Exhibit 10.331
SECOND AMENDMENT TO AGREEMENT OF PURCHASE AND SALE
Flagler Village Site, Fort Lauderdale, FL – Andrews Village Property
This SECOND AMENDMENT TO AGREEMENT OF PURCHASE AND SALE (this “Amendment”) is made and entered into as of April 30, 2015, by and among ArchCo Residential LLC (“Purchaser”), and Andrews Village LLC (“Seller”).
Recitals
This Amendment is made with respect to the following facts:
A. Seller and Purchaser entered into that certain Agreement of Purchase and Sale dated as of January 12, 2015 (the “Original Agreement”),with respect to the real property owned by Seller and located on the east side of North Andrews Avenue between NE 5th Street and NE 6th Street in Fort Lauderdale, Florida, (the “Property”),as more particularly described in the Original Agreement.
B. Seller and Purchaser entered into an Amendment to the Original Agreement dated as of February 9, 2015 (the “First Amendment”). The Original Agreement, as amended by the First Amendment, is referred to in this Amendment as the “Purchase Agreement”.
C. While not a party to the Original Agreement, Lender signed the Original Agreement as consenting to the consummation of the transactions described in the Purchase Agreement.
D. Seller and Purchaser desire to amend the Purchase Agreement in accordance with this Amendment.
Agreement
In consideration of the foregoing Recitals, the conditions, terms, covenants and agreements set forth in this Amendment, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser agree that the Purchase Agreement is amended as set forth in this Amendment:
1. Defined Terms. Each initially capitalized term used in this Amendment has the meaning set forth for that term in the Purchase Agreement, unless it is otherwise defined in this Amendment.
2. Amendments. The Purchase Agreement is hereby amended as follows:
2.1 Extension of Closing Date. Section 1.1(h) of the Purchase Agreement is amended to read as follows:
“(h) Closing Date: As designated by Purchaser upon not less than five Business Days’ prior notice, but not later than June 30, 2015.”
2.2 2014 Taxes. In consideration for extending the latest Closing Date as provided in Paragraph 2.1, Purchaser shall pay the unpaid general real estate taxes and assessments with respect to the Real Property (including any due and payable interest and delinquency fees and charges) for the 2014 tax year in the amount of $19,506.47 (the “2014 Taxes”). On or before May 8, 2015, Purchaser shall deliver to Seller a check payable to the applicable taxing agency in the amount of the 2014 Taxes and Seller shall deliver the check to the applicable taxing agency on or before May 22, 2015, as payment for the 2014 Taxes. If Purchaser does not deliver the check for the 2014 Taxes to Seller on or before May 8, 2015, the latest Closing Date shall be deemed not to have been extended as provided in Paragraph 2.1.
2.3 Proration of Taxes. The first two sentences of Section 6.1(a) of the Purchase Agreement are amended to read as follows:
“Purchaser shall receive a credit for any accrued but unpaid general real estate taxes and assessments (including without limitation any assessments imposed by private covenant, “Taxes”) applicable to any period before April 30, 2015, even if such Taxes are not yet due and payable. Seller shall receive credit for any unaccued but paid Taxes for any paid period after and including April 30, 2015.”
2.4 Mortgage Loan Interest. The loan secured by the Mortgage is referred to as the “Mortgage Loan”. At the Closing, Purchaser shall pay, as an increase to the Purchase Price, an amount equal to the product of 6.50% (the current interest rate payable under the Mortgage Loan) times $6,678,201.17 (the outstanding principal balance under the Mortgage Loan) for interest that accrues on the outstanding balance of the loan secured by the Mortgage during the period beginning on April 30, 2015 and ending on the Closing Date.
3. Counterparts. This Amendment may be executed in several counterparts, each of which shall be deemed an original, and all of which together shall be deemed to be one and the same Amendment when each party has signed one of the counterparts. This Amendment may be delivered by facsimile or other form of electronic transmission.
4. Entire Agreement. The Purchase Agreement, as amended by this Amendment, constitutes the full and complete agreement and understanding between Seller and Purchaser and shall supersede all prior communications, representations, understandings or agreements, if any, whether oral or written, concerning the subject matter contained in the Purchase Agreement, as so amended, and no provision of the Purchase Agreement, as so amended, may be modified, amended, waived or discharged, in whole or in part, except by a written instrument executed by Seller and Purchaser.
5. Full Force and Effect; Incorporation. Except as modified by this Amendment, the terms and provisions of the Purchase Agreement are hereby ratified and confirmed and are and shall remain in full force and effect. If any inconsistency arises between this Amendment and the Purchase Agreement as to the specific matters which are the subject of this Amendment, the terms and conditions of this Amendment shall control. This Amendment shall be construed to be a part of the Purchase Agreement and shall be deemed incorporated in the Purchase Agreement by this reference.
6. Effective Date. This Amendment will be effective on the latest date of execution by Seller, Purchaser or Lender, as indicated on the signature page of this Amendment.
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The undersigned have executed this Amendment as of the date first written above.
Purchaser:
ArchCo Residential LLC
By: | /s/ Neil T. Brown | Date: 4/30/15 |
| Neil T. Brown, its Chief Executive Officer |
Seller:
Andrews Village LLC
By: | /s/ Richard Schwartz | Date: 4/30/15 |
| Richard Schwartz, its Managing Member |
While not party to the Purchase Agreement, as amended by this Amendment, Lender consents to Seller entering into this Agreement and the consummation of the transactions described in the Purchase Agreement, as amended by this Amendment, in accordance with its terms and conditions.
Lender:
Sunstate Bank
By: | /s/ Charles Davis | Date: 5/5/15 |
| Name: | Charles Davis | |
| Title: | CFO |
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