exv10w1



 






Exhibit 10.1




AGREEMENT OF PURCHASE AND SALE




between




AMERICA FIRST TAX EXEMPT INVESTORS, LP,

a Delaware limited partnership,
 as Seller




and




DEVELOPMENT RESOURCES GROUP, LLC,

a Florida limited liability company,
 as Purchaser




dated as of July 22, 2005




 









 





AGREEMENT OF PURCHASE AND SALE




     THIS AGREEMENT OF PURCHASE AND SALE (this “Agreement”) is made as of this 22 day of
July, 2005 by and between AMERICA FIRST TAX EXEMPT INVESTORS, LP, a Delaware limited partnership
(“Seller”), and DEVELOPMENT RESOURCES GROUP, LLC, a Florida limited liability company
(“Purchaser”).



PRELIMINARY STATEMENTS:




     Seller is the current holder of that certain Mortgage, Security Agreement, Assignment of
Rents and Leases by and between Clear Lake Colony Acquisition Corporation (“Owner”) and SunTrust
Bank, as recorded on June 6, 2000 in Official Records Book 11820, Page 1666, Public Records of
Palm Beach County, Florida (the “Mortgage”). The Owner is in default under the Mortgage, and
Seller intends to foreclose under the Mortgage or accept a deed in lieu thereof and become the
owner of the fee-simple interest in and to the land described therein, which is more particularly
described in Exhibit A attached to this Agreement and generally known as “Clear Lake
Colony,” together with all buildings, structures, fixtures, facilities, installations and other
improvements located thereon, all leasehold interests affecting the same and all rights of any
kind appurtenant thereto (collectively, the “Premises”). Seller also intends to similarly obtain
ownership of the personal property described on Exhibit C, attached hereto and made a part
hereof (the “Personal Property”). Owner, as lessor, has entered into various lease agreements
(collectively, the “Leases”) with the persons and parties listed as “tenant” (collectively, the
“Lessees”), as lessees, in the detailed rent roll (the “Rent Roll”) attached hereto as Exhibit
D and made a part hereof. Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller, the fee-simple interest in and to the Premises, and the title to the
Personal Property and to the Leases, upon the terms and conditions set forth in this Agreement.



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:



     Section 1. Purchase and Sale. Seller hereby agrees to sell to Purchaser, and Purchaser hereby
agrees to purchase from Seller, for the Purchase Price (as defined herein) and subject to and upon
the terms and conditions hereinafter set forth, Seller’s fee-simple interest in the Premises,
subject to the encumbrances set forth in Exhibit B attached hereto (collectively, the
‘Permitted Exceptions”), and Seller’s right, title and interest in the Leases and the Personal
Property.



     Section 2. Earnest Money and Purchase Price.




     (a) Upon execution hereof, Purchaser shall deliver to Shutts & Bowen LLP, as agent for
First American Title Insurance Company (the “Escrow Agent” or “Title Company”), whose notice
address is 300 S. Orange Avenue, Suite 1000, Orlando, FL 32801, the sum of $800,000
(together with interest thereon, the “Earnest Money”), to be held in an interest-bearing
escrow account with interest accruing to Purchaser. Notwithstanding anything in this
Agreement to the contrary, the Earnest Money shall be nonrefundable and paid to Seller at
any Closing or termination of this Agreement, except as set forth in Sections 5, 6(b) or 13
(b) of this Agreement.



 









 






     (b)
The purchase price for the Premises (the “Purchase Price”)
shall be
$33,500,000(1), which
is payable in cash or by bank wire transfer in immediately available funds at Closing (as such
term is defined in Section 7(a)).




     Section 3. Representations and Warranties.




     (a) Except as specifically set forth in Section 3(b), Purchaser hereby acknowledges
that Seller is conveying the Premises in its present “AS IS” condition and has not made, does not
make and will not make any warranties or representations, whether express or implied, with
respect to the Premises or the value or marketability thereof or any of the appurtenances,
facilities or equipment thereof. Further, Purchaser acknowledges that Seller has not made, does
not make and will not make any warranties,
whether express or implied, of habitability, merchantability or fitness for a particular
purpose unless specifically set forth herein. Purchaser further acknowledges that by its
consummating the transactions contemplated by this Agreement, it will have made such legal,
technical, engineering, factual, financial and other inquiries and investigations as it deems
necessary, desirable or appropriate with respect to the Leases, Lessees, the Premises and the
value thereof and the appurtenances, facilities and equipment thereof and that it will be relying
solely thereon except for the representations and warranties of Seller set forth in Section 3(b)
hereof.




     (b) Seller hereby covenants, represents and warrants to Purchaser that:




     (i) Seller is a limited partnership duly formed, validly existing and in good
standing under the laws of the State of Delaware and will have as of the Closing Date all
requisite power and authority to sell and convey the Premises, to enter into and perform
this Agreement and to carry out the transactions contemplated hereby and thereby.




     (ii) Seller is the holder of the Mortgage and all other outstanding debt encumbering
the Premises, which debt is currently in default. Seller has secured the agreement of
Owner to deliver to Seller on or before the Closing Date a deed in lieu of foreclosure to
the Premises. Seller has full capacity, right, power and authority to execute, deliver and
perform this Agreement and all documents to be executed by Seller pursuant hereto. The
individuals signing this Agreement and all other documents executed or to be executed
pursuant hereto on behalf of Seller are and shall be duly authorized to sign the same on
Seller’s behalf and to bind Seller hereto. This Agreement and all documents to be executed
pursuant hereto by Seller are and shall be binding upon and enforceable against Seller in
accordance with their respective terms.




     (iii) The execution, delivery and performance by Seller of this Agreement will not
violate, or constitute a default under, any provision of Seller’s Partnership Agreement or
any other organizational agreement by which Seller or any of its property is bound.




