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EXHIBIT 10.6
SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT ("Second
Amendment") is entered into as of the 30th day of September, 1998 by and between
the undersigned parties.
W I T N E S S E T H:
WHEREAS, the undersigned entered into that certain Purchase and Sale
Agreement, dated as of May 10, 1998 (the "Agreement"), regarding the sale of
certain real property located in Prince Xxxxxxx County, Virginia, which property
is more particularly described in the Agreement (the "Battlefield Property");
WHEREAS, the Agreement was amended pursuant to that certain Amendment
to Purchase and Sale Agreement, by and between the undersigned parties, dated as
of July 8, 1998 (the "First Amendment"); and
WHEREAS, the parties desire to amend the Agreement and the First
Amendment as set forth below.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Section 3.01 of the Agreement, as modified by the First
Amendment, is hereby deleted in its entirety and the following is substituted in
lieu thereof:
"3.01 Closing. All documents necessary or appropriate to
transfer the Project shall be delivered and closing (the
"Closing") shall be held on, or in Buyer's sole discretion,
provided that Seller is furnished with two (2) days prior
written notice of the earlier Closing Date, before November
16, 1998 at the offices of Xxxx and Xxxx LLP, 0000
Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000. Closing
shall not occur any later than November 16, 1998, as time is
of the essence.
2. Notwithstanding anything to the contrary contained in the
Agreement, the First Amendment or this Second Amendment, in the event the
documentation regarding the loan assumptions is not executed as of the Closing
Date, the Buyer and Seller shall proceed to Closing on the Closing Date, with
all conveyance documents being delivered to the Escrow Agent to be held in
escrow until the loan assumption documents have been fully-executed by all
parties; provided, however, that on the Closing Date, Seller shall remit payment
of the Purchase Price to Buyer. The conveyance documents shall be held in escrow
until the fully-executed loan assumption documents are delivered to the Escrow
Agent, at which time the Deed shall be recorded along with any and all loan
assumption documents which need to be recorded in the land records in the
appropriate jurisdiction and the fully-executed conveyance documents shall be
released by the Escrow Agent to the Seller and the Buyer.
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3. Notwithstanding anything to the contrary contained herein, the
Deposit (in the total amount of $210,000, but with no interest thereon) shall
continue to be held by Seller and shall be applied to the Purchase Price at
Closing. Notwithstanding anything to the contrary contained herein, the Deposit
shall be non-refundable to the Buyer unless Seller shall default in tendering
the Deed and other conveyance documents to Buyer at Closing.
4. Notwithstanding anything to the contrary contained in the
Agreement, the First Amendment or this Second Amendment, the Buyer shall, at the
time of execution of this Second Amendment, deliver to Seller (in accordance
with wire transfer instructions set forth in Exhibit A attached hereto) a second
supplemental deposit in the amount of $350,000 (the "Second Supplemental
Deposit"). Hereinafter, the term "Deposit" shall, in addition to referring to
the Initial, the Additional Deposit and the Supplemental Deposit, shall also
include the Second Supplemental Deposit. The Deposit, including the Second
Supplemental Deposit, shall be applied to the Purchase Price at Closing and
shall be non-refundable to the Buyer unless Seller shall default in tendering
the Deed and other conveyance documents to Buyer at Closing.
5. Upon the Closing of the sale of certain properties under that
certain Purchase and Sale Agreement, dated as of May 10, 1998 by and between the
Buyer and DDR Office Flex Corporation, or its permitted assignee or designee,
regarding real property located in Chesapeake, Virginia (Greenbrier Industrial
Center), Loudoun County, Virginia (Lots 2-A and 3-A of Le Bourget Business Park)
and Chesapeake, Virginia (Greenbrier Technology Center) (the "Other Agreement"),
the Deposit being held by the Seller pursuant to the Other Agreement (in the
amount of $440,000 but with no interest thereon) shall be added to the Deposit
under the Agreement, thereby increasing the Deposit currently held by Seller
under the Agreement, the First Amendment and this Second Amendment to
$1,000,000. Such Deposit shall be applied to the Purchase Price under the
Agreement and shall be non-refundable to the Buyer unless Seller shall default
in tendering the Deed and other conveyance documents to Buyer at Closing under
the Agreement.
6. Section 13.02 of the Agreement is hereby deleted and the
following is inserted in lieu thereof:
"13.02 Buyer's Default. In the event of Buyer's failure
to fulfill its obligations hereunder, Seller may elect either
to (i) compel specific performance and shall have the right to
collect its costs and expenses incurred in connection
therewith, or (ii) terminate this Agreement and retain the
Deposit as Seller's full and liquidated damages in lieu of
other rights and remedies which Seller may have against Buyer
at law or in equity. In the event Seller determines not to
compel specific performance and to retain the Deposit, both
parties acknowledge that the Deposit represents a pre-estimate
of damages which would accrue to Seller from a default by
Buyer and is not a penalty against Buyer.
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7. Except as amended herein, the Agreement and the First
Amendment are hereby confirmed to remain in full force and effect.
8. Capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Agreement.
9. This Second Amendment may be executed in counterparts, each of
which shall be deemed to be an original but all of which shall be one and the
same document.
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment as of the date first above written.
Battlefield/Virginia, Inc., a Virginia corporation
By:
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Xxxxx Xxxxxxx
President
American Industrial Properties REIT, successor by
merger to DDR Office Flex Corporation
By:
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Name:
Title:
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