Exhibit 2.2
SENTRY PARK WEST OFFICE CAMPUS
BLUE BELL, PENNSYLVANIA
FIRST AMENDMENT TO REAL ESTATE SALE AGREEMENT
---------------------------------------------
THIS FIRST AMENDMENT TO REAL ESTATE SALE AGREEMENT (the "First Amendment")
is made as of the 9th day of May, 1996 by and between SENTRY WEST JOINT
VENTURE, an Illinois joint venture partnership ("Seller"), with an office at Two
North Riverside Plaza, Suite 600, Chicago, Illinois 60606, and BGK PROPERTIES,
INC., a Delaware corporation ("Purchaser"), with an office at 330 Garfield
Street, Santa Fe, New Mexico 87501.
RECITALS
--------
A. Seller and Purchaser are parties to that certain Real Estate Sale Agreement
dated as of March 25, 1996 (the "Original Agreement") for the purchase and sale
of the certain real estate and improvements located thereon in the City of Blue
Bell, County of Montgomery, Commonwealth of Pennsylvania, as such real property
is more particularly described in Exhibit A attached to the Original Agreement.
B. Seller and Purchaser desire to modify the Original Agreement as herein set
forth.
THEREFORE, in consideration of the above recitals, the mutual covenants and
agreements herein set forth and the benefits to be derived therefrom and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Purchaser and Seller agree as follows:
1. DEFINED TERMS. Each capitalized term used but not defined herein shall have
the meaning ascribed to it in the Original Agreement.
2. EARNEST MONEY. Section 2(A)(i) of the Original Agreement is hereby deleted
and following hereby substituted:
"(i) Upon execution of this Agreement by Purchaser and Seller, Purchaser
shall deliver to Partners Title Company of Houston, Texas ("Escrowee")
initial earnest money (the "Initial Earnest Money") in the sum of One
Hundred Thousand Dollars ($100,000.00) and Purchaser, Seller and
Escrowee shall execute a joint order escrow agreement in the form of
Exhibit F attached hereto. If Purchaser does not terminate this
Agreement pursuant to and in accordance with Sections 8(A), 8(C) and
8(D) below, Purchaser shall, on or before 4 p.m. (Chicago, Illinois
time) on May 31, 1996, deposit with the Escrowee additional earnest
money (the "Additional Earnest Money") in the sum of Two Hundred Fifty
Thousand Dollars ($250,000.00). If Purchaser elects to extend the
Closing pursuant to and in accordance with clause (i) of the first
sentence of Section 4(A) below, Purchaser shall, on or before 4 p.m.
(Chicago, Illinois time) on June 21, 1996, deposit with the Escrowee
additional earnest money (the "First Extension Earnest Money") in the
sum of One Hundred Thousand Dollars ($100,000.00). If Purchaser elects
to further extend the Closing pursuant to and in accordance with
clause (ii) of the first sentence of Section 4(A) below, Purchaser
shall, on or before 4 p.m.
1
(Chicago, Illinois time) on July 22, 1996, deposit with the Escrowee
additional earnest money (the "Second Extension Earnest Money") in the
sum of One Hundred Thousand Dollars ($100,000.00). The Initial Earnest
Money and, if deposited or required to be deposited with the Escrowee,
the Additional Earnest Money, the First Extension Earnest Money and
the Second Extension Earnest Money, together with any interest earned
thereon net of investment costs, are referred to in this Agreement as
the "Earnest Money". The Earnest Money shall be invested as Seller and
Purchaser so direct. Any and all interest earned on the Earnest Money
shall be reported to Purchaser's federal tax identification number."
3. CLOSING DATE. Section 4(A) of the Original Agreement is hereby deleted and
following hereby substituted:
"A. Closing Date. The "Closing" of the transaction contemplated by
this Agreement (that is, the payment of the Purchase Price, the transfer of
title to the Property, and the satisfaction of all other terms and conditions of
this Agreement) shall occur at 10 a.m. (Chicago, Illinois time) on June 28, 1996
at the Chicago, Illinois office of counsel for Seller, Rosenberg & Liebentritt,
P.C., or at such other time and place as Seller and Purchaser shall agree in
writing; provided, however, that: (i) Purchaser may, at its option exercisable
by delivery of written notice to Seller and delivery of the First Extension
Earnest Money to Escrowee on or before 4 p.m. (Chicago, Illinois time) on June
21, 1996, defer Closing to July 29, 1996, and (ii) in the event that Purchaser
has previously deferred the Closing as provided in clause (i) of this sentence,
Purchaser may, at its option exercisable by delivery of written notice to Seller
and delivery of the Second Extension Earnest Money to Escrowee on or before 4
p.m. (Chicago, Illinois time) on July 22, 1996, defer Closing to August 28,
1996. The "Closing Date" shall be the date of Closing. If the date for Closing
above provided for falls on a Saturday, Sunday or legal holiday, then the
Closing Date shall be the next business day."
