Expiration Date, Buyer shall execute a notice of termination and deliver such
notice of termination to Seller and to Escrow Agent. Upon Buyer's delivery of
the notice of termination to Escrow Agent, Escrow Agent shall deliver the
Xxxxxxx Money to Seller not later than one (1) business day following receipt of
the notice of termination, whereupon Seller shall thereafter present the Letter
of Credit to the bank issuing the Letter of Credit for payment of Fifty Thousand
and no/100 Dollars ($50,000.00) of the Xxxxxxx Money and upon such payment this
Agreement shall thereupon be null and void and the parties hereto shall have no
further liability or obligations hereunder.
6. Section 7.01 of the Agreement is hereby deleted in its
entirety and the following is inserted in lieu thereof:
7.01 Time and Place of Closing. The consummation
of the sale and purchase of the Property hereunder (the "Closing") shall take
place on May 17, 2002 (the "Closing Date") which date is the end date of the
Financing Period. In the event, Buyer is unable to close on May 17, 2002,
despite its best efforts, the Closing shall be extended on a day to day basis
but in no event shall the Closing Date be later than May 24, 2002. The Closing
shall be held at 10:00 A.M., Raleigh, North Carolina time, on the Closing Date
at the offices of Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, LLP, 000 Xxxxxxxxxxxx
Xxxxxx Xxxx, Xxxxx 0000, Xxxxxxx, Xxxxx Xxxxxxxx 00000, or at such other place
as the parties may mutually agree to.
5. The following Section 7.035 is hereby added to the Agreement:
7.035 Documents to be Delivered at Closing with
Respect to the Property. At the Closing Buyer shall:
(a) Execute, acknowledge and deliver to Seller the
Purchase Money Note and the Purchase Money Deed of Trust;
(b) Execute, acknowledge and deliver to Seller the Loan
Agreement, the Construction Note, and the Construction Deed of Trust.
(c) Cause the Guaranty to be executed by Xxxxxxx Xxxxxx,
acknowledged and delivered to Seller.
(d) Execute such other documents, certificates and affidavits
as may be reasonably required by the Seller or its attorney in order to confirm
matters represented herein or in order to perform obligations under this
Agreement.
6. The last sentence of Section 10.05 of the Agreement is
hereby deleted in its entirety and the following is inserted in lieu thereof:
In the event Buyer requests a modification to the terms of
this Agreement and the parties enter into an amendment to modify this Agreement,
Buyer shall pay to Escrow Agent a modification fee ("Modification Fee") in the
amount of Twenty Five Thousand and no/100 Dollars ($25,000.00) for each
amendment not to exceed One Hundred Thousand and no/00 Dollars ($100,000.00) in
the aggregate, which Modification Fee(s) shall be nonrefundable to Buyer after
the expiration date of the Financing Period, except in the event Seller defaults
hereunder. In the event the purchase and sale of the Property closes as
contemplated by this Agreement, the Escrow Agent shall, at Closing, deliver the
Modification Fee(s) as directed by Buyer.
7. Seller hereby waives its right to collect a Modification Fee for
this Tenth Amendment; provided, however, Seller's waiver of this requirement
shall be specific to this Tenth Amendment and shall in no way be construed to be
a waiver of Section 10.05 of the Agreement or of Seller's right to enforce
Section 10.05 of the Agreement hereafter.
8. In a Notice of Violation dated February 28, 2002, the Town of Xxxx
notified Seller of certain site plan violations relating to parking areas and
speed bumps located on the Property. In correspondences to Seller's attorney
dated March 21, 2002, and April 12, 2002, the Town of Xxxx admits that the
aforementioned Notice of Violation was not valid as it related to parking area
on the Property and grants Seller an extension until June 1, 2002, to remove the
speed bumps located on the Property. Buyer hereby covenants to cause the removal
of said speed bumps at Buyer's sole cost and expense on or before June 1, 2002.
This covenant shall survive Closing.
9. In a letter dated December 28, 2001, the Engineering Department of
the Town of Xxxx notified Seller that the sand filter in the watershed
protection devise located on the Property was in need of maintenance. On
February 1, 2002, Seller received a quote in the amount of $2,850.00 from Eco
Turf, Inc. for the cost of removing the contaminated sand from the filter and
replenishing same with clean sand. Buyer hereby covenants to cause the sand
filter to be serviced and cleaned at Buyer's sole cost and expense within
fourteen (14) days of the Closing Date. This covenant shall survive Closing.
10. This Tenth Amendment may be executed in counterparts, each of which
shall be deemed an original, but all of which shall be deemed one and the same
Tenth Amendment. Facsimile signatures shall be deemed original.
11. Except as modified herein, all of the terms, conditions and
provisions of the Agreement shall remain unchanged and in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Tenth Amendment
to be executed by persons duly empowered to bind the parties to perform their
respective obligations hereunder effective the day and year first above written.
SELLER:
MERISEL PROPERTIES, INC.
a Delaware corporation
BY:/s/Xxxxx Xxxxxxx
-------------------------------------
Xxxxx Xxxxxxx, Secretary
BUYER:
DCF I, LLC,
a North Carolina limited liability company
BY: /s/Xxxxxxx Xxxxxx
--------------------------------------
Xxxxxxx Xxxxxx, Manager
Exhibit C
Purchase Money Note
[to be attached]
Exhibit D
Purchase Money Deed of Trust
[to be attached]
Exhibit E
Loan Agreement
[to be attached]
Exhibit F
Construction Note
[to be attached]
Exhibit G
Construction Deed of Trust
[to be attached]
Exhibit H
Guaranty
[to be attached]
