EXHIBIT 10.7
SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT
AND ESCROW INSTRUCTIONS
THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT AND ESCROW
INSTRUCTIONS (the "Second Amendment") is entered into effective as of February
18, 2004, by and between IGP X SHADOWRIDGE XXXXXXX, LTD., a California limited
partnership ("Seller") and XXXX XXXXXXXX, AS TRUSTEE OF THE XXXX XXXXXXXX TRUST
DATED OCTOBER 31, 2001 ("Buyer") with reference to the following recitals:
RECITALS
A. Seller and Buyer previously entered into a Purchase and Sale
Agreement and Escrow Instructions dated December 8, 2003 (the "Agreement"),
relating to that certain apartment property known as the Shadow Ridge Xxxxxxx
Apartments, as more particularly described in the Agreement, The Agreement was
amended by that certain First Amendment to Purchase and Sale Agreement and
Escrow Instructions dated January 8, 2004 (the "First Amendment").
B. Buyer has asserted certain claims against Seller regarding the
physical condition of the Property, Seller's alleged breach of representations
and warranties under the Agreement, and Seller's alleged intentional and/or
negligent disclosure or nondisclosure facts relating to the condition of the
Property. Seller has claimed that Buyer did not provide the Additional Deposit
to Escrow Holder in a timely fashion, and Seller therefore delivered
cancellation instructions to Escrow Holder, and asserts that the Agreement has
been terminated.
C. Seller and Buyer now wish to reaffirm the transaction, settle
and release all claims existing by one against other as of the execution of this
Second Amendment, including, but not limited to, the claims set forth in Recital
Paragraph B above (collectively, the "Existing Claims"), and to modify certain
provisions of the Agreement, as set forth in detail below.
NOW THEREFORE, for good and valuable consideration, the parties agree
as follows:
AGREEMENT
1. Revocation of Cancellation Instructions. The escrow
cancellation instructions previously delivered by Seller to Escrow Holder are
hereby revoked and cancelled.
2. Purchase Price. Section 1.3 of the Agreement is revised to
provide that the Purchase Price is hereby reduced to the amount of Twenty Seven
Million Five Hundred Thousand Dollars ($27,500,000.00).
3. Credit for Repairs and/or Improvements. In addition to the
reduction of the Purchase Price, Seller shall provide Buyer with a credit at
Closing for miscellaneous repairs and/or improvements to be made by Buyer after
Closing at the Property in the amount of Two Hundred Thousand Dollars
($200,000.00). The credit shall be made by adjustment of the closing statement
by Escrow Holder.
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4. Payment of Purchase Price. The last sentence of Section 1.4 of
the Agreement is revised as follows: "On or before 12:00 p.m. on the business
day prior to the Closing Date, Buyer shall deposit into Escrow (as defined in
Section 1.5 below), in cash or other immediately available funds, the full
amount of the Purchase Price, as increased or decreased by prorations and
adjustments as herein provided, minus the amount of the Deposit previously
deposited by Buyer into Escrow."
5. Release of Deposit. Seller acknowledges Buyer's previous two
Deposits totaling Five Hundred Thousand Dollars ($500,000,00). Upon mutual
execution of this Second Amendment, and except as provided in Sections 3.4 and
6.2 and Article VII of the Agreement, the Deposit and all accrued interest
thereon shall be released to Seller, and shall be applicable to the Purchase
Price at Closing. Except as set forth herein, the remaining terms of Section 1.5
of the Agreement shall apply.
6. Contingency Period. The Contingency Period is deemed to have
expired as of the Effective Date of this Second Amendment.
7. Waiver and Release of Existing Claims. Effective upon Buyer
and Seller's execution of this Second Amendment, Buyer and Seller and anyone
claiming by, through or under them, together with such party's employees,
officers, directors, representatives, agents, servants, attorneys, affiliates,
parents, partners, members, subsidiaries, successors and assigns ("Released
Parties") waive and release the Existing Claims.
8. Waiver and Release of Claims Effective as of the Closing.
Effective on and conditioned upon the Closing, the Released Parties shall waive
and release any and all claims, rights and causes of action of every nature,
known or unknown, arising from, or related to the Agreement, the transaction
contemplated thereby and the condition of the Property. In furtherance of the
foregoing, Buyer and Seller shall execute a Civil Code Section 1542 release, in
form attached hereto as Exhibit "A", and deliver the same to Escrow Holder as of
the Closing.
9. Condition of Property Upon Closing. Buyer acknowledges that it
has had ample opportunity to investigate the condition of the Property and has
verified that the Due Diligence Documents required by Section 3.1 of the
Agreement have been received by Buyer and are accurate and complete or, to the
extent Buyer believes such Due Diligence Documents are not accurate and
complete, effective as of the Closing Date, Buyer waives and releases Seller
from any liability related thereto, including, but not limited to, Seller's
alleged intentional and/or negligent disclosure or nondisclosure of any fact
relating to the Property or any representation or warranty by Seller under
Section 5.1(f) of the Agreement. Buyer acknowledges that Seller makes no
representation or warranty as to the condition of the Property as of the date of
this Second Amendment or at Closing and further acknowledges that Section 5.1(f)
of the Agreement is deemed deleted.
