EX-10.21 9 a2208442zex-10_21.htm EX-10.21

Exhibit 10.21

 

REINSTATEMENT AND SECOND AMENDMENT TO
CONTRACT OF SALE

 

This Reinstatement and Second Amendment to Contract of Sale (this “Amendment”) is entered into as of this 9th day of December, 2011, between 15250 Sonoma Drive Fee Owner, LLC, a Delaware limited liability company (“Seller”), and Churchill Forge, Inc., a Massachusetts corporation (“Buyer”).

 

RECITALS

 

A.            Seller and Buyer entered into that certain Contract of Sale dated effective as of November 21, 2011, as amended by that certain Amendment to Contract of Sale dated November 30, 2011 between Seller and Buyer (as amended, the “Agreement”).

 

B.            On December 7, 2011, Buyer terminated the Agreement pursuant to Section 5(a) of the Agreement.

 

C.            Seller and Buyer now desire to reinstate and amend the Agreement as set forth below.

 

NOW, THEREFORE, in consideration of the mutual covenants herein contained, and other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

 

AGREEMENT

 

1.             Defined Terms.  Capitalized terms not otherwise defined herein shall have the meanings set forth in the Agreement.

 

2.             Reinstatement.  Except as modified by this Amendment, the Agreement is hereby reinstated, ratified and confirmed and is in full force and effect.  In the event of a conflict between the terms of this Amendment and the Agreement, the terms of this Amendment shall control.

 

3.             Sales Price.  The first sentence following the heading of “Contract Sales Price” in Section 2 of the Agreement shall be deleted and replaced in its entirety by the following:

 

“The total purchase price for the Property (the “Sales Price”) shall be THIRTY NINE MILLION TWO HUNDRED EIGHTY THOUSAND AND NO/100 DOLLARS ($39,280,000.00), payable in cash at Closing (as hereinafter defined).”

 

4.             Closing Date.  The first sentence following the heading of “Closing Date” in Section 4(a) of the Agreement shall be deleted and replaced in its entirety by the following:

 

“The closing of the sale of the Property to Buyer (the “Closing”) shall take place at the Title Company on either January 4th or January 5th, 2012 (the “Closing Date”), at Buyer’s election. Buyer shall notify Seller in writing as to whether it elects to close on

 


 

January 4th or January 5th (the “Closing Date Notice”) no later than 5:00 p.m. Central Standard Time on December 29, 2011 (the “Closing Date Notice Deadline”). If Buyer does not deliver the Closing Date Notice on or prior to the Closing Date Notice Deadline, Buyer will be deemed to have elected to close on January 5, 2012.”

 

5.             National Flood Insurance Program Policies. At Closing, Seller will assign to Buyer all of Seller’s right, title and interest in and to the National Flood Insurance Program insurance policies described on Exhibit A attached hereto (collectively, the “Flood Insurance Policies”) and Buyer will assume the obligations of Seller under the Flood Insurance Policies. The premiums for the Flood Insurance Policies are as set forth on Exhibit A. Seller shall receive a credit on the closing statement for the amount of such premiums paid by Seller for periods from and after the Closing Date.

 

6.             Radon Testing.  The obligation of Buyer to consummate the transaction contemplated under the Agreement shall be contingent upon the radon system at the Property being recalibrated and testing at or below 4 pCi/L prior to Closing.

 

7.             Counterparts.  This Amendment may be executed in any number of counterparts, all of which taken together will constitute one and the same Amendment, and the signature page of any counterpart may be removed therefrom and attached to any other counterpart.  For the purposes of this Amendment, an executed counterpart copy of this Amendment delivered via facsimile or e-mail shall be deemed an original for all purposes.

 

8.             Entire Agreement. This Amendment contains the entire agreement between the parties hereto with respect to the subject matter of this Amendment, and supersedes all prior understandings, agreements and representations, if any, with respect to such subject matter.

 

[Signature Page Follows]

 


 

IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the day and year first written above.

 

 

 

SELLER:

 

 

 

15250 SONOMA DRIVE FEE OWNER, LLC,

 

a Delaware limited liability company

 

 

 

By:

15250 Sonoma Drive, LLC, a Delaware limited liability company, its Sole Member

 

 

 

 

By:

Behringer Harvard Palms of Monterrey, LLC, a Delaware limited liability company, its Managing Member

 

 

 

 

 

 

By:

/s/ James D. Fant

 

 

Name:

 

 

 

Title:

 

 

 

 

 

 

PURCHASER:

 

 

 

CHURCHILL FORGE, INC.,

 

a Massachusetts corporation

 

 

 

 

 

By:

/s/ David M. Frieze

 

Name:

 

 

Title:

 

 

 

Exhibit A

 

National Flood Insurance Program Policies

 

Selling
Entity

 

Coverage

 

Inception
Date

 

Expiration
Date

 

Carrier

 

Premium

 

Policy Number

15250 Sonoma Drive, LLC

 

Flood (National Flood Insurance Program)

 

4/13/2011

 

4/13/2012

 

American Bankers Insurance Company of Florida

 

$

757

 

1011197699

15250 Sonoma Drive, LLC

 

Flood (National Flood Insurance Program)

 

4/13/2011

 

4/13/2012

 

American Bankers Insurance Company of Florida

 

$

757

 

1011197700

15250 Sonoma Drive, LLC

 

Flood (National Flood Insurance Program)

 

