EXHIBIT 10.59
AMENDMENT TO
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PURCHASE AND SALE AGREEMENT
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AND ESCROW INSTRUCTIONS
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THIS AMENDMENT TO PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS
("Amendment") is dated as of June 27, 1997 by and between PULLMAN CARNEGIE
ASSOCIATES, a California limited partnership ("Seller"), and XXXXXX REALTY,
L.P., a Delaware limited partnership ("Buyer").
WHEREAS, Buyer and Seller are parties to that certain Purchase and
Sale Agreement and Escrow Instructions dated as of May 5, 1997 with respect to
Escrow No. 97-26849 at Commerce Escrow Company, Los Angeles, California (the
"Purchase Agreement"); and
WHEREAS, Buyer and Seller wish to amend the Purchase Agreement in
certain respects as set forth below;
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Buyer and Seller hereby amend the
Purchase Agreement as follows:
The capitalized terms used herein shall have the same meanings as
set forth in the Purchase Agreement.
The Contingency Period shall expire upon the full execution and
delivery of telecopied counterparts of this Amendment, which Buyer and Seller
anticipate shall occur on Friday, June 27, 1997.
The Closing shall be June 30, 1997.
The Purchase Price shall remain Fifteen Million Four Hundred Fifty
Thousand Dollars ($15,450,000); however, at the Closing, Escrow Holder shall
retain and transfer to a money market account at Union Bank, or such other
account as may be specified by Buyer and Seller, the sum of One Million Three
Hundred Thousand Dollars ($1,300,000) (the "Holdback"), which sum shall be
disbursed to Seller or to Buyer, as applicable, together with any accrued
interest, pursuant to the following:
(a) Upon receipt of a copy of a fully executed amendment to the
April 28, 1988 Lease with the State of California ("Caltrans") extending
the term thereof (other than pursuant to a "holdover" agreement on a month-
to-month or other short term basis) on terms and conditions acceptable to
Buyer in its sole discretion, the Holdback shall be delivered by Escrow
Holder to Seller.
(b) Upon receipt of a notice from Buyer and Seller that the
condition set forth in Paragraph 4(a) of this Amendment has not been
satisfied prior to the expiration of the term of the April 28, 1988 Lease,
the Holdback shall be distributed to Buyer.
Subparagraphs (a) and (b) above are intended to document the basic agreement of
Buyer and Seller that, if Caltrans does not renew the term of the April 28, 1988
Lease, Buyer shall receive the Holdback and, if Caltrans does renew the term of
the April 28, 1988 Lease, Seller is entitled to the Holdback.
5. An additional holdback in the sum of Four Hundred Seventy Thousand
Dollars ($470,000) from the distribution to Seller of the Purchase Price,
together with any accrued interest thereon, shall remain in a money market
account at Union Bank or such other account as may be specified by Buyer and
Seller (the "Renovation Holdback"), which Renovation Holdback shall be disbursed
to Seller by Escrow Holder upon receipt by Escrow Holder, from time to time, of
invoices, countersigned by Buyer and Seller, from contractors performing works
of improvement to the Real Property at Buyer's direction which are for the cost
of construction of "Qualified Items." As used herein, the term "Qualified
Items" shall mean and refer to works of improvement to the Real Property which
are included in the list of items set forth in Paragraph I of the May 13, 1997
letter to Xxxx Xxxxxx of OREDS from Xxxxx Xxxxxxxxxx of Essex Realty Management.
The countersignatures of Buyer and Seller shall evidence that the submitted
invoice is a "Qualified Item." When such work of improvement of the Qualified
Items is completed, as evidenced by a written notice delivered to Escrow Holder
by Buyer and Seller to such effect, any undisbursed portion of the Renovation
Holdback, together with any accrued interest thereon, shall be promptly
disbursed by Escrow Holder to Seller. If the cost of completing such work of
improvement exceeds the Renovation Holdback, Seller shall promptly pay such
excess cost. To securitize the agreement of Seller to timely pay its
obligations under this Paragraph 5, this Amendment has been acknowledged by
Weyerhaeuser Venture Company ("WVC"), by which acknowledgment WVC hereby
unconditionally guarantees and promises to pay to Buyer any such payment which
Seller fails to timely make, together with interest thereon at a rate of ten
percent (10%) per annum accruing from the date which is thirty (30) days after
the invoice date for such payment; provided however, that such payment by WVC
shall not exceed the amount actually received by WVC as a distribution from
Seller out of the net sales proceeds under the Purchase Agreement (currently
estimated, based on a trial closing balance, at One Million Five Hundred Fifty
Thousand Dollars ($1,550,000)). Seller hereby agrees that it will promptly
distribute all net sale proceeds to WVC that WVC is entitled to receive. In the
event that WVC fails to receive such funds to which it is entitled, WVC hereby
agrees to take all necessary and appropriate legal actions against Seller to
recover such funds.
6. Buyer and Seller have anticipated that Caltrans will require certain
works of improvement ("Lease Incentive Items") to be made to the Real Property
as a condition to the renewal by Caltrans of the April 28, 1988 Lease. Buyer
and Seller currently estimate the Lease Incentive Items to cost Three Hundred
Eighty Thousand Dollars ($380,000). If negotiations with Caltrans result in a
commitment by Buyer to construct Lease Incentive Items at a cost in excess of
Three Hundred Eighty Thousand Dollars ($380,000), Seller shall contribute to
such costs a
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sum of money, not to exceed One Hundred Twenty Thousand Dollars ($120,000). By
way of illustration, if Caltrans renews its Lease and obtains a commitment from
Buyer to construct Lease Incentive Items at a cost of Five Hundred Fifty
Thousand Dollars ($550,000), Buyer shall pay the first Three Hundred Eighty
Thousand Dollars ($380,000), Seller shall pay the next One Hundred Twenty
Thousand Dollars ($120,000), and Buyer shall pay the final Fifty Thousand
Dollars ($50,000). To securitize the agreement of Seller to fund up to One
Hundred Twenty Thousand Dollars ($120,000) as required in this paragraph, this
Amendment has been acknowledged to such effect by WVC, by which acknowledgment
WVC hereby unconditionally guarantees and promises to pay to Buyer up to One
Hundred Twenty Thousand Dollars ($120,000), to the extent the cost of the Lease
Incentive Items exceed Three Hundred Eighty Thousand Dollars ($380,000) and
Seller fails to pay such amount.
7. Except to the extent modified by this Amendment, the Agreement
remains in full force and effect. This Amendment also constitutes an amendment
to the instructions to Escrow Holder. If any provision of this Amendment
contradicts or is inconsistent with any provision of the Agreement, then the
provisions of this Amendment shall prevail.
8. This Amendment may be executed in any number of counterparts, each
of which shall be an original, but all of which taken together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, this Amendment has been executed by Buyer and
Seller as of this 27th day of June, 1997.
SELLER: PULLMAN CARNEGIE ASSOCIATES,
a California limited partnership
By: Bay-Santa Xxx Partners,
a California limited partnership,
its General Partner
By: Bay Development Corporation,
a California corporation,
its General Partner
By:
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Name: Xxxxxx X. Xxxxxxxxx
Its: President
[SIGNATURES CONTINUED]
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BUYER: XXXXXX REALTY, L.P.,
a Delaware limited partnership
By: Xxxxxx Realty Corporation,
a Maryland corporation,
its General Partner
By: ___________________________
Name:___________________________
Its: ___________________________
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ACKNOWLEDGMENTS
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Escrow Holder hereby executes this Amendment as of June 27, 1997
solely for the purpose of acknowledging that it agrees to be bound by the
provisions applicable to Escrow Holder as set forth in Paragraphs 4, 5 and 6
hereof.
ESCROW HOLDER: COMMERCE ESCROW COMPANY
By: __________________________
Name: __________________________
Its: __________________________
Weyerhaeuser Venture Company hereby executes this Amendment as of June
27, 1997 in its individual corporate capacity solely for the purposes of
acknowledging that it agrees to be bound by the provisions applicable to
Weyerhaeuser Venture Company in Paragraphs 5 and 6 hereof.
WEYERHAEUSER VENTURE COMPANY,
a Nevada corporation
By: _____________________________
Name: Xxxxxx X. Xxxxxxxx
Its: Senior Vice President
By: ____________________________
Name:____________________________
Its: ____________________________
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