 









			
	(1)	 	The purchase price was verbally amended by the parties at closing to $33,375,000. The amendment was made
to compensate the purchaser for damages related to Hurricane Wilma.
The adjustment was reflected in the final closing statement. However,
this Agreement was not formally amended.





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     (iv) Seller has no knowledge and has not been notified of any condemnation proceedings or any
annexation proceedings having been instituted or threatened against the Premises.




     (v) Seller has full power and authority to enter into this Agreement, and upon receipt of a
deed in lieu of foreclosure as described in “(ii)” above, to convey the Premises, to assign the
Leases to Purchaser, to sell the Personal Property to Purchaser and to carry out the transactions
contemplated hereby. Neither the entering into of this Agreement nor the consummation of the
transactions described herein has or will constitute a violation or breach of any of the terms of
any contract or other instrument to which Seller is a party or by which any of Seller’s assets or
property may be affected or constitute a violation or breach of the terms of any law or of any
governmental or judicial order applicable to Seller or the Premises.




     (vi) As of the date specified on the rent roll attached hereto as Exhibit D (“Rent
Roll”), all information set forth in the Rent Roll is true, correct and complete in all material
respects and, as of the Closing Date, all information set forth in the Rent Roll to be attached to
the bill of sale and assignment and assumption agreement to be executed at Closing shall be true,
correct and complete in all material respects as of the date of such updated Rent Roll. As of the
date hereof no rental payments under any Lease have been paid to Owner more than one month in
advance of the date such payments are due under the terms of each Lease. There are no leasing
commissions or other compensation due and payable to any person, firm or entity with respect to or
on account of any Lease. All such residential leases referenced in the Rent Roll are, as of the
date of the Rent Roll, the only leases or occupancy agreements entered into by Owner] and/or the
owner currently affecting the Premises, and, except as otherwise provided to the contrary in the
Rent Roll, all such leases are in full force and effect and any tenant allowances required to be
paid by Owner under the provisions of the leases have been paid in full. At the Closing, all leases
referenced in the Rent Roll to be attached to the bill of sale and assignment and assumption
agreement to be executed at Closing shall be the only leases or occupancy agreements entered into
by Seller then currently affecting the Premises and, except as otherwise provided in such Rent
Roll, all such leases shall be in full force and effect as of the Closing Date.




     (vii) There are no actions or proceedings pending against Seller or, to the best of Seller’s
knowledge, threatened against or involving the Premises or Seller. Seller is not now insolvent nor
will Seller become insolvent as a result of the actions contemplated by this Agreement.




     (viii) Seller has not received written notice from Lessees or any governmental agency or
authority of any violations of environmental, health, safety or similar municipal laws,
ordinances, orders, regulations or requirements affecting the Premises.



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     (ix) As a part of the agreement for conveyance of the Premises in lieu of foreclosure, the
Owner has agreed to convey its interest in the Personal Property to Seller. Subject to such
conveyance and to normal additions and replacements in Seller’s ordinary course of business,
Seller, is, or will be, on the Closing Date, the owner of all the Personal Property, and Seller
will have full authority to convey by bill of sale or cause conveyance of the same free and clear
of all liens and encumbrances, except the Permitted Exceptions. The inventory of personal
property listed on Exhibit C, fairly and accurately identifies all personal property
owned by Seller which is located on the Premises and which is used in connection with the
operation and maintenance of the Premises (other than computer software of Seller and Seller’s
marks or logos).




     (x) To Seller’s knowledge, no portion of the Premises has ever been used as a landfill or as a
dump to receive significant regulated garbage, refuse, or waste, and there are and have been no
Hazardous Substances located upon, stored, handled, or disposed in or on the Premises in amounts or
quantities which would constitute a violation of the Applicable Environmental Laws. As used in this
Agreement, the term “Hazardous Substances” means any materials, waste, contaminates, pollutants, or
other substances which are toxic, dangerous, radioactive, disease causing, carcinogenic,
infectious, caustic, or contain petroleum products or by-products, asbestos, or heavy metals which
are defined as toxic, dangerous to health or otherwise hazardous by reference to the following
sources as amended from time to time: (i) the Resource Conservation and Recovery Act of 1976, 42
USC §1801, et. seq.; (ii) the Comprehensive , Environmental Response Compensation and Liability Act
of 1980, 42 USC §9601 et. seq.; (iii) applicable laws of the jurisdiction where the Premises is
located, or (iv) any federal, state or local statutes, regulations, ordinances, or rules issued or
promulgated under or pursuant to any of those laws by any government department or, agency (items
(i) through (iv) being referred to herein as the “Applicable Environmental Laws”).




     (xi) All agreements with respect to the operation, use and maintenance of the Premises are
listed on Exhibit E (the “Service Contracts”). No later than the Due Diligence Deadline,
Purchaser shall notify Seller of which Service Contracts it will assume at Closing. Seller shall
terminate any of the Service Contracts that Purchaser elects not to assume on or before Closing.




     (xii) The commercial leases set forth on Exhibit F (“Commercial Leases”) are in full
force and effect and shall be assumed by Purchaser at Closing.




     (c) Purchaser hereby covenants, represents and warrants to Seller that:




     (i) Purchaser is a limited liability company duly formed, validly existing and in
good standing under the laws of the State of Florida and has all requisite power and
authority to acquire the Premises, to enter into and perform this Agreement and to
carry out the transactions contemplated hereby and thereby.



