EXHIBIT 10.28
AMENDMENT AND REINSTATEMENT OF
AGREEMENT OF PURCHASE AND SALE
This Amendment and Reinstatement of Agreement of Purchase and Sale (this
"Reinstatement"), dated effective March 14, 2002, is executed by and between
▇▇▇▇-▇▇▇▇ 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").
WHEREAS, Purchaser and Seller entered into that certain Agreement of
Purchase and Sale, having an effective date of December 14, 2001, which was
amended by letter agreement between Seller and Purchaser dated January 25, 2002
("Amendment No. 1"), 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 (as amended, the "Agreement");
WHEREAS, by letter dated March 5, 2002 from Purchaser to Seller (the
"Termination Letter"), Seller terminated the Agreement;
WHEREAS, Purchaser and Seller desire to reinstate and amend the Agreement
as hereinafter set forth;
NOW, THEREFORE, for and in consideration of the mutual covenants of the
parties hereto, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and confessed by the parties, the
parties agree as follows:
1. All capitalized terms not defined herein shall have the meaning ascribed to
such term in the Agreement.
2. Except as modified by this Reinstatement, the Agreement is hereby
reinstated, ratified and confirmed and in full force and effect. In the
event of a conflict between the terms of this Reinstatement and the
Agreement, the terms of this Reinstatement shall control.
3. The parties acknowledge that the initial ▇▇▇▇▇▇▇ Money Deposit was not
returned to Purchaser pursuant to the Termination Letter and that Purchaser
shall deposit the additional ▇▇▇▇▇▇▇ Money Deposit required by Section
4.1(a) of the Agreement no later than 5:00 p.m. Eastern Time on March 20,
2002, subject to the provisions of Paragraph 15 below.
4. The second sentence of Section 3.1 of the Agreement and the second and
fourth sentences of Section 4.1(a) of the Agreement are hereby deleted in
their entirety and replaced with "[Intentionally deleted]."
5. Section 5.1(b) of the Agreement is hereby deleted in its entirety and
replaced with "[Intentionally deleted]."
6. Paragraph 1 of Amendment No. 1 is deleted in its entirety and all
references to the Mezzanine Loan, Mezzanine Lender and Mezzanine Loan
Documents in the Agreement or any amendment thereto are deleted in their
entirety.
7. Section 11.1 of the Agreement is amended such that, notwithstanding
anything in Section 11.1 to the contrary, if all or a Significant Portion
of any Project is destroyed or damaged by fire or other casualty, Purchaser
shall have the option to either (a) terminate the Agreement with respect to
all of the Projects whereupon the ▇▇▇▇▇▇▇ Money Deposit shall be returned
to Purchaser and the Agreement shall be of no further force or effect,
except for the Termination Surviving Obligations or (b) proceed to Closing
with respect to all of the Projects in accordance with Section 11.1.
8. Section 11.2 of the Agreement is revised such that notwithstanding anything
in Section 11.2 to the contrary, in the event of any (a) condemnation or
sale in lieu of condemnation of all or substantially all of any Project, or
(b) condemnation or sale in lieu of condemnation the proceeds of which are
greater than twenty percent (20%) of the allocated Purchase Price of any
Project prior to Closing or that materially interferes with the operations
of the Project, Purchaser shall have the option, to be exercised within
fifteen (15) days after receipt of notice of such condemnation or sale, of
either (i) electing to terminate the Agreement in its entirety, whereupon
the ▇▇▇▇▇▇▇ Money Deposit shall be returned to Purchaser or (ii) proceed to
Closing with respect to all of the Projects in accordance with Section
11.2. To determine whether a condemnation affects greater than twenty
percent (20%) of the allocated purchase price of a Project, the allocated
purchase price shall be deemed to be equal to the Purchase Price multiplied
by a fraction, the numerator of which equals the original principal amount
of the Senior Loan (defined below) allocated to the relevant Project and
the denominator of which equals the original principal amount of the Senior
Loan.
9. Section 13.1 of the Agreement is amended such that notwithstanding any
provision in Section 13.1 to the contrary, any termination of the Agreement
permitted under Section 13.1 must include all of the Projects.
10. Sections 9.1(g) and 9.2(a)(vi) are hereby deleted and replaced by the
following:
"(g) None of the Projects shall be an Affected Project."
11. Section 9.2(c) is hereby deleted in its entirety and replaced with
"[Intentionally deleted]."
12. Section 9.2(d) is hereby deleted in its entirety and replaced with
"[Intentionally deleted]."
