EXHIBIT 10.19
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SECOND AMENDMENT
to
PURCHASE AND SALE AGREEMENT
and
ESCROW AGREEMENT
by and among
The Sellers Defined Herein,
Banyan Strategic Realty Trust,
Xxxxxxxx Management Corporation
and
Commonwealth Land Title Insurance Company
Dated April 9, 2001
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SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT
AND
ESCROW AGREEMENT
This Second Amendment (this "Second Amendment") to Purchase and Sale
Agreement made this 9th day of April, 2001 by and among BSRT University
Square L.L.C., an Illinois limited liability company, BSRT Woodcrest Office
Park Limited Partnership, an Illinois limited partnership, BSRT Commerce
Center L.L.C., an Illinois limited liability company, BSRT Avalon Ridge
L.L.C., an Illinois limited liability company, BSRT Technology Park (GA)
L.L.C., an Illinois limited liability company, BSRT Xxxxx Creek L.L.C., an
Illinois limited liability company, BSRT/M&J Northlake Limited Partnership,
an Illinois limited partnership, BSRT Technology Center L.L.C., an Illinois
limited liability company, BSRT Fountain Square L.L.C., an Illinois limited
liability company, BSRT University Corporation Center L.L.C., an Illinois
limited liability company, BSRT Metric Plaza L.L.C., an Illinois limited
liability company, BSRT Park Center L.L.C., an Illinois limited liability
company, BSRT Sand Lake Tech Center L.L.C., an Illinois limited liability
company, BSRT Peachtree Pointe L.L.C., an Illinois limited liability
company, BSRT Phoenix Business Park L.L.C., an Illinois limited liability
company, BSRT Southlake L.L.C., an Illinois limited liability company, BSRT
Avalon Center L.L.C., an Illinois limited liability company, BSRT Airways
Plaza L.L.C., an Illinois limited liability company, BSRT Newtown Trust, a
Massachusetts business trust, BSRT Lexington Trust, a Massachusetts
business trust, BSRT Lexington B Corp., an Illinois corporation,
Banyan/Xxxxxx MOC Limited Partnership, an Illinois limited partnership,
Banyan/Xxxxxx Willowbrook Limited Partnership, an Illinois limited
partnership, Banyan/Xxxxxx Elmhurst L.L.C., an Illinois limited liability
company, Banyan/Xxxxxx Wisconsin L.L.C., an Illinois limited liability
company, BSRT Riverport Trust, a Massachusetts business trust, BSRT
Xxxxxxxxxxx Office Plaza L.L.C., an Illinois limited liability company, and
Tower Lane Limited Partnership, an Illinois limited partnership, each
having an address of c/o Banyan Strategic Realty Trust, 000 Xxxxx Xxxxxx
Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000 (hereinafter individually
referred to as a "Seller" and collectively referred to as the "Sellers"),
Banyan Strategic Realty Trust, a Massachusetts business trust having an
address at 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000
(hereinafter referred to as "BSRT") and Xxxxxxxx Management Corporation, a
New Jersey corporation, having an address of c/o Denholtz Associates, 0000
Xx. Xxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx 00000, its assignees or nominees
(hereinafter referred to as "Buyer").
R E C I T A L S
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Sellers, BSRT and Buyer executed and delivered (i) that certain
Purchase and Sale Agreement dated January 8, 2001 (the "P&S Agreement") for
the purchase and sale of thirty (30) Properties (as defined in the P&S
Agreement), and (ii) together with Commonwealth Land Title Insurance
Company (the "Escrow Agent") that certain Escrow Agreement (the "Escrow
Agreement") dated January 8, 2001; and
Sellers, BSRT, Buyer and Escrow Agent executed and delivered that
certain First Amendment to the Purchase and Sale Agreement and Escrow
Agreement dated March 28, 2001 (the "First Amendment") amending the P&S
Agreement to provide that the Due Diligence Date (as defined in the P&S
Agreement) is changed from March 30, 2001 to April 9, 2001 and certain
other amendments on the terms and conditions set forth therein; and
Sellers, BSRT, Buyer and Escrow Agent desire to further amend the P&S
Agreement, as amended by the First Amendment (collectively hereinafter
referred to as the "Contract") and the Escrow Agreement on the terms and
conditions hereof.
Now, therefore, the parties hereto, in consideration of the mutual
covenants herein contained, and respectively expressing the intention to be
legally bound hereby, covenant and agree to amend the Contract and the
Escrow Agreement as follows:
1. DEFINITIONS. As used in this Second Amendment, the following
terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined).
Any capitalized term used but not defined in this Second Amendment shall
have that meaning ascribed to it in the Contract or the Escrow Agreement
(as the case may be).
"Additional Downpayment" shall have the meaning ascribed to such term
in SECTION 4.1(a) herein.
"Approved Lease" shall have the meaning ascribed to such term in
SECTION 12.1 herein.
"Bulk Sale Properties" shall mean all of those properties listed on
Exhibit A to the P&S Agreement except for the Riverport Property, the
Northlake Property and the University Square Property. "Bulk Sale
Property" shall mean any one of the Bulk Sale Properties.
"Bulk Sale Properties Downpayment" shall have the meaning ascribed to
such term in SECTION 4.1(a) herein. Any reference in the Contract to the
"Downpayment" shall, hereafter, be deemed to refer to the Bulk Sale
Properties Downpayment.
"Contaminated Property" shall have the meaning ascribed to such term
in SECTION 7.1(b) herein.
"Estimated Plan Cost" shall have the meaning ascribed to such term in
SECTION 7.1(a) herein.
"Firm Financing Commitment" shall mean the written obligation of a
lender to provide mortgage financing to Buyer in connection with the
acquisition of a Remaining Property or the Bulk Sale Properties (as the
case may be) which evidences the payment of a conventional commitment fee
on the part of the Buyer, or, if Buyer elects to acquire a Remaining
Property subject to the applicable Existing Indebtedness, evidence
reasonably satisfactory to the applicable Seller that the holder of such
Existing Indebtedness is inclined to consent to such transaction.
"New Closing Date" shall mean May 11, 2001, provided, however, that
Buyer shall have the right to postpone the New Closing Date to June 11,
2001 or any other date between May 11, 2001 and June 11, 2001 as Buyer
shall designate in writing, if Buyer certifies to Sellers in writing that
the requirements of the holders of the Existing Indebtedness or Buyer's
lender(s) cannot be met in time for a May 11th closing.
"Northlake Closing Date" shall have the meaning ascribed to such term
in SECTION 6.2(a)(ii) herein.