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     (ii) Purchaser has full capacity, right, power and authority to execute, deliver
and perform this Agreement and all documents to be executed by Purchaser pursuant
hereto. The individuals signing this Agreement and all other documents executed or to
be executed pursuant hereto on behalf of Purchaser are and shall be duly authorized to
sign the same on Purchaser’s behalf and to bind Purchaser hereto. This Agreement and
all documents to be executed pursuant hereto by Purchaser are and shall be binding
upon and enforceable against Purchaser in accordance with their respective terms.




     (iii) The execution, delivery and performance by Purchaser of this Agreement will
not violate, or constitute a default under, any provision of Purchaser’s Articles of
Association, Operating Agreement or any other organizational agreement by which
Purchaser or any of its property is bound.




     (d) The failure of any of the above-stated representations and warranties of Seller
and Purchaser to be true and correct in all material respects as of the date hereof or at
any time through and including the date of Closing shall be a default hereunder entitling
the non-defaulting party to all remedies set forth in Section 13
hereof.



     Section 4. Items Delivered by Seller. Within five business days of the full execution and
delivery of this Agreement, Seller shall deliver to Purchaser, or make available to Purchaser
and its agents at Seller’s offices or the Premises, the following items (collectively, the
“Reports”):




     (a) copies of the Leases (to be reviewed by Purchaser at the Premises or Seller’s
corporate offices only, for copying at Purchaser’s expense if desired);




     (b) a copy of its most recent “as-built” or ALTA survey of the Premises in its
possession;




     (c) copies of any soil, environmental, structural, mechanical or other similar
professional surveys of the Premises in the possession of Seller or located at the Premises;




     (d) copies of any financial statements pertaining to the operation of the Premises,
including income and expense reports for the last three years and each month of the current
year;




     (e) copies of current tax bills, utility contracts and utility bills pertaining to the
operation of the Premises, records detailing the title, status and salary of all full- and
part-time employees of Seller primarily engaged at the Premises, together with records
detailing any capital improvements made to the Premises in the last three years;




     (f) copies of all Commercial Leases and Service Contracts, and a listing of whether each
is terminable on 30 days’ notice;




     (g) copies of any title insurance commitment or title insurance policy with respect to
the Premises in the possession of Seller or located at the Premises;



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     (h) copies of any correspondence from any governmental entity with respect to the
zoning of the Premises or the modification of any access point to the Premises in the
possession of Seller or located at the Premises; and




     (i) copies of all Permitted Exceptions, which have been provided by Seller to
Purchaser prior to the execution of this Agreement.



     In the event that Purchaser shall require updates or reliance letters with respect to the
Reports, Purchaser may, at its own cost and expense, obtain such items. Seller and Purchaser
agree that Seller shall not be responsible for ordering updated Reports or reliance letters with
respect to the Reports but shall provide any necessary authorizations and otherwise cooperate
with Purchaser at no expense to Seller. Purchaser’s receipt of updated Reports or reliance
letters prior to Closing shall not be deemed to be a condition precedent to Closing.



     Section 5. Title Report. Upon the execution hereof by Purchaser and Seller, Purchaser shall
order a title commitment (the “Title Commitment”) with respect to the Premises from the Title
Company, together with all title exception documents referenced therein, and, at Purchaser’s option
and sole cost and expense, a survey (the “Survey”) of the Premises, for delivery to Purchaser’s
counsel and Seller’s counsel. To the extent the Title Commitment or the Survey discloses matters
not included in Exhibit B, Purchaser shall have until the end of the Due Diligence Deadline
within which to object in writing to the substantive matters reflected therein. All such items not
objected to by Purchaser shall thereafter be deemed included in the definition of “Permitted
Exceptions.” Seller shall, within five business days following the receipt by Seller of such
objection by Purchaser, inform Purchaser whether or not Seller shall undertake to remove or cure
the matter or matters objected to by Purchaser. If Seller undertakes to remove or cure such
matters, Seller shall proceed with all diligence to do so, and the parties shall proceed toward
Closing, with the Closing Date being extended for such a reasonable time as may be necessary to
remove or cure those matters to which Purchaser has objected, but in no event shall any extension
be more than 30 days without the written consent of both parties. If Seller is unwilling or unable
to remove or cure some or all of those matters to which Purchaser has objected, then within five
business days of receiving notice that Seller is either unwilling or unable to so remove or cure:
(a) Purchaser may waive its objection to those matters not removed or cured (whereby such matters
shall be deemed to be included within the definition of Permitted Exceptions) and proceed to
Closing; or (b) if such matter has a material and adverse affect on the Premises or Purchaser’s
intended use thereof, Purchaser may terminate this Agreement, and the Earnest Money shall promptly
be returned to Purchaser, and any Reports, information and documents supplied by Seller to
Purchaser shall promptly be returned to Seller, and Seller and Purchaser shall be relieved and
discharged of any further liability or obligation under this Agreement except for those obligations
which specifically survive the Closing or termination of this Agreement as set forth in this
Agreement. Purchaser’s failure to timely elect option (a) or (b) above shall be deemed Purchaser’s
election of option (a) above. Notwithstanding anything herein to the contrary, the failure of
Seller to remove all title matters related to any bond / tax exempt financing, including but not
limited to, any affordable housing restrictions on the Premises shall be a default hereunder,
entitling Purchaser to all remedies set forth in Section 13 herein.



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     Section 6. Inspection and Environmental Review; Due Diligence and Extension
Deadlines.




     (a) From and after the date of this Agreement until Closing, upon reasonable notice and
subject to Lessees’ rights under the Leases, Purchaser and its agents shall be permitted to
inspect the Premises, at Purchaser’s sole cost and expense, in any reasonable manner desired
by Purchaser at times and locations reasonably approved by Seller; provided, however, that
neither Purchaser nor its agents shall be allowed access to any residential living space
contained within the Premises without 48 hours’ prior written notice to Seller specifying the
units to be inspected and the times of such inspections, each of which must be reasonably
acceptable to Seller. Purchaser hereby agrees to indemnify Seller against any loss, injury,
damage or third-party claim for loss, injury or damage arising from such inspections.




