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EXHIBIT 10.5
SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT ("Second
Amendment") is entered into as of the 30th day of September, 1998 by and between
the undersigned parties.
W I T N E S S E T H:
WHEREAS, the undersigned entered into that certain Purchase and Sale
Agreement, dated as of May 10, 1998 (the "Agreement"), regarding the sale of
certain real property located in Chesapeake, Virginia (Greenbrier Industrial
Center) , Loudoun County, Virginia (Lots 2-A and 3-A of Le Bourget Business
Park), and Chesapeake, Virginia (Greenbrier Technology Center ), which property
is more particularly described in the Agreement (the "Property");
WHEREAS, the Agreement was amended pursuant to that certain Amendment
to Purchase and Sale Agreement, by and between the undersigned parties, dated as
of July 8, 1998 (the "First Amendment"); and
WHEREAS, the parties desire to amend the Agreement and the First
Amendment as set forth below.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Section 3.01 of the Agreement is hereby deleted in its
entirety and the following is substituted in lieu thereof:
"3.01 Closing. All documents necessary or appropriate to
transfer the Project shall be delivered and closing (the
"Closing") shall be held on, or in Buyer's sole discretion,
provided that Seller is furnished with two (2) days prior
written notice of the earlier Closing Date, before October 15,
1998 at the offices of ▇▇▇▇ and ▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇. Closing shall not occur
any later than October 15, 1998, as time is of the essence.
2. Notwithstanding anything to the contrary contained in the
Agreement, the First Amendment or this Second Amendment, in the event the
documentation regarding the loan assumptions is not executed as of the Closing
Date, the Buyer and Seller shall proceed to Closing on the Closing Date, with
all conveyance documents being delivered to the Escrow Agent to be held in
escrow until the loan assumption documents have been fully-executed by all
parties; provided, however, that on the Closing Date, Seller shall remit payment
of the Purchase Price to Buyer. The conveyance documents shall be held in escrow
until the fully-executed loan assumption documents are delivered to the Escrow
Agent, at which time the Deed shall be recorded along with any and all loan
assumption documents which need to be recorded in the land records in the
appropriate jurisdiction and the fully-executed conveyance documents shall be
released by the Escrow Agent to the Seller and the Buyer.
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3. Notwithstanding anything to the contrary contained herein, the
Deposit (in the total amount of $440,000, but with no interest thereon) shall
continue to be held by Seller until the Closing of the sale of the Property has
been consummated, at which time, the Deposit shall continue to be held by Seller
and shall be added to the Deposit under that certain Purchase and Sale
Agreement, dated as of May 10, 1998, regarding the sale of certain real property
located in Prince ▇▇▇▇▇▇▇ County, Virginia (the "Battlefield Agreement")
(hereinafter, the Deposit under the Agreement and the Deposit under the
Battlefield Agreement shall be referred to as the "Aggregate Deposit"). The
Aggregate Deposit (in the amount of $1,000,0000) shall be non-refundable to the
Buyer unless Seller shall default in tendering the Deed and other conveyance
documents to Buyer at Closing under the Battlefield Agreement.
4. Provided Closing occurs under the Agreement and under the
Battlefield Agreement, the parties hereto agree to a reduction in the Purchase
Price in the amount of $300,000 (the "Reduction"), which reduction shall be paid
at such time (and only at such time, if any) that the sale of the property under
the Battlefield Agreement is consummated; provided, however, that in order for
the Reduction to be effective, the sale of the property under the Battlefield
Agreement and the sale of the Property under the Agreement must be consummated
no later than the Closing Date set forth in this Second Amendment and in the
Second Amendment to Purchase and Sale Agreement to the Battlefield Agreement, as
time is of the essence for such Closings. In the event the sale of the Property
under the Battlefield Agreement is not consummated, the Purchase Price under the
Agreement shall remain the amount originally set forth in the Agreement and
there shall be no retroactive reduction in the Purchase Price.
5. Section 13.02 of the Agreement is hereby deleted and the
following is inserted in lieu thereof:
"13.02 Buyer's Default. In the event of Buyer's failure to
fulfill its obligations hereunder, Seller may elect either to
(i) compel specific performance and shall have the right to
collect its costs and expenses incurred in connection
therewith or (ii) terminate this Agreement and retain the
deposit as Seller's full and liquidated damages in lieu of
other rights and remedies which Seller may have against Buyer
at law or in equity. In the event Seller determines not to
compel specific performance and to retain the Deposit, both
parties acknowledge that the Deposit represents a pre-estimate
of damages which would accrue to Seller from a default by
Buyer and is not a penalty against Buyer.
6. Except as amended herein, the Agreement and the First
Amendment are hereby confirmed to remain in full force and effect.
7. Capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Agreement.
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8. This Second Amendment may be executed in counterparts, each of
which shall be deemed to be an original but all of which shall be one and the
same document.
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment as of the date first above written.
A & A Greenbrier, Inc., a Virginia corporation
By:
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▇▇▇▇▇ ▇▇▇▇▇▇▇
President
A & A Northpointe B, Inc., a Virginia corporation
By:
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▇▇▇▇▇ ▇▇▇▇▇▇▇
President
A & A Northpointe C, Inc., a Virginia corporation
By:
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▇▇▇▇▇ ▇▇▇▇▇▇▇
President
A & A Greenbrier Tech, Inc., a Virginia corporation
By:
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▇▇▇▇▇ ▇▇▇▇▇▇▇
President
American Industrial Properties REIT, successor by
merger to DDR Office Flex Corporation
By:
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Name:
Title:
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