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Exhibit 10.40
FIRST AMENDMENT TO
BUILDING OPTION AGREEMENT
THIS FIRST AMENDMENT TO BUILDING OPTION AGREEMENT (the "Amendment") is
made effective as of June 16, 1992, by and between FOUNTAIN ASSOCIATES I, LTD.,
a Florida limited partnership ("FOUNTAIN"), and ANCHOR GLASS CONTAINER
CORPORATION, a Delaware corporation ("ANCHOR").
W I T N E S S E T H:
WHEREAS, FOUNTAIN and ANCHOR entered into that certain Building Option
Agreement (the "Option Agreement") dated March 31, 1988, pursuant to which
FOUNTAIN granted ANCHOR an option to acquire certain real property located in
Hillsborough County, Florida, more particularly described therein;
WHEREAS, FOUNTAIN and ANCHOR now desire to modify and the amend the Option
Agreement as herein set forth:
NOW, THEREFORE, for and in consideration of the mutual covenants herein
set forth and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereby agree as follows:
1. Recitals. The recitals set forth above are true and correct and are
hereby incorporated into the text of this Amendment by this reference.
2. Defined Terms. All capitalized terms not defined in this Amendment
shall have the same definitions as set forth in the Option Agreement.
3. Definition of Property. Section 1(d) is hereby deleted in its entirety.
4. Option Term; Exercise; Termination. Section 2(a) and Section 2(c) of
the Option Agreement are both hereby amended and restated in their entirety so
that said Section 2(a), as amended and restated, shall read as follows:
(a) The term ("Term") of this Option, unless terminated
earlier as provided in Section 2(c) herein, shall expire on May 16, 1996,
which date is thirteen (13) months prior to the last day of the term of
that certain Lease Agreement dated March 31, 1988 by and between FOUNTAIN,
as landlord, and ANCHOR, as tenant, for the Property, as amended by that
certain First Amendment to Lease Agreement dated June 16, 1992.
and so that Section 2(c) as amended and restated, shall read as follows:
(c) If Anchor does not give an Exercise Notice with respect to
the Property by the expiration of the Term or if Anchor is in default
under the
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terms of the Lease beyond any applicable grace period, then the option
granted hereby shall automatically terminate and Anchor shall not have the
right to purchase the Property unless it has exercised its option prior to
the expiration of the Term or prior to the default of the Lease beyond any
applicable grace period whichever occurs first. In such event, Fountain's
remedy shall be as described in Section 16 herein.
5. Purchase Price. Section 3 of the Option Agreement is hereby modified
and amended to provide for a Purchase Price (as defined therein) in an amount
equal to the total amount of any indebtedness encumbering the Property on the
Closing date.
6. Closing. Section 4 of the Option Agreement is hereby modified and
amended to provide that consummation of the sale and purchase of the Property
shall take place within ninety (90) of any Exercise Notice delivered by ANCHOR
to FOUNTAIN on or prior to May 15, 1996, and within thirteen (13) months of any
Exercise Notice delivered by ANCHOR to FOUNTAIN on May 16, 1996. Notwithstanding
the foregoing, FOUNTAIN shall not be obligated to close on a date which is
earlier than twenty (20) days after FOUNTAIN receives the Exercise Notice.
7. Title Insurance. The first sentence in Section 6(a) shall be deleted in
its entirety and the following shall be inserted thereof: "Not less than five
(5) days prior to Closing, Anchor shall obtain a title commitment (hereinafter
"Title Commitment") written by First American Title Insurance Company or such
other title company as is chosen by Fountain and reasonably acceptable to Anchor
(hereinafter "Title Company")."
8. Remedies. Section 16(a) of the Option Agreement is hereby amended and
restated in its entirety so that said Section 16(a), as amended and restated,
shall read as follows:
(a) If ANCHOR gives an Exercise Notice and fails to keep or observe
any covenant, agreement or obligation to be kept or observed by ANCHOR
under this Agreement, and FOUNTAIN is not in default thereunder, then
FOUNTAIN shall have the right to refuse to close by giving written notice
to that effect to ANCHOR, in which event ANCHOR shall pay the Residual
Value Guaranty Amount as described in Section 16(b) and the xxxxxxx money
deposit shall be forfeited to FOUNTAIN as liquidated damages or FOUNTAIN
may seek specific performance of the terms of this Agreement in a court of
competent jurisdiction. In the event FOUNTAIN fails to keep or observe any
covenant, agreement or obligation to be kept or observed by FOUNTAIN
hereunder and ANCHOR is not in default thereunder, then ANCHOR shall have
the right to the immediate return of the xxxxxxx money or have the right
to seek specific performance under the terms of this Agreement in a court
of competent jurisdiction.
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9. Section 16(b) of the Option Agreement is hereby amended and restated in
its entirety so that said Section 16(b), as amended and restated shall read as
follows:
(b) Except as specifically provided in that certain Agreement by and
between ANCHOR and FOUNTAIN attached hereto as Schedule 1, upon expiration
or earlier termination of the Lease, if ANCHOR has not properly exercised
the Option and consummated the acquisition of the Property, then ANCHOR
shall pay to Citicorp Leasing, Inc., a Delaware corporation ("Citicorp"),
an amount (the "Residual Value Guaranty Amount") equal to eighty-eight
percent (88%) of the total indebtedness encumbering the Property (the
"Citicorp Indebtedness"), which Residual Value Guaranty Amount shall be
applied to the Citicorp Indebtedness. FOUNTAIN has the right to seek
specific performance of ANCHOR's obligation to pay the Residual Value
Guaranty Amount. If Anchor pays the Residual Value Guaranty Amount, and
the Property is sold, then the net proceeds of the sale, after payment of
all closing costs incurred by Fountain shall be applied as follows: first,
to pay off in full and satisfy the Citicorp Indebtedness; second, to
Fountain in an amount equal to three percent (3%) of the gross sales
proceeds as payment of the commission due Fountain in connection with such
sale plus out-of-pocket expenses incurred by Fountain in the marketing of
the Property; third, to Anchor to reimburse Anchor for the Residual Value
Guaranty Amount; and the remainder to Fountain.
10. No Further Amendment. Except as expressly set forth herein, all terms
and provisions of the Option Agreement shall remain unaltered and in full force
and effect.
IN WITNESS WHEREOF, FOUNTAIN and ANCHOR have executed this Amendment as of
the date set forth above.
Signed, sealed and delivered
in the presence of: FOUNTAIN ASSOCIATES I, LTD., a
Florida limited partnership
By: TWC Sixty-One, Inc., a
Florida corporation,
General Partner
Name: By: /s/ Xxxxx X. Xxxxxx
___________________________
Name: Xxxxx X. Xxxxxx
___________________________
Title: Executive Vice President
Name:
___________________________
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ANCHOR GLASS CONTAINER
CORPORATION, a Delaware
corporation
By:/s/ Xxxxxx X. Xxxxxxxx
________________________________
Name: Name: Xxxxxx X. Xxxxxxxx
___________________________
________________________________ Title: Vice-President and Treasurer
Name:___________________________
1088-290-77463.04
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