EXHIBIT 10-F
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(J-XI)
FIRST AMENDMENT TO PURCHASE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
(Park Center Plaza, San Jose, California)
THIS FIRST AMENDMENT TO PURCHASE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS (this "First Amendment"), is made as of February 10, 1998, by
and between JMB/SAN ▇▇▇▇ ASSOCIATES, an Illinois general partnership
("Seller"), and DIVCO WEST PROPERTIES, LLC, a Delaware limited liability
company ("Buyer"), with reference to the following facts:
Seller and Buyer entered into that certain Purchase Agreement and
Joint Escrow Instructions, dated as of December 3, 1997 (the "Purchase
Agreement"). Each capitalized term used in this First Amendment, but not
defined herein, shall have the meaning ascribed to it in the Purchase
Agreement.
Seller and Buyer desire to amend the Purchase Agreement as set forth
in the First Amendment.
NOW, THEREFORE, the parties agree as follows:
Purchase Price.
Price Reduction. Paragraph 2A of the Purchase Agreement is hereby
deleted in its entirety and the following Paragraph 2A is hereby inserted
in the place thereof: "The purchase price (the "Purchase Price") for the
Property shall be the sum of Seventy-Six Million One Hundred Ninety-Five
Thousand Dollars ($76,195,000.00)." Seller and Buyer hereby agree that the
reduction to the Purchase Price represented by the foregoing has been
agreed upon based on discussions by Seller and Buyer of Buyer's due
diligence examinations, reviews and inspections and Buyer acknowledges that
such adjustment appropriately and adequately takes such due diligence
matters into account (including, without limitation, all roof, plaza
basement pumping system and other physical matters, all environmental
matters and all financial matters relating to such due diligence reviews).
Environmental Matters. Without limitation on the foregoing matters, Buyer
acknowledges that a portion of the foregoing Purchase Price reduction
related to the alleged presence of Hazardous Material in groundwater at the
Property and the alleged non-compliance with permitting requirements
related to the discharge of pumped groundwater from the Property.
Notwithstanding any other provision of the Purchase Agreement to the
contrary, Buyer waives any and all rights it has or may have against Seller
(including, without limitation, contribution rights under CERCLA) with
respect to any Hazardous Material in groundwater at or from the Property,
or with respect to any non-compliance with permitting requirements related
to the discharge of pumped groundwater from the Property. At Closing,
Buyer shall obtain from Zurich American/Steadfast Insurance Company the
environmental liability insurance policy described in those certain letters
dated January 23, 1998, and February 10, 1998, attached hereto as Schedule
"I", such policy to have a liability limit of not less than $5,000,000, a
deductible not to exceed $250,000, a term of not less than 10 years and an
endorsement in favor of Seller. In the event that Buyer obtains such
policy, Seller shall provide Buyer with a proration credit at Closing in an
amount equal to the sum of Ten Thousand Dollars ($10,000). However, in the
event Buyer fails to obtain such policy within sixty (60) days after the
Closing, Buyer shall immediately refund to Seller the sum of Two Hundred
and Fifty-Five Thousand Dollars ($255,000).
Additional Escrow Deposit. The parties hereto agree that Buyer shall
deliver the Additional Escrow Deposit to Escrow Holder within two (2)
business days following the complete execution and delivery of this First
Amendment. Notwithstanding anything to the contrary contained in the
Purchase Agreement, the Additional Escrow Deposit shall not be an uncashed
check of Buyer but shall be made by bank or cashier's check drawn on a
major national money center banking institution (or by other delivery of
good funds reasonably acceptable to Seller), the proceeds of which shall be
held by Escrow Holder as part of the Escrow Deposit under the Purchase
Agreement.
Satisfaction of Certain Conditions.
A. Due Diligence Period. Buyer hereby acknowledges that the Due
Diligence Period has expired and that condition precedent set forth in
Paragraph 4B of the Purchase Agreement has been satisfied or waived.
Without limitation thereon, Buyer hereby acknowledges that Buyer has
approved all title and survey matters and waives the provisions of
Paragraph 4A(1) of the Purchase Agreement.