13. Section 9.2(b) is hereby deleted in its entirety and replaced with the
following:
"(b) Notwithstanding Section 9.2(a) or any other provision in this
Agreement to the contrary, if, on the Scheduled Closing Date, the
conditions precedent to Purchaser's obligation to close have not been
satisfied (and Purchaser has not waived, in writing, any unsatisfied
conditions precedent) with respect to one or more of the Projects, then
either:
(i) Purchaser shall waive in writing any unsatisfied conditions
precedent with respect to the Affected Project(s) and proceed to
Closing on the original Scheduled Closing Date with respect to all of
the Projects (or proceed to Closing even if all conditions precedent
have not yet been satisfied, thereby waiving all such unsatisfied
conditions precedent); or
(ii) with respect to all of the Projects, the Closing shall be
deferred until the fifteenth (15th) day after the Scheduled Closing
Date (such 15-day period being referred to herein as the "CONDITIONS
PRECEDENT CURE PERIOD" and the last day of such 15-day period being
referred to herein as the "EXTENDED CLOSING DATE"), at which time
Purchaser shall either (A) proceed to Closing on the Extended Closing
Date with respect to all of the Projects if all conditions precedent
relating thereto have been satisfied (or Purchaser may proceed to
Closing even if all conditions precedent have not yet been satisfied,
thereby waiving all such unsatisfied conditions precedent) or (B) if
the conditions precedent have not yet been satisfied (or waived by
Purchaser) with respect to the Affected Project(s), and if at any time
prior to the date that is fifteen (15) days after the Extended Closing
Date (such 15-day period being referred to herein as the "SECOND
CONDITIONS PRECEDENT CURE PERIOD" and the last day of such 15-day
period being referred to herein as the "SECOND EXTENDED CLOSING DATE")
all of the conditions precedent for the Affected Project(s) are
satisfied, Purchaser shall, on the date that is two (2) Business Days
after receipt by Purchaser of notice from Seller of such satisfaction
(and evidence thereof if not already received by Purchaser), proceed
to Closing with respect to all of the Projects. If as of the Second
Extended Closing Date the conditions precedent for the Affected
Project(s) are not satisfied, either A) Purchaser shall proceed to
Closing on the Second Extended Closing Date or B) this Agreement shall
terminate effective as of 5:00 p.m. Eastern Time on the Second
Extended Closing Date, whereupon the ▇▇▇▇▇▇▇ Money Deposit, together
with all interest earned thereon, shall, subject to Section 15(d)
below, be returned to Purchaser and, except with respect to the
Termination Surviving Obligations, this Agreement shall be null and
void and the parties shall have no further obligation to each other."
14. Section 9.2(e) is hereby deleted in its entirety and replaced by the
following:
"(e) In the event of a termination of this Agreement under this
Section 9.2, Purchaser shall have the right to receive, within five (5)
Business Days thereafter, a refund of the ▇▇▇▇▇▇▇ Money Deposit, together
with all interest which has accrued thereon, and except with respect to the
Termination Surviving Obligations, this Agreement shall be null and void
and the parties shall have no further obligations to each other. Nothing in
this Section 9.2(e) is intended to supersede any of the provisions of
Section 13.1."
15. Termination Rights.
(a) Purchaser hereby acknowledges and agrees that the Evaluation Period and
all time periods during which Purchaser was permitted to review and object
to title and survey matters have expired, and Purchaser has no right to
terminate the Agreement or receive a refund of the ▇▇▇▇▇▇▇ Money Deposit
pursuant to Section 5.3(c) of the Agreement.
(b) Notwithstanding the foregoing, if the lender that is providing
Purchaser with mortgage financing for the purchase of the Property (the
"Mortgage Lender") has not yet countersigned the commitment for the
purchase-money loan (the "Senior Loan"), then Purchaser may terminate the
Agreement by written notice delivered to Seller no later than 5:00 p.m.
Eastern Time March 20, 2002.
(c) In addition, if (i) Purchaser's proposed mezzanine lender (the
"Mezzanine Lender") and the Mortgage Lender are unable to negotiate the
terms of an intercreditor agreement (the "Intercreditor Agreement") or (ii)
the Mezzanine Lender does not approve the terms of the documents evidencing
and securing the Senior Loan (the "Senior Loan Documents") or (iii) the
Mortgage Lender does not approve the terms of the documents evidencing and
securing the Mezzanine Loan (the "Mezzanine Loan Documents") or (iv)
Purchaser and the Mezzanine Lender are unable to finalize the Mezzanine
Loan Documents, in each case prior to the Scheduled Closing Date, then the
Agreement shall terminate as of 5:00 p.m. Eastern Time on the Scheduled
Closing Date, subject to the rights of either Purchaser and/or Seller to
extend the Scheduled Closing Date to the Extended Closing Date by written
notice delivered to the other party prior to 5:00 p.m. Eastern Time on the
Scheduled Closing Date and to further extend the Scheduled Closing Date
from the Extended Closing Date to the Second Extended Closing Date by
written notice delivered to the other party prior to 5:00 p.m. Eastern Time
on the Extended Closing Date, as necessary, in order to finalize the
Intercreditor Agreement, the Senior Loan Documents and/or the Mezzanine
Loan Documents, as applicable, in which event, if any of the items set
forth in clauses (i), (ii), (iii) or (iv) of this Paragraph 15(c) are not
finalized by the Extended Closing Date or the Second Extended Closing Date,
as applicable, this Agreement shall terminate as of 5:00 p.m. Eastern Time
on the Extended Closing Date (subject to the foregoing extension right) or
on the Second Extended Closing Date, as applicable, provided that the
Agreement shall not terminate by reason of any matter set forth in clauses
(i), (ii), (iii) or (iv) of this Paragraph 15(c) if Purchaser secures a
source of funds in place of the Mezzanine Loan and the Closing is not
delayed beyond the Scheduled Closing Date (or, if the Scheduled Closing
Date has been properly extended as set forth above, beyond the Extended
Closing Date or the Second Extended Closing Date, as applicable) as a
result thereof.
