EXHIBIT 2.3
AMENDMENT
TO
REAL ESTATE PURCHASE AND SALE AGREEMENTS
THIS AMENDMENT TO REAL ESTATE PURCHASE AND SALE AGREEMENTS
(this "Amendment") is made and entered into as of this 6th day of October, 2000
by and among WREP 1998-1 LLC, a Delaware limited liability company ("Seller"),
MADRONA PARK LLC, an Oregon limited liability company ("Madrona Park"), MADRONA
PARK II, LLC, a Delaware limited liability company ("Madrona Park II) and
WATUMULL G. I. JOES, LLC, an Oregon limited liability company ("Watumull"). The
execution of this Agreement has been approved and joined into by WILSHIRE REAL
ESTATE PARTNERSHIP L.P., a Delaware limited partnership ("WREP") and WREP-1998-1
Member Inc., a Delaware corporation ("WREP Member"), for the purposes stated in
the original Agreements.
A. On or about July 28, 2000, Watumull entered into a purchase and sale
agreement with Seller (the "Watumull Purchase and Sale Agreement") which was
approved and joined into by WREP and WREP Member. The Watumull Purchase and Sale
Agreement pertains to the purchase and sale of two retail properties in Salem
and Milwaukie, Oregon which are currently leased to G. I. Joe's, Inc. The two
properties are legally described on Exhibit A attached hereto.
B. Shortly after Watumull and Seller entered into the Watumull Purchase
and Sale Agreement, Madrona Park entered into a purchase and sale agreement with
Seller (the "Madrona Park Purchase and Sale Agreement"), which was approved and
joined into by WREP and WREP Member. The Madrona Park Purchase and Sale
Agreement pertains to the purchase and sale of two retail properties in Gresham
and Tualatin, Oregon and an industrial property in Wilsonville, Oregon, all of
which are currently leased to G. I. Joe's, Inc. These three properties are
legally described on Exhibit B attached hereto. The properties legally described
on Exhibit A and Exhibit B are hereinafter referred to as the "G. I. Joe's
Properties."
C. The G. I. Joe's Properties are subject to mortgage loan encumbrances
and other security interests which Seller has granted to Credit Suisse First
Boston Mortgage Capital LLC (the "Mortgage Lender"). The Mortgage Lender refused
to allow Seller to sell the property to two purchasers, insisting that the
existing mortgage loan be assumed by one entity. In order to satisfy the
Mortgage Lender, Madrona Park, Madrona Park II and Watumull have agreed that
they will cooperate with one another, acquiring the G. I. Joe's Properties in a
two-step transaction. Upon completion of the two-step transaction, Madrona Park
II and Watumull will each own a 50% interest in the G. I. Joe's Properties. In
the first step of the transaction, Madrona Park will acquire all of the G. I.
Joe's Properties from Seller and will immediately convey title to the G. I.
Joe's Properties to Madrona Park II..
D. The purpose of this Amendment is to amend the two real estate
purchase and sale agreements to recognize that Madrona Park and Madrona Park II
will be acquiring all of the G. I.
Joe's Properties from Seller.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. ASSIGNMENT OF RIGHT TO PURCHASE. Watumull hereby assigns to Madrona
Park and Madrona Park II, and Seller hereby consents to such assignment, all of
Watumull's rights to acquire the real property described on Exhibit A.
Simultaneously, upon execution of this Amendment, Madrona Park II, Madrona Joes
LLC, a Delaware limited liability company, and Watumull will enter into the
Agreement to Form Limited Liability Company, the form of which is attached
hereto as Exhibit C.
2. ASSUMPTION OF WATUMULL OBLIGATIONS. Upon execution hereof, Madrona
Park and Madrona Park II hereby assume all of the obligations of Watumull as set
forth in the Real Estate Purchase and Sale Agreement between Seller and Watumull
and Watumull is hereby released from such obligations.
3. CLOSING DEADLINE. Subparagraph 6.1(h) of the Madrona Park Purchase
and Sale Agreement and Subparagraph 7.1 of the Watumull Purchase and Sale
Agreement are hereby amended to read as follows:
"Purchaser intends to utilize funds which are
currently held by Purchaser's tax accommodator to
acquire the properties so that Purchaser can achieve
tax deferral under Section 1031 of the Internal
Revenue Code. In order to do so, this transaction
must close on or before October 10, 2000. If the
transaction does not close on or before that date,
Purchaser will be entitled to terminate its
obligations under this Agreement by written notice to
Seller not later than 5 p.m. Pacific Time on October
10, 2000, and such termination shall constitute a
"legal excuse" for purposes of Section 8.1.
Similarly, if Seller for any reason in good faith
determines that the parties will be unable to obtain
mortgagee approval (as defined in Section 3.8) and
complete the closing on or before October 10, 2000,
then Seller may elect by notice to Purchaser to
terminate this Agreement. Upon any termination under
this subparagraph (by Seller or by Purchaser),
Purchaser will receive a refund of its deposit but
will not be entitled to receive a refund of or
reimbursement for the processing fees and other costs
and expenses incurred by Purchaser in pursuing the
consummation of this transaction described in this
Agreement."
4. EFFICACY OF AGREEMENTS. Except as amended hereby, all other terms
and
conditions of the Madrona Park Purchase and Sale Agreement and the Watumull
Purchase and Sale Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Amendment to
be executed as of the day and year first above written.
WREP-1998-1 LLC, an Oregon limited MADRONA PARK LLC, an Oregon
liability company limited liability company
By: WREP-1998-1 MEMBER, INC., By: WINKLER DEVELOPMENT
its Member CORPORATION, an Oregon
corporation, its Manager
By: By:
Printed Name: Printed Name: JAMES H. WINKLER
Its: Its: PRESIDENT
JOINED IN TO BY THE UNDERSIGNED, WATUMULL G. I. JOES, LLC, an
FOR THE PURPOSES STATED IN THE Oregon limited liability company
AGREEMENT:
By: WATUMULL PROPERTIES
WILSHIRE REAL ESTATE CORP., Managing Member
PARTNERSHIP L.P.
By:
By: WILSHIRE REAL ESTATE Printed Name: J. D. WATUMULL
INVESTMENT INC., its Its: VICE PRESIDENT
General Partner
MADRONA PARK II, a Delaware limited
By: liability company
Printed Name:
Its: By: MADRONA JOES HOLDINGS,
INC., an Oregon corporation,
WREP-1998-1 MEMBER INC., its Manager
a Delaware corporation
By:
By: Printed Name: JAMES H. WINKLER
Printed Name: Its: PRESIDENT
Its: