EXHIBIT 99.2
FIRST AMENDMENT TO
PURCHASE AND SALE AGREEMENT
AND ESCROW INSTRUCTIONS
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT AND ESCROW
INSTRUCTIONS (this "AMENDMENT") dated as of September 14, 2004, is entered into
between XXXX XXXX FUND V, L.P., a Delaware limited partnership ("SELLER"), and
BEHRINGER HARVARD MID-TERM VALUE ENHANCEMENT FUND I L.P., a Texas limited
partnership ("BUYER"), with reference to the following recitals:
RECITALS
A. Seller and Buyer are parties to that certain Purchase and Sale
Agreement and Escrow Instructions dated as of September 10, 2004 (the "PURCHASE
AGREEMENT"). All initially-capitalized terms not otherwise defined herein shall
have the meanings set forth in the Purchase Agreement unless the context clearly
indicates otherwise.
B. Seller and Buyer mutually desire to amend the Purchase Agreement
as provided below.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
AGREEMENT
1. EXTENSION OF CLOSING DATE.
(a) Section 1.1(b) shall be, and hereby is, deleted
in its entirety and the following language shall be substituted in its place and
stead:
"Subject to extension pursuant to SECTION 1.3 of this Agreement, the
last day that Close of Escrow may occur shall be September 30, 2004, at
1:00 p.m. (California time) (the "CLOSING DATE")."
(b) The following language shall be, and hereby is,
added to the Agreement as SECTION 1.3:
"EXTENSION OF CLOSING DATE. Buyer may extend the Closing Date to October
19, 2004, provided that on or before September 17, 2004, Buyer (i)
delivers to Seller notice of Buyer's intention to extend the Closing
Date (the "CLOSING DATE EXTENSION NOTICE"), and (ii) increases its total
Deposit to Two Million Dollars ($2,000,000) by depositing with Escrow
Holder an additional deposit, in cash or current funds, in the amount of
One Million Dollars ($1,000,000) (the "EXTENSION DEPOSIT"), which shall
be credited at the Close of Escrow toward the Purchase Price. The
Extension Deposit, once made, will be treated as part of the Transaction
Deposit (as such term is defined below) and all references in the
Purchase Agreement to (a) the "Deposit" shall mean and refer to the
total increased deposit amount of Two Million Dollars ($2,000,000); and
(b) the Transaction Deposit shall mean and refer to the Transaction
Deposit as increased by the Extension Deposit."
2. NO OTHER AMENDMENTS; THIS AMENDMENT GOVERNS AND
CONTROLS. Except as expressly modified hereby, the Purchase Agreement shall
remain unmodified and in full force and effect. To the extent any of the
provisions of this Amendment are inconsistent with any of the provisions set
forth in the Purchase Agreement, the provisions of this Amendment shall govern
and control.
3. COUNTERPARTS. This Amendment may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which when taken together shall constitute one and the same instrument. Each
counterpart may be delivered by facsimile transmission. The signature page of
any counterpart may be detached therefrom without impairing the legal effect of
the signature(s) thereon provided such signature page is attached to any other
counterpart identical thereto.
IN WITNESS WHEREOF, Buyer and Seller have executed this Amendment as of
the day and year first above written.
[Signatures on Next Page]
SELLER:
XXXX XXXX FUND V, L.P.,
a Delaware limited partnership
By: KBS INVESTORS IV, a Delaware
general partnership, its general partner
By: XXXXXXXXX REAL ESTATE INVESTMENTS, L.P.,
a Delaware limited partnership,
its general partner
By: XXXXXXXXX INVESTMENTS, LLC,
a California limited liability company,
its general partner
By:_____________________________
Xxxxxxx X. Xxxxxxxxx, Xx.
Manager
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BUYER:
BEHRINGER HARVARD MID-TERM VALUE ENHANCEMENT FUND I LP,
a Texas limited partnership,
By: Behringer Harvard Funds I LP,
a Texas limited partnership
its general partner
By:__________________________________
Name:_____________________________
Title:____________________________
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