EXHIBIT 10-A
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(Xxxxxxx - XXX)
FIRST AMENDMENT TO PALM DESERT OPTION AGREEMENT & FIRST AMENDMENT TO
PALM DESERT AGREEMENT FOR PURCHASES AND SALE OF PARTNERSHIP INTERESTS
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THIS FIRST AMENDMENT TO PALM DESERT OPTION AGREEMENT & FIRST
AMENDMENT TO PALM DESERT AGREEMENT FOR PURCHASE AND SALE OF PARTNERSHIP
INTERESTS ("AMENDMENT"), is made and entered into as of the 15th day of
July, 1998, by the following parties, hereinafter referred to as the "JMB
GROUP" or "SELLER":
CARLYLE/PALM DESERT, INC., an Illinois corporation ("MANAGING
PARTNER");
CARLYLE REAL ESTATE LIMITED PARTNERSHIP-XVI, an Illinois
limited partnership ("Carlyle-A"); and
CARLYLE REAL ESTATE LIMITED PARTNERSHIP-XVII, an Illinois
limited partnership ("CARLYLE B");
and also by the following parties, hereinafter referred to as
the "TRIZECHAHN GROUP" or "BUYER";
XXXX/PALM DESERT, INC., a California corporation ("CO-
PARTNER"); and
TRIZECHAHN CENTERS INC., a California corporation, formerly
known as XXXXXX X. XXXX, INC., a California corporation ("TRIZECHAHNCO").
R E C I T A L S
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A. Seller and Buyer have entered into that certain agreement,
captioned "PALM DESERT OPTION AGREEMENT", made and entered into on
March 11, 1998, effective as of January 1, 1998 (the "OPTION AGREEMENT").
Unless otherwise defined herein, each capitalized term used herein shall
have the meaning ascribed thereto in the Option Agreement.
B. Seller and Buyer have also entered into that certain agreement,
captioned "PALM DESERT AGREEMENT FOR PURCHASE AND SALE OF PARTNERSHIP
INTEREST", made and entered into on March 11, 1998, effective as of
January 1, 1998 (the "PURCHASE AGREEMENT").
C. Buyer and Seller desire to amend the Option Agreement to extend
the "term of this Option" (as defined in Section 1.2 of the Option
Agreement) to August 14, 1998, on the terms and subject to the conditions
set forth below.
D. Buyer and Seller desire to amend the Purchase Agreement to
provide a credit to Buyer against the "Purchase Price" (as such term is
defined in the Purchase Agreement) in the amount of Sixty One
Thousand Six Hundred Sixty Seven Dollars ($61,667) at the closing of the
transactions contemplated by the Purchase Agreement, on the terms and
subject to the conditions set forth below.
NOW, THEREFORE, in consideration of the foregoing premises, the
mutual covenants and conditions contained herein, and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Seller and Buyer hereby amend the Option Agreement and the
Purchase Agreement, respectively, as follows:
1. EFFECTIVENESS OF AMENDMENT. Buyer shall pay to Seller
concurrently with the Buyer's execution and delivery of this Amendment, the
sum of One Hundred Twenty Thousand Dollars ($120,000) in immediately
available funds (the "EXTENSION CONSIDERATION"). In the event that Buyer
fails to deliver the Extension Consideration (together with a counterpart
original of this Amendment executed by Buyer) to Seller on or before August
4, 1998, then this Amendment shall be null and void and of no further force
or effect. The Extension Consideration shall be non-refundable and deemed
earned by Seller upon receipt.
2. OPTION AGREEMENT AMENDMENTS. Subject to Paragraph 1 above, the
Parties hereby amend the Option Agreement as follows:
2.1 TERM. In Section 1.2, in the first sentence, change the
words "July 15, 1998" to "August 14, 1998".
2.2 OPTION CONSIDERATION. Insert the following at the end of
Section 1.3:
"This Option is extended to August 14, 1998, in consideration for
Buyer's payment of the sum of One Hundred Twenty Thousand Dollars
($120,000) in immediately available funds (the "EXTENSION CONSIDERATION")
to Seller, to be allocated among the parties constituting Seller in
proportion to their respective Seller's Partnership Interest, and no
additional Option Consideration shall be required for the period commencing
on July 16, 1998, and ending on August 14, 1998. If this Option is
exercised in accordance with the terms and conditions of this Option
Agreement, then the sum of Sixty One Thousand Six Hundred Sixty Seven
Dollars ($61,667) (the "OPTION CREDIT AMOUNT") shall be credited to Buyer
against the Purchase Price at the closing of the transactions contemplated
by the Purchase Agreement."
3. PURCHASE AGREEMENT AMENDMENTS. Subject to Paragraph 1 above,
the Parties hereby amend the Purchase Agreement as follows:
3.1 OPTION CREDIT AMOUNT. Insert the following as Section
1.21A:
"1.21A OPTION CREDIT AMOUNT. The sum of Sixty One Thousand Six
Hundred Sixty Seven Dollars ($61,667)."
3.2 PURCHASE PRICE.
3.2.1. Insert the following at the end of Section 2.2.1:
"Notwithstanding anything in the foregoing to the contrary, if Buyer
exercises the Option pursuant to Section 3.1 of the Option Agreement, the
Option Credit Amount shall be credited to Buyer and applied against the
Purchase Price at the closing of the transactions contemplated by this
Purchase Agreement."
3.2.2. Pursuant to Paragraph 3.2.1 above, in Sections
1.8, 2.2.2, 5.2.1 and 7.2, change the words "Purchase Price" to "Purchase
Price (as adjusted by the Option Credit Amount)".
4. OTHER TERMS UNMODIFIED. Except as otherwise expressly set
forth herein, all terms and conditions of the Option Agreement and the
Purchase Agreement, respectively, are ratified, and remain unchanged and in
full force and effect.
5. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, provided each of the parties hereto executes at least one
counterpart; each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
Amendment. This letter may be executed in facsimile form (and shall be
promptly followed by a hard copy counterpart original).
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IN WITNESS WHEREOF, the parties have executed this Amendment as of
the date first written above.
SELLER:
CARLYLE/PALM DESERT, INC.,
an Illinois corporation
By: /s/ XXXXX X. XXXX
Name: Xxxxx X. Xxxx
Title:
CARLYLE REAL ESTATE LIMITED
PARTNERSHIP-XVI,
an Illinois limited partnership
By: JMB REALTY CORPORATION,
a Delaware corporation,
General Partner
By: /s/ XXXXX X. XXXX
Name: Xxxxx X. Xxxx
Title:
CARLYLE REAL ESTATE LIMITED
PARTNERSHIP-XVII,
an Illinois limited partnership
By: JMB REALTY CORPORATION,
a Delaware corporation,
General Partner
By: /s/ XXXXX X. XXXX
Name: Xxxxx X. Xxxx
Title:
[ SIGNATURES CONTINUED ON NEXT PAGE ]
BUYER:
XXXX/PALM DESERT, INC.,
a California corporation
By: /s/ XXXXXXX X. XXXXXXX
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
and General Counsel
By: /s/ XXXXX X. XXXXX
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
Finance
TRIZECHAHN CENTERS INC.,
a California corporation
By: /s/ XXXXXXX X. XXXXXXX
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
and General Counsel
By: /s/ XXXXX X. XXXXX
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
Finance
