REINSTATEMENT OF AND FOURTH AMENDMENT TO PURCHASE AGREEMENT
Exhibit
10.5
REINSTATEMENT
OF AND
FOURTH
AMENDMENT TO
This
REINSTATEMENT OF AND FOURTH AMENDMENT TO PURCHASE AGREEMENT (this “Fourth Amendment”) is made and
entered into effective as of April ___, 2010, by and between 2075 FORD PARKWAY,
LLC, a Minnesota limited liability company (“Purchaser”), and BEHRINGER
HARVARD XXXXXXX, LLC, a Delaware limited liability company (“Seller”).
R E C I T A L
S:
A. Seller
and Purchaser entered into that certain Purchase Agreement dated as of February
3, 2010, as amended by that certain First Amendment to Purchase Agreement dated
as of February 10, 2010, as amended by that certain Second Amendment to
Purchaser Agreement dated as of March 2, 2010, as amended by that certain Third
Amendment to Purchase Agreement dated March 9, 2010 (the “Original Agreement”), pursuant
to which Seller agreed to sell to Purchaser and Purchaser agreed to purchase
from Seller certain Property (as defined therein) on the terms and conditions
set forth in the Original Agreement.
B. Purchaser
was not able to secure financing by March 16, 2010, and gave notice to Seller of
its intent to terminate pursuant to Section 3.5 of the Original Agreement
and the Original Agreement terminated.
C. Purchaser
and Seller now desire to reinstate and reaffirm the Original Agreement and to
amend certain provisions of the Original Agreement, all upon the terms and
subject to the conditions set forth in this Fourth Amendment.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser hereby agree
as follows:
1. Capitalized
Terms. All capitalized terms not otherwise specifically defined in this
Fourth Amendment shall have meanings ascribed to such terms in the Original
Agreement.
2. Financing
Contingency. Section 3.5 of the Original Agreement is hereby deleted
in its entirety and replaced with the following:
“Purchaser
acknowledges that it has waived any financing contingency and no longer has a
right to terminate the Agreement in connection with obtaining financing. All
aspects of the Property and Property Documents shall be deemed to have been
approved pursuant to Section 3.3. The Xxxxxxx Money is non-refundable
except as otherwise set forth herein.”
3. Time and
Place of Closing. Section 4.1 of the Original Agreement is hereby
deleted in its entirety and replaced with the following:
“The
consummation of the purchase and sale of the Property (“Closing”) shall take
place via facsimile or email through the office of the Escrow Agent, on a date
(the “Closing Date”) mutually agreed upon by the parties, but not later than
April 15, 2010.
Simultaneously with the execution of the First Amendment, Purchaser made a
deposit of an additional Fifty Thousand Dollars ($50,000) with Escrow Agent.
Such Fifty Thousand Dollars ($50,000) is a part of the Xxxxxxx Money as such
term is used herein and is non-refundable except as otherwise set forth herein.
At Closing, Seller and Purchaser shall perform the obligations set forth in,
respectively, Section 4.2 and Section 4.3 below, the performance of
which obligations shall be concurrent conditions.”
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Exhibit
10.5
4. Counterparts;
Interpretation. This Fourth Amendment may be signed in counterparts and
may be delivered by electronic mail or facsimile, and each counterpart will be
considered an original, but all of which, when taken together, will constitute
one instrument. This Fourth Amendment shall be interpreted to give each of the
provisions their plain meaning. The Recitals are incorporated into the Fourth
Amendment. Each of the parties agrees to permit the use of telecopy or other
electronic signatures in order to expedite the execution and delivery of this
Fourth Amendment, intends to be bound by its respective telecopy or electronic
signature, and is aware that the other will rely on the telecopied or other
electronically transmitted signature.
5. Governing
Law. This Fourth Amendment shall be governed by, interpreted under, and
construed and enforced in accordance with the laws of the State of
Minnesota.
6. No
Further Modification. The Original Agreement remains in full force,
except as amended by this Fourth Amendment, and is hereby ratified and
reaffirmed.
7. Conflicts.
If any conflict between this Fourth Amendment and the Original Agreement should
arise, the terms of this Fourth Amendment shall control.
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Exhibit
10.5
IN
WITNESS WHEREOF, Seller and Purchaser have executed this Fourth Amendment as of
the date written above.
| SELLER: | |||
| Dated: __________ | BEHRINGER
HARVARD XXXXXXX, LLC,
a
Delaware limited liability company
|
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|
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By:
|
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| Name: | |||
| Title: | |||
| PURCHASER: | |||
| Dated: __________ |
2075
FORD PARKWAY, LLC,
a
Minnesota limited liability company
|
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|
|
By:
|
||
| Name: | |||
| Title: | |||
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