EXHIBIT 2.4
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ARVIDA/JMB PARTNERS, L.P.-II
a Delaware limited partnership
c/o JMB Realty
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
May 20, 1997
Starwood/Talega Associates, L.L.C.
a Delaware limited liability company
c/o Starwood Capital Group, L.L.C.
Three Pickwick Plaza
Suite 250
Greenwich, Connecticut 06830
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Re: Agreement for Purchase and Sale of Real Property and Escrow
Instructions by and between Arvida/JMB Partners, L.P.-II, a Delaware
limited partnership ("Seller") and Starwood/Talega Associates, L.L.C., a
Delaware limited liability company ("Buyer"), dated October 25, 1996, as
amended (the "Agreement")
Ladies and Gentlemen:
Reference is made to the Agreement, under which by letter of April
30, 1997 (the "Default Declaration"), Seller declared Buyer in default.
Buyer has denied any default. For good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Buyer and Seller
hereby agree that the Agreement is ratified and amended as set forth below,
and all prior amendments to the Agreement, other than Paragraphs 8, 10, 11,
12, 13, 14 and 15 of the letter agreement between Seller and Buyer dated
March 18, 1997, are declared null and void and superseded hereby. All
capitalized terms which are used but not defined herein have the meanings
ascribed to such terms in the Agreement.
1. Section 2.04 of the Agreement is amended by deleting the text
thereof in its entirety and substituting the following in its place:
The purchase price to be paid by Buyer for the
Property shall be the sum of Thirty-One Million One Hundred Thousand and
No/100
Dollars ($31,100,000.00) ("Purchase Price"), as
hereinafter provided.
2. Section 2.05(a) of the Agreement is amended by deleting the
text thereof in its entirety and substituting the following in its place:
Buyer has tendered the sum of One Million and
No/100 Dollars ($1,000,000.00) (the "Deposit") to First American Title
Insurance Company, ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Escrow Holder").
By execution of this Letter Agreement, Seller and Buyer hereby (a) agree
that the Deposit, together with all interest accrued thereon, has been and
is fully earned by Seller, subject only to return to Escrow Holder in the
event or the occurrence, after the date of this Letter Agreement and prior
to Closing, of either (i) default by Seller pursuant to the Agreement as
amended by this Letter Agreement, or (ii) failure of a condition set forth
in Section 2.03 (a), (b) or (c) of the Agreement as amended by this Letter
Agreement, and (b) irrevocably instruct Escrow Holder, forthwith upon
receipt of a copy, or counterparts, of this Letter Agreement executed by
Seller and Buyer, to disburse the Deposit, together with all interest
accrued thereon through the date of such disbursement, by wire transfer to
Seller's mortgage lender's account in accordance with the following wire
instructions:
Bank of America Illinois
ABA Routing #▇▇▇-▇▇▇▇-▇▇
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▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Reference: Ban Control Account #36-20239
Arvida/Talega Sale
to be received by Seller's mortgage lender not later than 12:01 p.m.,
Central Standard Time, on May 21, 1997 (with respect to which time is of
the essence), in consideration of Seller's (a) waiver of Buyer's default as
set forth in the Default Declaration and (b) agreement herein to reinstate
the Agreement; and said sum is now and hereafter at all times will be
deemed fully earned by, and the separate property of Seller, the receipt
and sufficiency of which consideration Buyer hereby acknowledges; and Buyer
hereby waives and disclaims any right, now or hereafter, to claim against
or seek refund of the Deposit and accrued interest, whether pursuant to the
terms of or under the Agreement, as amended, or otherwise, other than as a
result of the occurrence, after the date of this Letter
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Agreement and prior to Closing, of (i) default by Seller pursuant to the
Agreement as amended by this Letter Agreement, or (ii) failure of a
condition set forth in Section 2.03 (a), (b) or (c) of the Agreement as
amended by this Letter Agreement. Notwithstanding the foregoing, if Escrow
Holder requires any additional instructions or evidence of authority to
disburse and wire the Deposit and accrued interest to Seller's mortgage
lender (which instructions Seller and Buyer intend hereby to waive), Buyer
agrees immediately upon request of Escrow Holder or Seller to satisfy such
additional requirements. The terms of this Letter Agreement, other than
the foregoing invocable instructions to Escrow Holder, will not be
effective or enforceable by Buyer against Seller until said sum has been
paid in full to and received by Seller as provided in this Paragraph 2.
3. Section 2.05(b) of the Agreement is amended by deleting the
text thereof in its entirety and substituting the following in its place:
"The sum of Thirty Million One Hundred Thousand Dollars ($31,100,000.00),
less the amount disbursed by Escrow Holder to Seller pursuant to Letter
Agreement between Seller and Buyer dated May 21, 1997, will be paid on the
Closing Date by wire transfer to Escrow Holder for deposit in escrow"; and
Section 2.05(c) is deleted in its entirety.
4. Section 2.06 of the Agreement is amended by deleting the first
clause of the second sentence thereof and substitution in its place:
"Brokerage Commissions in the amount of Two Hundred Thirty Three Thousand
Two Hundred Fifty Dollars ($233,250.00) ("Brokerage Commissions") shall be
payable to each of ▇'▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Company and The Overland Company by
Escrow Holder from proceeds due Seller at Closing, if any, hereunder, and
from no other source, in accordance with Section 4.08(f) of this
Agreement..."
