Exhibit 2.3
SENTRY PARK WEST OFFICE CAMPUS
BLUE BELL, PENNSYLVANIA
SECOND AMENDMENT TO REAL ESTATE SALE AGREEMENT
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THIS SECOND AMENDMENT TO REAL ESTATE SALE AGREEMENT (the "Second
Amendment") is made as of the 24th 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
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A. Seller and Purchaser are parties to that certain Real Estate Sale Agreement
dated as of March 25, 1996, as amended by that certain First Amendment to Real
Estate Sale Agreement (the "First Amendment") dated as of May 9, 1996 (as
amended, 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. ENGINEERING PERIOD.
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A. MODIFICATION OF SECTION 8(C). Section 8(C) of the Original
Agreement is hereby deleted and the following hereby substituted:
"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 31, 1996 (the "Engineering Period"),
Purchaser shall be permitted to obtain reports (individually, a "Report" and
collectively, the "Reports") from its consultants as to 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).
3. 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 the First
Amendment and this Second Amendment.
4. 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.
5. GOVERNING LAW. This Second Amendment shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
6. COUNTERPARTS. This Seond 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.
7. CONFLICT. In the event of a conflict between the terms and provisions of
the Original Agreement, as amended by the First Amendment, and this Second
Amendment, the terms and provisions of this Second Amendment shall control.
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IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered
this Second 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/ Gus J. Athas
Name: Gus J. Athas
Its: Senior 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/ Gus J. Athas
Name: Gus J. Athas
Its: Senior Vice-President
PURCHASER:
BGK PROPERTIES, INC., a Delaware corporation
By: /s/ Edward M. Gilbert
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Name: Edward M. Gilbert
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Its: President
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