Exhibit 2.3
SECOND AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "Second
Amendment") is made as of this 17th day of March, 2004, by and between OXFORD
DEVELOPMENT COMPANY/SOUTH SIDE I, L.P., a Pennsylvania limited partnership
having its principal place of business at Xxxxx 0000, Xxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000, or its designees, successors and assigns
("Seller"), and GEN-NET LEASE INCOME TRUST, INC., a Michigan corporation having
its principal place of business at 00000 Xxxx Xxxxx Xxxx, 0xx Xxxxx, Xxxxxx Xxx,
Xxxxxxxx 00000 ("Buyer").
WITNESSETH:
WHEREAS, Buyer and Seller are parties to that certain Purchase and Sale
Agreement dated January 19, 2004 for the sale of certain real property and
improvements thereon located in Pittsburgh, Pennsylvania and more specifically
identified therein;
WHEREAS, Seller and Buyer originally amended the abovesaid Purchase and
Sale Agreement by letter agreement between the parties dated February 23, 2004
(the said Purchase and Sale Agreement and letter agreement are hereinafter
collectively referred to as the "Agreement");
WHEREAS, Buyer and Seller now desire to further amend the Agreement as
hereinafter provided; and
WHEREAS, all capitalized terms used in this Second Amendment which are
not specifically defined herein shall have the meanings provided in the
Agreement.
NOW THEREFORE, in consideration of the mutual covenants and
considerations herein contained, and intending to be legally bound hereby, Buyer
and Seller agree and covenant as follows:
1. The above recitals are incorporated into the body of this Amendment
as if fully stated herein.
2. Section 2.1 of the Agreement is hereby modified by deleting the text
of same in its entirety and replacing it with the following:
"The purchase price for the Property (the "Purchase Price")
shall be Twenty-Seven Million Eight Hundred Thousand and
00/100 Dollars ($27,800,000.00), and shall be payable as
follows:
(a) Two Hundred Thousand and 00/100 Dollars
($200,000.00) shall be paid into an account with Lawyers Title
Insurance Corporation (the "Title Company") acting through its
agent, Pittsburgh Settlement Agency, LLC ("PSA"), on or before
the date that is five (5) days after the Effective Date (see
Section 16.14 hereof) of this Agreement. (The parties hereto
acknowledge that said payment has been made.) Such amount
shall be held and released by the Title Company in accordance
with the provisions of this Agreement and the escrow
provisions attached as Exhibit B. Such payments shall be
non-refundable, except as expressly set forth herein. Such
payment is referred to herein as the "Deposit." The Deposit
shall be applied to the Purchase Price at Closing.
(b) The balance of the Purchase Price shall be paid
in cash or cash equivalent on the Closing Date."
3. Section 2.2 of the Agreement is hereby deleted in its entirety,
given that the parties have agreed to a fixed Purchase Price.
4. Buyer acknowledges and agrees that it has completed and is satisfied
with all "due diligence" investigations of the Property as provided for in the
Agreement [including, without limitation, Sections 4.3 and 4.4 (except for
Subsequent Defects), and all of Section 6].
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Consequently, Buyer acknowledges and agrees that it has fully and finally waived
all rights to terminate the Agreement based upon its due diligence
investigations, and that the Deposit is non-refundable to Buyer except in the
event of a Seller default as provided in Section 13.2 of the Agreement and
except as provided below.
5. The parties acknowledge and agree that it shall be a condition
precedent to Buyer's obligation to purchase the Property from Seller, as
contemplated by the Agreement, that Seller and Buyer, diligently working
together on a good faith, cooperative basis, obtain all lender, governmental
agency and other necessary approvals ("Approvals") to enable Buyer to acquire
the Property subject to the S&T Bank mortgage and to assume Seller's
post-construction obligations, on a limited recourse basis, under and pursuant
to that certain $2,200,000.00 Redevelopment TIF Revenue Note - Oxford
Development Company/South Side I, L.P. Project, dated March 30, 2001 from the
Urban Redevelopment Authority of Pittsburgh to S&T Bank ("TIF Note") and those
related documents which secure the TIF Note (collectively, the "TIF Security
Documents"). The parties shall have a period of forty-four (44) days from and
after the date of this Second Amendment (i.e. until 5:00 p.m. EST, on Friday,
April 30, 2004) to both obtain said Approvals and to reach agreement on the
terms of the necessary documentation thereof ("Approval Period"). Buyer shall be
responsible for the costs of its own counsel and of S&T Bank's counsel and the
URA's counsel in obtaining such Approvals. Should the parties fail to obtain the
Approvals and reach agreement on the terms of the related documentation during
the Approval Period, Buyer shall have the right to terminate this Agreement by
providing written notice thereof to Seller prior to the expiration of the
Approval Period. Moreover, notwithstanding the foregoing to the contrary, if the
Approvals are timely obtained, but, despite Seller's best efforts, it is unable
to secure the release of Seller's principals, Xxxxxx X. Xxxxx, Xxxx X. Xxxxx and
Xxxxx X. Xxxxx, from their personal guarantees of the TIF Note during the
Approval Period, then Seller shall have the right to terminate this Agreement by
providing written notice thereof to Buyer prior to the expiration of the
Approval Period. Seller shall be responsible for the costs of its own counsel in
obtaining the Approvals and of S&T Bank's counsel in obtaining said release from
the aforesaid guarantees. In the event that this Agreement is so terminated by
either party, the Deposit and all interest earned thereon shall be returned to
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Buyer, and neither party shall have any further liability to the other, except
for Buyer's indemnification of Seller as provided in Section 6.1 of the
Agreement. If (i) the Approvals and (ii) the release from the aforesaid
guarantees are obtained during the Approval Period, Closing shall occur within
twenty (20) business days after the latter to occur of (i) and (ii) above.
Should Buyer or Seller fail to so provide its respective termination notice
during the Approval Period, the abovestated Approvals and guarantee release
contingencies shall expire, and the parties shall proceed to the Closing, which
shall occur within twenty (20) business days following the expiration of the
Approval Period. The provisions of this Paragraph 5 shall supercede any
inconsistent provisions in the Agreement.
6. Except as specifically amended hereby, all other terms and
conditions of the Agreement shall continue in full force and effect.
IN WITNESS WHEREOF, the parties hereby have duly executed this
Agreement the day and year first above written.
"BUYER"
WITNESS/ATTEST: GOVERNMENT PROPERTIES TRUST, INC. formerly
GEN-NET LEASE INCOME TRUST, INC.
/s/ Xxxxxx X. Xxxxxxx By: /s/ D. Xxxx Xxxxxx
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Its: Director - Asset Management
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"SELLER"
WITNESS/ATTEST: OXFORD DEVELOPMENT COMPANY/SOUTH
SIDE I, L.P.
By: Development Partner, Inc., General Partner
Xxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Matter
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Its: President
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