CONDITIONAL REINSTATEMENT AND FIRST AMENDMENT TO AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW INSTRUCTIONS (CALIFORNIA)
Exhibit 10.48
CONDITIONAL REINSTATEMENT AND FIRST AMENDMENT TO
AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW INSTRUCTIONS
(CALIFORNIA)
AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW INSTRUCTIONS
(CALIFORNIA)
THIS CONDITIONAL REINSTATEMENT AND FIRST AMENDMENT TO AGREEMENT OF PURCHASE AND SALE AND JOINT
ESCROW INSTRUCTIONS (CALIFORNIA) (this “Amendment”) is entered into as of the 4TH day of August,
2010 (the “Amendment Effective Date”), by and among QUALITY PROPERTIES ASSET MANAGEMENT COMPANY, an
Illinois corporation (“Seller”); and TNP ACQUISITIONS, LLC, a Delaware limited liability company
(“Buyer”);
Recitals
WHEREAS, Seller and Buyer entered into that certain Agreement of Purchase and Sale and Joint
Escrow Instructions (California) dated as of July 9, 2010 (the “Original Agreement”) pursuant to
which Seller agreed to sell, and Buyer agreed to purchase, certain real property located in San
Jacinto, California as more particularly described in the Original Agreement (the “Property”); and
WHEREAS, Seller and Buyer desire, subject to the express conditions precedent to same set
forth herein, to reinstate the Original Agreement and amend the Original Agreement on the terms and
conditions contained herein.
Agreement
NOW, THEREFORE, in consideration of the promises and mutual agreements contained herein, and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree as follows:
1. Reinstatement of Original Agreement. If and only if Buyer delivers an
executed copy of this Amendment AND the Additional Deposit, with no additional conditions or
reservations, to Escrow Holder on or before 5PM Pacific Time on Thursday, August 5, 2010, and if
and only if Buyer instructs and permits Escrow Holder to distribute the Additional Deposit to
Seller as soon as possible, with no additional conditions to such delivery, then at the time of
such delivery, the Original Agreement shall be reinstated, revived, and affirmed, as amended
hereby. This Amendment shall be of no force or effect whatsoever, the Original Agreement shall not
be Reinstated nor deemed amended if the delivery of the executed copy of this Amendment and the
Additional Deposit does not occur in strict accordance with the time frame set forth in
this paragraph. Time is absolutely and strictly of the essence of this Amendment and the failure of
Buyer to comply with the covenants and agreements set forth herein shall be a complete failure of
consideration to Seller, and no Reinstatement shall have occurred, nor will it occur, if
performance is tendered at any other time.
2. Due Diligence and Title. Buyer hereby states that it has completed its due
diligence and title review, and is satisfied with same, and accordingly approves all of the
Conditions to Buyer’s Obligations set forth in the Original Agreement, including those set forth in
Sections 8 and 9 thereof, except for the performance of Seller required at the Closing, in
accordance with the terms and conditions of the Original Agreement, as modified by this Amendment.
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3. Additional Deposit. In exchange for the covenants and agreements of Seller
contained in this Amendment, Buyer shall, concurrently with the execution hereof and as a condition
to the effectiveness of this Amendment, deposit into Escrow in Immediately Available Funds the sum
of Two Hundred Thousand Dollars ($200,000.00) (the “Additional Deposit”), which shall then be
immediately disbursed to Seller by Escrow Holder without further instructions from either party.
The Additional Deposit shall be treated in all respects like the Deposit, shall be deemed earned at
the time of its deposit into Escrow as partial consideration for the extension of the Closing Date,
as described below, and shall therefore be non-refundable in accordance with the terms of the
Original Agreement. From and after the disbursement of the Additional Deposit, Escrow Holder shall
not be concerned with the Additional Deposit, except to debit and credit the parties appropriately
at the time of the Closing.
4. Closing Date. Notwithstanding anything to the contrary contained in the Original
Agreement, the “Closing Date” shall be extended to August 11, 2010.
5. Amendment. The following provision is added to the Original Agreement as Section
26.17:
Rule 3-14 Audit and SEC Filing Requirements. Subsequent to the Closing Date and no
later than one (1) calendar year subsequent to the Closing Date, Buyer’s auditor may conduct
an audit, as may be required of Buyer pursuant to Rule 3-14 of Securities and Exchange
Commission Regulation S-X (the “Audit”), of the income statements of the Property for the
last complete fiscal year immediately preceding the Closing Date and the stub period through
the Closing Date (the “Audit Period”). Seller shall reasonably cooperate (at no cost or
liability of any kind to Seller) with Buyer’s auditor in the conduct of the Audit. Without
limiting the foregoing, (a) Buyer or its designated independent or other auditor may audit
the operating statements of the Property, at Buyer’s expense and, upon Buyer’s reasonable
prior written request; Seller shall allow Buyer’s auditors reasonable access to such books
and records maintained by Seller in respect to the Property and pertaining to the Audit
Period as necessary to conduct the Audit; and (b) Seller shall use reasonable efforts to
provide to Buyer such existing financial information as may be reasonably required by Buyer
and required for Buyer’s auditors to conduct the Audit, provided, however, that the ongoing
obligations of Seller shall be limited to providing such information or documentation as may
be in the possession or control of Seller, the Seller’s accountants or the applicable
property or asset manager, at no cost or liability of any kind to such parties, and in the
format the Seller has maintained such information.
Nothing contained in this Section 26.17 shall be deemed to alter or amend any of Buyer’s
acknowledgements, waivers, releases, indemnities or any other matter in the Original
Agreement regarding the transaction being an AS-IS purchase and sale, without representation
or warranty of any type or kind, including with respect to the completeness, accuracy or
correctness of any of the books and records related to the Property, except as specifically
set forth in the Original Agreement. Nothing contained in this Section 26.17 shall
constitute an agreement on the part of Seller to provide access to Buyer or any other person
or entity to any books and records not solely related to the Property, or belonging to
anyone other than Seller, including Bank of America, N.A.
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6. Assignment. Seller consents to the assignment of the Original Agreement, as amended
by Buyer to TNP SRT San Jacinto, LLC, a Delaware limited liability company, and the assumption by
TNP SRT San Jacinto, LLC of all of the obligations there under, provided that Buyer provides Seller
with an Approved Assignment Form and the transferee conforms in all respects to the requirements
for an affiliate transfer under the Original Agreement.
7. Entire Agreement. The Original Agreement, as modified by this Amendment,
constitutes the entire agreement between the parties hereto with respect to the transactions
contemplated thereby, and it supersedes all prior discussions, understandings or agreements between
the parties. Except as modified by this Amendment, the Original Agreement remains unchanged and
unmodified, and the parties hereto hereby ratify and affirm the same.
8. Counterparts. This Amendment may be executed in any number of counterparts, and it
shall be sufficient that the signature of each party appear on one or more such counterparts. All
counterparts shall collectively constitute this Amendment. Signatures transmitted by e-mail or
facsimile shall constitute original signatures for all parties of this Amendment.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of August 4, 2010.
| SELLER: | QUALITY PROPERTIES ASSET MANAGEMENT COMPANY, an Illinois corporation |
|||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Assistant Vice President | |||
| BUYER: |
TNP ACQUISITIONS, LLC, a Delaware limited liability company |
|||
| By: | Xxxxxxxx National Properties, LLC, | |||
| a Delaware limited liability company | ||||
| Its: | Sole Member | |||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxx | |||
| Title: | CEO | |||
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