EXHIBIT 10.5
SECOND AMENDMENT TO AMENDED AND REINSTATED
AGREEMENT OF SALE AND PURCHASE
THIS SECOND AMENDMENT TO AMENDED AND REINSTATED AGREEMENT OF SALE AND
PURCHASE (this "AMENDMENT") is entered into as of the 3rd day of April, 2002, by
and between XXXX-XXXX TEXAS PROPERTY L.P., a Texas limited partnership
("SELLER"), and CENTENNIAL ACQUISITION COMPANY, a Texas corporation, and ASHWOOD
AMERICAN PROPERTIES, INC., a Texas corporation (collectively, "PURCHASER").
A. Seller and Purchaser entered into that certain Agreement of Sale and
Purchase dated as of December 14, 2001, which was amended by letter agreement
between Seller and Purchaser dated January 25, 2002, letter from Seller to
Purchaser dated February 12, 2002, letter from Seller to Purchaser dated
February 14, 2002, letter from Seller to Purchaser dated February 19, 2002,
letter from Seller to Purchaser dated February 21, 2002, letter from Seller to
Purchaser dated February 22, 2002, letter from Seller to Purchaser dated
February 25, 2002, letter from Seller to Purchaser dated February 26, 2002,
letter from Seller to Purchaser dated February 27, 2002, letter from Seller to
Purchaser dated February 28, 2002, letter from Seller to Purchaser dated March
1, 2002, and letter from Seller to Purchaser dated March 4, 2002, terminated by
letter from Purchaser to Seller dated March 5, 2002, amended and reinstated by
Amendment and Reinstatement of Agreement of Sale and Purchase dated as of March
14, 2002, and amended by Amendment to Amended and Reinstated Agreement of Sale
and Purchase dated as of March 29, 2002 (as amended and reinstated, the
"PURCHASE AGREEMENT"). All capitalized terms used but not defined herein shall
have the meaning given such terms in the Purchase Agreement.
B. Seller and Purchaser now desire to amend the Purchase Agreement as set
forth below.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Seller and Purchaser agree as
follows:
1. ESTOPPELS. The second sentence of Section 7.2 of the Purchase Agreement
is hereby deleted in its entirety and replaced with the following:
"Notwithstanding the foregoing, Seller agrees to request, no later
than three (3) Business Days after receipt from Purchaser of completed
estoppel certificates (prepared by Purchaser or Purchaser's mortgage
lender using the form annexed hereto as EXHIBIT H), that each Major
Tenant and other Tenant in such buildings execute an estoppel
certificate, and Seller shall use good faith efforts to obtain same."
2. REAFFIRMATION. Except as modified by this Amendment, the Purchase
Agreement is hereby ratified and confirmed and in full force and effect. In the
event of a conflict between the terms of this Amendment and the Purchase
Agreement, the terms of this Amendment shall control.
3. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, all of which taken together will constitute one and the same
Amendment, and the signature page of any counterpart may be removed therefrom
and attached to any other counterpart. This Amendment shall be legally binding
upon receipt by each party of the facsimile or the original signature of Seller
and of Purchaser.
[SIGNATURES FOLLOW ON NEXT SUCCEEDING PAGE]
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IN WITNESS WHEREOF the parties have executed this Amendment as of the day
and year first above written.
PURCHASER:
CENTENNIAL ACQUISITION COMPANY
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: President
ASHWOOD AMERICAN PROPERTIES, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Chairman
SELLER:
XXXX-XXXX TEXAS PROPERTY L.P.
By: Xxxx-Xxxx Sub XVII, Inc., its general partner
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
& General Counsel
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