"Northlake Closing Notice" shall have the meaning ascribed to such
term in SECTION 6.2(a)(ii) herein.
"Northlake Property" shall mean Property #00 (Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx) as set forth on Exhibit A to the P&S
Agreement.
"Northlake Put Notice" shall have the meaning ascribed to such term
in SECTION 6.2(a)(i) herein.
"Phase II Notice" shall have the meaning ascribed to such term in
SECTION 7.1(a) herein.
"Phase II Studies" shall have the meaning ascribed to such term in
SECTION 7.1 herein.
"Put Properties" shall mean the Northlake Property and the Riverport
Property.
"Remediation Escrow" shall have the meaning ascribed to such term in
SECTION 7.1(b)(ii) herein.
"Remaining Properties" shall mean the Riverport Property, the
Northlake Property and the University Square Property. "Remaining
Property" shall mean any one of the Remaining Properties.
"Remaining Properties Downpayment" shall have the meaning ascribed to
such term in SECTION 4.1(b) herein.
"Riverport Closing Date" shall have the meaning ascribed to such term
in SECTION 6.3(a)(ii) herein.
"Riverport Closing Notice" shall have the meaning ascribed to such
term in SECTION 6.3(a)(ii) herein.
"Riverport Property" shall mean Property #9 (6901 Riverport Drive,
Louisville, Kentucky) as set forth on Exhibit A to the P&S Agreement.
"Riverport Put Notice" shall have the meaning ascribed to such term
in SECTION 6.3(a)(i) herein.
"University Square Closing Date" shall have the meaning ascribed to
such term in SECTION 6.1(b) herein.
"University Square Property" shall mean Property #7 (Huntsville,
Alabama) as set forth on Exhibit A to the P&S Agreement.
2. EXPIRATION OF DUE DILIGENCE PERIOD. By executing this Second
Amendment, the parties to the Contract acknowledge and agree that any
rights and obligations accruing to each party under the Contract prior to
the Due Diligence Date are hereby terminated, except as may be set forth
herein and except as those rights or obligations extend beyond the Due
Diligence Date as set forth in the Contract. Notwithstanding the
foregoing, Buyer shall have until (a) thirty (30) days after receipt of the
Northlake Put Notice to provide Seller with notice of Buyer's desire to
assume the Existing Indebtedness in connection with the purchase of the
Northlake Property, and (b) thirty (30) days after receipt of the Riverport
Put Notice to provide Seller with notice of Buyer's desire to assume the
Existing Indebtedness in connection with the purchase of the Riverport
Property.
3. AMENDMENT TO PURCHASE PRICE AND CLOSING DATE. The purchase
price which Buyer shall pay to Sellers for Sellers' interests in the
Properties is reduced to a total of Two Hundred Twenty-Four Million and
no/00 Dollars ($224,000,000.00), as may be further reduced as set forth
herein, and allocated as set forth herein.
3.1 The purchase price with respect to the Bulk Sale
Properties is One Hundred Eighty-Five Million Two Hundred Fifty Thousand
and no/00 Dollars ($185,250,00.00), and shall be allocated among the Bulk
Sale Properties in accordance with Exhibit E to the P&S Agreement. The
closing with respect to the Bulk Sale Properties shall occur on the New
Closing Date.
3.2 The purchase prices and closing dates with respect to the
Remaining Properties is as follows:
(a) for the University Square Property, the purchase
price is Ten Million Three Hundred Thousand and no/00 Dollars
($10,300,00.00) and the closing with respect to such Property shall occur
on the University Square Closing Date;
(b) for the Northlake Property, the purchase price is
Twenty-One Million Four Hundred and Fifty Thousand and no/00 Dollars
($21,450,000.00) and the closing with respect to such Property shall occur,
if at all, on the Northlake Closing Date; and
(c) for the Riverport Property, the purchase price is
Seven Million and no/00 Dollars ($7,000,000.00) and the closing with
respect to such Property shall occur, if at all, on the Riverport Closing
Date.
4. AMENDMENT TO THE DOWNPAYMENT.
4.1 Buyer paid the Initial Downpayment to the Escrow Agent in
accordance with the terms of the P&S Agreement. In addition to the Initial
Downpayment, Buyer shall be obligated to pay to the Escrow Agent the
following downpayments and no other:
(a) Seven Hundred Fifty Thousand and no/00 Dollars
($750,000.00) (the "Additional Downpayment" and together with the Initial
Downpayment, the "Bulk Sale Properties Downpayment") on the earlier of: (i)
April 30, 2001; and (ii) the next business day following Buyer's delivery
to Seller of a Firm Financing Commitment for the Bulk Sale Properties; and
(b) One Million and no/00 Dollars ($1,000,000.00) (the
"Remaining Properties Downpayment") on the New Closing Date.
4.2 The Bulk Sale Properties Downpayment and the Remaining
Properties Downpayment shall be held in escrow by the Escrow Agent in
accordance with all of the provisions of the Contract and the Escrow
Agreement relating to the Downpayment.
5. BULK SALE PROPERTIES CLOSING DATE. The closing for the Bulk
Sale Properties shall occur on the New Closing Date. Any reference in the
Contract to the Closing or the Closing Date with respect to the Bulk Sale
Properties shall be deemed to refer to the New Closing Date, and each
party's obligations with respect to the Closing Date as set forth in the
Contract shall be deemed to be applicable to the New Closing Date except as
amended herein. In connection with the closing for the Bulk Sale
Properties, all references in the Contract to the "Properties" shall be
deemed to refer to the Bulk Sale Properties only.
5.1 On the New Closing Date, each Seller of a Bulk Sale
Property shall be required to deliver to Buyer all of those items set forth
in SECTION 9.1 of the P&S Agreement, only to the extent that those items
relate to a Bulk Sale Property.
5.2 On the New Closing Date, Buyer shall pay to Sellers by
wire transfer to such account(s) as Sellers shall designate (but in no
event more than five (5) such accounts) not less than three business days
prior to the New Closing Date, the amount by which the Bulk Sale Properties
purchase price exceeds the sum of the Bulk Sale Properties Downpayment and
the amount payable to the Escrow Agent pursuant to SECTION 16 of the P&S
Agreement, subject to the prorations set forth in SECTION 10 of the P&S
Agreement.
6. REMAINING PROPERTIES. The Remaining Properties Downpayment
shall secure Buyer's obligations under this SECTION 6. Buyer's failure to
acquire any Remaining Property on the University Square Closing Date, the
Northlake Closing Date or the Riverport Closing Date, as the case may be,
which failure continues for five (5) business days after the applicable
scheduled closing date, shall result in an immediate forfeiture of the
Remaining Properties Downpayment, the termination of Buyer's right to
purchase the University Square Property.