5. Section 4.05 of the Agreement is amended by deleting the text
thereof in its entirety and inserting the following in its place: "The
consummation of the transactions contemplated by this Agreement will take
place at the office of Escrow Holder on May 30, 1997, time being of the
essence with respect thereto; and if Buyer fails to close on or before May
30, 1997, for any reason other than the occurrence after May 21, 1997, of
either (a) a default by Seller, or (b) the failure of a condition set forth
in Section 2.03(a)-(c) of the Agreement, as amended by the Letter Agreement
between Seller and Buyer dated May 21, 1997, this Agreement will be null
and void and neither party will have any further rights or obligations
hereunder, except with respect to the indemnity set forth in the last two
sentences of Section 3.05."
6. Seller acknowledges that the condition to Seller's obligations
pursuant to the Agreement set forth in Section 2.02(a) thereof has been
satisfied subject only to performance by the District of its agreements
with Seller pursuant to the Compromise Settlement and Mutual Release
Agreement between Seller and the District, a copy of which is attached
hereto as Exhibit A: and the condition to Seller's obligations pursuant to
the Agreement set forth in Section 2.02(b) thereof has been satisfied.
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7. Sections 2.03(d) and (f) of the Agreement are deleted in their
entirety.
8. Sections 3.03, 3.04, 3.05 (except the last two sentences
thereof), 3.06 and 3.07 of the Agreement are deleted in their entirety.
Buyer acknowledges that all conditions and obligations of Seller for which
provision is made in Article III of the Agreement, including without
limitation all preclosing obligations of Seller pursuant to Section 3.01
and 3.02 (but excluding Seller's obligation to pay any unpaid amounts due
for the Title Report, Title Commitment or Survey), have been fully and
timely performed and satisfied, and Buyer waives and disclaims any right to
terminate, or avoid performance of Buyer's obligations pursuant to, the
Agreement pursuant to the provisions of said Article III.
Buyer accepts the physical condition and legal status (including under all
planning, building, zoning, environmental land use and other applicable
laws, ordinances and regulations) of the Property existing as of the
effective date of this Letter Agreement.
9. Section 4.07 or the Agreement is amended by deleting the first
two sentences thereof and substituting the following their place: "On or
prior to the Closing Date Buyer shall deposit with Escrow Holder the
balance of the Purchase Price due at Closing in accordance with Section
2.05(b)."
10. Buyer waives any right to assert, or to make claim against
Seller with respect to any misrepresentation or breach of as warranty or
covenant of Seller based upon, related to or arising our of the provisions
of Section 5.01 or 6.01 of the Agreement based upon facts or circumstances
of which Buyer has or has had actual knowledge on or before the effective
date of this Letter Agreement, and Buyer acknowledges and agrees that to
Buyer's Knowledge Seller has timely complied with all of its covenants and
agreements set forth in the Agreement and all Seller Axillary documents to
the effective date of this Letter Agreement. Further, the last sentence of
Section 5.01 is amended to add "▇▇▇▇ ▇▇▇▇▇▇▇" after "▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and
S. ▇▇▇▇ ▇▇▇▇▇▇▇▇."
11. Section 7.01 of the Agreement is deleted. Seller agrees that
payment of the Deposit, and interest accrued thereon to Seller pursuant to
Paragraph 2 of this Letter Agreement constitutes full settlement of all
obligations of Buyer to Seller in the event that Buyer fails to close
pursuant to the Agreement.
12. The provisions of Section 8.02 of the Agreement are
incorporated herein by reference and applicable hereto as if set forth
herein in full.
13. Notwithstanding the provisions of Section 8.14 of the
Agreement, simultaneously with Closing Buyer may assign the Agreement to
the person or entity to whom or which title is conveyed at Closing,
provided that Buyer will remain liable for all obligations "Buyer" under
the Agreement.
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14. Except as amended and modified hereby, the Agreement is
ratified and affirmed and remains in good standing and in full force and
effect.
Please acknowledge your consent to the foregoing amendments by
executing this Letter Agreement in the space provided below and delivering
the executed counterpart to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ at the Seller's address
set forth above, and to Escrow Holder at its address set forth in Section
2.05(a) of the Agreement, on or before 12:01 p.m., Central Standard Time,
on May 21, 1997, as to which time is of the essence; and if an executed
counterpart has not theretofore been received, and/or if Seller has not
received the Deposit and accrued interest as set forth in Paragraph 2
above, this Letter Agreement will be null and void and the settlement offer
which is evidenced hereby automatically will be withdrawn. This Letter
Agreement is delivered to you incident to and in furtherance of pending
settlement discussions with respect to the dispute between Seller and Buyer
concerning the rights and obligations, is any, of Seller and Buyer pursuant
to the Agreement; and unless and until Seller has received a counterpart
copy of this Letter Agreement fully executed by Buyer, and the Deposit and
interest accrued thereon have been paid to and received by Seller as set
forth in Paragraph 2 of this Letter Agreement, this Letter Agreement will
not be effective, neither Buyer nor Brokers will not have any rights or
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claims pursuant to this Letter Agreement, and the existence or terms hereof
will not be used by or admissible in evidence against Seller in any
litigation or dispute concerning the Agreement.
ARVIDA/JMB PARTNERS, L.P.-II, a
Delaware limited partnership
By: Arvida/JMB Managers-II Inc., a
Delaware corporation,
its General Partner
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Its: Vice President
ACCEPTED and AGREED to this
__________ day of May, 1997
STARWOOD/TALEGA ASSOCIATES L.L.C.,
a Connecticut limited liability company
By: Starwood Opportunity Fund IV, L.P. a
Delaware limited partnership
By: SOFI IV Management, L.L.C., a
Connecticut limited liability company
By: Starwood Capital Group, L.L.C.,
a Connecticut limited liability
company
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
Its: Senior Vice President
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