SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT
(One Executive Center)
THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT
(this "Amendment") is made as of October 11, 1996, by and between PRUDENTIAL
ACQUISITION FUND I, L.P., a Delaware limited partnership ("Seller") and WHEXC
REAL ESTATE LIMITED PARTNERSHIP, a Delaware limited partnership ("Buyer").
RECITALS
A. Seller and WCB Properties Limited Partnership, a Delaware limited
partnership have entered into that certain Purchase and Sale
Agreement, dated as of September 6, 1996, as amended by that
certain First Amendment to Purchase and Sale Agreement, dated
as of September 30, 1996, and as assigned to Buyer pursuant to
that certain Assignment, Assumption, Consent and Release
Agreement, dated as of even date herewith (as so amended and
assigned, the "Purchase Agreement"), pursuant to which Seller
has agreed to sell to Buyer, and Buyer has agreed to purchase
from Seller, the Property, which consists of, among other things,
certain real property located in Albuquerque, New Mexico and more
particularly described in Exhibit A to the Purchase Agreement,
all upon the terms and subject to the conditions contained in
the Purchase Agreement.
B. Seller and Buyer desire to amend the Purchase Agreement as set
forth in this Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and
other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, Seller and Buyer hereby agree as follows:
1. Definitions. All initially-capitalized terms used in this
Amendment and not otherwise defined herein shall have the meanings given
such terms in the Purchase Agreement.
2. Closing Date. The Purchase Agreement is amended to provide
that the Closing Date, as defined in Section 6.1 of the Purchase Agreement,
shall be October 17, 1996.
3. Closing Pricing Adjustment. At Closing, Buyer shall be credited
Sixteen Thousand Dollars ($16,000) to reflect the undisbursed tenant
improvement allowance (the "Technadyne Allowance") under that certain
Supplemental Lease Agreement,
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dated as of May 31, 1995, by and between Seller and Technadyne Engineering
Consultants, Inc.
4. Elevator Shaft Hydraulic Spill. Notwithstanding the provisions of
Article 4 of the Purchase Agreement, Seller shall indemnify Buyer with respect
to the direct costs of remediating the spill of hydraulic fluid (the "Hydraulic
Fluid Spill") identified in that certain letter from CDM Engineers and
Consultants, Inc. to Prudential Realty Group, dated as of July 5, 1996 (the
"CDM Report"). The indemnity set forth in this Paragraph 4 shall only become
effective as such time as (i) Buyer has delivered to the New Mexico
Environmental Department ("NMED") the CDM Report and requested that the NMED
issue a letter or other written statement to both Buyer and Seller to the
effect that no further action is required with respect to the Hydraulic
Fluid Spill ("No Further Action Letter") and (ii) the NMED has informed
Buyer that further action is required with respect to the Hydraulic Fluid
Spill. The indemnity set forth in this Paragraph 4 shall cease to be of effect
upon the earlier of (i) the date on which the NMED has issued a No Further
Action Letter, and (ii) the date six (6) months after the Closing; provided,
however, that if the NMED has informed Seller that further action is required,
and Seller has commenced abatement work, with respect to the Hydraulic Fluid
Spill prior to the expiration of such six (6) month period, the indemnity set
forth in this Paragraph 4 shall continue in effect until the earlier of (x) the
date a No Further Action Letter is issued or (y) the date on which Seller's
maximum liability (as set forth in the following sentence) is reached.
Seller's maximum liability under the indemnity set forth in this Paragraph 4
shall be Twenty-Five Thousand Dollars ($25,000). In no event, shall Seller
be responsible for any costs not directly related to the abatement of the
Hydraulic Fluid Spill, including, without limitation, any consultant's fees
incurred in connection with any work other than the direct remediation of
the portion of the Property affected by the Hydraulic Fluid Spill and any
attorney's fees. Seller hereby authorizes Buyer to request the No Further
Action Letter, and agrees to send a separate letter to the NMED authorizing
Buyer's request for the No Further Action Letter. In addition, Seller shall
instruct its consultants ("Seller's Consultants") to turn over to Buyer's
consultants copies of all materials relating to the Hydraulic Fluid Spill and
in Seller's Consultants' possession.
5. Continuing Force and Effect. Except as amended by this Amendment,
the Purchase Agreement has not been amended or modified. The Purchase
Agreement, as amended by this Amendment, remains in full force and effect.
6. Counterparts. This Amendment may be executed in counterparts,
each of which shall be an original, and all of which, taken together, shall
constitute one document.
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IN WITNESS WHEREOF, each party hereto has caused this Amendment to
be duly executed on its behalf as of the day and year first above written.
SELLER: PRUDENTIAL ACQUISITION FUND I, L.P.,
a Delaware limited partnership
By: Prudential Realty Partnerships, Inc.,
a Delaware corporation,
General Partner
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
Vice President
BUYER: WHEXC REAL ESTATE LIMITED PARTNERSHIP,
a Delaware limited partnership
By: WHEXC Gen-Par, Inc.,
a Delaware corporation,
General Partner
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Title: Senior Vice President
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