6.1. SALE OF UNIVERSITY SQUARE PROPERTY.
(a) Intentionally omitted.
(b) The closing for the University Square Property
shall occur on December 19, 2001 (the "University Square Closing Date").
On the University Square Closing Date:
(i) Buyer shall deliver to BSRT by wire transfer,
to such account(s) as BSRT shall designate not less than three (3) business
days prior to the University Square Closing Date, an amount equal to the
University Square Property Purchase Price, provided that if the applicable
Sellers have prior thereto completed the sale of the Put Properties
(whether to Buyer or a Third Party), then Buyer shall deliver the amount by
which the University Square Property Purchase Price exceeds the Remaining
Properties Downpayment, subject in either event to the prorations set forth
in SECTION 10 of the P&S Agreement; and
(ii) the applicable Seller shall deliver to Buyer
those deliveries set forth in SECTIONS 9.1(a), (d), (e), (f), (g), (i),
(j), (k), (l), (m), (n), (o), (p), (q), (r), (s), (v), (w), (x), (y) and
(z) of the P&S Agreement as they relate to the University Square Property;
(iii) on the University Square Closing Date, the
Buyer shall deliver to the applicable Seller those deliveries set forth in
SECTIONS 9.3(a) and (d) of the P&S Agreement; and
(iv) all references in the Contract to the Closing
and/or the Closing Date shall be deemed to refer to the University Square
Closing Date but only in so far as those references pertain to the
University Square Property.
(c) With respect to the University Square Property, (i)
the provisions of SECTION 7.1(d) of the P&S Agreement shall be
inapplicable, (ii) the representations in SECTION 6.2(g) of the P&S
Agreement shall be inapplicable, (iii) the inaccuracy of the
representations in the following Sections of the P&S Agreement shall not
give rise to any termination right on the part of Buyer pursuant to Section
19.1(b)(ii) of the P&S Agreement: the second sentence of Section 6.2(a),
the fourth sentence of Section 6.2(a), Sections 6.2(b), (c), (d), (e), (f),
(h), (j), (k), (l), (m), (n), (o), (p) (but only to the extent such action,
suit or proceeding does not affect the ability of the applicable Seller to
consummate the transactions contemplated hereby), (q), (r), (t), (u), (v)
(except with respect to the Property involved, (w), (x) and (dd), and (iv)
Buyer acknowledges that the University Square Property is being sold "AS-
IS," "WHERE-IS" and "WITH ALL FAULTS" with respect to its physical
condition. Buyer shall have no claims against Sellers or BSRT following
the Survival Date regarding the University Square Property.
(d) Not later than sixty (60) days prior to the
University Square Closing Date, Buyer shall notify the applicable Seller in
writing of those tenants of the University Square Property with respect to
which it would like to obtain subordination, nondisturbance and attornment
agreements, and shall provide the form of such agreement. The applicable
Seller shall: (i) send the nondisturbance agreements to such tenants of the
University Square Property within five (5) days of such notice; (ii) send
tenant estoppel certificates to all of the tenants of the University Square
Property not later than fifty (50) days prior to the University Square
Closing Date; and (iii) use commercially reasonable efforts to obtain
executed copies of the nondisturbance agreements and tenant estoppel
certificates; provided, however, that Buyer may not exercise any of its
rights to terminate the Contract under SECTION 7.1(c) AND (f) of the P&S
Agreement in the event that these agreements or certificates are not
obtained.
(e) The applicable Seller shall, from the date hereof
until the University Square Closing Date, deliver to Buyer within twenty
(20) days of the close of each calendar month its monthly operating report
for the University Square Property in substantially the form previously
delivered to Buyer.
6.2 SALE OF NORTHLAKE PROPERTY.
(a) Buyer is obligated to purchase the Northlake
Property for an amount equal to the Northlake Property Purchase Price,
subject to the following:
(i) The applicable Seller shall send written
notice to Buyer of its intent to sell the Northlake Property to Buyer (the
"Northlake Put Notice") by no later than January 9, 2002. The Northlake
Put Notice shall, in order to be effective, include a statement that
updates that portion of the Disclosure Statement that pertains to the
Northlake Property together with all relevant backup information and
documentation; provided, however, that: (a) Buyer shall have no right to
terminate the Contract as a result of the content of the updated statement;
and (b) the applicable Seller shall have no duty to update the revised
statement after delivery;
(ii) the closing with respect to the Northlake
Property (the "Northlake Closing Date") shall occur on such date as
determined by the Buyer which shall be no later than ninety (90) days
following Buyer's receipt of the Northlake Put Notice, and Buyer shall send
written notice of the Northlake Closing Date which, in order to be
effective, must include a copy of Buyer's Firm Financing Commitment with
respect to the Northlake Property (the "Northlake Closing Notice") to the
applicable Seller no later than ten (10) business days prior to the
Northlake Closing Date;
(iii) on the Northlake Closing Date, the applicable
Seller shall deliver to Buyer those deliveries set forth in SECTIONS
9.1(b), (c), (d), (e), (f), (g), (h), (i), (j), (k), (l), (m), (n), (o),
(p), (q), (r), (s), (v), (w), (x), (y) and (z) of the P&S Agreement as they
relate to the Northlake Property;
(iv) on the Northlake Closing Date, the Buyer
shall deliver to the applicable Seller those deliveries set forth in
SECTIONS 9.3(a) and (d) of the P&S Agreement;
(v) on the Northlake Closing Date, the Buyer
shall deliver to BSRT by wire transfer, to such account(s) as BSRT shall
designate not less than three (3) business days prior to the Northlake
Closing Date, the Northlake Property Purchase Price, provided that if the
applicable Sellers have prior thereto completed the sale of the University
Square Property and the Riverport Property (whether to Buyer or a Third
Party), then Buyer shall deliver the amount by which the Northlake Property
Purchase Price exceeds the Remaining Properties Downpayment, subject in
either event to the prorations set forth in SECTION 10 of the P&S
Agreement; and
(vi) on the Northlake Closing date, all references
in the Contract to the Closing and/or the Closing Date shall be deemed to
refer to the Northlake Closing Date but only in so far as those references
pertain to the Northlake Property. If the Northlake Closing Date occurs in
2002, all references in SECTION 10.1(g) of the P&S Agreement to 2000 shall
be deemed to refer to 2001 and all references in said Section to 2001 shall
be deemed to refer to 2002.