B. Estoppel Certificates. Buyer hereby acknowledges that Buyer
has received, reviewed and approved all Tenant Estoppel Certificates
delivered to Buyer and that the condition set forth in Paragraph 4C of the
Purchase Agreement is deemed satisfied. Without limitation thereon, Buyer
acknowledges that the Stephenz Group estoppel contains certain claims
related to proposed amendments which Buyer elected not to approve and, as a
result, Seller has not executed (and Buyer agrees to acquire the Property
subject to such claims, and releases Seller from any liability or
obligation to Buyer or its successor and assigns in connection therewith).
Buyer further acknowledges that no Seller's Estoppel shall be required at
closing under the Purchase Agreement.
Closing Date and Procedure. Notwithstanding anything to the contrary
provided in the Purchase Agreement, including, without limitation, the
provisions of Paragraph 5 thereof, the "Closing Date" shall mean
February 24, 1998. Notwithstanding the Escrow closing provisions of the
Purchase Agreement, Buyer hereby acknowledges that Seller shall have the
right, upon not less than three (3) business days' prior written notice, to
require that the closing of the purchase and sale transactions occur at a
closing conference to be held on the Closing Date at the offices of Buyer's
counsel, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
Heritage Bank Lease. Buyer hereby acknowledges that Buyer has
approved the Heritage Bank of Commerce lease pursuant to that certain Lease
Agreement dated November 18, 1997. In that connection, Buyer shall pay all
third party leasing commissions (including those payable to ▇▇▇▇▇▇▇) not to
exceed the sum of Forty-Two Thousand Five Hundred Dollars ($42,500.00) and
third party tenant improvements costs with respect to such extension
agreement. Buyer further agrees that the rent commencement date may be
extended for up to two (2) months after the original date specified in such
extension agreement.
Termination of Parking Lease. Seller covenants and agrees to
terminate effective as of the Closing that certain parking agreement dated
as of October 23, 1986 between Seller and Standard Parking Corporation, a
California corporation, as amended by those certain amendments dated as of
March 17, 1987, December 27, 1991, August 17, 1995 and April 3, 1996.
Miscellaneous. Seller hereby approves an assignment of the Purchase
Agreement (as amended hereby) to Park Center Plaza, LLC, a Delaware limited
liability company formed by Buyer (the "Buyer Entity"), provided (i) such
assignment shall be effective only at Closing, and (ii) Buyer Entity
assumes the obligations of Buyer under the Purchase Agreement (as amended
hereby). References in the Purchase Agreement to Seller being a "limited"
partnership are hereby amended to reflect that Seller is a "general"
partnership. The Exhibits attached hereto as Schedule "II" represent the
final Exhibits to be attached to the Purchase Agreement (provided, however,
Buyer acknowledges that such Exhibits are hereby supplemented by matters
disclosed in the Tenant Estoppel Certificates delivered to Buyer prior to
the date hereof).
No Other Amendment; Conflict. Except as set forth in this First
Amendment, the provisions of the Purchase Agreement shall be, and remain,
in full force and effect (such Purchase Agreement being hereby ratified and
confirmed by the parties hereto notwithstanding any prior termination
thereof). If any provision of this First Amendment conflicts with any
provision of the Purchase Agreement, then the provisions of this First
Amendment shall prevail.
Counterparts. This First Amendment may be signed in multiple
counterparts (including facsimile counterparts) which, when signed by all
parties, shall constitute a binding agreement.
IN WITNESS WHEREOF, the parties have executed this First Amendment as
of the date first written above.
BUYER:
DIVCO WEST PROPERTIES, LLC,
a Delaware limited liability company
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Member
SELLER:
JMB/SAN ▇▇▇▇ ASSOCIATES,
an Illinois limited partnership
By: JMB Income Properties, Ltd.-XI,
an Illinois general partnership,
General Partner
By: JMB Realty Corporation,
a Delaware corporation,
General Partner
By:
Its:
By: JMB Income Properties, Ltd.-XII,
an Illinois general partnership,
General Partner
By: JMB Realty Corporation,
a Delaware corporation,
General Partner
By:
Its:
Schedule "I"
to first amendment to purchase agreement
and joint escrow instructions"
See Attached
Schedule "II"
to first amendment to purchase agreement
and joint escrow instructions"
See Attached