EXHIBIT 10.58
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT,
CONTRIBUTION AGREEMENT AND JOINT ESCROW INSTRUCTIONS
This First Amendment to Purchase and Sale Agreement, Contribution Agreement
and Joint Escrow Instructions (the "Amendment") is entered into effective as of
June 6, 1997, between Xxxxxx Realty, L.P. ("Buyer") and Xxxxxxx West Acquisition
Company, L.L.C, ("Seller").
RECITALS
A. Seller and Buyer are parties to that certain Purchase and Sale
Agreement, Contribution Agreement and Joint Escrow Instructions (the"Agreement")
dated as of May 12, 1997. Except as otherwise specifically set forth herein, all
initially capitalized terms shall have the meaning set forth in the Agreement.
B. Seller and Buyer anticipated that certain portions of the Properties
would be leased prior to the Closing with the tenants having occupied the space
and having commenced the payment or rent. Buyer and Seller currently anticipate
that Midas and Sentinel will execute and deliver leases, occupy portions of the
Properties and commence the payment of rent, although both Buyer and Seller are
willing to accept other creditworthy tenants at rental rates not less than those
set forth in the most recent draft leases delivered by Seller to Midas (the
"Midas Lease") and Sentinel (the "Sentinel Lease"). Seller has informed Buyer
that the Sentinel Lease has been executed and delivered. The space proposed to
be leased by Midas and Sentinel pursuant to the Midas Lease and Sentinel Lease
is collectively referred to herein as the "Vacant Space."
C. In order to compensate Buyer for the loss of rent until tenants have
occupied the Vacant Space and commenced the payment of rent, the parties desire
to set aside One Hundred Seventy-One Thousand Dollars ($171,000) of the Purchase
Price to offset any such loss on the terms and conditions set forth herein.
D. Seller has previously elected pursuant to Section 3.3 of the Agreement
to receive Four Millions One Hundred Fifty Thousand Dollars ($4,150,000) of the
Purchase Price in Partnership Units.
AMENDMENT
1. Partnership Units. Seller hereby elects to receive Three Million Nine
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Hundred Seventy-Nine Thousand Dollars ($3,979,000) of the Purchase Price in
Partnership Units and the balance of the Purchase Price in cash.
2. Withhold of Purchase Price. One Hundred Seventy-One Thousand Dollars
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of the Purchase Price ( the "Withhold") shall be withheld by Buyer from the cash
portion of the Purchase Price to be deposited by Buyer into Escrow.
3. Deductions from Withhold. The Withhold shall be used to compensate
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Buyer for loss rent resulting from the failure of Midas and Sentinel (or any
other creditworthy tenant reasonably approved by Buyer) to enter into a lease,
occupy portions of the Vacant Space and commence paying rent as of the Closing
Date. Buyer shall be entitled to deduct from the Withhold an amount equal to the
rent which Buyer would have received had a tenant or tenants occupied the Vacant
Space and commenced paying rent as of the Closing Date at One Dollar ($1) per
square foot per month triple net, offset by (b) the rent actually received by
Buyer from any tenant which occupies and pays rent for any portion of the Vacant
Space. Once the Vacant Space has been fully occupied by a tenant or tenants who
have commenced paying such rent Buyer shall promptly disburse to Seller the
portions of the Withhold, if any, which may remain. Seller shall not be liable
to Buyer for any lost rent in excess of the Withhold.
4. Leasing Efforts. Upon the Closing Buyer shall endeavor to lease the
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Vacant Space to creditworthy tenants at not less than One Dollar ($1) per square
foot per month triple net, but Buyer shall have no liability to Seller for its
inability to do so.
5. Review Period. The period for review of title set forth in Section 5
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of the Agreement and the Contingency Period has now expired, and Buyer has
approved title and its diligence review subject to the conditions set forth in
the May 30, 1997 letter of Xxxxx Xxxxx to Xxxxxxx X. Xxxxxx, receipt of a letter
satisfactory to Buyer from The Irvine Company agreeing that the right of first
offer is not triggered and the eliminations by the Title Company of Exception E
and F from the Preliminary Report. Buyer shall have two (2) business days
following receipt of the executed letter from The Irvine Company to approve or
disapprove the letter.
6. No Further Amendment. Except as specifically set forth herein, the
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Agreement shall remain unmodified, and in full force and effect.
IN WITNESS WHEREOF, this Amendment has been executed as of the day and year
first above written.
SELLER: XXXXXXX WEST ACQUISITION COMPANY,
LLC, a California limited liability company
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
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Title: Managing Member
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BUYER: XXXXXX REALITY. L.P., a Delaware limited
partnership
By: XXXXXX REALITY CORPORATION, a Maryland
Corporation, its general partner
By:__________________________________
Name:________________________________
Title:_______________________________
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3. DEDUCTIONS FROM WITHHOLD. The Withhold shall be used to compensate
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Buyer for lost rent resulting from this failure of Midas and Sentinel (or any
other creditworthy tenant reasonably approved by Buyer) to enter into a lease,
occupy portions of the Vacant Space and commence paying rent as of the Closing
Date. Buyer shall be entitled to deduct from the Withhold an amount equal to
the rent which Buyer would have received had a tenant or tenants occupied the
Vacant Space and commenced paying rent as of the Closing Date at One Dollar
($1) per square foot per month triple net, offset by (b) the rent actually
received by Buyer from any tenant which occupies and pays rent for any portions
of the Vacant Space. Once the Vacant Space has been fully occupied by a tenant
or tenants who have commenced paying such rent Buyer shall promptly disburse to
Seller the portions of the Withhold, if any, which may remain. Seller shall not
be liable to Buyer for any lost rent in excess of the Withhold.
4. LEASING EFFORTS. Upon the Closing Buyer shall endeavor to lease the
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Vacant Space to creditworthy tenants at not less than One Dollar ($1) per square
foot per month triple net, but Buyer shall have no liability to Seller for its
inability to do so.
5. REVIEW PERIOD. The period for review of tide set forth in Section 5
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of the Agreement and the Contingency Period has now expired, and Buyer has
approved title and its diligence review subject to the conditions set forth in
the May 30, 1997 letter of Xxxxx Xxxxx to Xxxxxxx X. Xxxxxx, receipt of a letter
satisfactory to Buyer from The Irvine Company agreeing that the right of first
offer is not triggered and the elimination by the Title Company of Exception E
and F from the Preliminary Report. Buyer shall have two(2) business days
following receipt of the executed letter from The Irvine Company to approve or
disapprove the letter.
6. NO FURTHER AMENDMENT. Except as specifically set forth herein, the
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Agreement shall remain unmodified and in full force and effect.
IN WITNESS WHEREOF, this Amendment has been executed as of the day and the
year first above written.
SELLER: XXXXXXX WEST ACQUISITION COMPANY,
LLC, a California limited liability company
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
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Title: Managing Member
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BUYER: XXXXXX REALTY,L.P. A Delaware limited
partnership
By: XXXXXX REALTY CORPORATION, a
Maryland corporation, its general partner
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: EVP & COD
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