Exhibit 10.23
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
DATED JULY 14, 1997
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT ("Agreement") dated as of
August 25, 1997 is made by and between BOETTCHER PENSION INVESTORS, LTD., a
Colorado limited partnership ("Seller"), and SUSSEX GROUP, L.C., a Utah limited
liability company, or its assigns ("Sussex") hereinafter referred to as "Buyer."
RECITALS
This Agreement is entered into with reference to the following facts:
A. Seller and Buyer entered into a Purchase and Sale Agreement dated July 14,
1997 ("Purchase and Sale Agreement") for the purchase and sale of a certain
retail shopping center known as Parkway Village located at 2255 University
Parkway, Provo, Utah County, Utah.
B. On or about August 1, 1997, the parties agreed upon a modification to the
Purchase and Sale Agreement and extended the Inspection Deadline under Section
5.2.1 to August 14, 1997.
C. Pursuant to Section 5.2.2 of the Purchase and Sale Agreement, Buyer
delivered a Notice of Termination on Thursday, August 14, 1997 requesting a
termination of the Purchase and Sale Agreement.
D. The parties have since discussed certain modifications to the Purchase and
Sale Agreement and hereby desire to reinstate and modify certain provisions of
the Purchase and Sale Agreement.
NOW THEREFORE, the parties hereby agree as follows:
1. The parties hereby agree to modify the Purchase and Sale Agreement as
follows:
ARTICLE ONE
PURCHASE PRICE
In consideration of the covenants herein contained, Seller hereby agrees to
sell, and Buyer hereby agrees to purchase, the Property for a total purchase
price (the "Purchase Price") equal to EIGHT MILLION FIVE HUNDRED THOUSAND AND
NO/100 DOLLARS ($8,500,000.00) in "Cash," (as defined in Section 19.1.1
below), subject to prorations and adjustments provided for herein and payable
as set forth in Article 3 below.
5.2 Inspection of Property and Condition of Title.
5.2.1 Inspection Period. Buyer shall have until 5:00 p.m. M.D.T. on
August 19, 1997 (the "Inspection Deadline") to (i) review the contents of
Seller's Deliveries; (ii) investigate the Property and all matters relevant to
its acquisition, development, usage, operation and marketability; and (iii)
conduct a physical inspection of the Property. Such right of investigation
shall include the right to have made, at Buyer's expense, any studies or
inspections of the Property as Buyer may deem necessary or appropriate, all at
Buyer's sole cost and expense. Buyer shall not conduct or allow any physically
intrusive testing of, on or under the Property without first obtaining Seller's
written consent as to the timing and scope of any work to be performed, which
consent shall not be unreasonably withheld or delayed. Buyer agrees that, in
making any inspections, or conducting any testing, on or under the Property (a)
Buyer or Buyer's agents will carry not less than $3,000,000.00 of comprehensive
general liability insurance which names Seller as an additional insured party
and with contractual liability endorsement which insures Buyer's indemnity
obligations hereunder, and, upon request of Seller, will provide Seller with
written evidence of the same; (b) Buyer will not materially and adversely
interfere with the activity of tenants or any persons occupying or providing
service at the Property; (c) other than as may be required by applicable laws,
Buyer will not reveal, prior to Closing, nor will Buyer permit any of Buyer's
agents to reveal, prior to Closing, nor will Buyer permit any of Buyer's agent
to reveal, to any third party not approved by Seller, the results of its
inspections or other tests; and (d) Buyer will use its best efforts to avoid any
physical damage to the Property from the inspections or tests conducted by or on
behalf of Buyer (provided, however, that if Buyer causes any physical damage to
the Property by its inspections or tests, at Seller's election, Buyer will
restore promptly any physical damage caused to the Property). Buyer shall give
Seller reasonable prior notice of its intention to conduct any inspections or
tests, and Seller reserves the right to have a representative present. Buyer
agrees to provide Seller with a copy of any inspection or test report generated
by or on behalf of Buyer in connection with Buyer's inspection of the Property
pursuant to this Section 5.2. Buyer agrees (which agreement shall survive
Closing or termination of this Agreement for a period of one hundred eighty
(180) days to indemnify, defend, and hold Seller free and harmless from any
loss, injury, damage, claim, lien, cost or expense, including attorneys' fees
and costs arising out of or in connection
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with Buyer's inspection and testing of the Property, including but not
limited to, property damage claims, personal injury claims, mechanics' lien
claims and any claims arising out of a breach of the foregoing agreements
by Buyer.
3.2.1 Balance of Purchase Price. Cash, constituting the balance of
the Purchase Price, in the amount of Eight Million Four Hundred Thousand
and No/100 Dollars ($8,400,000.00) less any prorations or adjustments in
favor of Buyer provided herein.
6.1 Date of Closing. The closing of the transaction contemplated by
the Agreement (the "Closing") shall take place at the offices of the
Closing Agent on the thirtieth (30) day after the date on which Seller
obtains the necessary consents from its Limited Partners as contemplated in
Section 2.2.4 or by mutual agreement of the parties on an earlier date (the
"Closing Date").
All other terms and conditions not inconsistent with these modifications
shall remain in full force and effect as set forth in the Purchase and Sale
Agreement.
SELLER:
BOETTCHER PENSION INVESTORS, LTD.,
a Colorado limited partnership
By: BOETTCHER AFFILIATED INVESTORS
L.P., General Partner
By: BPL HOLDINGS, INC.,
General Partner
Date: 8/25/97 By: /s/ Daniel D. Williams
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Name: Daniel D. Williams
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Title: Vice President
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BUYER:
SUSSEX GROUP, L.C.,
a Utah limited liability company
Date: 8/22/97 By: /s/ Mark M. Mabey
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Name: Mark M. Mabey
Title: Managing Member
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