4. REVIEW PERIODS.
A. MODIFICATION OF SECTION 8(A). The first sentence of Section 8(A) of
the Original Agreement is hereby deleted and the following hereby substituted:
"Subject to Section 11(G) below and the provisions of that certain letter
agreement (the "Confidentiality Agreement") dated October 25, 1995 by and
between Penn Square and Purchaser, Purchaser shall have a period commencing
as of the date of this Agreement and terminating at 4 p.m. (Chicago,
Illinois time) on May 9, 1996 (the "Review Period") within which to inspect
the Property and review the items described in Section 8(B) below."
B. ADDITIONAL TIME FOR ENVIRONMENTAL REVIEW, ENGINEERING REVIEW AND
OBTAINING FINANCING. The following sub-sections shall be added to the Original
Agreement after Section 8(B) of the Original Agreement:
"C. Subject to Section 11(G) below and the provisions of the
Confidentiality Agreement, during the period between the date of this Agreement
and 4 p.m. (Chicago, Illinois time) on May 24, 1996 (the "Engineering Period"),
Purchaser shall be permitted to obtain reports (individually, a "Report" and
collectively, the "Reports") from its consultants as to
2
environmental and engineering-type (i.e., structural integrity of the
improvements or the condition of the mechanical systems at the Property) matters
with respect to the Property. In the event that Purchaser, as a result of the
Reports, determines that the Property is unsuitable for its purposes and
notifies Seller of such decision within the Engineering Period (such notice: (i)
shall contain Purchaser's certification that it has elected not to purchase the
Property for a reason or reasons relating to environmental and/or engineering-
type matters with respect to the Property, (ii) shall specify in reasonable
detail such reason or reasons, and (iii) shall include a copy of the Report(s)
setting forth the matters that have caused Purchaser to terminate this Agreement
in accordance with this Section 8(C)) and Purchaser is not in default under this
Agreement and/or the Confidentiality Agreement, the Earnest Money shall be
returned to Purchaser, at which time this Agreement shall be null and void and
neither party shall have any further rights or obligations under this Agreement,
provided, however, that the foregoing shall not limit Seller's recourse against
Purchaser under Section 6 above and Section 11(G) below and under the
Confidentiality Agreement. In no event shall Purchaser be permitted to terminate
this Agreement in accordance with this Section 8(C) as to matters with respect
to the Property that are disclosed in that certain Phase I Environmental Site
Assessment Report dated November 8, 1994 prepared by Fugro East Inc., Purchaser
hereby acknowledging its receipt of such report and the matters contained
therein. Purchaser's failure to object within the Engineering Period shall be
deemed a waiver by Purchaser of the condition contained in this Section 8(C).
D. Subject to Section 11(G) below and the provisions of the
Confidentiality Agreement, during the period between the date of this Agreement
and 4 p.m. (Chicago, Illinois time) on May 31, 1996 (the "Financing Period"),
Purchaser shall be obligated to apply for and diligently pursue the issuance of
a firm commitment (the "Financing Commitment") for a loan to be secured by a
first mortgage on the Property in a principal amount not to exceed Nine Million
Dollars ($9,000,000.00), or such lesser sum as Purchaser may accept, with an
adjustable interest rate calculated at a per annum interest rate not to exceed
two hundred (200) basis points above the interest rate for 10-year United States
Treasury Notes, such loan to be amortized over twenty-five (25) years and to
contain such other terms as is customary for such a loan. If after making every
reasonable effort, Purchaser is unable to procure a Financing Commitment within
the Financing Period and notifies Seller of such inability within the Financing
Period (such notice: (i) shall contain Purchaser's certification that it has
been unable to obtain such Financing Commitment, and (ii) shall include a copy
of the written rejection(s) from the lender(s) to whom Purchaser applied for
such Financing Commitment confirming that Purchaser was rejected for a loan
under the terms set forth in this Section 8(D)) and Purchaser is not in default
under this Agreement and/or the Confidentiality Agreement, the Earnest Money
shall be returned to Purchaser, at which time this Agreement shall be null and
void and neither party shall have any further rights or obligations under this
Agreement, provided, however, that the foregoing shall not limit Seller's
recourse against Purchaser under Section 6 above and Section 11(G) below and
under the Confidentiality Agreement. Purchaser's failure to deliver such
written notice to Seller within the Financing Period shall be deemed a waiver by
Purchaser of the condition contained in this Section 8(D)."