     (b) In the event that (i) Purchaser obtains both a Phase I environmental site assessment
and a Phase II environmental site assessment from a licensed environmental engineer which
disclose that a recognized Hazardous Substance affects the Premises in violation of Applicable
Environmental Laws (each, a “Condition”), (ii) Purchaser provides Seller with a copy of both
assessments prior to the Due Diligence Deadline, (iii) correcting or abating the Condition
would cost in excess of $50,000 (the “Cost Cap”, which Purchaser hereby expressly agrees to
expend to correct any Condition) and (iv) Seller is unwilling to expend the requisite sums in
excess of the Cost Cap to correct or abate the Condition, which election Seller must make
within five days of receipt of written notice of the Condition, then in such event, Purchaser
may terminate this Agreement by written notice to Seller within five (5) days of Seller’s
election not to cure, and receive a refund of the Earnest Money.




     (c) Purchaser shall have until 5:00 p.m. CST on the 30th day after the date
of full execution and delivery of this Agreement (the “Due Diligence Deadline”) to make an
additional deposit of $200,000 (the “Additional Deposit”) with the Title Company and, if
Purchaser deposits the Additional Deposit prior to the Due Diligence Deadline, this Agreement
shall remain in full force and effect and Purchaser and Seller shall close the Transaction
pursuant to the terms and conditions hereof. Upon paying such Additional Deposit into escrow,
the term “Earnest Money” as used in this Agreement shall thereafter be deemed to include the
Additional Deposit and, notwithstanding anything in this Agreement to the contrary, the
Earnest Money shall be nonrefundable to Purchaser and shall be paid to Seller at any Closing
or termination of this Agreement, except as set forth in Section 13(b) of this Agreement.




     (d) Purchaser, at its option, shall have until 5:00 p.m. CST on the
60th day after the date of the full execution and delivery of this
Agreement (the “Extension Deadline”) to make an additional deposit of $500,000 (the
“Second Additional Deposit”) with the Title Company, and if Purchaser deposits the
Second Additional Deposit prior to the Extension Deadline, this Agreement shall
remain in full force and effect and Purchaser and Seller shall close the Transaction
pursuant to the terms and conditions hereof. Upon paying such Second Additional
Deposit into escrow, the term “Earnest Money” as used in this Agreement shall
thereafter be deemed to include the Second



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Additional Deposit and the Additional Deposit, and notwithstanding anything in this Agreement to
the contrary, the Earnest Money shall be nonrefundable to Purchaser and shall be paid to Seller
at any Closing or termination of this Agreement, except as set forth in Section 13 (b) of this
Agreement.



      Section 7. Closing.




     (a) The closing (“Closing”) of the transaction (the “Transaction”) contemplated
by this Agreement shall take place in escrow using the Title Company as escrow agent or at such
physical location as may be mutually agreed upon by Purchaser and Seller. The date of Closing (the
“Closing Date”) shall be the later of the 30th day after the (i) the Due Diligence
Deadline or (ii) the Extension Deadline if Purchaser timely pays the Second Additional Deposit.




     (b) At Closing, following satisfaction of all requirements and conditions specified in Section
8 hereof, (i) Purchaser shall release such of the documents received from Seller which are required
to be recorded to Title Company, and Purchaser shall concurrently instruct Title Company to record
such documents as are necessary to consummate the Transaction and simultaneously transfer the
Purchase Price to such account as Seller may designate and (ii) Seller shall release such of the
documents received from Purchaser required to be recorded to Title Company. Title Company shall not
be authorized to record any deed or other documents until it shall have in its possession the
Purchase Price and is prepared to deliver same to Seller in immediately available funds. Title
Company will not be authorized to deliver the Purchase Price until it is prepared to record such
documents necessary to consummate the Transaction and deliver the title policy referred to in
Section 8(a)(i)(L) hereof.



      Section 8. Conditions to Closing.




     (a) Purchaser shall not be obligated to close the Transaction until all of the
following conditions have been satisfied:




     (i) Purchaser shall have received each of the following items:




     (A) A special warranty deed, duly executed and acknowledged by Seller, conveying
the Premises to Purchaser, subject to the Permitted Exceptions;




     (B) The Bill of Sale and Assignment and Assumption Agreement in the form
attached as Exhibit G;




     (C) An affidavit in form acceptable to the Title Company sufficient to remove any
exception for mechanics’ and materialmen’s liens and parties in possession (except
tenants under unrecorded, residential leases) and appropriate lien waivers, if
necessary;




     (D) A then-current residential rent roll and a certification of Seller in respect
thereof;



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     (E) Each of the residential tenant leases (including any amendments) in effect at
the Premises as of the day of Closing and all files for existing residential tenants in its
possession or control (to be delivered at the Premises);




     (F) An affidavit certifying that the Seller is not a foreign entity under the Foreign
Investment in Real Property Act;




     (G) A notice letter to all residents of the Premises in the form attached as Exhibit
H, provided Purchaser furnishes sufficient information to complete such form, not less
than three business days prior to Closing (the “Notice Letter”);




     (H) An authorization transferring the Premises telephone numbers to Purchaser (the
“Telephone Transfer”);




     (I) The Service Contracts (to be delivered at the Premises);




     (J) Copies of the plans for the improvements on the Premises and all owner’s manuals
relating to the Premises, including an assignment of any and all construction and other
warranties associated with the Premises;




     (K) All keys to all locks on the Premises and originals or copies of the books and
records and of all original documents that are reasonably necessary for the continued
operation of the Premises;




     (L) An owner’s policy of title insurance (the “Title Policy”) from Title Company subject
only to the Permitted Exceptions, in an amount not less than the Purchase Price or an
irrevocable written commitment from Title Company dated as of the date and time of the
Closing for the issuance of such a policy showing that all requirements for issuance have
been satisfied;




     (M) Such evidence or documents as may be reasonably required by Purchaser or Title
Company evidencing the status and capacity of Seller and the authority of the person or
persons who are executing the various documents on behalf of Seller in connection with the
Transaction; and




     (N) Possession of the Premises subject to the rights of parties in possession pursuant
to or as permitted by the Leases and the Permitted Exceptions.




