EXHIBIT 10.23
SECOND AMENDMENT TO CONTRACT OF SALE
This Second Amendment to Contract of Sale is entered into effective as of
April 24, 1998 (this "Amendment"), by and between WHISPERING PINES AIP 6 LIMITED
PARTNERSHIP, a South Carolina limited partnership ("Seller"), and HOMETOWN
AMERICA, L.L.C., a Delaware limited liability company ("Purchaser").
WHEREAS, Seller and Purchaser entered into that certain Contract of Sale
with an Effective Date of March 11, 1998, which Contract of Sale was amended by
that certain Amendment to Contract of Sale entered into between Seller and
Purchaser dated effective as of April 3, 1998 (as so amended, the "Contract"),
pursuant to which Seller has agreed to sell, and Purchaser has agreed to
purchase from Seller, the Property more particularly described in the Contract;
WHEREAS, Purchaser has alleged that Seller has failed to properly advise
Tenants of the Property of certain information regarding "pass-on" charges which
have been charged to such Tenants during Seller's ownership of the Property;
WHEREAS, Seller has denied any liability for improperly notifying Tenants
of such pass-on charges; and
WHEREAS, Seller and Purchaser have agreed to modify the Contract to
establish an escrow account for certain losses which may be incurred by
Purchaser after Closing as a result of Seller's alleged failure to properly
advise Tenants of such pass-on charges, all pursuant to and in accordance with
the terms of this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser do hereby
agree as follows:
1. Unless otherwise defined in this Amendment, each term used in this
Amendment with its initial letter capitalized which has been defined in the
Contract shall have the same meaning herein as given to such term in the
Contract.
2. The Contract is hereby amended to add a new Section 12.5 thereto which
shall read in its entirety as follows:
12.5 Pass-on Escrow. At the Closing, Purchaser and Seller shall enter
into an Escrow Agreement in the form attached hereto as Exhibit G, pursuant
to which Seller shall deliver into escrow with the Title Company $30,000.00
to be used in payment of claims incurred by Purchaser during the 180-day
period immediately following Closing as a result of Seller's failure to
properly inform Tenants of pass-on charges which were charged to Tenants
during Seller's period of ownership.
3. The third paragraph of Exhibit C to the Contract is hereby amended to
read in its entirety as follows:
In consideration of the foregoing assignment, Assignee hereby assumes,
and agrees to perform all of the obligations of Assignor under the Leases,
including, but not limited to, the obligation to refund any security
deposits and the payment of any deferred leasing commissions that become
payable after the date of this Assignment with respect to any of the
Leases, and indemnifies Assignor and holds Assignor harmless from all loss,
cost, liability and expense arising out of or in connection with the Leases
to the extent the same arises on or after the date hereof; provided, that
such indemnity shall include, and Assignee hereby assumes, all Pass-on
Charge Liability. Assignee takes the Leases subject to any existing
defaults thereunder. Assignor hereby agrees to indemnify and hold Assignee
harmless from all loss, cost, liability and expense arising out of or in
connection with the Leases to the extent the same arises prior to the date
hereof; provided, that such indemnity shall not apply with respect to
losses, costs, liabilities or expenses arising out of or in connection with
any delinquent rents under the Leases; provided, further, that such
indemnity shall not apply with respect to losses, liabilities, costs or
expenses arising out of or in connection with any Pass-on Charge Liability.
As used herein, the term "Pass-on Charge Liability" shall mean any and all
liability incurred as a result of improper charges to Tenants under any
leases or other agreements demising space in or providing for the use or
occupancy of any portion of the real property described on Exhibit A
hereto, or any improvements thereon, to the extent that such liability
arises from charges passed on to the Tenants for increases in ad valorem
taxes, assessments and utility charges.
4. The Contract is hereby amended to add thereto a new Exhibit G thereto
which be in the same form as Exhibit G attached to this Amendment.
5. Except as expressly amended by this Amendment, no term or provision of
the Contract is or shall be amended, modified or supplemented.
6. This Amendment may be executed in any number of identical counterparts
so long as each party hereto has signed one such counterpart. If so executed,
each of such counterparts is to be deemed an original for all purposes, and all
such counterparts shall, collectively, constitute one agreement, but in making
proof of this Amendment, it shall not be necessary to produce or account for
more than one such counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
effective as of the date first set forth above.
SELLER:
WHISPERING PINES AIP 6 LIMITED
PARTNERSHIP, a South Carolina limited partnership
By: AIP 6 GP Limited Partnership,
a South Carolina limited partnership,
its general partner
By: Angeles Realty Corporation II,
a California corporation,
its general partner
By: /s/Xxxxxx X. Xxxx
Its: Vice President
Dated: May 21, 1998
PURCHASER:
HOMETOWN AMERICA, L.L.C.,
a Delaware limited liability company
By: /s/Xxxxxx X. Xxxx
Its: Vice President
Dated: May 11, 1998