5. APPROVAL OF NEW LEASES. Attached hereto as Exhibit A is a list of "New
Leases" (as defined in the Original Agreement) (such New Leases being referred
to herein individually as an "Approved Lease", and collectively as "Approved
Leases"). Pursuant to Section 11(L) of the Original Agreement, Purchaser hereby
approves all of such Approved Leases.
3
6. DEFAULT. The second sentence of Section 7(B) of the Original Agreement is
hereby deleted and the following is hereby substituted:
"If Purchaser is required to but does not deposit with the Escrowee the
Additional Earnest Money, the First Extension Earnest Money and/or the Second
Extension Earnest Money as provided for in Section 2(A)(i) above, the sum of
$550,000.00 shall nonetheless be recoverable by Seller from Purchaser as Earnest
Money in accordance with the preceding sentence."
7. ESTOPPEL CERTIFICATES. The first sentence of Section 9(A) is hereby deleted
and the following is hereby substituted:
"In the event that neither Seller nor Purchaser elects to terminate this
Agreement pursuant to Sections 8(A), 8(C) or 8(D) above, Seller shall,
within ten (10) days after the expiration of the Financing Period, send
estoppel certificates (individually, an "Estoppel Certificate" and
collectively, the "Estoppel Certificates") to each tenant occupying space
at the Property as of the last day of the Financing Period."
8. RATIFICATION. It is expressly understood and agreed that the Original
Agreement, as hereby amended, shall continue in full force and effect in
accordance with its terms and all references in the Original Agreement to the
term "Agreement" shall mean the Original Agreement as modified by this First
Amendment.
9. SECTION HEADINGS. The section headings used herein are for reference
purposes only and do not control or affect the meaning or interpretation of any
term or provision hereof.
10. GOVERNING LAW. This First Amendment shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
11. AMENDMENT TO JOINT ORDER ESCROW AGREEMENT. Upon execution of this First
Amendment by Seller and Purchaser, Seller and Purchaser shall execute the First
Amendment to Joint Order Escrow Agreement attached hereto as Exhibit B (the
"First Escrow Amendment") and shall jointly deliver said First Escrow Amendment
to Escrowee for execution by Escrowee.
12. COUNTERPARTS. This First Amendment may be executed in two or more
counterparts, each of which shall be deemed to be an original and all of which
taken together shall constitute one and the same instrument.
13. CONFLICT. In the event of a conflict between the terms and provisions of
the Original Agreement and this First Amendment, the terms and provisions of
this First Amendment shall control.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
4
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered this
First Amendment as of the date first above written.
SELLER:
SENTRY WEST JOINT VENTURE, an Illinois joint venture
partnership
By: Blue Bell Associates, an Illinois joint venture, as
managing general partner
By: First Capital Income Properties, Ltd. - Series XI,
an Illinois limited partnership, a general partner
of Blue Bell Associates
By: First Capital Financial Corporation, a
Florida corporation, as the general partner
of First Capital Income Properties, Ltd. -
Series XI
By: /s/ Norman Field
----------------------------------------
Name: Norman Field
--------------------------------------
Its: Vice President
---------------------------------------
By: First Capital Income and Growth Fund - Series XII,
an Illinois limited partnership, a general partner
of Blue Bell Associates
By: First Capital Financial Corporation, a
Florida corporation, as the general partner
of First Capital Income and Growth Fund -
Series XII
By: /s/ Norman Field
---------------------------------------------
Name: Norman Field
-------------------------------------------
Its: Vice President
--------------------------------------------
PURCHASER:
BGK PROPERTIES, INC., a Delaware corporation
By: /s/ Edward M. Gilbert
-------------------------------------------------------
Name: Edward M. Gilbert
-----------------------------------------------------
Its: President
------------------------------------------------------
5