      (ii) Seller shall have delivered to Purchaser such further documents as reasonably
may be required in order to fully and legally close this transaction and transfer the
Premises to Purchaser.



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     (b) Seller shall not be obligated to close the Transaction until all of the following
conditions have been satisfied:




     (i) The Purchase Price shall have been placed in escrow with Title Company for release
to Seller upon Seller’s satisfaction of the requirements of Section 8(a); and




     (ii) The Bill of Sale and Assignment and Assumption Agreement; 


     (iii) The Notice Letter;




     (iv) Purchaser shall have delivered to Seller such further documents as reasonably may
be required in order to fully and legally close the Transaction.




     (c) Failure of Seller to deliver the items in Section 8(a) to the Purchaser and/or Title
Company, as applicable, and failure of Purchaser to deliver the items listed in Section 8(b) to the
Seller and/or Title Company, as applicable, shall be considered a default hereunder, and the
non-defaulting party shall be entitled to the remedies set forth in Section 13 hereof.



     Section 9. Transaction Costs.




     (a) The costs of Closing the Transaction shall be paid on or prior to the Closing Date by and
among the parties as follows:




     (i) Seller shall pay for the Title Commitment and the premium for the basic Title Policy
and Purchaser shall pay any extra premiums or costs for extended coverage and any other
endorsements requested by Purchaser;




     (ii) Seller shall pay the cost of any documentary stamps to file the Deed and any lien
releases;




     (iii) Seller shall pay the cost of recording the Deed; and




     (iv) Purchaser shall pay all other costs incurred to close the Transaction.




     (b) All standby fees, taxes, including, without limitation, real estate taxes and personal
property taxes (with full discount, to the extent permitted by law), collected rents, the Service
Contracts, payments due under the Commercial Leases, and all other income, costs, and charges of
every kind which in any manner relate to the operation of the Premises (but not including insurance
premiums) shall be prorated as of 12:01 a.m. on the day of Closing, as if Purchaser owned the
Premises during the entire day upon which Closing occurs. Those incomes and expenses for which
actual bills are available at Closing, shall be prorated at Closing based on such actual bills.
Those items for which actual bills were not available at Closing, shall be prorated based upon good
faith estimates of the previous month’s or year’s bill(s), as applicable. To the extent that
information necessary for any proration or adjustment required hereunder is not available




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at Closing, or that information received in that regard in inaccurate, all such matters will
be reprorated upon the receipt of correct information; provided, however, all final prorations
shall be made within sixty (60) days after Closing and payment made within ten (10) days of request
therefore, except post-closing adjustments for real estate and personal ad valorem taxes which
shall be made within ten (10) days after written demand therefor is made by either party hereto to
the other party with a copy of the actual tax bill(s) attached. Notwithstanding anything to the
contrary contained in this Agreement, the provisions of this Section shall survive Closing. The
following items shall be reimbursed, paid, credited, adjusted or prorated by or between Seller and
Purchaser as set forth below:




     (i) Service Contracts and utility charges shall be determined to the day preceding the Closing
Date and paid by Seller and appropriate prorations of Service Contracts shall be made.
Purchaser shall take all steps necessary to effectuate the transfer of all utilities to its
name as of Closing, where necessary, post deposits with the utility companies, and provide
Seller with written evidence of the transfer at or prior to Closing. Seller shall be entitled
to recover any and all deposits held by any utility company as of the Closing Date. In the
event Seller received a lump sum payment for any Service Contract affecting the Premises,
including a laundry, telephone, or cable contract, Purchaser shall receive a credit at Closing
for the pro rata portion of such lump sum payment representing the period of the contract, and
any right to renew such contract by the servicer, including and following the Closing Date.




     (ii) All prepaid rents on residential leases shall be paid to Purchaser at Closing. Purchaser
will collect all residential rents after Closing and will apply such rents to all amounts
outstanding under the leases from and after Closing. During a period of six (6) months following
Closing, in the event Purchaser collects amounts due and owing from residential tenants
attributable to periods prior to Closing. Purchaser will forward such amounts to Seller. The
obligations in this subsection shall survive the Closing.




     (iii) All fees on transferable licenses and permits shall be paid by Purchaser at Closing.




     (iv) A credit against the Purchase Price for refundable security deposits, pet deposits and
interest, if any, accrued to the Closing Date for any current and pending residential tenants
together with any non-refundable fees collected from any current and pending residential tenants,
which fees are designated for the purpose of actually offsetting any expenses incurred by the
landlord as a result of such tenant’s occupancy, to the extent such fees have not been applied
against any such expenses prior to Closing, in accordance with applicable law.



     Section 10. Real Estate Commission. Neither Purchaser nor Seller has used a broker to negotiate the
Transaction except for Apartment Realty Advisors, whose fee or commission shall be paid by Seller
pursuant to a separate agreement. Purchaser and Seller hereby indemnify,



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defend and hold the other harmless from and against any and all claims, losses, costs and expenses,
including reasonable counsel fees, resulting from any claims that may be made through that party
against the other by any other broker claiming a commission.



