Exhibit 10.5
AMENDMENT TO PURCHASE AND SALE CONTRACT
(WENDOVER I & II)
This Amendment To Purchase and Sale Contract (this "Amendment") is entered
into as of the 2nd day of August, 1999, by and between XXXXXX XXXXXXX XXXXXXX
REAL ESTATE ASSOCIATES LIMITED PARTNERSHIP, a New York limited partnership, and
XXXXXX XXXXXXX XXXXXXX REAL ESTATE ASSOCIATES II LIMITED PARTNERSHIP, a New York
limited partnership (collectively, "Seller"), and SB ORCHARD, LLC, a Colorado
limited liability company ("Purchaser"), and XXXXXXXX, LLC, a Delaware limited
liability company ("Assignee") with respect an escrow established with Fidelity
National Title Insurance Company.
Reference is made to that certain Purchase and Sale Contract dated as of
May 20, 1999 between Purchaser and Seller (the "Contract"). Capitalized terms
not otherwise defined herein shall have the meanings ascribed to them in the
Contract.
Purchaser and Seller desire to amend the Contract pursuant to the terms set
forth below.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Contract is hereby amended as follows:
1. WAIVER OF CONTINGENCIES OTHER THAN TITLE AND SURVEY/DEPOSIT NON-
REFUNDABLE. Purchaser hereby rescinds its notice of termination dated as of
July 12, 1999. Purchaser hereby agrees and acknowledges that other than the
title and survey contingency described below, all of the contingencies relating
to the Feasibility Period have been satisfied or waived. Seller and Purchaser
agree that Purchaser shall have until August 10, 1999 to satisfy its due
diligence relating to the title and survey. Purchaser acknowledges that at 5:00
p.m., Pacific Daylight Savings Time on August 10, 1999, the Feasibility Period
shall expire and unless Purchaser exercises its right to terminate this
Agreement on or before said date and time, the Deposit shall become non-
refundable to Purchaser (subject to Seller performing under the terms of the
Contract, and the other applicable express provisions set forth in the
Contract).
2. PURCHASE PRICE. For valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Purchase Price is hereby
reduced by the sum of $530,400 from $7,000,000 to $6,469,600. As between the
parties comprising Seller, the Purchase Price shall be allocated as follows:
Purchase Price for Wendover I is $2,809,600 and Purchase Price for Wendover II
is $3,660,000.
3. CLOSING DATE. The Closing Date shall occur on August 27, 1999
(subject to Seller's right to extend the Closing Date for an additional 30 day
period as expressly set forth under the Contract).
4. ASSIGNMENT BY PURCHASER. Purchaser hereby nominates Xxxxxxxx, LLC, a
Delaware limited liability company ("Assignee"), as Purchaser under the
Contract. Purchaser hereby assigns to Assignee Purchaser's interests under the
Contract, and Assignee hereby agrees to assume all of Purchaser's obligations
and liabilities under the Contract. Seller hereby agrees to the foregoing
nomination, assignment and assumption on the condition that Purchaser shall not
be released from its liability and obligations under the Contract in the event
of a breach of the Contract by Assignee.
5. TENANT ESTOPPEL FORM. The Tenant Estoppel Certificate form attached to
the Contract as Exhibit 9.1.5 is hereby deleted and the form attached hereto as
"Revised Exhibit 9.1.5." is substituted in its place.
6. COUNTERPARTS. This Amendment may be executed in counterparts, each of
which when compiled together shall constitute one and the same original.
All other terms and conditions of the Contract remain unmodified and in
full force and effect.
IN WITNESS WHEREOF, Seller, Purchaser and Assignee have entered into this
Amendment as of the date written above.
"SELLER"
XXXXXX XXXXXXX XXXXXXX REAL ESTATE ASSOCIATES LIMITED PARTNERSHIP, a
New York limited partnership [SEAL]
By: DBL Properties Corporation, a New York corporation, Its General Partner
[Corporate Seal] By:____________________________
Its _____________________________
XXXXXX XXXXXXX XXXXXXX REAL ESTATE ASSOCIATES II LIMITED PARTNERSHIP,
a New York limited partnership [SEAL]
By: DBL Properties Corporation, a New York corporation, Its General Partner
[Corporate Seal] By:____________________________
Its _____________________________
[signatures continue on following page]
"PURCHASER"
SB ORCHARD, LLC, a Colorado limited liability company [SEAL]
By: Tymar, LLC, a California limited
liability company [SEAL]
By: ____________________[SEAL]
Xxx Xxxxxxxxx,
Its _________________
"ASSIGNEE"
XXXXXXXX, LLC, a Delaware limited liability company
By: BRG Properties, LLC, a Delaware limited liability company
By:
Xxx Xxxxxxxxx, Its Manager
REVISED EXHIBIT 9.1.5.
