EXHIBIT 10.18
-------------
============================================================
FIRST AMENDMENT
to
PURCHASE AND SALE AGREEMENT
and
ESCROW AGREEMENT
by and among
The Sellers Defined Herein,
Banyan Strategic Realty Trust
and
Xxxxxxxx Management Corporation
Dated March 28, 2001
============================================================
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
AND ESCROW AGREEMENT
This First Amendment to Purchase and Sale Agreement and Escrow
Agreement made this 28th day of March, 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").
Sellers, BSRT and Buyer executed and delivered (i) a Purchase and
Sale Agreement dated January 8, 2001 (the "Contract") for the purchase and
sale of thirty (30) Properties as defined in the Contract; and (ii) an
Escrow Agreement (to which Commonwealth Land Title Insurance Company
("Escrowee") is also a party) dated January 8, 2001 (the "Escrow
Agreement"); and
Sellers, BSRT, Buyer and Escrowee desire to amend the Contract and
the Escrow Agreement on the terms and conditions hereof; and
Capitalized terms used but not defined herein shall have the same
meanings as ascribed to such terms in the Contract and the Escrow
Agreement.
1
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 as follows:
1. AMENDMENT.
a. SECTION 3.3 - Section 3.3 of the Contract is deleted in
its entirety, and the following is inserted in its place:
"If, on or before April 9, 2001, Buyer shall
give written notice to Sellers that Buyer is dissatisfied with the result
of Buyer's investigation with respect to the Properties or the operation
thereof, for any reason, then this Agreement shall thereupon terminate, and
except as otherwise provided herein, neither Sellers nor Buyer shall have
any further liability or obligation to the other hereunder, but Buyer shall
be entitled to a return of a portion of the Downpayment equal to $1,250,000
(plus all interest on the Downpayment) and BSRT shall be entitled to a
portion of the Downpayment equal to $250,000. The earlier to occur of (a)
the date Buyer waives in writing its right pursuant to this Section 3.3, or
(b) April 9, 2001 (assuming Buyer does not exercise its option pursuant to
this Section 3.3) shall be hereinafter referred to as the "Due Diligence
Date." Buyer shall be responsible for all expenses incurred by Buyer in
connection with its investigation of the Properties except as set forth in
Sections 5.5, 18.5 and 19.2 hereof. Prior to the Due Diligence Date, if
Buyer has not terminated this Agreement, Buyer shall notify Sellers which
Properties Buyer intends to acquire subject to the applicable Existing
Indebtedness."
b. ESCROW AGREEMENT - The first sentence in paragraph 4 of
the Escrow Agreement is hereby deleted and the following is inserted in its
place:
"If the Purchase Agreement is terminated in
accordance with Section 3.3 thereof, $250,000 of the Downpayment shall be
paid to BSRT and the remainder (and all interest earned thereon) shall be
paid to Buyer."
2. BOARD OF TRUSTEES APPROVAL. BSRT hereby represents and
warrants that its Board of Trustees has approved this First Amendment on
March 28, 2001.
3. REAFFIRMATION. In all other respects, Sellers, BSRT, Buyer and
Escrowee reaffirm, readopt and ratify the Contract and the Escrow
Agreement.
2
IN WITNESS WHEREOF, the parties have executed this First Amendment as
of the date first above written.
BUYER:
Xxxxxxxx Management Corporation
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
BSRT:
BANYAN STRATEGIC REALTY TRUST
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
SELLERS:
ALL SELLERS AS DEFINED ABOVE
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
Of each of the Sellers and on
behalf of each of the Sellers
ESCROWEE:
COMMONWEALTH LAND TITLE INSURANCE
COMPANY
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
3