     Section 11. Operation of Premises. Prior to Closing, Seller covenants and agrees to cause Owner to
operate, repair, and maintain the Premises in the same manner and consistent with the same practice
as prior to the Effective Date, including keeping and performing all obligations to be performed by
landlord under all tenant leases and Commercial Leases. Seller shall ensure that Owner shall not
enter into any new contracts following the expiration of the Due Diligence Period which are not
cancelable by Landlord upon thirty (30) days notice and will enter into new leases only in the
ordinary course of business, using current credit screening standards and prudent underwriting
practices.



     Section 12. Condemnation and Casualty. In case any material portion of the Premises shall have been
condemned or shall be in the process of condemnation on the Closing Date or shall then have been
damaged by reason of public or quasi-public improvements, or in case a portion of the Premises
shall be damaged or destroyed by fire or other casualty which will cost more than $100,000 to
restore, Purchaser shall have the right (a) to terminate this Agreement by written notice to Seller
within 30 business days after notice of any such event or (b) to proceed to Closing according to
the terms hereof without any reduction of the Purchase Price but with all insurance proceeds or
condemnation awards payable to Purchaser.



     Section 13. Earnest Money/Remedies.




     (a) Seller and Purchaser each acknowledge and agree that the Earnest Money shall be security
for Purchaser’s performance under this Agreement.




     (b) In the event of a default by Seller under this Agreement, at Purchaser’s option: (i)
Purchaser may terminate this Agreement and the Earnest Money hereunder shall be returned to
Purchaser, and Seller will not have any further liability to Purchaser, or (ii) Purchaser may have
the right of specific performance of this Agreement; or (iii) in the event that Seller is unable to
convey title to the Premises and Personal Property to Purchaser as of the Closing Date, then
Purchaser shall have the right to terminate this Agreement, receive the return of the Earnest Money
and receive from Seller a reimbursement of its out-of-pocket expenses incurred, in an amount not to
exceed $100,000.00.




     (c) In the event of a default by Purchaser under this Agreement, Seller may terminate this
Agreement and retain the Earnest Money as liquidated damages, it being acknowledged by Purchaser
and Seller that the actual damages suffered by Seller in such an event would be difficult or
impossible to measure and that the Earnest Money represents a good-faith estimate thereof.



     Section 14. Notices. All notices, demands or other communications of any type (herein collectively
referred to as “Notices”) given by Seller to Purchaser or by Purchaser to Seller, whether required
by this Agreement or in any way related to the Transaction, shall be void and of no effect unless
given in accordance with the provisions of this Section. All Notices shall be in



12









 







writing and delivered to the person to whom the Notice is directed, either in person, or by
United States mail as a registered or certified item, return receipt requested, or by overnight
courier, or by telephone facsimile (telecopier) transmission, and shall be effective upon receipt.
Notices shall be provided to the parties and addresses (or facsimile numbers, as applicable)
specified below:



	 	 	 	 	 	 	 
	 

	 	If to Purchaser:
	 	Development Resources Group, LLC	 	 
	 

	 	 	 	115 East Marks Street	 	 
	 

	 	 	 	Orlando, FL 32803	 	 
	 

	 	 	 	Attention: Michael Halpin	 	 
	 

	 	 	 	Telephone: (407)709-4560	 	 
	 

	 	 	 	Facsimile: (407) 841-7050
	 	 
	 
	 	 	 	 	 	 
	 

	 	with a copy to:
	 	Shutts & Bowen LLP	 	 
	 

	 	 	 	300 S. Orange Avenue	 	 
	 

	 	 	 	Suite 1000

Orlando, FL 32801	 	 
	 

	 	 	 	Attention: Jennifer S. Tobin, Esq.	 	 
	 

	 	 	 	Telephone: (407) 835-6960	 	 
	 

	 	 	 	Facsimile: (407)849-7244	 	 
	 
	 	 	 	 	 	 
	 

	 	If to Seller:
	 	America First Tax Exempt Investors, LP	 	 
	 

	 	 	 	1004 Farnam Street	 	 
	 

	 	 	 	Omaha, NE 68102	 	 
	 

	 	 	 	Attention: Chad L. Daffer	 	 
	 

	 	 	 	Telephone: (402) 930-3085	 	 
	 

	 	 	 	Facsimile: (402) 930-3047	 	 
	 
	 	 	 	 	 	 
	 

	 	with a copy to:
	 	Kutak Rock LLP	 	 
	 

	 	 	 	The Omaha Building	 	 
	 

	 	 	 	1650 Farnam Street	 	 
	 

	 	 	 	Omaha, NE 68102	 	 
	 

	 	 	 	Attention: Rich Rosenblatt	 	 
	 

	 	 	 	Telephone: (402) 346-6000	 	 
	 

	 	 	 	Facsimile: (402)346-1148	 	 






     Facsimile transmissions shall be effective upon receipt thereof so long as receipt of the
transmission is confirmed by telephone call and an original copy of the correspondence is posted by
mail or sent by overnight courier as provided above.



     Section 15. Indemnity.




     (a) Seller hereby agrees to indemnify and hold harmless Purchaser, its partners and their
officers, directors, shareholders and partners from and against any and all liabilities, losses,
damages, costs, expenses (including, without limitation, reasonable attorneys’ fees and expenses),
causes of action, suits, claims, demands or judgments of any nature arising from or connected with
the ownership of the Premises to the Closing



13









 






Date, except as the same may be caused by any negligence or willful misconduct of Purchaser or may arise pursuant to any inspection of the Premises by Purchaser or its agents
pursuant to this Agreement.




