EXHIBIT 10.16b
First Amendment to Agreement of Purchase and Sale
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(XXXXXXX OFFICE BUILDING)
This First Amendment to Agreement of Purchase and Sale ("First Amendment")
is entered into effective as of November 29, 2001 by and between WXI/MCN
Commercial Real Estate Limited Partnership, a Delaware limited partnership
("Seller") and AmeriVest Properties Inc., a Maryland corporation ("Purchaser").
RECITALS
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WHEREAS, the parties entered into that certain Agreement of Purchase and
Sale ("Agreement") dated October 15, 2001, for the sale of the real property
commonly known as the Xxxxxxx Office Building in Littleton, Colorado
("Property");
WHEREAS, the Agreement provides for a forty-five (45) day Inspection Period
and a Closing Date of December 28, 2001;
WHEREAS, the parties now desire to amend the Agreement as set forth herein.
NOW, THEREFORE, in consideration of the mutual terms and provisions set
forth in the Agreement, the sums to be paid by Purchaser to Seller and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Purchaser and Seller agree to amend the Agreement as follows:
1. The parties hereto agree that as of the effective date of this
Amendment, both the Inspection Period and Title and Survey Period have
expired, and Purchaser has elected to proceed to Closing on or before
December 28, 2001, subject to Seller's satisfaction of the Estoppel
Contingency (and Purchaser's approval of same) and the Maintenance
Obligations, both as set forth below.
2. On or before December 12, 2001 ("Estoppel Delivery Deadline"), Seller
shall deliver the tenant estoppel certificates ("Estoppel
Certificates") to Purchaser in accordance with the provisions of
Section 4.4 of the Agreement ("Estoppel Contingency"). For a period of
no more than two (2) business days following Purchaser's receipt of
all of the Estoppel Certificates from Seller ("Estoppel Review
Period"), Purchaser shall have the right to review the number, form
and content of such Estoppel Certificates. In the event (i) Purchaser
is not satisfied, in its sole and absolute discretion, with any lesser
number of Estoppel Certificates than the amount Seller is obligated to
deliver, (ii) any such Estoppel Certificate delivered by Seller is not
duly executed by the applicable tenant referenced therein, or (iii)
the form and content of any such Estoppel Certificate delivered by
Seller materially differs from the form of tenant estoppel certificate
attached to the Agreement, Purchaser shall have the right to terminate
the Agreement by delivering written notice of termination to Seller
and the Escrow Agent on or before the expiration of the Estoppel
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Review Period. If Seller does not receive such written notice of
termination from Purchaser prior to the expiration of the Estoppel
Review Period, Purchaser shall be deemed to have approved the Estoppel
Certificates and the Estoppel Contingency shall be deemed satisfied.
3. Prior to Closing, Seller hereby agrees to either: (i) repair on or
before the Closing Date the following maintenance items relating to
the Building (the following maintenance items shall be collectively
referred to herein as the "Maintenance Obligations") (x) replacement
of the glass panels wherever panels or window seals are broken in
Suites 160 and 250 of the Building, and (y) installation of backflow
prevention devices on all water service lines of the Building as
required by Denver Water Company, which repairs shall be diligently
performed to Purchaser's satisfaction at least two (2) business days
prior to Closing; or (ii) credit Purchaser at Closing in a mutually
agreeable amount for the estimated cost to repair one or both
Maintenance Obligations, to the extent one or both cannot be
completely repaired to Purchaser's satisfaction prior to the Closing
Date.
4. Except as expressly amended under this Amendment, all the terms and
provisions of the Agreement shall remain in full force and effect
without any modification, waiver or amendment thereto. To the extent
of any conflict between the terms and provisions of the Agreement and
this Amendment, the terms and provisions of this Amendment shall
govern and control.
5. All terms which are defined in the Agreement shall have the same
meaning when used in this Amendment, unless specifically provided
herein to the contrary.
6. This Amendment may be executed in separate counterparts, each of which
shall constitute an original and all of which, when taken together,
shall constitute one and the same instrument. In addition, Seller and
Purchaser agree that facsimile signatures on this Amendment shall be
deemed effective as originals for all purposes.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment to be
effective as of the date first written above.
SELLER:
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WXL/MCN Commercial Real Estate
Limited Partnership, a Delaware
limited partnership
By: WXI/MCN Commercial Gen-Par, LLC,
a Delaware limited liability
company, its General Partner
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
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Title: Assistant Vice President
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PURCHASER:
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AMERIVEST PROPERTIES INC.
a Maryland Corporation
By: /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
Vice President
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