(d) In the event of any termination of the Agreement permitted by this
▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇ shall receive a refund of the ▇▇▇▇▇▇▇ Money
Deposit, together with all interest that has accrued thereon (except that
such refund shall not be made in the case of a termination pursuant to
clause (iv) of Paragraph 15(c) unless Purchaser has acted reasonably and in
good faith in the course of the negotiations of the Mezzanine Loan
Documents), and, except with respect to the Termination Surviving
Obligations, the Agreement shall be null and void and the parties shall
have no further obligations to each other.
(e) Purchaser hereby represents and warrants that the deposits or other
monies delivered (or to be delivered, in the case of the commitment fee, on
or before the date that is five (5) days after acceptance by the Mortgage
Lender of the loan application) by Purchaser to the Mortgage Lender in the
total amount of $544,000 are not refundable for any reason except as
expressly set forth in the loan application for the Senior Loan and that a
true, correct and complete copy of the loan applications and addenda
thereto confirming this are attached hereto as Schedule 6.
16. The Scheduled Closing Date shall be April 15, 2002.
17. Purchaser shall receive a credit in cash at Closing in the amount of
$600,000.
18. At or prior to Closing, Seller shall either complete the repairs and
improvements described on Schedule 1 attached hereto in accordance with the
contracts referenced therein, or Purchaser shall receive (a) a credit at
Closing equal to the unpaid amount under each contract referenced in
Schedule 1 and (b) an assignment of such contracts, each of which Purchaser
shall also simultaneously assume.
19. With respect to the Leases described on Schedule 2 attached hereto, Seller
shall be responsible for the payment of the tenant improvement allowances,
in the amounts set forth opposite such Leases described on Schedule 2, to
the extent not paid as of the Closing. Seller shall indemnify and hold
Purchaser harmless with respect to such tenant improvement allowances.
Purchaser acknowledges that, notwithstanding the foregoing or anything to
the contrary in Section 10.4(e) of the Agreement, Seller shall not be
responsible for the payment of any tenant improvement allowance required by
the ▇▇▇▇▇▇▇▇ Lease at the Republic Property, except to the extent set forth
on Schedule 2 hereof, or for the payment of any Leasing Commission
associated with such Lease and such obligations shall be assumed by
Purchaser at Closing. This Paragraph 19 shall survive the Closing.
20. With respect to the written violation notices attached hereto as Schedule
3, Seller shall either complete the work which is the subject of such
notices substantially in accordance with the contracts attached hereto as
Schedule 4 or Purchaser shall receive (a) a credit at Closing equal to the
unpaid amount under each contract attached hereto as Schedule 4 and (b) an
assignment of such contracts, each of which Purchaser shall also
simultaneously assume.
21. Purchaser hereby agrees to the proposed Sanitary Sewer Easement that is
attached as Schedule 5 hereto, which will benefit the Project located on
the Metroport Property, with the changes marked on such attachment and no
additional required changes, and will not unreasonably withhold its consent
to such easement in the event that the grantor of such easement does not
agree to make all of such marked changes.
22. Except as modified and amended as set forth in this Reinstatement, the
Agreement shall remain unmodified and in full force and effect.
23. This Reinstatement may be executed in any number of counterparts, each of
which shall be an original and all of such counterparts together shall
constitute one and the same instrument.
24. To facilitate the execution of this Reinstatement, the parties may execute
and deliver counterparts of this Reinstatement by telephone facsimile.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the parties have executed this Reinstatement as of the
day and year first above written.
SELLER:
▇▇▇▇-▇▇▇▇ TEXAS PROPERTY L.P.
By: ▇▇▇▇-▇▇▇▇ Sub XVII, Inc., its general
partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Executive Vice President and General
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Counsel
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PURCHASER:
CENTENNIAL ACQUISITON COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
ASHWOOD AMERICAN PROPERTIES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
Title: President