     (b) Purchaser hereby agrees to indemnify and hold harmless Seller, its partners and their
officers, directors, shareholders and partners from and against any and all liabilities, losses,
damages, costs, expenses (including, without limitation, reasonable attorneys’ fees and expenses),
causes of action, suits, claims, demands or judgments of any nature arising from or connected with
the ownership of the Premises after the Closing Date except as the same may be caused by any
negligence or willful misconduct of Seller.




     (c) The indemnities contained in this Section shall survive the Closing of the Transaction.



     Section 16. Assignment. The rights and obligations of Purchaser arising under this Agreement may
not be assigned without the prior written consent of Seller. Notwithstanding anything herein to the
contrary, the rights and obligations of Purchaser under this Agreement may be assigned, without the
prior written consent of Seller, to (a) an entity owned or controlled by Purchaser and formed for
the sole purpose of entering into the Transaction, (b) a qualified intermediary retained by
Purchaser in connection with an exchange pursuant to Section 1031 of the Internal Revenue Code of
1986, as amended, or (c) an affiliate or subsidiary of Purchaser. In any assignment which may be
made by Purchaser of its rights and obligations under this Agreement, Purchaser shall remain
primarily liable under this Agreement.



     Section 17. Miscellaneous.




     (a) This Agreement shall be construed and interpreted in accordance with the laws of
Florida. Where required for proper interpretation, words in the singular shall include the
plural, the masculine gender shall include the neuter and the feminine, and vice versa. Periods of
time shall be measured in calendar days unless otherwise stated. If any performance is required on
a Saturday, a Sunday or any holiday, such performance will be due on the next succeeding day which
is not a Saturday, a Sunday or a holiday.




     (b) This Agreement may not be modified or amended except by an agreement in writing signed by
Seller and Purchaser, and upon any delivery of this Agreement into escrow upon execution, Title
Company shall be deemed to have been so instructed. The parties may waive any of the conditions
contained herein or any of the obligations of the other party hereunder, but any such waiver shall
be effective only if in writing and signed by the party waiving such conditions or obligations, and
upon any delivery of this Agreement into escrow upon execution, Title Company shall be deemed to
have been so instructed.




     (c) Except as otherwise set forth in this Agreement, this Agreement shall be binding upon and
inure to the benefit of all successors and permitted assigns of the parties hereto.




     (d) This Agreement shall not create any third-party beneficiary rights.



14









 






     (e) Each party executing this Agreement warrants and represents that it is fully
authorized to do so.




     (f) The descriptive headings of the sections contained in this Agreement are inserted for
convenience only and shall not control or affect the meaning or construction of any of the
provisions hereof.




     (g) This Agreement, including the Exhibits hereto, constitutes the entire agreement among the
parties pertaining to the subject matter hereof and supersedes all prior and contemporaneous
agreements and understandings of the parties in connection therewith.




     (h) This Agreement may be executed in any number of counterparts, each of which, when executed and
delivered, shall be an original, but all counterparts shall together constitute one and the same
instrument.




     (i) In the event of any litigation between Seller and Purchaser with respect to the Premises or
this Agreement, the prevailing party shall be entitled to collect its reasonable attorneys’ fees
and expenses from the losing party.




     (j) This Agreement shall not be recorded by either party in any office or place of public record,
and if Purchaser shall record this Agreement or cause same to be recorded, Seller may, at its
option, elect to treat such act as a breach of this Agreement.



     Section 18. Condominium Conversion. Seller acknowledges and agrees that Purchaser will begin the
process of converting the Premises from a rental apartment property to the condominium form of
ownership during the term of this Contract. Seller agrees to cooperate with Purchaser in said
conversion process, by, among other things, causing Owner to execute appropriate forms for filing
with the State of Florida Division of Business and Professional Regulations. At Closing, Seller
agrees to execute, or cause Owner to execute, an Amendment to the conversion filing to change the
“developer” of the condominium to be the Purchaser. Purchaser acknowledges that neither the
Declaration of Condominium nor any other document evidencing, referencing or discussing the
conversion of the Premises to the condominium form of ownership will be recorded prior to Closing.
The Purchaser agrees that if the Contract is terminated for any reason it shall immediately
withdraw the conversion filing. Finally the Purchaser agrees that all costs of the foregoing
condominium conversion shall be born by Purchaser, and that Seller shall incur no cost or liability
with said conversion process; however, Seller agrees to use commercially reasonable efforts to
maintain its existing tenants during the term of this Contract. The terms of this Section shall
survive the Closing or earlier termination hereof.



     Section 19. Escrow Agent. Escrow Agent shall hold the Earnest Money in an interest bearing account
with the interest accruing to the benefit of the party ultimately receiving the Earnest Money. In
the event the Escrow Agent is in doubt as to its duties and liabilities under the provisions of
this Contract, the Escrow Agent may, in its sole discretion, continue to hold the deposit until the
parties mutually agree in writing to the disbursement thereof, or until a judgment under a court of
competent jurisdiction shall determine the rights of the parties thereto,



15









 







or it may deposit all of the Earnest Money with the Clerk of the Circuit Court of Palm
County, Florida, and upon notifying all parties concerning such action, all liability on the part
of the Escrow Agent shall fully cease and terminate, except to the extent of accounting for any
monies delivered out of escrow. In the event of any suit between the Purchaser and the Seller
wherein the Escrow Agent is named a party by virtue of acting as Escrow Agent hereunder, or in the
event of any suit wherein Escrow Agent interpleads the subject matter of this escrow, Escrow Agent
shall be entitled to recover reasonable attorneys’ fees and costs incurred, said fees and costs to
be charged and assessed as “costs” and paid from the monies held by Escrow Agent or held by the
Clerk of the Circuit Court, as the case may be. All parties agree that the Escrow Agent shall not
be liable to any party or person whomsoever for misdelivery to the Purchaser or the Seller of the
monies subject to this escrow unless such misdelivery shall be due to willful breach of this
Contract or gross negligence on the part of the Escrow Agent, nor shall the Escrow Agent be liable
for the failure of any banking institution with which the deposit is deposited. Seller acknowledges
that Escrow Agent is the attorney for Purchaser and agrees that in the event of a dispute between
the parties regarding this Contract, Escrow Agent shall be entitled to represent Purchaser without
claim of conflict of interest due to the service by Purchaser’s counsel as Escrow Agent hereunder.



