MASTER AMENDMENT TO PURCHASE AND SALE AGREEMENTS
This Master Amendment to Purchase and Sale Agreements (the "Master
Amendment") is hereby entered into as of the 28th day of September, 2001 by and
among PAVILLION PARTNERS, LTD. ("Pavillion"), TANGLEWOOD ASSOCIATES LIMITED
PARTNERSHIP ("Tanglewood") and WINDSOR PARTNERS LIMITED PARTNERSHIP ("Windsor"),
each a Texas limited partnership, having an office c/o Berkshire Realty
Holdings, L.P., 5720 LBJ Freeway, Suite 480, Dallas, TX 76240, Attention: Eric
A. Calub, Telecopier No. 972-991-4557 (Pavillion, Tanglewood and Windsor being
referred to herein, collectively, as the "Seller"), and THE LARAMAR GROUP,
L.L.C., an Illinois limited liability company (formerly known as Alexon
Ventures, L.L.C., an Illinois limited liability company), with an address of 222
South Riverside Plaza, Suite 1450, Chicago, Illinois 60606, Attention: David B.
Levin, Telecopier No. 312-669-1300 (the "Buyer").
REFERENCE is made to three certain Purchase and Sale Agreements each dated
as of August 27, 2001, one by and between Pavillion and Buyer with respect to
the Pavillion Apartments located at 2922 Belt Line Road, Garland, Texas (the
"Pavillion Property") (the "Pavillion Agreement"), one by and between Tanglewood
and Buyer with respect to the Tanglewood Apartments located at 2804 Belt Line
Road, Garland, Texas (the "Tanglewood Property") (the "Tanglewood Agreement"),
and one by and between Windsor and Buyer with respect to the Windsor Apartments
located at 2811 North Shiloh Road, Garland, Texas (the "Windsor Property") (the
"Windsor Agreement"). The Pavillion Property, the Tanglewood Property and the
Windsor Property are referred to herein, collectively, as the "Properties". The
Pavillion Agreement, the Tanglewood Agreement and the Windsor Agreement are
referred to herein, collectively, as the "Agreements".
WHEREAS, capitalized terms used herein and not otherwise defined shall have
the meanings set forth in the Agreements; and
WHEREAS, Seller and Buyer have agreed to modify certain of the terms and
provisions of the Agreements as provided in this Master Amendment.
NOW THEREFORE, in consideration of the mutual agreements contained herein
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, Seller and Buyer hereby agree as follows.
1. Limited Extension of Inspection Period and Buyer Termination Right.
Buyer and Seller acknowledge that the Inspection Period has expired as of 5:00
p.m. EST on the date of this Master Amendment, and, except pursuant to the
limited circumstances set forth in this Section 1, Buyer has waived and shall
have no further right to terminate the Agreements under Section 6.2 thereof. In
accordance with the foregoing, Buyer and Seller hereby agree that Buyer may
terminate the Agreements on or before 5:00 p.m. EST on the dates set forth below
and only for the reasons hereinafter provided.