(b) With respect to the Northlake Property, (i) the
provisions of SECTION 7.1(d) of the P&S Agreement shall be inapplicable,
(ii) the representations in SECTION 6.2(g) of the P&S Agreement shall be
inapplicable, and (iii) the inaccuracy of the representations in the
following Sections of the P&S Agreement shall not give rise to any
termination right on the part of Buyer pursuant to Section 19.1(b)(ii) of
the P&S Agreement: the second sentence of Section 6.2(a) (except to the
extent the Buyer is purchasing the Northlake Property subject to the
Existing Indebtedness), the third sentence of Section 6.2(a) (but only if
Buyer is acquiring the Northlake Property subject to the Existing
Indebtedness), the fourth sentence of Section 6.2(a), Sections 6.2(b), (c),
(d), (e), (f), (h), (j), (k), (l), (m), (n), (o), (p) (but only to the
extent such action, suit or proceeding does not affect the ability of the
applicable Seller to consummate the transactions contemplated hereby), (q),
(r), (t), (u), (v) (except with respect to the Property involved), (w), (x)
and (dd), and (iv) Buyer acknowledges that the Northlake Property is being
sold "AS-IS," "WHERE-IS" and "WITH ALL FAULTS" with respect to its physical
condition. Buyer shall have no claims against Sellers or BSRT following
the Survival Date regarding the Northlake Property.
(c) The applicable Seller shall, from the date hereof
until the earlier of: (i) the Northlake Closing Date; or (ii) the sale of
the Northlake Property to a Third Party, deliver to Buyer within twenty
(20) days of the close of each calendar month its monthly operating report
for the Northlake Property in substantially the form previously delivered
to Buyer.
(d) Not later than forty-five (45) days after the
Northlake Put Notice is received by Buyer, and in any event not later than
the delivery of the Northlake Closing Notice, Buyer shall notify the
applicable Seller in writing of those tenants of the Northlake Property
with respect to which it would like to obtain subordination, nondisturbance
and attornment agreements, and shall provide the form of such agreement.
The applicable Seller shall: (i) send the nondisturbance agreements to such
tenants of the Northlake Property within five (5) days of such notice; (ii)
send tenant estoppel certificates to all of the tenants of the Northlake
Property not later than fifty (50) days prior to the Northlake Closing
Date; and (iii) use commercially reasonable efforts to obtain executed
copies of the nondisturbance agreements and tenant estoppel certificates;
provided, however, that Buyer may not exercise any of its rights to
terminate the Contract under SECTION 7.1(c) AND (f) of the P&S Agreement in
the event that these agreements or certificates are not obtained.
6.3 SALE OF RIVERPORT PROPERTY.
(a) Buyer is obligated to purchase the Riverport
Property for an amount equal to the Riverport Property Purchase Price,
subject to the following:
(i) The applicable Seller shall send written
notice to Buyer of its intent to sell the Riverport Property to Buyer (the
"Riverport Put Notice") by no later than January 9, 2002. The Riverport
Put Notice shall, in order to be effective, include a statement that
updates that portion of the Disclosure Statement that pertains to the
Riverport Property together with all relevant backup information and
documentation; provided, however, that: (a) Buyer shall have no right to
terminate the Contract as a result of the content of the updated statement;
and (b) the applicable Seller shall have no duty to update the revised
statement after delivery;
(ii) the closing with respect to the Riverport
Property (the "Riverport Closing Date") shall occur on such date as
determined by the Buyer which shall be no later than ninety (90) days
following Buyer's receipt of the Riverport Notice, and Buyer shall send
written notice of the Riverport Closing Date (the "Riverport Closing
Notice") to the applicable Seller no later than ten (10) business days
prior to the Riverport Closing Date;
(iii) on the Riverport Closing Date, the applicable
Seller shall deliver to Buyer those deliveries set forth in SECTIONS
9.1(b), (c), (d), (e), (f), (g), (h), (i), (j), (k), (l), (m), (n), (o),
(p), (q), (r), (s), (v), (w), (x), (y) and (z) of the P&S Agreement as they
relate to the Riverport Property;
(iv) on the Riverport Closing Date, the Buyer
shall deliver to the applicable Seller those deliveries set forth in
SECTIONS 9.3(a) AND (d) of the P&S Agreement;
(v) on the Riverport Closing Date the Buyer shall
deliver to BSRT by wire transfer, to such account(s) as BSRT shall
designate not less than three (3) business days prior to the Riverport
Closing Date, an amount equal to the Riverport Property Purchase Price,
provided that if the applicable Sellers have prior thereto completed the
sale of the University Square Property and the Northlake Property (whether
to Buyer or a Third Party), then Buyer shall deliver the amount by which
the Riverport Property Purchase Price exceeds the Remaining Properties
Downpayment; and
(vi) on the Riverport Closing Date, all references
in the Contract to the Closing and/or the Closing Date shall be deemed to
refer to the Riverport Closing Date but only in so far as those references
pertain to the Riverport Property. If the Riverport Closing Date occurs
in 2002, all references in SECTION 10.1(g) of the P&S Agreement to 2000
shall be deemed to refer to 2001 and all references in said Section to 2001
shall be deemed to refer to 2002.
(b) With respect to the Riverport Property, (i) the
provisions of SECTION 7.1(d) of the P&S Agreement shall be inapplicable,
(ii) the representations in SECTION 6.2(g) of the P&S Agreement shall be
inapplicable, and (iii) the inaccuracy of the representations in the
following Sections of the P&S Agreement shall not give rise to any
termination right on the part of Buyer pursuant to Section 19.1(b)(ii) of
the P&S Agreement: the second sentence of Section 6.2(a) (except to the
extent the Buyer is purchasing the Riverport Property subject to the
Existing Indebtedness), the third sentence of Section 6.2(a) (but only if
Buyer is acquiring the Riverport Property subject to the Existing
Indebtedness), the fourth sentence of Section 6.2(a), Sections 6.2(b), (c),
(d), (e), (f), (h), (j), (k), (l), (m), (n), (o), (p) (but only to the
extent such action, suit or proceeding does not affect the ability of the
applicable Seller to consummate the transactions contemplated hereby), (q),
(r), (t), (u), (v) (except with respect to the Property involved), (w), (x)
and (dd), and (iv) Buyer acknowledges that the Riverport Property is being
sold "AS-IS," "WHERE-IS" and "WITH ALL FAULTS" with respect to its physical
condition. Buyer shall have no claims against Sellers or BSRT following
the Survival Date regarding the Riverport Property.
