EXHIBIT NO. 10.140
FIRST AMENDMENT TO AGREEMENT OF PURCHASE AND SALE
CIELO CENTER, AUSTIN, TEXAS
This FIRST AMENDMENT TO AGREEMENT OF PURCHASE AND SALE (this "Amendment") is
entered into as of March 12, 1998, by and between JMB Group Trust III, an
Illinois common law group trust ("Seller"), and Xxxx-Xxxx Realty Acquisition
Corp., a Delaware
corporation ("Purchaser").
RECITALS
E. Seller and Purchaser entered into that certain Agreement of Purchase and
Sale dated January 29, 1998 (the "Purchase Agreement") with respect to certain
real property commonly known as Cielo Center.
F. The Purchase Agreement was terminated February 26, 1998.
G. Seller and Purchaser desire to amend the Purchase Agreement to (i)
reinstate the Purchase Agreement, (ii) reflect changes desired as a result of
the delayed delivery of the Updated Survey, (iii) allocate responsibility for
certain outstanding tenant improvement obligations and (iv) address such other
matters as are set forth in this Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Seller and Purchaser hereby agree as follows:
1. Definitions. All capitalized terms used in this
Amendment but not defined herein shall have the meanings assigned
to them in the Purchase Agreement.
2. Reinstatement of Purchase Agreement. Notwithstanding the termination of
the Purchase Agreement on February 26, 1998, by Purchaser, Purchaser and Seller
hereby agree that the Purchase Agreement is reinstated and is in full force and
effect, as amended by this Amendment.
3. Purchase Price. The Purchase Price shall be Thirty-Seven Million and
no/100 Dollars ($37,000,000.00).
4. Closing Date.
(a) The Closing Date shall be March 12, 1998, unless it is
extended in accordance with this Section 4.
(b) If the Updated Survey has not been received by Purchaser
by 5:00 p.m. C.S.T. on March 9, 1998, the Closing Date shall be extended one
business day for each business day of delay of such receipt beyond March 9,
1998; provided, however, that if Purchaser makes any objections to the
Updated Survey in accordance with the Purchase Agreement and Section 5 of
this Amendment, the Closing Date shall be further extended until such
objections have been cured unless Seller elects not to cure such objections.
If Seller elects not to cure such objections, Purchaser shall have the
remedies set forth in Section 5 of this Amendment.
(c) Nothing in this Section 4 shall limit Purchaser's rights
as set forth in Section 5 below.
5. Updated Survey.
(a) The Due Diligence Period is hereby extended to 5:00 p.m.
C.S.T. on the date that is three business days after the receipt by
Purchaser of the Updated Survey. During the extension period granted
hereunder, Purchaser's right to conduct Due Diligence shall be limited to
reviewing and making objections to the Updated Survey in accordance with the
Purchase Agreement and this Section 5; provided, however, that nothing in
this Amendment shall limit Purchaser's rights and remedies under Section 3.3
of the Purchase Agreement with respect to Seller's obligation to provide an
updated Title Commitment that satisfies all of the objections made to the
Title Commitment during the Title Review Period.
(b) If Purchaser has not received the Updated Survey by 5:00
p.m. C.S.T. on March 31, 1998, Purchaser may elect to terminate the Purchase
Agreement, in which event neither party shall have any further obligations
to the other party except for the Surviving Obligations.
(c) If Purchaser makes any objections to the Updated Survey
(with respect to matters not shown on the Existing Survey) during the Due
Diligence Period, as extended by this Amendment, and the objections have not
been cured by Seller on or before the Closing Date, Purchaser may waive such
objections
and consummate the transaction contemplated by the Purchase Agreement, as
amended hereby, or may terminate the Purchase Agreement, in which event
neither party shall have any further obligations to the other party except
for the Surviving Obligations.
(d) Exhibit C to the Purchase Agreement shall be deleted in
its entirety and replaced with the following:
The Updated Survey shall be a Category 1A, Condition II, Texas
Land Title Survey as defined by the Manual of Practice for
Land Surveying in the State of Texas published by the Texas
Society of Professional Surveyors and shall additionally
include a vicinity map, the flood zone designation,
identification of setback and height restrictions of record or
disclosed by applicable zoning ordinance, the exterior
dimensions of all buildings at ground level, the number of all
parking spaces (both regular and handicapped) and the striping
of all parking spaces in the surface parking lot, and the
location of all visible utilities serving the Property.
(e) Exhibit D to the Purchase Agreement shall be deleted in
its entirety and replaced with the following:
The Updated Survey shall have (i) the original signature and
original seal of the surveyor and (ii) a certification, in a
form reasonably satisfactory to Purchaser, to Xxxx-Xxxx Realty
Acquisition Corp. and its successors and assigns, Xxxx-Xxxx
Texas Property L.P., JMB Group Trust III, Near North National
Title Corporation, and First American Title Insurance Company.
6. Tenant Improvement Obligations.
(a) The IT Corporation TI Obligation (as defined below) shall
be withheld from the Purchase Price at Closing unless Seller provides
evidence satisfactory to Purchaser that the IT Corporation TI Obligation has
been paid prior to Closing. If the IT Corporation TI Obligation is withheld
from the Purchase Price at Closing, Purchaser shall assume the obligation
for payment of the IT Corporation TI Obligation. For purposes of this
Amendment, "IT Corporation TI Obligation" means the obligation of the
landlord under the Office Lease between IT Corporation and JMB Group Trust
III, dated March 8,
1991, as amended, to pay IT Corporation $35,945.58 for recarpetting and
repainting, less the $4,112.00 expended by Seller, for the benefit of IT
Corporation, on work done to comply with the Americans with Disabilities
Act.
(b) The Tejas Securities TI Obligation (as defined below)
shall not be paid by Seller prior to Closing or withheld from the Purchase
Price at Closing but shall become the obligation of Purchaser upon Closing.
For purposes of this Amendment, "Tejas Securities TI Obligation" means the
obligation of the landlord under the Office Lease between Tejas Securities
Group, Inc. ("Tejas") and JMB Group Trust III, dated April 24, 1995, as
amended, to pay Tejas $12,996.00 for tenant improvements.
7. Assignment. The last sentence of Section 16 of the
Purchase Agreement shall be deleted in its entirety and replaced
with the following:
Seller's consent to any such assignment shall be conditioned
upon Seller's receipt of the following not less than one (1)
business day prior to the Closing Date: (i) a duly executed
express assumption of all of the duties and obligations of
Purchaser by the proposed assignee in the form of Exhibit B-1
attached hereto, and (ii) an ERISA certificate, in the form
attached hereto as Exhibit B and the content of which is
satisfactory to Seller.
8. 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. This Amendment shall be legally binding
upon receipt by each party of the facsimile or the original signature of the
other party.
9. No Further Amendment. Except as amended by this
Amendment, all terms of the Purchase Agreement remain in full
force and effect.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, Seller and Purchaser have caused this Amendment to be
duly executed as of the date first set forth above.
JMB GROUP TRUST III, an Illinois
common law group trust
By:
Xxxxxxx Capital Management
Corporation, its attorney-in-fact
By:
Name:
Title:
XXXX-XXXX REALTY ACQUISITION CORP., a
Delaware corporation
By:
Name:
Title:
