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EXHIBIT 10.5
SECOND AMENDMENT TO OFFER TO PURCHASE AND CONTRACT
THIS SECOND AMENDMENT TO OFFER TO PURCHASE CONTRACT (the "Second Amendment") is
made and entered into as of the 1st day of October, 1999 by and between
YAGER-KUESTER PUBLIC FUND LIMITED PARTNERSHIP ("Seller"), and FOUR DAN, L.L.C.,
a North Carolina Limited Liability Company having its principal place of
business at 4400 South Silas Creek Parkway, Suite 200, Winston-Salem, North
Carolina, 27104 ("Purchaser").
WITNESSETH
WHEREAS, Seller and Purchaser have previously entered into an Offer to Purchase
and Contract dated July 19, 1999 as amended by Amendment to Offer to Purchase
and Contract dated September 2, 1999 (as amended, the "Contract");
WHEREAS, Seller and Purchaser desire to amend the terms of the Contract to
increase the amount of the earnest money and to make it non-refundable, to
clarify that there are only two remaining conditions to the parties' obligation
to close, and to set the date for closing; and
WHEREAS, Seller and Purchaser agree that the following modification shall be
made to the Contract:
AGREEMENT
NOW, THEREFORE, for and in consideration of Ten Dollars ($10.00) and other good
and valuable consideration, the receipt and sufficiency which are hereby
acknowledged, the parties agree as follows:
1. Earnest Money. The earnest money as described in Paragraph
1(a) of the Contract is hereby increased to Seventy Thousand
Dollars ($70,000), which includes Twenty Thousand Dollars
($20,000) previously paid to Chicago Title Insurance Company,
as escrow agent, and an additional Fifty Thousand Dollars
($50,000), which shall be paid within three days after the
execution of this Second Amendment to Chicago Title Insurance
Company as escrow agent. The entire $70,000 in earnest money
shall be non-refundable and should be payable to Seller
whether or not closing occurs unless there is a default by
Seller or unless one of the two Remaining Contingencies (as
hereafter defined) is not fulfilled during the time frame
required by this Second Amendment.
2. Fulfillment of Conditions to Purchaser's Obligation to Close.
Purchaser acknowledges that is has completed its inspection of
the Property, reviewed the tenant leases, and performed all
other due diligence in connection with the Contract and the
Property, and hereby waives any right under the Contract to
terminate the Contract and receive a return of its earnest
money except in the
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event of a Seller default or failure by Seller to fulfill one
of the Remaining Contingencies (as hereinafter defined).
3. Remaining Contingencies. Purchaser's obligation to close under
the Contract as amended hereby is conditioned on fulfillment
of the following two conditions (the "Remaining
Contingencies"):
(a) Seller shall obtain an amendment to the existing
lease for a portion of the Property with the General
Services Administration (Internal Revenue Service) to
renew said tenant's current lease and amend the lease
to increase the square footage of that lease on terms
satisfactory to Seller and Purchaser.
(b) Seller shall obtain consent of its limited partners
holding a majority of partnership interests to the
sale as may be required by the Seller's Limited
Partnership Agreement.
4. Date of Closing. In order to modify the provision of Paragraph
2(a) of the Contract related to the time of closing, the first
sentence of Paragraph 2(a) of the Contract is hereby deleted
and the following insert in lieu thereof:
"The purchase and sale hereunder shall be closed at a
time and place mutually agreed by the parties, which
shall as follows:
(i) If Seller gives Purchaser notice that the
Remaining Contingencies are fulfilled on or
before December 20, 1999, the closing shall
occur on the earlier of (a) 30 days after
the date of said notice or (b) December 31,
1999.
(ii) If the Remaining Contingencies are not
fulfilled on or before December 20, 1999,
then closing shall occur no later than
thirty (30) days after notice from Seller to
Purchaser of the fulfillment of the
Remaining Contingencies; provided, however,
that if the Seller has not given the
Purchaser notice on or before March 1, 2000
that the Remaining Contingencies have been
fulfilled, then this contract shall
terminate, and Seller shall instruct Chicago
Title Insurance Company as escrow agent to
return the $70,000 earnest money to
Purchaser.
5. Ratification. Except as expressly or by implication amended
hereby, the Contract as originally written shall remain in
full force and effect.
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IN WITNESS WHEREOF, Seller and Purchaser have caused this Second Amendment to
Offer to Purchase and Contract to be executed under seal as of the day and year
first above written.
SELLER:
YAGER-KUESTER PUBLIC FUND
LIMITED PARTNERSHIP, a North
Carolina Limited Partnership
By: FSK Limited Partnership
General Partner
By: /s/ Faison S. Kuester, Jr. (Seal)
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Faison S. Kuester, Jr., General Partner
Of FSK Limited Partnership
By: DRY Limited Partnership
General Partner
By: /s/ Dexter R. Yager, Sr. (Seal)
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Dexter R. Yager, Sr.
General Partner of DRY Limited
Partnership
BUYER:
FOUR DAN, L.L.C.
A North Carolina Limited Liability Company
By: /s/ Lloyd R. Daniel, Jr. (SEAL)
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Member/Manager