EXHIBIT 10.20
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THIRD 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 May 11, 2001
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THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT
AND
ESCROW AGREEMENT
This Third Amendment (this "Third Amendment") to Purchase and Sale
Agreement made this 11th day of May, 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"), Commonwealth Land Title Insurance
Company, a Pennsylvania corporation (hereinafter referred to as "Escrow
Agent") 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 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") and that certain
Second Amendment to the Purchase and Sale Agreement and Escrow Agreement
dated April 9, 2001 (the "Second Amendment"); and
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Sellers, BSRT, Buyer and Escrow Agent desire to further amend the P&S
Agreement, as amended by the First Amendment and the Second 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. Any capitalized term used but not defined in this
Third Amendment shall have that meaning ascribed to it in the Contract or
the Escrow Agreement (as the case may be).
2. XXXXXXXX LOAN. Notwithstanding anything in the Contract to the
contrary, on the New Closing Date, BSRT shall lend to Xxxxxx X. Xxxxxxxx
("Xxxxxxxx") the principal amount of one million five hundred thousand
($1,500,000.00) dollars. Such loan (the "Xxxxxxxx Loan") shall be
evidenced by a promissory note (the "Xxxxxxxx Note") made by Xxxxxxxx in
favor of BSRT in the form attached hereto as Exhibit A. The Xxxxxxxx Note
shall be unsecured. Payments of accrued interest only shall be due and
payable monthly on the same day of the month as the day of the New Closing
Date. The Xxxxxxxx Note shall be delivered by Buyer to Sellers on the New
Closing Date in lieu of cash otherwise due.
3. XX XX LOAN. Notwithstanding anything in the Contract to the
contrary, on the New Closing Date, BSRT shall lend to XX XX LLC, a New
Jersey limited liability company ("XX XX") the principal amount of one
million five hundred thousand ($1,500,000.00) dollars. Such loan (the
"XX XX Loan") shall be evidenced by a promissory note (the "XX XX Note")
made by XX XX in favor of BSRT in the form attached hereto as Exhibit A.
The XX XX Note shall be unsecured. Payments of accrued interest only shall
be due and payable monthly on the same day of the month as the day of the
New Closing Date. The XX XX Note shall be delivered by Buyer to Sellers on
the New Closing Date in lieu of cash otherwise due.
4. SUBSECTION 8.3 AMENDMENT. The sixth sentence of Subsection 8.3
of the P&S Agreement is hereby stricken and replaced with the following:
"At the Closing, the costs incurred by any Seller in connection with
a new Tenant Lease (i.e., a Tenant Lease executed on or after the date of
this Agreement) for brokerage commissions and work allowances shall be
allocated between such Seller and Buyer, with Buyer responsible for an
amount equal to a fraction thereof whose numerator is the number of days in
the term of the new Tenant Lease (excluding any unexercised renewal terms)
from and after the Closing and whose denominator is the number of days in
the term of such new Tenant Lease (excluding any unexercised terms);
provided, however, that the total credit available to Sellers pursuant to
this sentence shall be reduced by the sum of two hundred thousand
($200,000.00) dollars."
5. XXXXXX XXXXXXX. Notwithstanding anything to the contrary set
forth in the Contract, on the New Closing Date, BSRT shall give Buyer a
credit in an amount equal to forty one thousand seven hundred forty three
($41,743) dollars representing amounts owed to Xxxxxx Xxxxxxx for certain
tenant improvements.
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6. BSRT CREDITS. Notwithstanding anything to the contrary set
forth in the Contract, on the New Closing Date, the Buyer shall give BSRT
a credit in the amount equal to all accrued base rent payable under that
certain Standard Office Lease dated August 14, 1997 by and between AG 97
A.B., L.L.C., a Georgia limited liability company, and Home Wireless
Networks, Inc. for the Property known as Avalon Center (3135 Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx, Xxxxxxx) for the period from April 1, 2001 through the
New Closing Date and nine thousand ($9,000) dollars representing a
reimbursement of certain legal fees payable by BSRT to Xxxxxx Xxxxxxxxx
Xxxxxx & Xxxxxx.
7. BOARD OF TRUSTEES APPROVAL. BSRT hereby represents and
warrants that its Board of Trustees has approved this Third Amendment on
May 10, 2001.
8. EXECUTION. The parties hereto agree that this Third 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 Third Amendment.
9. CONSIDERATION. Each of Xxxxxxxx and XX XX acknowledge that
they have a financial interest in the entities that will be acquiring the
Properties and there is adequate consideration for the credit herein
extended. XX XX further represents and warrants that the execution and
delivery of the XX XX Note will not contravene any other agreement to which
XX XX is a party or is bound.
10. SCHEDULED NEW CLOSING DATE. The parties agree that the
scheduled New Closing Date is May 17, 2001.
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IN WITNESS WHEREOF, the parties have executed this Third Amendment as
of the date first above written.
BUYER:
XXXXXXXX MANAGEMENT CORPORATION
By:
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Name:
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Title:
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XX XX LLC
By:
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Xxxxxx Xxxxxxxx, Manager
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Xxxxxx Xxxxxxxx, in his individual
capacity
BANYAN STRATEGIC REALTY TRUST
By:
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Name:
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Title:
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SELLERS:
ALL SELLERS AS DEFINED ABOVE
By:
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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:
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Name:
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Title:
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