(c) BSRT shall, from the date hereof until the earlier
of: (i) the Riverport Closing Date; or (ii) the sale of the Riverport
Property to a Third Party, deliver to Buyer within twenty (20) days of the
close of each calendar month its monthly operating report for the Riverport
Property in substantially the form previously delivered to Buyer.
(d) Not later than forty-five (45) days after the
Riverport Put Notice is received by Buyer, and in any event not later than
the delivery of the Riverport Closing Notice, Buyer shall notify the
applicable Seller in writing of those tenants of the Riverport Property
with respect to which it would like to obtain subordination, nondisturbance
and attornment agreements, and shall provide the form of such agreement.
The applicable Seller shall: (i) send the nondisturbance agreements to such
tenants of the Riverport Property within five (5) days of such notice; (ii)
send tenant estoppel certificates to all of the tenants of the Riverport
Property not later than fifty (50) days prior to the Riverport Closing
Date; and (iii) use commercially reasonable efforts to obtain executed
copies of the nondisturbance agreements and tenant estoppel certificates;
provided, however, that Buyer may not exercise any of its rights to
terminate the Contract under SECTION 7.1(c) AND (f) of the P&S Agreement in
the event that these agreements or certificates are not obtained.
6.4 OPERATION OF NORTHLAKE PROPERTY.
(a) From the date hereof through and including the
delivery of the Northlake Put Notice, Buyer:
(i) shall cease, desist and refrain from any and
all due diligence activities in respect to the Northlake Property,
including without limitation, communicating (written, oral or electronic)
with tenants, property managers, leasing agents, potential acquirers,
service providers and any other person or entity assisting in the operation
of the Northlake Property, provided, however, that subject to SECTION 8.1
hereof, the foregoing shall not prevent Buyer from communicating with
prospective investors or lenders or with the holder of the Existing
Indebtedness with respect to the Northlake Property so long as in such
communications Buyer represents that its obligation to purchase the
Northlake Property is subject to the applicable Seller's right to sell
same to a Third Party in accordance with this Second Amendment; provided,
however, that the term "prospective investors" does not include persons or
entities who may intend to acquire the Property;
(ii) shall not represent to any Third Party (in
writing, orally or electronically) that it has any right to purchase the
Northlake Property, that it has the Northlake Property "under contract",
"under control", "tied up" or the like, and shall not attempt to solicit
any interest in the purchase of the Northlake Property, in each case except
and to the extent set forth in SECTION 6.4(a)(i) above; and
(iii) shall in writing (with a copy to BSRT) direct
any broker retained by Buyer to cease all marketing activities with respect
to the Northlake Property.
(b) For purposes of SECTION 8.3 of the P&S Agreement, a
New Tenant Lease with respect to the Northlake Property shall mean any
lease executed after the delivery of the Northlake Put Notice.
(c) From the delivery by the applicable Seller of the
Northlake Put Notice until delivery by Buyer of the Northlake Closing
Notice, the applicable Seller shall comply with the provisions of the third
and fourth sentences of SECTION 8.3 of the P&S Agreement. Upon delivery of
the Northlake Closing Notice, Buyer shall have those rights set forth in
SECTION 8.3 of the P&S Agreement regarding the absolute right to approve
leases from and after the Due Diligence Date with respect to the Northlake
Property.
6.5 OPERATION OF RIVERPORT PROPERTY.
(a) From the date hereof through and including the
delivery of the Riverport Put Notice, Buyer:
(i) shall cease, desist and refrain from any and
all due diligence activities in respect to the Riverport Property,
including without limitation, communicating (written, oral or electronic)
with tenants, property managers, leasing agents, potential acquirers,
service providers and any other person or entity assisting in the operation
of the Riverport Property, provided, however, that subject to SECTION 8.2
hereof, the foregoing shall not prevent Buyer from communicating with
prospective investors or lenders or with the holder of the Existing
Indebtedness with respect to the Riverport Property so long as in such
communications Buyer represents that its obligation to purchase the
Riverport Property is subject to the applicable Seller's right to sell same
to a Third Party in accordance with this Second Amendment; provided,
however, that the term "prospective investors" does not include persons or
entities who may intend to acquire the Property;
(ii) shall not represent to any Third Party (in
writing, orally or electronically) that is has any right to purchase the
Riverport Property, that it has the Riverport Property "under contract",
"under control", "tied up" or the like, and shall not attempt to solicit
any interest in the purchase of the Riverport Property, in each case except
and to the extent set forth in SECTION 6.5(a)(i) above; and
(iii) shall in writing (with a copy to BSRT) direct
any broker retained by Buyer to cease all marketing activities with respect
to the Riverport Property.
(b) For purposes of SECTION 8.3 of the P&S Agreement, a
New Tenant Lease with respect to the Riverport Property shall mean any
lease executed after the delivery of the Riverport Put Notice.
(c) From the delivery by the applicable Seller of the
Riverport Put Notice until delivery by Buyer of the Riverport Closing
Notice, the applicable Seller shall comply with the provisions of the third
and fourth sentences of SECTION 8.3 of the P&S Agreement. Upon delivery of
the Riverport Closing Notice, Buyer shall have those rights set forth in
SECTION 8.3 of the P&S Agreement regarding the absolute right to approve
leases from and after the Due Diligence Date with respect to the Riverport
Property.
6.6 OPERATION OF UNIVERSITY SQUARE PROPERTY.
(a) For purposes of SECTION 8.3 of the P&S Agreement, a
New Tenant Lease with respect to the University Square Property shall mean
any lease executed after the 90th day prior to University Square Closing
Date.
(b) From and after the date which is ninety (90) days
before the University Square Closing Date, the applicable Seller shall
comply with the provisions of the third and fourth sentences of SECTION 8.3
of the P&S Agreement with respect to the University Square Property. From
and after the date upon which Buyer delivers to Sellers or BSRT a Firm
Financing Commitment with respect to the University Square Property, Buyer
shall have those rights set forth in SECTION 8.3 of the P&S Agreement
regarding the absolute right to approve leases from and after the Due
Diligence Date with respect to the University Square Property.