(a) October 5, 2001 (the "Financing Deadline") provided Buyer has not
secured a mortgage loan commitment to finance the acquisition of the Properties;
(b) October 5, 2001 (the "Foundation Violation Deadline") provided Seller
has not cured or provided Buyer reasonable assurances that Seller will cure the
outstanding municipal ordinance violation relative to the building foundation at
the Pavillion Property (the parties acknowledging that the Seller has no
obligation to cure this violation);
(c) October 5, 2001 (the "Title Matters Deadline") provided that those
title exceptions listed as items 9 f,j,k,p,q, or t on Schedule B of Lawyers
Title Insurance Corporation Commitment for Title Insurance GF No. LTIC-01-2846
(Revision No. 0) with an effective date of August 23, 2001 (a copy of which is
attached hereto as Exhibit A) are not removed by the Title Insurer as exceptions
to Buyer's Title Policy or the Title Insurer is unable or unwilling to
affirmatively insure over such exceptions to the reasonable satisfaction of
Buyer and such exceptions are unacceptable to Buyer on such date;
(d) October 5, 2001 (the "Prior Survey Matters Deadline") provided that (i)
encroachments shown on the Prior Surveys are not removed by the Title Insurer as
exceptions to Buyer's Title Policy and (ii) the Title Insurer is unable or
unwilling to affirmatively insure over such encroachments at standard rates to
the reasonable satisfaction of Buyer;
(e) October 12, 2001 (the "Parking Matters Deadline") provided that (i) the
aggregate number of parking spaces at the Properties is in violation of the
zoning ordinance of the City of Garland, Texas and there is insufficient space
at the Properties to cure such violation, and (ii) the Title Insurer is unable
or unwilling to issue a zoning endorsement at standard rates to Buyer's Title
Policy without exception for such violation or to affirmatively insure over such
violation to the reasonable satisfaction of Buyer; and
(f) October 22, 2001 (the "Survey Matters Deadline") provided that (i) the
New Surveys contain New Survey Matters which materially deviate from the Prior
Survey Matters shown on the Prior Surveys, and (ii) the Title Insurer is unable
or unwilling to affirmatively insure over such New Survey Matters to the
reasonable satisfaction of Buyer.
If Buyer elects not to terminate the Agreements for the foregoing reasons prior
to (i) the Financing Deadline, (ii) the Foundation Violation Deadline, (iii) the
Title Matters Deadline, (iv) the Prior Survey Matters Deadline, (v) the Parking
Matters Deadline, or (v) the Survey Matters Deadline, as the case may be, the
contingency provided for in Section 6.2 of the Agreements, as amended by this
Master Amendment, shall no longer be applicable, Buyer shall be deemed to have
waived any right to terminate hereunder and the Agreements shall continue in
full force and effect. In the event Buyer timely elects to terminate the
Agreements as permitted above, Buyer shall deliver to Seller with Buyer's notice
of termination true, accurate and complete copies of all studies, surveys,
plans, investigations and reports obtained by or prepared by Buyer in connection
with Buyer's inspection of the Property at no cost to Seller.
2. Extension of Closing Date. The definition of the term "Original Closing
Date" set forth in Section 3 of the Agreements is hereby amended by deleting
"October 27, 2001" from said definition and inserting in its place "November 12,
2001".
3. Counterparts, Etc. This Master Amendment shall not be effective unless
and until execution and delivery thereof by both Seller and Buyer. This Master
Amendment may be
executed in counterparts, each of which shall be an original and all of which,
when taken together, shall constitute one agreement. Executed copies of this
Master Amendment may be delivered by facsimile.
4. Ratification. In all other respects, Seller and Buyer hereby reaffirm
all of the covenants, agreements, terms, conditions, and other provisions of the
Agreements except as modified hereby, and the Agreements are hereby incorporated
in full herein by reference.
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IN WITNESS WHEREOF, Seller and Buyer have executed this Master Amendment as
a sealed instrument as of the date first written above.
SELLER:
WITNESS:
PAVILLION PARTNERS, LTD., a Texas limited
partnership
By: Westcop Corporation, a Texas
corporation, its General Partner
By:
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Name:
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Title:
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WITNESS:
TANGLEWOOD ASSOCIATES LIMITED
PARTNERSHIP, a Texas limited partnership
By: The Krupp Company Limited Partnership-III,
Massachusetts limited partnership, its
General Partner
By: The Krupp Corporation, a Massachusetts
corporation, its General Partner
By:
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Name:
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Title:
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WITNESS:
WINDSOR PARTNERS LIMITED PARTNERSHIP, a
Texas limited partnership
By: ST Windsor Corporation, a Texas corporation,
its General Partner
By:
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Name:
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Title:
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BUYER:
WITNESS:
THE LARAMAR GROUP, L.L.C., an Illinois limited
liability company (formerly known as Alexon
Ventures, L.L.C., an Illinois limited liability
company)
By:
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Name:
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Title:
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