4/13/2011

 

4/13/2012

 

American Bankers Insurance Company of Florida

 

$

757

 

1011197701

15250 Sonoma Drive, LLC

 

Flood (National Flood Insurance Program)

 

4/13/2011

 

4/13/2012

 

American Bankers Insurance Company of Florida

 

$

757

 

1011197702

15250 Sonoma Drive, LLC

 

Flood (National Flood Insurance Program)

 

4/13/2011

 

4/13/2012

 

American Bankers Insurance Company of Florida

 

$

757

 

1011197703

15250 Sonoma Drive, LLC

 

Flood (National Flood Insurance Program)

 

4/13/2011

 

4/13/2012

 

American Bankers Insurance Company of Florida

 

$

757

 

1011197704

15250 Sonoma Drive, LLC

 

Flood (National Flood Insurance Program)

 

4/13/2011

 

4/13/2012

 

American Bankers Insurance Company of Florida

 

$

757

 

1011197705

15250 Sonoma Drive, LLC

 

Flood (National Flood Insurance Program)

 

4/13/2011

 

4/13/2012

 

American Bankers Insurance Company of Florida

 

$

757

 

1011197706

15250 Sonoma Drive, LLC

 

Flood (National Flood Insurance Program)

 

4/13/2011

 

4/13/2012

 

American Bankers Insurance Company of Florida

 

$

757

 

1011197707

15250 Sonoma

 

Flood (National Flood Insurance Program)

 

4/13/2011

 

4/13/2012

 

American Bankers Insurance Company of

 

$

756

 

1011197708

 

 

Selling
Entity

 

Coverage

 

Inception
Date

 

Expiration
Date

 

Carrier

 

Premium

 

Policy Number

Drive, LLC

 

 

 

 

 

 

 

Florida

 

 

 

 

15250 Sonoma Drive, LLC

 

Flood (National Flood Insurance Program)

 

4/13/2011

 

4/13/2012

 

American Bankers Insurance Company of Florida

 

$

757

 

1011197709

15250 Sonoma Drive, LLC

 

Flood (National Flood Insurance Program)

 

4/13/2011

 

4/13/2012

 

American Bankers Insurance Company of Florida

 

$

757

 

1011197710

15250 Sonoma Drive, LLC

 

Flood (National Flood Insurance Program)

 

4/13/2011

 

4/13/2012

 

American Bankers Insurance Company of Florida

 

$

757

 

1011197711

15250 Sonoma Drive, LLC

 

Flood (National Flood Insurance Program)

 

3/20/2011

 

3/20/2012

 

American Bankers Insurance Company of Florida

 

$

1,475

 

1011198096

15250 Sonoma Drive, LLC

 

Flood (National Flood Insurance Program)

 

3/20/2011

 

3/20/2012

 

American Bankers Insurance Company of Florida

 

$

1,475

 

1011198097

15250 Sonoma Drive, LLC

 

Flood (National Flood Insurance Program)

 

3/20/2011

 

3/20/2012

 

American Bankers Insurance Company of Florida

 

$

1,475

 

1011198098

15250 Sonoma Drive, LLC

 

Flood (National Flood Insurance Program)

 

3/20/2011

 

3/20/2012

 

American Bankers Insurance Company of Florida

 

$

1,475

 

1011198099

15250 Sonoma Drive, LLC

 

Flood (National Flood Insurance Program)

 

3/20/2011

 

3/20/2012

 

American Bankers Insurance Company of Florida

 

$

1,475

 

1011198100

15250 Sonoma Drive, LLC

 

Flood (National Flood Insurance Program)

 

3/20/2011

 

3/20/2012

 

American Bankers Insurance Company of Florida

 

$

1,475

 

1011198102

15250 Sonoma Drive, LLC

 

Flood (National Flood Insurance Program)

 

3/20/2011

 

3/20/2012

 

American Bankers Insurance Company of Florida

 

$

1,475

 

1011198103

 

 

Selling
Entity

 

Coverage

 

Inception
Date

 

Expiration
Date

 

Carrier

 

Premium

 

Policy Number

15250 Sonoma Drive, LLC

 

Flood (National Flood Insurance Program)

 

3/20/2011

 

3/20/2012

 

American Bankers Insurance Company of Florida

 

$

1,475

 

1011198104

15250 Sonoma Drive, LLC

 

Flood (National Flood Insurance Program)

 

3/20/2011

 

3/20/2012

 

American Bankers Insurance Company of Florida

 

$

1,475

 

1011198105

15250 Sonoma Drive, LLC

 

Flood (National Flood Insurance Program)

 

3/20/2011

 

3/20/2012

 

American Bankers Insurance Company of Florida

 

$

1,475

 

1011198106

15250 Sonoma Drive, LLC

 

Flood (National Flood Insurance Program)

 

3/20/2011

 

3/20/2012

 

American Bankers Insurance Company of Florida

 

$

1,475

 

1011198111

15250 Sonoma Drive, LLC

 

Flood (National Flood Insurance Program)

 

3/20/2011

 

3/20/2012

 

American Bankers Insurance Company of Florida

 

$

1,475

 

1011198114

15250 Sonoma Drive, LLC

 

Flood (National Flood Insurance Program)

 

3/20/2011

 

3/20/2012

 

American Bankers Insurance Company of Florida

 

$

4,481

 

1011198115

 

 

 

 

 

 

 

 

Total

 

$

32,021