7. PHASE II STUDIES.
7.1 Attached hereto as Exhibit III is a list of Bulk Sale
Properties with respect to which Buyer shall complete Phase II studies (the
"Phase II Studies"). The following shall apply with respect to the Phase
II Studies:
(a) Buyer shall, by April 30, 2001, send written notice
to Sellers (the "Phase II Notice") of the determination of environmental
conditions requiring remediation or abatement at any of the Bulk Sale
Properties by environmental professionals retained by Buyer. The Phase II
Notice shall describe the environmental conditions requiring remediation or
abatement, and shall include (i) a copy of the report or other
documentation which led to the identification of such environmental
conditions, (ii) a description of the proposed plan of remediation or
abatement for such environmental condition, and (iii) the estimated cost to
implement the remediation or abatement plan, including all professional
fees (such as consulting, engineering and legal fees of lender's counsel),
administrative costs of any lender and governmental fees associated with
such remediation or abatement (the "Estimated Plan Cost"). Any and all
environmental issues that are not subject to a Phase II Notice delivered to
Sellers on or before April 30, 2001 are deemed waived by Buyer, subject to
Sellers' obligations as set forth in the first sentence of SECTION 8.1 of
the P&S Agreement.
(b) With respect to each Bulk Sale Property which is
identified in the Phase II Notice (each a "Contaminated Property"), the
applicable Seller shall, on or before the applicable closing date (in
Seller's sole discretion and at its sole cost and expense), either:
(i) completely remediate or xxxxx the
environmental conditions at the Contaminated Property in accordance with
the remediation or abatement plan referred to in SECTION 7.1(a)(ii) above,
and send to Buyer satisfactory evidence of the completion of such
remediation or abatement;
(ii) pay to the Escrow Agent an amount equal to
150% of the Estimated Plan Cost (the "Remediation Escrow"); or
(iii) notify Buyer in writing of such Seller's
intent to exclude the Contaminated Property from the sale of the Bulk Sale
Properties, and reduce the amount of the purchase price for the Bulk Sale
Properties by the amount allocated to the Contaminated Property on Schedule
E to the P&S Agreement.
Notwithstanding the foregoing, (x) if the Estimated Plan Cost with respect
to any Bulk Sale Property exceeds $500,000, Buyer may elect to exclude such
Contaminated Property from the sale of the Bulk Sale Properties regardless
of the election made by the applicable Seller, in which event the
provisions of clause (iii) above shall apply, and/or (y) if the applicable
Seller elects to exclude any Contaminated Property from the sale of the
Bulk Sale Properties, Buyer may negate such election, by written notice
given within ten (10) days after receipt of the applicable Seller's notice,
in which event such Contaminated Property shall be conveyed to Buyer but
without any abatement of the purchase price with respect thereto.
(c) Buyer shall be permitted to draw upon the
Remediation Escrow only to pay invoices of unaffiliated entities related to
the remediation or abatement of the environmental conditions of the
Contaminated Property, and shall send to BSRT monthly a detailed accounting
of the costs of such remediation or abatement. Upon Buyer's reasonable
satisfaction as to the remediation or abatement of the environmental
conditions of all Contaminated Properties, all remaining amounts in the
Remediation Escrow shall be delivered to BSRT. If Buyer is not reasonably
satisfied with the remediation or abatement of the environmental conditions
of all Contaminated Properties by the Survival Date, on the Survival Date
Buyer shall be entitled to 115% of the remaining cost of the remediation or
abatement, as estimated by an environmental professional selected by Buyer
and the applicable Sellers, or if Buyer and the applicable Sellers are
unable to agree on such environmental professional prior to the Survival
Date, as estimated by URS/Daimes & Xxxxx, and the applicable Sellers shall
be entitled to the remaining amounts in the Remediation Escrow.
8. AMENDMENT TO SECTION 18 OF THE P&S AGREEMENT.
8.1 The restrictions imposed on BSRT and the Sellers
regarding inquiries and negotiations as set forth in SECTION 18 of the P&S
Agreement shall be suspended with respect to the Northlake Property from
the date hereof until such time as BSRT delivers the Northlake Put Notice.
Without limitation, the applicable Seller and BSRT shall have the absolute
right, directly or indirectly, to solicit, initiate, encourage or take any
action designed to facilitate the sale of the Northlake Property to any
Third Party, the absolute right to participate in any discussions,
marketing efforts and negotiations with respect to the Northlake Property,
and the right to sell the Northlake Property to any Third Party in its sole
discretion. Upon delivery of the Northlake Put Notice, BSRT and the
applicable Seller shall immediately cease all marketing efforts with
respect to the Northlake Property and SECTION 18 of the P&S Agreement shall
be reinstated with respect to the Northlake Property. Until such time as
BSRT delivers the Northlake Put Notice, Buyer shall not take any actions
which are designed, or have the reasonable effect of, impeding or estopping
the sale of the Northlake Property to a Third Party. If the applicable
Seller conveys the Northlake Property to a Third Party, or if the Northlake
Put Notice is not delivered to Buyer on or before January 9, 2002, Buyer
shall have no further obligation to purchase the Northlake Property and all
provisions of the Contract and this Second Amendment relating to the
Northlake Property shall be null and void and of no further force or
effect. For purposes of this Second Amendment, a "Third Party" shall
include, without limitation, any person or entity affiliated with BSRT or
any Seller.
8.2 The restrictions imposed on BSRT and the Sellers regarding
inquiries and negotiations as set forth in SECTION 18 of the P&S Agreement
shall be suspended with respect to the Riverport Property from the date
hereof until such time as BSRT delivers the Riverport Put Notice. Without
limitation, the applicable Seller and BSRT shall have the absolute right,
directly or indirectly, to solicit, initiate, encourage or take any action
designed to facilitate the sale of the Riverport Property to any Third
Party, and to participate in any discussions, marketing efforts and
negotiations with respect to the Riverport Property, and to sell the
Riverport Property to any Third Party in its sole discretion. Upon
delivery of the Riverport Put Notice, BSRT and the applicable Seller shall
immediately cease all marketing efforts with respect to the Riverport
Property and SECTION 18 of the P&S Agreement shall be reinstated with
respect to the Riverport Property. Until such time as BSRT delivers the
Riverport Put Notice, Buyer shall not take any actions which are designed,
or have the reasonable effect of, impeding or estopping the sale of the
Riverport Property to a Third Party. If the applicable Seller conveys the
Riverport Property to a Third Party, or if the Riverport Put Notice is not
delivered to Buyer on or before January 9, 2002, Buyer shall have no
further obligation to purchase the Riverport Property and all provisions of
the Contract and this Second Amendment relating to the Riverport Property
shall be null and void and of no further force or effect.