TENANT ESTOPPEL
________________, 1999
GMAC Commercial Mortgage Corporation
000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000-0000
Re: Lease between ___________________________________, as Landlord or
its assignees ("Landlord"), and ______________________________ as
Tenant ("Tenant"), dated _____________, 19__ for approximately
______________ square feet of space in [name, city, state of project]
____________________
______________________________________________________________ (the
"Project") as amended by the following amendments [list; if none, say
None"]: ___
(the "Lease")
Ladies and Gentlemen:
Tenant understands that GMAC COMMERCIAL MORTGAGE CORPORATION, a California
corporation ("Lender"), intends to make a loan to _________________ ("Borrower")
to be secured by the Project. Tenant presently leases premises within the
Project pursuant to the Lease, and, in connection with the foregoing, Tenant
does hereby certify to Borrower and Lender as follows:
i. Attached hereto as Exhibit "A" is a true, complete and accurate copy of the
Lease and all amendments and modifications thereto.
ii. The Lease is in full force and effect; there are no amendments or
modifications of any kind to the Lease except as referenced above, there
are no other promises, agreements, understandings, or commitments between
Landlord and Tenant relating to the premises leased under the Lease; and
Tenant has not given Landlord any notice of termination under the Lease;
iii. There has not been and is now no subletting of the leased premises, or any
part thereof, or assignment by Tenant of the Lease, or any rights therein,
to any party;
iv. A security deposit in the amount of $_________ has been given by Tenant
under the terms of, or with respect to, the Lease;
v. No uncured default, event of default, or breach by Landlord exists under
the Lease, no facts or circumstances exist that, with the passage of time
or the giving of notice, or both, will or could constitute a default, event
of default, or breach under the Lease. Tenant has made no claim against
Landlord alleging Landlord's default under the Lease;
vi. Tenant is in full and complete possession of its leased premises in the
Project and has accepted its leased premises in the Project, including any
work of Landlord performed thereon pursuant to the terms and provisions of
the Lease, and all common areas of the Project (including, without
limitation, parking areas, sidewalks, access ways and landscaping) are in
compliance with the Lease and are satisfactory for Tenant's purposes;
vii. Tenant is obligated to pay rent to Landlord at the rate set forth in the
Lease. Tenant is current with respect to, and is paying the full rent and
other charges stipulated in the Lease (including, without limitation,
common areas maintenance charges) with no offsets, deductions, defenses or
claims; and Tenant has not prepaid any rent or other amounts to Landlord
other than rent and other charges due and payable in the calendar month of
this certification. None of the rent which Tenant is required to pay under
the Lease has been prepaid more than (1) month in advance and Tenant agrees
not to pay rent more than one (1) month in advance unless otherwise
specified in the Lease. Tenant agrees that upon notification by Lender in
writing that rental payments are to be made to Lender because of a default
under the Loan, Tenant will cease making rental payments to Landlord, or
its successors and assigns, and will begin making such rental payments
directly to Lender as required by the terms of Landlord's collateral
assignment of the Lease to Lender.
viii. Tenant is not entitled to any concession or rebate of rent or other
charges from time to time due and payable under the Lease, and there are no
unpaid or unreimbursed construction allowances or other offsets due Tenant
under the Lease;
ix. The current monthly estimated "common area maintenance" charge paid by
Tenant under the Lease is $__________;
x. The current monthly estimated charge for taxes paid by Tenant under the
Lease is $__________;
xi. The current monthly estimated charge for insurance paid by Tenant under the
Lease is $__________;
xii. The monthly base rent under the Lease is $__________ and has been paid by
Tenant through __________, 19__;
xiii. Tenant acknowledges that the initial term of the Lease commenced on
_________, 19__, and shall expire on __________, 19__, unless sooner
terminated in accordance with the terms of the Lease. Tenant has no option
to renew or extend the lease term, except as follows (if none, so state):
________________________________________________________________
________________________________________________________________
________________________________________________________________;
xiv. The undersigned representative of Tenant is duly authorized and fully
qualified to execute this instrument on behalf of Tenant thereby binding
Tenant;
xv. Tenant has no option or right to purchase the property of which the demised
premises are a part, or any part thereof; and
xvi. Tenant acknowledges and agrees that Landlord and Lender shall be entitled
to rely on Tenant's certifications set forth herein. Tenant hereby further
agrees for a period of thirty (30) days from the date hereof to notify
Landlord and Lender in writing at the address set forth above of any
changes in the truth and accuracy of any of the certifications contained
herein promptly upon Tenant's learning of each such change.
IN WITNESS WHEREOF, Tenant has executed this instrument this ____ day of
__________, 19__.
TENANT:
By:
Title:
GUARANTOR'S ACKNOWLEDGEMENT
The undersigned, _____________________________ ("Guarantor"), (i)
acknowledges and agrees that the documents attached hereto as Exhibit B
constitute a complete and accurate copy of Guarantor's Guaranty of the Lease
(the "Guaranty") and that the Guaranty is in full force and effect and is
enforceable in accordance with its terms, with no offset, deduction, defense or
claim by Guarantor and (ii) certifies that the certifications of Tenant herein
are true and correct.
GUARANTOR:
By:
Title:
EXHIBIT A
LEASE
EXHIBIT B
GUARANTY