16









 





     IN WITNESS WHEREOF, Seller and Purchaser have caused this Agreement to be executed
by their duly authorized representatives as of the date first above written.



	 	 	 	 	 
	 	 	AMERICA FIRST TAX EXEMPT
	 

	 	 	 	INVESTORS, LP, a Delaware limited

partnership
	 
	 	 	 	 
	 

	 	By
	 	America First Capital Associates Limited

Partnership Two, its general partner
	 
	 	 	 	 
	 

	 	By
	 	AMERICA FIRST COMPANIES, L.L.C., its
general partner
	 
	 	 	 	 
	 

	 	By
	 	/S/ Michael Draper
	 

	 	 	 	 
	 

	 	 	 	Michael Draper, Vice President
	 
	 	 	 	 
	 

	 	By	 	 
	 

	 	 	 	 
	 	 	Name
	 

	 	 	 	 
	 	 	Title
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	DEVELOPMENT RESOURCES GROUP,
	 	 	LLC, a Florida limited liability company
	 
	 	 	 	 
	 

	 	By	 	/s/ Michael Halpin
	 

	 	 	 	 
	 	 	Name	Michael Halpin
	 

	 	 	 	 
	 	 	Title	Manager
	 

	 	 	 	 





 









 






FIRST AMENDMENT TO AGREEMENT OF PURCHASE AND SALE




     THIS FIRST AMENDMENT TO AGREEMENT OF PURCHASE AND SALE (this “Amendment”) is made and
entered into this 19th day of October, 2005 by and between DEVELOPMENT RESOURCES GROUP, LLC, a
Florida limited liability company (“Purchaser”) and AMERICA FIRST TAX EXEMPT INVESTORS, LP, a
Delaware limited partnership (“Seller”).



PRELIMINARY STATEMENTS




     Purchaser and Seller entered into that certain Agreement of Purchase and Sale dated July 22,
2005 (the “Agreement”) pertaining to the “Premises” as defined in the Agreement. Capitalized
terms used in this Amendment but not defined in this Amendment shall have the meanings assigned
to them in the Agreement. Purchaser and Seller desire to amend the Agreement as set forth in this
Amendment.



     NOW, THEREFORE, in consideration of the mutual promises, covenants and conditions set forth
below, and other valuable consideration, the receipt and sufficiency of which are hereby
expressly acknowledged, Purchaser and Seller acknowledge and agree that the Agreement is hereby
amended and modified as set forth below.



     Section 1. Closing. The second sentence of Section 7(a) of the Agreement is hereby deleted
and replaced in its entirety with the following:



“The date of Closing (the “Closing Date”) shall be November 10, 2005.”




     Section 2. Additional Earnest Money. In consideration of Seller’s agreement to extend the
Closing Date as set forth above, Purchaser has, as of the date hereof, made an additional deposit
of $350,000 (the “Additional Deposit”) with the Title Company. The term “Earnest Money” as used
in the Agreement shall hereafter be deemed to include such Additional Deposit.



     Section 3. Reaffirmation. Except as specifically amended by this Amendment, Purchaser and
Seller hereby reaffirm all of their respective duties and obligations set forth in the
Agreement. Specifically, Purchaser hereby affirms and agrees that (a) the Earnest Money in the
amount of $1,850,000 is now on deposit with the Title Company in immediately available funds and
(b) notwithstanding anything in the Agreement to the contrary, the Earnest Money shall be
nonrefundable to Purchaser and shall be paid to Seller at any Closing or termination of the
Agreement, except as set forth in Section 13(b) of the Agreement.



     Section 4. Estoppel. Purchaser and Seller hereby acknowledge, affirm, represent and warrant
to each other that no event of default or breach has occurred under the terms of the Agreement
as of the date hereof.



     Section 5. Counterparts. This Amendment may be executed in counterparts, each of which when
taken together shall constitute one entire agreement.



 









 





     IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the day and year
first above written.



	 	 	 	 	 
	 	 	PURCHASER:
	 
	 	 	 	 
	 	 	DEVELOPMENT RESOURCES GROUP,
	 	 	LLC, a Florida limited liability company
	 
	 	 	 	 
	 

	 	By
	 	/s/ Michael Nazpin
	 

	 	 	 	 
	 

	 	Name
	 	MICHAEL NAZPIN
	 

	 	Title
	 	MGR.






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     IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
day and year first above written.



	 	 	 	 	 
	 	 	SELLER:
	 
	 	 	 	 
	 	 	AMERICA FIRST TAX EXEMPT
	 

	 	 	 	INVESTORS, LP, a Delaware limited
	 

	 	 	 	partnership
	 
	 	 	 	 
	 

	 	By
	 	America First Capital Associates Limited
	 

	 	 	 	Partnership Two, its general partner
	 
	 	 	 	 
	 

	 	By
	 	AMERICA FIRST COMPANIES, L.L.C.,
	 

	 	 	 	its general partner
	 
	 	 	 	 
	 

	 	By
	 	/s/ Michael Draper
	 

	 	 	 	 
	 

	 	 	 	Michael Draper, Vice President







3