10. Deletion of Section 3.1 (j). Effective upon Buyer and Seller's
execution of this Second Amendment, Section 3.1 (j) is deemed deleted and Buyer
waives any right Buyer may have to receive a disclosure statement from Seller in
accordance with Section 3.1(j) of the Agreement.
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11. Partnership Approval. Section 4.7(a)(i) is revised as follows:
"(a) Within forty- five (45) days following the expiration of the Contingency
Period: (i) Seller shall have obtained the requisite approval of the limited
partners of Income Growth Partners, Ltd., X, a California limited partnership
("IGPX"), which is the sole limited partner of Seller, as required by the
Agreement of Limited Partnership of IGPX. Subject to its fiduciary
responsibilities to its limited partners with regard to changes in facts or
circumstances which may arise after execution of this Second Amendment, Seller's
general partners will cause the general partner of IGPX to recommend, in
writing, approval of this transaction to the limited partners of IGPX and to use
its best efforts to obtain the approval of such limited partners. Further,
subject to and conditioned upon the limited partners of IGPX approval of the
transaction, Seller will cause the partners of Seller to approve the
transaction. Seller's general partners will also cause the general partner of
IGPX to provide a copy of its written recommendation (and any other
correspondence and documentation provided to IGPX's limited partners relating to
the approval process) to the Buyer simultaneously with delivery of the same to
the limited partners of IGPX. If IGPX's limited partners do not approve the
transaction and this Agreement is therefore terminated, Seller shall provide
Buyer with written confirmation that said approval was not obtained, and Buyer
shall be entitled to and shall receive the return of the Deposit and all accrued
interest thereon within two (2) business days of delivery to Escrow Holder of
mutual written cancellation instructions."
12. Third Party Negotiations. The Property shall not be offered
for sale, shown to prospective buyers (other than Buyer), or a sale negotiated
during the pendency of the approval of Seller's limited partners, as set forth
above.
13. Definitions. All capitalized words used herein shall have the
definition set forth in the Agreement, unless otherwise defined herein.
14. Counterparts. This Second Amendment may be executed in any
number of identical counterparts, and each counterpart hereof shall be deemed to
be an original instrument, but all counterparts hereof taken together shall
constitute a single instrument. The facsimile signatures of the parties shall be
deemed to constitute original signatures, and facsimile copies hereof shall be
deemed to constitute duplicate original counterparts.
15. Effective Date. This Second Amendment shall be effective as of
the effective date set forth above.
16. Conflicting Terms. In the event of a conflict between the
terms of the Agreement and the terms of this Second Amendment, the terms of this
Second Amendment shall govern.
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IN WITNESS WHEREOF, Buyer and Seller have executed this Second
Amendment as of the date first above written.
"SELLER"
IGP X SHADOW RIDGE XXXXXXX LTD.,
a California limited partnership
By: INCOME GROWTH MANAGEMENT,
INC., a California corporation
Its: General Partner
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
By: IGP X SHADOW RIDGE XXXXXXX,
INC., a California corporation
Its: General Partner
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
"BUYER"
Xxxx Xxxxxxxx, as Trustee of the Xxxx Xxxxxxxx
Trust dated October 31, 2001
By: /s/ Xxxx Xxxxxxxx
--------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Trustee
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ESCROW HOLDER CONSENT
Escrow Holder hereby acknowledges that it has received fully executed
or executed counterparts of the foregoing Second Amendment and agreed to be
bound by the provisions thereof.
ESCROW HOLDER:
XXXXXXX TITLE COMPANY
By: /s/ X. X. Xxxxx Dated: 2/18/04, 2004
-----------------------------
Name : X. X. Xxxxx
Title : Commercial Escrow Officer
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EXHIBIT "A"
RELEASE FORM
THIS MUTUAL RELEASE is made and entered into effective as of
the ______ day of ______, 2004 (the "Effective Date") by XXXX XXXXXXXX, AS
TRUSTEE OF THE XXXX XXXXXXXX TRUST DATED OCTOBER 31, 2001 ("Buyer"), and IGP X
SHADOWRIDGE XXXXXXX, LTD., a California limited partnership ("Seller").
Release. The parties and anyone claiming by, through or under them,
hereby waives their right to recover from and fully and irrevocably the other
parties to the Agreement, together with such party's employees, officers,
directors, representatives, agents, servants, attorneys, affiliates, parent,
subsidiaries, successors and assigns ("Released Parties") from any and all
claims that it may now have or hereafter acquire against any of the Released
Parties for any costs, loss, liability, damage, expenses, demand, action or
cause of action arising from or related to the Agreement, the transactions
contemplated thereby, and the condition of the Properly upon Closing.
1542 Waiver. This release includes claims of which each party is
presently unaware or which such party does not presently suspect to exist which,
if known by such party, would materially affect the party's release of the
Released Parties. Each party specifically waives the provision of California
Civil Code Section 1542, which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR EXPECT TO EXIST IN HIS FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN TO HIM MUST HAVE
MATERIALLY AFFECTED THE SETTLEMENT WITH THE DEBTOR."
Defined Terms. All capitalized terms set forth herein shall have the
meaning ascribed to them under the terms of that certain Purchase and Sale
Agreement and Escrow Instructions dated December 8, 2003, as amended.
SIGNATURE PAGE FOLLOWS
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