9. LEASING BROKERAGE AGREEMENTS. On or before the New Closing
Date, the applicable Sellers shall terminate all exclusive leasing
brokerage agreements with respect to the Bulk Sale Properties and the
University Square Property. On or before the Northlake Closing Date, the
applicable Seller shall terminate all exclusive leasing brokerage
agreements with respect to the Northlake Property. On or before the
Riverport Closing Date, the applicable Seller shall terminate all exclusive
leasing brokerage agreements with respect to the Riverport Property. Upon
the termination by the applicable Seller of any exclusive leasing brokerage
agreement, Sellers and BSRT hereby agree to indemnify, defend and hold
Buyer harmless from claims for leasing commissions in respect of such
agreements by the parties to such agreements except for those claims
arising from the leases described on Exhibit IV attached hereto. The
"Escrowed Amount" described in SECTION 16 of the P&S Agreement and the
purchase price with respect to any Remaining Property shall be available to
Buyer to satisfy any claims of indemnity of Buyer pursuant to this
SECTION 9; provided, however, that if Buyer elects to offset against the
purchase price of any Remaining Property and the applicable Seller disputes
Buyer's right to do so, Buyer shall deposit the amount of the offset with
the Escrow Agent and thereafter the amount so deposited shall be deemed a
part of the Escrowed Amount until such dispute is resolved.
10. ASSIGNMENT OF AGREEMENT. On the New Closing Date, BSRT shall
make a quit claim assignment in favor of Buyer of all of BSRT's rights
under that certain On Site Access Profit Sharing Agreement, dated as of
December 20, 2000, by and between BSRT and Xxxxxxx Xxxxxxx Company.
11. REAL ESTATE TAXES.
11.1 Notwithstanding SECTION 10 of the P&S Agreement, real
estate taxes with respect to the Bulk Sale Properties shall be prorated and
adjusted on the New Closing Date based on the then most recent
ascertainable tax bills. In addition, on or prior to December 19, 2001,
BSRT and Buyer shall jointly prepare an estimate of the applicable Sellers'
liability for anticipated increases in all accrued but not yet due taxes,
based upon the best available information and reasonable assumptions. On
such date, the applicable Sellers shall deposit in escrow with the Escrow
Agent, to be held in accordance with the Escrow Agreement, the amount of
such anticipated increases in all accrued but not yet due taxes (the "RET
Escrow"). All interest earned on the RET Escrow shall be added to the RET
Escrow.
11.2 Notwithstanding SECTION 10 of the P&S Agreement, real
estate taxes with respect to the University Square Property shall be
prorated and adjusted on the University Square Closing Date based on the
then most recent ascertainable tax bills. In addition, on or prior to the
University Square Closing Date, BSRT and Buyer shall jointly prepare an
estimate of the applicable Seller's liability for anticipated increases in
all accrued but not yet due taxes, based upon the best available
information and reasonable assumptions. On the University Square Closing
Date, the applicable Seller shall deposit with the Escrow Agent the amount
of such anticipated increases in all accrued but not yet due taxes, such
amount to be added to the RET Escrow.
11.3 Notwithstanding SECTION 10 of the P&S Agreement and
provided that the applicable Seller does not sell the Northlake Property to
a Third Party, real estate taxes with respect to the Northlake Property
shall be prorated and adjusted on the Northlake Closing Date based on the
then most recent ascertainable tax bills. In addition, on or prior to the
Northlake Closing Date, BSRT and Buyer shall jointly prepare an estimate of
the applicable Seller's liability for anticipated increases in all accrued
but not yet due taxes, based upon the best available information and
reasonable assumptions. On the Northlake Closing Date, the applicable
Seller shall deposit with the Escrow Agent the amount of such anticipated
increases in all accrued but not yet due taxes, such amount to be added to
the RET Escrow.
11.4 Notwithstanding SECTION 10 of the P&S Agreement and
provided that the applicable Seller does not sell the Riverport Property to
a Third Party, real estate taxes with respect to the Riverport Property
shall be prorated and adjusted on the Riverport Closing Date based on the
then most recent ascertainable tax bills. In addition, on or prior to the
Riverport Closing Date, BSRT and Buyer shall jointly prepare an estimate of
the applicable Seller's liability for anticipated increases in all accrued
but not yet due taxes, based upon the best available information and
reasonable assumptions. On the Riverport Closing Date, the applicable
Seller shall deposit with the Escrow Agent the amount of such anticipated
increases in all accrued but not yet due taxes, such amount to be added to
the RET Escrow.
11.5 After the Closing with respect to a Property and upon
receipt of actual tax bills, the parties shall prepare a reconciliation of
the actual tax xxxx to the estimate prepared in accordance with SECTION
11.1, 11.2, 11.3 OR 11.4 of this Second Amendment, as the case may be. If
the amount owed by the applicable Seller exceeds the amount of the RET
Escrow applicable to the Property previously owned by such Seller, the
amount in the RET Escrow with respect to such Property shall be paid to
Buyer and the applicable Seller shall pay the balance to Buyer from its own
funds. If the amount owed by the applicable Seller is less than the amount
of the RET Escrow applicable to the Property previously owned by such
Seller, the amount owed by such Seller shall be paid to Buyer from the RET
Escrow and the balance of the amount deposited in the RET Escrow by such
Seller shall remain in the RET Escrow.
11.6 In the event there remains unreconciled estimated real
estate taxes on the date BSRT gives to Buyer the notice of pending
liquidation as required by SECTION 16 of the P&S Agreement, Buyer shall be
entitled to the amounts in the RET Escrow relating to the Properties with
respect to which the real estate tax estimates are still unreconciled, the
applicable Sellers shall be entitled to the remainder of the RET Escrow,
and Escrow Agent is hereby authorized to pay such amounts to Buyer and the
applicable Sellers without further notice.
11.7 In the event Buyer and the applicable Sellers are unable
to agree upon the applicable Sellers' liability for accrued but not yet due
taxes as of the dates set forth in SECTIONS 11.1, 11.2, 11.3 AND/OR 11.4 of
this Second Amendment, the parties shall submit such dispute for resolution
to Ernst & Young or Xxxx & Kart. The decision of such firm shall be binding
upon the parties, and Buyer and BSRT shall share the costs and expenses of
such firm equally.
11.8 In the event Buyer receives a refund of real estate taxes
for any Property for any tax year during which the applicable Seller owned
such Property, Buyer shall pay to such Seller the portion of such refund,
after deducting the expenses of obtaining such refund and any portion of
such refund payable to the tenants of the applicable Property, which is
applicable to the portion of such tax year during which the applicable
Seller owned such Property. Within fifteen (15) days after request by any
Seller (but in no event more than twice in any calendar year), and within
fifteen (15) days after BSRT gives to Buyer the notice of pending
liquidation as required by SECTION 16 of the P&S Agreement, Buyer shall
certify to Sellers that Buyer does not owe Sellers any amounts pursuant to
this SECTION 11.8 and/or that Buyer has paid to Sellers all amounts due
pursuant to this SECTION 11.8, which certification shall be accompanied by
any appropriate backup documentation.
12. LEASE ISSUES.
12.1 Buyer hereby approves all of the leases attached hereto
as Exhibit V (the "Approved Leases"), such that there shall be no
adjustment on the New Closing Date pursuant to SECTION 8.3 of the P&S
Agreement with respect to any Approved Lease.
12.2 Sellers' requirement under SECTION 8.3 of the P&S
Agreement to, following the Due Diligence Date, obtain Buyer's consent to
all new leases as well as all modifications and extensions to existing
leases, is hereby amended such that the requirement shall not commence
until such time as Buyer delivers to the Escrow Agent the Additional
Downpayment except with respect to any new lease, modification or extension
where the total of the brokerage commission and any work allowance exceeds
$100,000, in which case such consent shall be required from and after the
date hereof.
13. SECTION 16 AMENDMENT. The first sentence of SECTION 16 of the
P&S Agreement is hereby amended such that the liquidation or dissolution of
BSRT and the Sellers shall not occur less than five (5) months after the
New Closing Date (as opposed to six (6) months after the Closing, as is set
forth in the P&S Agreement).
14. SECTION 1 AMENDMENT. Section 1(d)(vii) of the P&S Agreement is
hereby deleted.
15. SECTION 5 AMENDMENT.
15.1 Attached hereto as Exhibit VI is a list of the Permitted
Exceptions. Notwithstanding the provisions of the fourth sentence of
Section 5.1 of the P&S Agreement, Buyer need not identify such affirmative
title insurance as Buyer shall require prior to the Due Diligence Date.
15.2 The brackets in the first sentence of SECTION 5.3 of the
P&S Agreement (but not the clause within such brackets) are hereby deleted.
16. SECTION 8 AMENDMENT.
16.1 The estoppel certificates attached as Exhibit J to the
P&S Agreement for the Northlake and Riverport Properties are hereby amended
and restated in their entirety as Exhibit VII hereto.
16.2 The estoppel certificate attached as Exhibit N to the P&S
Agreement is hereby amended and restated in its entirety as Exhibit VIII
hereto.
16.3 The subordination, nondisturbance and attornment
agreement attached hereto as Exhibit IX is the agreement referred to in
Section 8.4(c) of the P&S Agreement. All new leases and lease amendments
entered into by the applicable Seller after the date hereof shall be
accompanied by a subordination, nondisturbance and attornment agreement in
such form. Sellers acknowledge receipt of the designation of tenants
referred to in Section 8.4(c)(i) and (ii) of the P&S Agreement.
17. SECTION 19 AMENDMENT.
17.1 The clause "and for such longer period as is reasonably
required to so cure, provided that Sellers and/or BSRT have commenced such
cure and are diligently pursuing same" beginning in the seventh line of
SECTION 19.1(b) of the P&S Agreement is hereby amended and restated to read
"nor more than thirty (30) days".
17.2 The clause "and for such longer period as is reasonably
required to so cure, provided that Buyer has commenced such cure and are
diligently pursuing same" beginning in the sixth line of SECTION 19.1(c) of
the P&S Agreement is hereby amended and restated to read "nor more than
thirty (30) days".
18. EXHIBIT A AMENDMENT. Exhibit A to the P&S Agreement is hereby
amended and restated in its entirety as set forth in Exhibit X attached
hereto.
19. EXHIBIT H AMENDMENT. Exhibit H to the P&S Agreement is hereby
amended and restated in its entirety as set forth in Exhibit XI attached
hereto.
20. EXHIBIT T AMENDMENT. Exhibit T to the P&S Agreement is hereby
amended and restated in its entirety as set forth in Exhibit XII attached
hereto.
21. BOARD OF TRUSTEES APPROVAL. BSRT hereby represents and
warrants that its Board of Trustees has approved this Second Amendment on
April 9, 2001.
22. BUYER'S ACKNOWLEDGMENT AND RELEASE. Buyer hereby acknowledges
that any and all rights it may have had pursuant to the Contract to
purchase either or both of the Put Properties are hereby released and
extinguished. These rights shall be reinstated, if at all, upon the
delivery by the applicable Seller of the Northlake Put Notice or the
Riverport Put Notice. Upon three (3) business days' request, provided that
the relevant Put Notice has not been previously tendered, Buyer covenants
to execute and deliver any document prepared at the applicable Seller's
expense (in recordable form if required) which acknowledges that Buyer has
relinquished all rights to purchase the relevant Property.
23. EXECUTION. The parties hereto agree that this Second Amendment
shall be valid and binding when executed and exchanged by telecopier
provided that the parties shall promptly thereafter exchange original
execution copies of this Second Amendment.
LIST OF EXHIBITS
Exhibit I - Intentionally omitted
Exhibit II - Intentionally omitted
Exhibit III - Bulk Sale Properties Subject to Phase II Studies
Exhibit IV - Leasing Brokerage Obligations of Buyer
Exhibit V - Approved Leases Executed on and after January 8, 2001
Exhibit VI - List of Permitted Exceptions
Exhibit VII - Form of Ground Lease Estoppel Certificates for the
Riverport and Northlake Properties
Exhibit VIII - Form of Tenant Estoppel Certificate
Exhibit IX - Form of Subordination, Nondisturbance and
Attornment Agreement
Exhibit X - Amended and Restated Exhibit A to the P&S Agreement
Exhibit XI - Amended and Restated Exhibit H to the P&S Agreement
Exhibit XII - Amended and Restated Exhibit T to the P&S Agreement
IN WITNESS WHEREOF, the parties have executed this Second Amendment
as of the date first above written.
BUYER:
XXXXXXXX MANAGEMENT CORPORATION
By:
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Name:
------------------------------
Title:
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BSRT:
BANYAN STRATEGIC REALTY TRUST
By:
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Name:
------------------------------
Title:
------------------------------
SELLERS:
ALL SELLERS AS DEFINED ABOVE
By:
------------------------------
Name:
Title:
Of the applicable Seller or the
managing member or general partner
or corporate trustee of the
applicable Seller
ESCROW AGENT:
COMMONWEALTH LAND TITLE INSURANCE COMPANY
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
